was injured on June 4, 1999, in an
automobile accident on the New York State Thruway. The State was found liable
for the accident, as decided by the Court on a summary judgment
This decision addresses damages
In 1997, claimant retired, after 38 years, from the Erie County Highway
Department. To supplement his pension, claimant worked part-time at a Target
store, as a stock clerk, beginning in November 1998. In April 1999, claimant
took another part-time job with West Herr Ford, delivering vehicles. He was
completing a job assignment for West Herr Ford, returning to Buffalo from Mohawk
Valley, when he was injured.
The car claimant was driving, when injured, was struck by a vehicle owned by
the New York State Thruway Authority and driven by an employee. Claimant's
vehicle hit the median, rolled over a couple of times, and after the vehicle
came to rest, he was able to extricate himself from the car. He recalls being
shaky and disoriented, his hands were cut and bloody, and his left arm and
shoulder hurt. He was transported to Crouse Hospital in Syracuse by ambulance
where he had x-rays, was bandaged and released. Mrs. Hoffman and their son went
to the hospital and drove claimant home to Buffalo.
On June 7, 1999, claimant went to his family doctor complaining of pain in his
left shoulder, elbow and neck area. He was referred to Andrew Matteliano, M.D.,
a specialist in physical medicine and rehabilitation. Dr. Matteliano diagnosed
ulnar nerve damage in claimant's left elbow area as well as injury to his left
arm and shoulder. He prescribed physical therapy and a muscle relaxant.
Claimant was unable to return to either of his jobs.
Claimant continued treating with Dr. Matteliano throughout 1999, regularly
complaining of left shoulder pain, limited range of motion, numbness in his left
small finger, and neck pain. Claimant could not sleep well because of the pain.
He was sent for an MRI and continued physical therapy.
In November 1999, Dr. Matteliano released claimant to return to work at West
Herr Ford, transporting vehicles. He prescribed Ambien to help him sleep. At
his December 16, 1999 visit to Dr. Matteliano, claimant complained of pain in
his neck and left shoulder as well as numbness down his left arm when driving.
Dr. Matteliano prescribed Naprosyn and continued the Ambien. Claimant's
symptoms continued, and in January 2000 he was referred to Dr. A. Marc Tetro, an
Dr. Tetro noted the
claimant's continuing complaints and ordered a new MRI with a higher intensity
to rule out the presence of a rotator cuff tear. Based upon claimant's
complaints, range of motion, x-rays and electro-diagnostic studies, Dr. Tetro
diagnosed a rotator cuff injury and ulnar nerve damage. To try to alleviate
claimant's symptoms, Dr. Tetro injected claimant's shoulder with a
corticosteroid. He also requested approval from the Workers' Compensation Board
for surgery, a left ulnar nerve neurolysis. Claimant continued physical therapy
and did exercises for his shoulder at home.
On March 28, 2000, claimant saw his family doctor for his annual physical, at
which time he complained of swelling in his groin area. He was referred to Dr.
Ralabate, a surgeon, who performed an excisional biopsy to rule out lymphoma.
Claimant testified that the possible cancer diagnosis scared him, and it was
months later that he learned there was no malignancy. His family doctor
attributed the reactive lymphoadenopathy to claimant's automobile accident,
specifically caused by his seatbelt.
In June 2000, claimant was again seen by Dr. Tetro who noted that the
continuing physical therapy offered no improvement in claimant's condition. The
corticosteroid injection gave him temporary, short term relief. The high
intensity MRI showed a partial rotator cuff tear. The doctor made another
request for Workers' Compensation authorization for ulnar nerve surgery, and
based upon the MRI findings, he also requested authorization for arthroscopic
shoulder surgery. These requests were repeated in August 2000. The
authorization was given and claimant underwent shoulder surgery on November 20,
2000. After the surgery claimant was, again, totally disabled and ended his
employment with West Herr Ford. He also continued his medication and physical
therapy three times per week. Claimant continued to see Dr. Matteliano
After the November surgery, although claimant's ulnar nerve symptoms improved,
he still suffered significant shoulder discomfort. Dr. Tetro sent claimant to a
different physical therapist with a practice specializing in shoulder injuries
in March 2001. There was some improvement in claimant's shoulder through April,
at which time he reached a plateau despite the prior surgery. Dr. Tetro
suspected claimant was still symptomatic due to the partial rotator cuff tear
which might require open surgical repair; however, Dr. Tetro did not pursue
additional surgery at that time. Claimant returned to work at West Herr Ford in
June 2001. Claimant continued to have pain in his shoulder, numbness in his
little finger and problems sleeping. From July 2001 to November 2001, Workers'
Compensation discontinued claimant's physical therapy authorizations.
By November 2001, Dr. Tetro noted that claimant's symptoms were worsening. He
spoke with claimant about surgical repair of his rotator cuff which often
results in improvement. Dr. Tetro requested authorization from the Workers'
Compensation Board for the additional shoulder surgery to repair the rotator
cuff. Claimant stopped working at West Herr Ford because driving caused him
Claimant had the second surgery in February 2002, which reattached the tendon
to the bone. Again, physical therapy was prescribed which included aquatic
therapy. Claimant's condition continued to improve through August, at which
point, it was Dr. Tetro's opinion, no further significant improvements would be
made. In October 2002, Dr. Tetro referred claimant to Dr. Peer for pain
management. After a couple of injections of Bupivacaine with Depo-Medrol, Dr.
Peer felt there was nothing more he could do to assist claimant with the
persistent pain. By July 2003, Dr. Tetro concluded claimant's shoulder had
reached maximum recovery and improvement, and claimant will likely continue to
suffer ongoing pain and discomfort. Dr. Tetro also opined that claimant will
need surgery on his ulnar nerve, and will continue to have limited strength and
range of motion in his left shoulder, and will be unable to return to work. He
will require continuing medications. All of this is causally related to the
accident, as claimant had no prior health problems.
Claimant testified that his daily activities are now restricted. Before the
accident he performed virtually all of the household repairs and maintenance, as
well as vehicle repair and maintenance. Prior to the accident, claimant enjoyed
boating with his wife and owned a boat. He can no longer enjoy boating and has
his boat for sale. His ability to play with his grandchildren is now also
limited. He now takes Celexa to help with depression that has resulted from his
pain and limitations.
Mrs. Hoffman said her husband is frustrated with his limitations. He was a
workaholic who kept busy. Their relationship has suffered as a result of the
pain and frustration. She spends more time away from the home and their
intimate relations have also suffered significantly.
Claimant bears the burden to prove the damages sustained. It is intended that
an award of damages should compensate the party for actual sustained losses as
well as items of damage that will be incurred in the future (PJI3d 2:277
The evidence establishes that claimant has received
of which $50,000 was paid by
Workers' Compensation in lieu of no-fault benefits and is, therefore,
unrecoverable in this action. Claimant is entitled to recover $4,476.95 in past
medical and/or lost wages. The Court also finds that Workers' Compensation did
not pay for lost wages from West Herr Ford Inc., after November 2001.
Before the accident, claimant was working approximately 15 hours per week at
West Herr Ford. After the accident, although still employed, he was unable to
work consistently or for as many hours. In 2001, claimant earned $6 per hour at
West Herr Ford. If not for the accident, claimant would have earned $8,901 for
the period from November 2001 until trial ($6 x 15 x 4.3 x 23 months). Claimant
did earn $216
which must be deducted, leaving
claimant's lost wages award from West Herr Ford, Inc., of $8,685.
For future medical expenses, the proof establishes claimant's need for surgery
on his ulnar nerve along with follow-up care and the Court awards $8,000 for
those expenses. He will also require medical monitoring which will cost about
$40 per visit. The Court finds he should be seen four times per year. Based
upon the PJI, claimant's life expectancy is 18 years. This results in an
award for medical monitoring, during the course of claimant's life, of $2,880.
Claimant also seeks an award for water therapy; however, the proof did not
support such an allowance. Claimant will require continued medication for the
pain and depression. The costs for these prescriptions are $232.27 per month,
and when calculated for claimant's life expectancy (12 x 18 x $232.27) amounts
to $50,170.32. Claimant's future medical award is $61,050.32.
In addition to future medical expenses, claimant may also recover for future
loss of income (Keleher v Fox Ford of Victor, 267 AD2d 646, 648).
Crediting claimant's testimony that he would have continued to work for both
Target and West Herr Ford until age 70, he would have been employed another 7
years and 10 months as of the date of trial. The proof establishes that prior
to the accident in 1999, claimant had worked six months at Target, averaging 21
hours per week and earning $2,614 ($6 per hour). Although claimant testified
without any contradictory evidence that if he had remained employed at Target,
he would be earning $7.50 per hour for 20 hours per week, the Court finds this
increase speculative and awards lost wages at the rate of $6 per hour. This
would calculate out to be $516 per month which for the balance of his working
life would be $48,504 in lost wages. For two months prior to the accident,
claimant was also employed by West Herr Ford, Inc., and earned $750 for 1999.
After the accident, claimant continued to work for West Herr Ford, Inc.,
periodically, earning $6.00 per hour. Accepting claimant's testimony that if
not for his injuries, he still would have been working at least 15 hours per
week at West Herr Ford, Inc., earning at least $6.50 per hour until age 70, he
would have earned $39,409.50 during the remainder of his work life. Therefore,
the Court awards claimant $87,913.50 for future lost wages.
Claimant must also be compensated for his pain and suffering. From the
testimony, claimant has clearly suffered chronic pain, discomfort, numbness, and
difficulty sleeping since the accident. He has been unable to perform his
normal activities and has had to undergo three surgeries. The evidence
establishes that claimant will need another surgery, and for the rest of his
life will have to live with some chronic pain which will likely get worse with
time. He will also have permanent limitations of his range of motion. The
Court awards claimant $75,000 for past pain and suffering and $150,000 for
future pain and suffering.
Mrs. Hoffman also has a loss of consortium and services claim which the
evidence supports. Thus, the Court awards her $15,000 for the past loss of
consortium and $20,000 for the future.
Accordingly, in summary, claimants are awarded: