By decision dated September 24, 2001 this Court dismissed the claim herein
finding that the claimant failed to establish the defendant's liability for
injuries resulting from a slip and fall in the medical unit of the Coxsackie
Correctional Facility in Greene County. In a memorandum and order entered on
October 17, 2002 the Appellate Division, Third Department reversed the Court's
decision, apportioning liability 50% against the defendant and 50% against
claimant. The matter was remitted to this Court and the decision herein results
from a trial on the issue of damages held on July 1, 2003.
The facts of claimant's accident and the basis of the defendant's liability are
set forth in significant detail in the aforementioned decisions and need not be
repeated here except to note that claimant, a certified nurse's aide, fell on a
wet floor while responding to an emergency bell. Liability was predicated upon
the defendant's failure to warn of a dangerous condition.
At trial the parties stipulated that the claimant incurred $5,074.27 in medical
bills which were paid by a workers' compensation carrier subject to a lien on
file. They further stipulated that claimant suffered a loss of wages for 2.8
weeks calculated as $866.25 (2.8 weeks x 37.5 hours x $8.25 per hour).
Claimant, a 50 year old female, was called as the first witness and testified
that she had been employed as a certified nurse's aide at the Coxsackie Regional
Medical Unit for 1 1/3
years prior to her accident on March 9, 1999. She related that on that day at
approximately 10:00 a.m. she was crossing a lounge in response to an emergency
bell when her feet went out from under her and she fell. She placed both hands
out as she fell and felt pain in her right wrist and hip. A correction officer
assisted claimant into a chair and ice was applied to her wrist. Claimant went
to the X-ray department of the facility and films taken there of her wrist and
ankle were negative. She thereafter returned to work in the facility's medical
unit with her wrist wrapped in an ace bandage. She testified that her wrist
continued to ache and her hand appeared to turn blue. After leaving work
claimant's daughter took her to Columbia Memorial Hospital Emergency Room where
she was treated and released. At Columbia she provided the X-rays of her wrist
and ankle which had been taken earlier that day at the correctional facility.
The films were reviewed by the physician on-site who confirmed the earlier
negative findings (see
, Claimant's Exhibit 4). A splint was applied to
claimant's right wrist, a brace was applied to her left ankle and she was given
crutches to use for a two week period. She visited Dr. Sundaram who referred her
to Dr. DiGiovanni, an orthopedic surgeon. Claimant was examined at her first
visit with Dr. DiGiovanni 2 ½ weeks post-accident and given a prescription
for pain killers.
Claimant testified that on her second visit with Dr. DiGiovanni he referred her
to Dr. French who prescribed a different pain reliever. She saw Dr. DiGiovanni
several times during the six weeks immediately following her accident and during
one of those visits was referred to a podiatrist (Dr. Page) who prescribed
orthotics for both her shoes.
Claimant was also given a prescription for physical therapy and attended Five
Mile Woods Road Physical Therapy two to three times per week for two to three
weeks. Her therapy centered on her right hand [
] and her left foot [sic
] and included hydrotank therapy and
exercises for her foot [sic
] and her wrist and hand. She received 17
treatments over a four month period from April to August
The claimant testified that she used a cane full time and that she sometimes
also used crutches. She alleged that her use of the cane continued for
approximately one year on a daily basis.
Claimant offered into evidence various hospital/medical records, a video and
transcription of a deposition of claimant's treating orthopedic surgeon (Louis
DiGiovanni, MD) and an earnings statement with cover letter from Correctional
Medical Services. With the exception of a two page unsworn letter of Dr. Page
(identified as Claimant's Exhibit 6) the proffered Exhibits 1, 4 and 7 were
received in evidence.
The witness further testified that following her accident she continued to be
employed at Coxsackie Correctional Facility through December 1999. While so
employed she allegedly wore the wrist and ankle brace and experienced continued
pain particularly in wet weather. She alleged that she experienced no
improvement of her right wrist prior to December 1999 and that she continued use
of the ankle brace until sometime after December 1999. She reportedly visited
Dr. DiGiovanni again for pain in March and April of 2000 and alleged that she
continues to experience pain, sometimes requiring use of a cane. Claimant
testified that she did not return to work at Coxsackie after December 1999 and
that she was hospitalized for mental illness on some unspecified date.
On cross-examination claimant acknowledged that X-rays of her injuries
sustained on March 9, 1999 were negative, i.e., no fracture of either her wrist
or ankle. She admitted that she did not use a cane while at work since canes
are not allowed within the correctional facility. She generally worked a 7
½ hour day without the aid and assistance of a cane, much of that time
being required to walk and carry various items. She alleged that she left her
employment at Coxsackie on a voluntary basis in December 1999.
The witness conceded that she sustained a hairline fracture to her right wrist
in 1994 for which she was treated by Dr. DiGiovanni. She also admitted that she
re-injured both her right wrist and her left ankle when she fell on ice in
December 2002 and again in a similar fall on ice in January 2003. Claimant
confirmed that she was discharged from physical therapy in June 1999 before
exhausting all allowed physical therapy treatments. She concluded her
cross-examination by reporting that on the date of the subject accident she
remained at work until 2:30 p.m.
Claimant offered the videotape (Exhibit 2) and transcript of Dr. DiGiovanni's
deposition (Exhibit 3) into evidence along with the claimant's earning statement
and the transcript of a deposition of Harry S. Wilson, Jr., a correction
officer at Coxsackie with specific reference to page 9, line 3 through page 12,
line 1. Exhibits 2, 3, 5 and 8 were received without objection. Claimant
rested after requesting the Court take judicial notice of claimant's life
expectancy of 31.7 years as set forth in the Pattern Jury Instructions Table of
The defendant rested without calling any witnesses.
Once the liability of the defendant has been established claimant is entitled
to recover a sum of money which in the fact finder's determination justly and
fairly compensates him or her for any injury and conscious pain and suffering to
date caused by the defendant (
, Tate v Colabello
, 58 NY2d 84; PJI 2:280). Where there is any
evidence of permanence or future pain and suffering the fact finder may award
damages for future pain, suffering, disability and loss of ability to enjoy
life taking into account the claimant's life expectancy (see
v City of Syracuse
, 216 AD2d 864; PJI 2:281). Claimant may also recover
such sums as he or she expended for medical expenses resulting from the accident
and is entitled to be reimbursed for any earnings lost as a result of his or her
injuries caused by the defendant's negligence from the time of the accident to
the date of the Court's decision (see
, PJI 2:285; Schultz v Harrison
Radiator Div. Gen. Motors Corp.
, 90 NY2d 311, and PJI 2:290, Ehrgott v
City of New York
, 96 NY 264).
Based upon the Appellate Division's finding of 50% liability on the part of the
defendant the claimant is entitled to damages for medical expenses in the amount
of $2,537.14 (50% of $5,074.27) and for lost wages in the amount of $433.13 (50%
of $866.25) as stipulated by the parties.
As to damages for pain and suffering, to the extent that Claimant's Exhibit 4
can be deciphered it indicates that claimant's wrist and ankle were found to be
unremarkable upon examination in the Columbia Memorial Hospital Emergency
Department at or about 4:10 p.m. on the afternoon of her fall. Similarly, her
examination by Dr. DiGiovanni on March 31, 1999 revealed "absolutely no
deformity, no swelling, no ecchymosis, no overt signs of injury to either the
right wrist or left ankle." At that time claimant was said to have "full ROM of
the wrist to supination, pronation, flexion and extension . . . On examination
of the left ankle, there is a negative anterior drawer, no ecchymosis, no edema,
no crepitus, no false motion." Dr. DiGiovanni reported his impression of
claimant's injury as "Mild sprain, left ankle, Grade 1. Mild sprain, right
wrist. I do not expect any sequelae or permanency" (Claimant's Exhibit 7). The
notes attendant to claimant's subsequent visits to Dr. DiGiovanni are similarly
remarkable for their lack of subjective findings of injury though replete with
claimant's complaints of pain in varying degrees.
Of particular concern to the Court are the notes generated by claimant's final
visit to Dr. DiGiovanni on May 23, 2000 (Exhibit 7). The doctor recorded
claimant's complaints of pain and alleged limitation of activity including an
alleged inability to walk, stand in the shower, etc. His report contains the
following telling observations:
Dr. DiGiovanni's office notes (Exhibit 7) as well as his examination before
trial testimony (Exhibits 2 and 3) present a difficult situation for the Court
vis-a-vis an award of damages for claimant's injuries to date. Claimant's
sprained ankle kept her out of work for only 2.8 weeks. She offered no
testimony as to how the injury otherwise affected her life except for the
alleged full-time use of a cane, although she admitted on cross-examination that
she did not use a cane during work hours. Accordingly, the Court awards
claimant the sum of $3,000.00 (50% of $6,000) for past pain and suffering.
As to damages for future pain and suffering the trial record contains little
more than a passing reference to the permanency of claimant's ankle injury.
Specifically, in his examination before trial Dr. DiGiovanni testified that he
"followed the New York State Worker's [
] Compensation Medical Guidelines for the exam and determined that she
had a zero percent loss of use of the right arm and a seven and a half percent
loss of use of the left leg secondary to weakness of eversion of the left ankle
, Claimant's Exhibit 3, p 17, lines 11-16). In response to
counsel's inquiry as to whether the loss of use is temporary or permanent Dr.
DiGiovanni testified "[t]hat was felt to be permanent at that point. She had
reached maximum medical improvement, had plateaued and she was over a year post
injury" (Claimant's Exhibit 3, p 17, lines 20-22). Since Dr. DiGiovanni's
testimony stands uncontradicted on the record claimant is entitled to recover an
appropriate sum for a permanent limitation of use determined by the Court to be
$9,510.00 (50% of $19,020) or $300.00 per year for a period of 31.7 years.
No additional award attributable to future pain and suffering is made since no
testimony was presented to demonstrate what if any physical pain and suffering
claimant was likely to endure as a result of the limitation of use of her left
ankle. No award for future pain and suffering is made with regard to the
alleged wrist injury since Dr. DiGiovanni testified that she suffered no loss of
use of the right arm. Claimant offered no evidence at trial related to a hip
injury alleged in the claim and such claim is therefore deemed abandoned.
As set forth above claimant is awarded $2,537.14 for past medical expenses,
$433.13 for past lost wages, $3,000.00 for past pain and suffering and $9,510.00
for future loss of use of claimant's left ankle for 31.7 years plus interest
from the date on which the Appellate Division, Third Department determined
liability to date of entry of final judgment (
, CPLR 5002).
The Clerk shall enter judgment in accord with this decision.