GARCIA v. THE STATE OF NEW YORK, #2004-016-015 , Claim No. 99807
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Brown & Gropper, LLPBy: Joshua Gropper, Esq.
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, Esq., AAG
March 22, 2004
See also (multicaptioned
This is the decision following the trial of the damages portion of the claim of
Miguel Garcia, which arose from his November 17, 1997 fall from a ladder while
painting the outside of a group home operated in Queens County by the State
Office of Mental Retardation and Developmental Disabilities. Mr. Garcia
testified that he was up on a ladder with a paintbrush in one hand and a paint
can in the other when the ladder
"was going towards the right side. I was holding onto the ladder hoping
it would break the fall. When I saw it was not going to happen, I extended my
hands out. . . And that's when I fell."
The Decision and Order dated July 2, 2002 granted claimant's motion for summary
judgment on liability under subdivision one of §240 of the Labor Law. Such
a determination, while grounded on elevation-related risks, does not depend upon
a particular height or elevation. It has not been established how far Garcia
fell; there were no witnesses, and
while defendant approached the issue indirectly by asking claimant about the
length of the ladder, the matter was not sufficiently developed.
Garcia was taken to the emergency facility of Elmhurst Hospital Center where he
was evaluated and x-rayed. He complained of pain in the right wrist, palm and
shoulder, and reported that he did not lose consciousness.
(Cl exh 10, second unnumbered page). The examining physician at Elmhurst Center
noted a "[right] hand injury" after the fall and "[no] other apparent injuries
The X-rays taken were evaluated
as follows by the radiologist: "no gross evidence of fracture, dislocation or
other significant abnormality."
testified that a cast was fitted on his right wrist which he wore for ten days;
however, the Hospital records contain handwritten references to the use of a
splint, not a cast.
In the late afternoon of the same day, Garcia was discharged from Elmhurst
Center. On the discharge form, Dr. Carl Goodman wrote that claimant could
return to work within three to five days. T
he hospital scheduled an appointment for him a few days later on November 21 at
its Hand Clinic. The notes in the Clinic's records for that appointment and a
second one a few weeks later describe Garcia's right hand as tender, but that
its sensation was normal as were the X-rays therefor (see footnote
Mr. Garcia testified that he was next treated with electrical stimulation and
heat compression by Dr. Noel Smith, who also performed a nerve conduction test.
Mr. Garcia recalled having about three appointments with Dr. Smith, but could
not provide dates of treatment, and produced no records of the appointments.
Smith did not testify at trial.
Mr. Garcia began seeing Dr. Gideon Hedrych on
March 11, 1998 at his offices located at 240 East 69th Street (cl exh 2A). Dr.
Hedrych described himself as a trauma specialist, board certified in emergency
medicine. Four months after the subject injury, Dr. Hedrych recorded a broader
range of complaints from claimant than he had reported at the emergency room,
adding the following: right front headaches with occasional blurred vision and
bouts of vertigo; "severe troublesome" cervical pain radiating to the right
shoulder and arm; low back pain; right anterior thoracic pain; and
Over the next month, Garcia saw doctors in three
different specialities at that same East Side
Referred by Dr. Hedrych, the doctors
addressed their reports back to him:
- on March 16, 1998, Mr. Garcia was
given a neurological examination by Dr. Xiao-Ke Gao, the first of a dozen such
appointments through July 31, 2000, with the last of these consults by Dr.
Suellen Levy (cl exh 2C);
- on March 17, 1998, claimant was evaluated by
Dr. Ofra Blonder, whose speciality is physical medicine and rehabilitation; 16
more appointments occurred, with the final one on March 10, 2001 (cl exh 2D);
- on April 1, 1998, claimant was evaluated by Dr. Louis Rose, an
orthopedic surgeon, with 14 more appointments through November 8, 2000 (cl exh
The neurological records contain frequent references to tenderness, an
apparently subjective-based complaint, but, in any event, neither Dr. Gao nor
Dr. Levy testified to explain.
Similarly, the basis of the following by Dr. Hedrych and its relation to
Garcia's complaints, was not developed: "Sensory examination showed decreased
sensation in the C5 to C8 dermatomes of the right upper extremities and in the
L4 to S1 dermatomes of the right lower extremities." (Cl exh 2C, from the April
13, 1998 consult and repeated in some form through a number of subsequent
May 12, 2000, Dr. Levy administered an examination described by Dr. Hedrych as
an electromyogram nerve conduction velocity study to test the integrity of the
nerves in the lower extremities. Dr. Levy concluded that test results were
"consistent with L4-L5 lumbar radiculopathy" (cl exh 9). Hedrych, who
maintained that the patient had no control over the test, responded
affirmatively to the question whether such is consistent with the neurologist's
"initial findings . . . regarding the sensitivity of the dermatomes," as well as
to diminished reflexes. What the relationship of the "sensitivity of the
dermatomes" is to pain, potential loss of function, responses to medication,
physical therapy and middle and long-term prospects was not developed so as to
be digestible by the trier of fact.
Dr. Gao's earlier consults noted that she was awaiting approval for an MRI of
the cervical and lumbar spine. Eventually authorized, the results thereof
were reported in her October 4, 1999 consult as follows: "An MRI of the lumbar
spine showed disc bulging at L4-L5 and L5-S1 levels" (cl exh 2C). However, Dr.
Hedrych testified that there was no disk herniation, nor nerve impingement
Dr. Hedrych's April 6, 1998 consult indicates that he requested an MRI of the
right wrist, which was ultimately taken on April 10, 1999 by radiologist
Jeffrey Lang, who concluded that there was a tear of the "triangular
fibrocartilage" (cl exh 3).
On August 5, 1999, at the Westchester Square
Garcia's right wrist was
arthroscopically examined and the wrist was debrided by Dr. Albert Graziosa, who
was assisted by Dr. Rose. The operative findings were that the "wrist was found
to glide smoothly over the distal radius. There was no further evidence of
impingement." (Cl exh 4). Dr. Rose's notes from his October 13, 1999
examination provided that the wrist is "well-healed" (cl exh 2B). From an
objective vantage, no other problem with the wrist was evident.
Garcia was back at the Westchester Square Medical Center over a year later on
December 21, 2000 for
what was initially described as exploratory arthroscopy by Dr. Rose. A tear in
the rotator cuff was noted, an acromioplasty performed, and a "minimal amount"
of some degenerative tissue was debrided. The post-surgical notes describe the
space between the cuff and the acromium as "copious" (cl exh 4). Morever,
consider Dr. Blonder's evaluation nine months prior to the surgery to the effect
that the "right shoulder showed full range of motion with only minimal
tenderness . . ." (Cl exh 2D, March 11, 2000).
At trial, Mr. Garcia said his complaints had not changed for two years from
when he was first treated by Dr. Hedrych (March, 1998), even though he had
immediately begun a course of physical therapy three to four times a week for
twelve weeks, some level of which continued at least through the fall of 2000
, the October 7, 2000 consult). Claimant testified that while his
right shoulder had improved, "[I] can't lift my shoulder so high." He said he
had "constant, sharp, shooting" pain in his shoulder.
asked how his back felt at trial, claimant responded that he felt numb on the
right side down the right leg and could not sit, stand or walk for "too long."
Garcia also testified that his right wrist bothered him at that time, with
"stuff falling out of my hand."
Dr. Leon Sultan, a board certified orthopedic surgeon, examined Mr. Garcia on
behalf of the defendant on July 28, 2003, and I found his crisp testimony to be
highly credible (see
1:90). Dr. Sultan found normal alignment of the head, neck and
shoulders and no tenderness or spasm of the neck or shoulder muscles. The range
of motion for claimant's head and neck was within normal limits.
Upon inspection of the right shoulder, while there was a slight prominence of
the outer end of the clavicle
, there was no disuse atrophy, nor any atrophy in the shoulder pad muscle.
According to Dr. Sultan, claimant's range of motion of the right shoulder, both
flexion and abduction, were within the full normal limits and similar findings
were made on the opposite shoulder. Internal and external rotation were normal
on both sides. Dr. Sultan found no shoulder impingement. The reflexes of the
upper extremity were symmetrical on both sides, although Dr. Sultan found them
dull, but explained that such is a variation of normal. There was no sensory
impairment in the upper extremities.
Dr. Sultan found the spine to be normally aligned with no muscle spasm in the
lumbar area, nor any inflammation or tenderness of the sacroiliac joints.
Garcia could stand on his knees and toes without difficulty, demonstrating lower
leg motor power. He could bend all the way over and rotate and tilt his trunk
within normal ranges.
The standard test revealed no nerve root or sciatic nerve impingement in the
lumbar area. Claimant's knee and ankle reflexes were symmetrical, but dull,
which as noted falls within the normal variation. There was no abnormality in
the spinal cord or brain. The lower extremities had no sensory impairment, nor
did claimant have any motor impairment or problem with his hips or sacroiliac
joints. Measuring both thighs and calves showed no atrophy, and the same
conclusion was drawn for the forearms and upper arms. In short, Dr. Sultan
found no clinical signs of joint, muscle or neurological impairment that would
impact the subject's muscle development or use.
Dr. Sultan concluded that Mr. Garcia's physical condition, from both an
orthopedic and orthopedic neurological point of view, was sound. Dr. Sultan
described the results of the right shoulder arthroscopic surgery as a "very fine
the doctor observed no clicking or hesitation. Claimant's right elbow and wrist
moved normally and symmetrically with the left side. No tenderness was found in
the right wrist; as to grip strength, Garcia could squeeze tightly with his
right hand. Dr. Sultan testified that claimant's right wrist had an excellent
recovery to full functioning.
The objective medical conditions in this case have been repaired and healed.
With regard to Garcia's subjective complaints, proof here must be established by
a fair preponderance of the credible evidence. For claimant to prevail on the
claim or an issue therein, the evidence supporting it must, to the trier of
fact, more nearly represent what took place than the evidence opposed to it; if
the two sides are equally balanced, claimant cannot prevail. See
§§ 1:23 & 1:60. Claimant's case was vigorously
presented, but it was not, in the disputed areas of this matter, persuasive.
I do not find that claimant has met this burden on his subjective complaints of
pain. Claimant's shifting lists of complaints were not credibly connected to
the medical evidence. Garcia is not currently under treatment by a physician;
he has not gone to physical therapy since some time in late 2000. To this
trier of fact, Garcia came across as over-reaching when he testified that he was
in pain while being interviewed by Joseph Pessalano, defendant's vocational
rehabilitation specialist, who administered no tests, either physical or mental,
to claimant. Further, Garcia was unable or unwilling to explain the
documentation supplied by Geneva Temp, which undercut his credibility (page 2 of
cl exh 13, see below).
On past pain and suffering, the wrist surgery was performed on August 5,
and healed by
October 13, 1999. Garcia's shoulder surgery was performed
on December 21, 2000, although Dr. Blonder's consult months before that surgery
evaluated it as having a "full range of motion with only minimal
The activities of daily living
which Garcia testified he had done before his injury were playing basketball and
working out at a gym, including lifting weights. Described by Dr. Hedrych
as well-nourished and well-developed when initially seen four months after
the accident, claimant was 6 feet 2 inches tall and weighed 185 pounds when the
EMG test was administered to him on May 12, 2000 (cl exh 9). Garcia testified
at trial that he lost 20 to 25 pounds, which he attributed to this loss of
exercise and depression, although he never saw a health care professional in
that field or took anti-depressant therefor.
I find that f
or such past pain and suffering, claimant was damaged in the amount of $50,000.
Since he underwent his surgeries several years prior to trial and I find no
credible sequelae, future pain and suffering does not obtain.
At the time of the accident, Garcia was working out of the Geneva Employment
Agency, a temporary employment agency for construction work known as Geneva
Temp. Claimant had been painting the group home in Queens for a few days and
had been with Geneva for two weeks at the time (see cl exh 13, signed by
claimant November 4, 1997). Garcia had no specific trade; he was assigned to
paint on this last project, but at one job Geneva sent him to be an elevator
operator and at another, a bricklayer - - in each case for about a week.
Garcia, 25 years of age at the time of the accident, described his work history
prior to Geneva Temp
as follows: "I've worked at a flower shop. I've worked as a stock boy, pizza
man, security guard, painter." Claimant had no records, log or, for that
matter, witnesses attesting to his work history and earnings. Garcia's
testimony on the subject was vague; for example, he had indicated that for the
week he was a painter referred by Geneva Temp, his rate of a pay was $12 an
hour. When asked how much he made as an elevator operator, he could not recall.
Garcia testified in this damages trial on August 12, 2003; he was afforded the
opportunity to obtain any records on his employment by September 16, the third
and last day of trial. The only thing offered then were two faxed pages from
Geneva Temp (
), the first page of which was the agency's "Contract &
Agreement" with claimant.
The second page contains a few notes on different jobs Geneva sent him out on,
but does not include the group home he was painting or the elevator-operator
job. Gross earnings for one job was listed at $112 and at $60 for another.
Claimant agreed that the rate of pay for the two was $11 and $6 an hour,
though from the evidence, he seems mistaken: the figures of $11 and $6
represents one-tenth of the gross in each case, and the $11 is entered near the
account listing for the fee paid to Geneva Temp.
Furthermore, on the stub for $60 is the entry "Did Not Get Paid Walked Off
Job." When claimant retook the stand on September 16, he strongly denied the
validity of the entry, with
"if I walked off . . . one job, why would they assign me to another job
and to another job and to another job?" On the stub for the job that grossed
$112 was written "Quit" to which Garcia riposted that it was only a one-day job
Claimant stated that once he had his accident, he had not looked
for work since.
With regard to the ability to work and the loss of wages, each side put on the
stand an expert in vocational rehabilitation: Edmond Provder on behalf of
claimant, and for defendant, the aforementioned Mr. Pessalano. Given my
conclusion as to the arthroscopic amelioration of claimant's objective problems,
for employment purposes, Garcia was significantly improved by the aforementioned
October 13, 1999 consult date following the wrist surgery. (The shoulder
arthroscopy was performed December 21, 2000, but see above for Dr. Blonder's
evaluation of the shoulder nine months earlier). I shall therefore consider his
period of loss to be two years even, from late 1997 to late 1999. Obviously,
there are no damages for future wage losses.
What would claimant have earned for that two-year period had he not suffered
his accident? Garcia testified that he had not worked for three months before
he was a painter, which must have referred to his affiliation with Geneva Temp -
- and even the two weeks with Geneva were spotty. Thus, it not unreasonable to
assume that Garcia was off for a total of six months in the
two years, which means that he would have been employed, or lost employment,
for 78 weeks. Accepting Garcia's testimony that he worked Monday through Friday
from 8 a.m. to 4 p.m. (no lunch time will be deducted) at the hourly rate of $12
yields: 78 weeks times 40 hours per week times $12 per hour, or $37,440 for
past wage loss.
The total damages are the sum of $50,000 for past pain and suffering; $37,440
for past wage loss and $36,359 for past medical damages, the latter having been
stipulated to, or a total of $123,799. The Clerk of the Court is directed to
enter judgment in favor of Miguel Garcia in the amount of $123,799, with
interest from July 2, 2002, the date of the Decision and Order on liability in
March 22, 2004
HON. ALAN C. MARIN
Judge of the Court of Claims
, fourth unnumbered page; "11:15
am" is entered on the top of the page.
The sixth unnumbered page of claimant's
exhibit 10; Dr. Masood Nejatheim's name is on the bottom of the page.
The ninth and tenth unnumbered pages
of claimant's exhibit 10, from claimant's November 21 and December 5, 1997
appointments at the Hand Clinic.
Dr. Hedrych's practice is named Park Avenue
Trauma Associates; the practice of Drs. Gao, Blonder, Rose and Levy is
Mid-Manhattan Medical, P.C. Radiologist Jeffrey Lang (see below) of East Side
Imaging, described by Dr. Hedrych as a member of his group, also works out of
240 East 69th Street.
Its New York City facility, located in Bronx
Claimant's exhibit 2D, March 11, 2000, in
which claimant's condition was better than that reported on March 10, 2001,
which indicated greater tenderness.