In a Decision dated April 30, 2004 and filed May 5, 2004, this Court determined
that defendant was 100 percent liable for the personal injuries claimant
sustained on November 7, 1999 at Bedford Hills Correctional Facility (Bedford).
This Decision pertains to the issue of damages. By Stipulation, the parties
agreed that the time period considered for any award ended on April 21, 2004
when claimant had a subsequent injury.
On November 7, 1999,
claimant slipped and fell on a puddle of detergent in the laundry area of her
housing unit at Bedford. She testified that, after the fall, she experienced
sharp pain in her arm, shoulder and chest. That evening, she went to the
facility clinic where she was given ice, ibuprofen and Percogesic. Two to three
days later, claimant had an appointment with a doctor who added Tylenol to the
above. This regimen did not relieve the pain. In addition, claimant had
difficulty sleeping because she awakened when she rolled on her
At the time of her fall,
claimant was assigned to work with the Fire and Safety Office, had housing unit
responsibilities and did peer counseling. After the fall, she had difficulty
performing her work duties which included posting signs, carrying hoses, a
30-pound toolbox, and moving and lifting fire extinguishers. She also had
problems completing her housing unit assignments, such as mopping and sweeping.
In addition, after the accident, claimant did less peer counseling because she
was tired, in pain and not as patient.
laimant had no strength in her right hand and could not even carry packages from
the commissary or hold a cup of coffee. She could not lift her arm higher than
her shoulder and this made it difficult to dress
Claimant was treated by Dr. Jonathan Holder, an orthopedic surgeon. He
recommended physical therapy; applying ice, a heating pad and hot water bottle;
taking Celebrex and Ultram; and using a TENS unit. Claimant was issued a permit
for the TENS unit and for a second mattress and cervical roll pillow to keep
pressure off her shoulder. Despite this regimen, claimant continued to have
throbbing pain and sleepless nights.
On December 30, 2003, Dr. Holder performed surgery on
claimant. The stitches were supposed to be removed within seven to ten days.
When they were not and the skin was growing over the wound, claimant removed the
stitches herself. She was kept in a sling for 30 days until her next visit with
Holder. Although Holder recommended that physical therapy be started three days
after the surgery; it did not begin for three months. By that time, claimant
had a frozen shoulder and could not raise her arm.
Claimant testified that she was in the Special Housing Unit (SHU) from April 9,
2004 to August 5, 2004. When she entered SHU, her medical equipment, second
mattress, and all her medications were taken away. After six to eight weeks,
her medications were reissued but Feldene was substituted for Celebrex, and
claimant found it to be less effective. Although the TENS unit was returned
after one month, it lacked batteries and was therefore useless. During this
period, whenever claimant left SHU, she was placed in full restraints which
aggravated her pain.
claimant, the shoulder injury has impacted visitation with her family because
she cannot put her arm around her mother and cannot play with her two teenage
sons. She has been removed from her job at Fire and Safety and has been
assigned as a porter on her housing unit. Although she has a medical limitation
order restricting sweeping, mopping and carrying, she still is required to
perform her job, which includes these activities.
Dr. Jonathan Holder,
claimant's treating physician, testified that he is a board certified orthopedic
surgeon. Holder holds a monthly orthopedic clinic at Bedford and first examined
claimant in September 2000. At that time she had limitation of her range of
motion and her shoulder blade winged away from the chest wall. Based upon this
examination and a review of her films and records, he diagnosed claimant with
scapular muscle weakness evidenced by the shoulder blade not being in the right
position; tendonitis of the rotator cuff and arthritic changes in the
acromioclavicular joint. By explicit references to an MRI taken April 27, 2000
he originally reviewed in 2000 (Ex. A), Holder explained how he reached his
conclusions. He demonstrated the signs of fluid, which was indicative of
tendonitis and the thickening arthritic changes. A second MRI was taken on
December 10, 2002. Although it is not stated in the 2002 MRI report, based on
his personal viewing of the MRI, Holder testified that he saw a partial tear of
the rotator cuff tendon on this film.
By 2002, it was apparent that conservative treatment had failed. C
laimant was not progressing with physical therapy and remained in pain. Holder
recommended arthroscopic surgery to correct what he described as tendonitis with
On December 30, 2003,
claimant underwent surgery under general anesthesia. During this minimally
invasive procedure, Holder removed thickened tissue and shaved the bone, which
had greater than expected arthritic changes. Holder testified that the
procedure was painful. The post operative care called for removal of stitches
one week later, a sling for two weeks, and the commencement of physical
Holder testified that the use of a sling for a month, rather than the
prescribed two weeks, may have slowed
claimant's recovery because muscles and joints should be kept limber. He also
explained that since bleeding occurs after the surgery, the sooner the limbs are
moved, the less likely it is that scar tissue will form.
Holder conceded that
claimant never had a torn rotator cuff. In surgery, he would only have repaired
a partial tear if he deemed it imminent to cause a complete tear. Holder also
noted that claimant had a sloping acromion, a congenial condition which might
have contributed to the impingement in her shoulder. This, however, did not
change his opinion that the fall caused her injury.
Dr. Michael Pierre Rafiy, a board certified orthopedic surgeon, testified on
defendant. Rafiy, who was educated in France, practiced in the United States
from 1961 to 2001. He has since semi-retired and no longer performs
claimant on September 7, 2002 and reviewed her medical records. Like Holder, he
diagnosed her condition as an impingement syndrome of the right shoulder and
arthritic change of the acromioclavicular joint. Rafiy read only the MRI
reports and not the actual films. None of the records indicated a rotator cuff
tear. Rafiy also testified that claimant's acromion sloping was a congenital
condition, but that there was no doubt that the fall had caused aggravation to
claimant's shoulder and that, prior to the fall, she had no problems. The fall
was a significant factor in causing claimant pain.
Rafiy agreed that surgery was indicated and painful. The fact that there was
greater arthritis involved meant that
claimant was in greater pain. He noted that a patient would have greater pain
without her TENS unit and hot water bottle and if she engaged in physical
activity. He had no reason to disagree with Holder's statement that the frozen
shoulder may have been caused by keeping claimant in a sling too long and that a
frozen shoulder was a painful condition which made physical therapy even more
painful. Upon reading the report of the MRI taken April 27, 2000, Rafiy
testified that the "T2 signal intensity in the neck of the glenoid extending to
body of the glenoid fossa suggestive of bony contusion" was caused by the trauma
and indicative of pain (Ex. A, p 270).
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds $95,000 to
be reasonable compensation for claimant's past pain and suffering from November
7, 1999 through April 21, 2004. Interest shall run from April 30, 2004, the
date the liability decision was signed (see Love v State of New
, 78 NY2d 540).
It is further ordered that, to the extent that
claimant has paid a filing fee, it may be recovered pursuant to Court of Claims
LET JUDGMENT BE ENTERED ACCORDINGLY