RECTOR v. THE STATE OF NEW YORK, #2005-015-514, Claim No. 106302
Claimant awarded $350,000 for past pain and suffering and $100,000 for future
pain and suffering plus medical expenses of $15,568.40 for loss of eye due to
violation of Labor Law § 241 (6).
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Silverman, Silverman and Seligman
By: Bendall and Mednick, EsquiresKevin S. Mednick, Esquire, appearing
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
April 22, 2005
See also (multicaptioned
Following a trial on the issue of liability held on January 22, 2004 the Court
determined by decision dated May 26, 2004 that the parties were equally
responsible for the accident which caused the loss of vision in claimant's left
eye. A trial on the issue of damages was conducted on November 22 and 23, 2004
and the decision herein is addressed solely to that issue.
At the time of trial claimant was a 32-year-old unmarried man with no
dependents. He is a high school graduate with one semester of community college
education in construction technology. His work history includes seven years of
maintenance work at Johnstown Knitting Mills where he performed plumbing,
machine work, plowing, mowing, electrical work, carpentry, masonry, chemical
handling and forklift operation. He also spent two seasons working for
Evergreen Landscaping where he supervised other workers, mowed, trimmed and
planted. At the time of his accident claimant was working on a bridge deck for
his employer CFI Construction, Inc. (CFI) at a State-owned park when a
ricocheting nail struck and damaged his eye. In addition to some carpentry work
his duties at CFI involved general construction work including shoveling,
grading, pipe measuring and cutting and some landscape work. Although claimant
alleged that he operated a bucket loader, dump truck, trackhoe and a backhoe
while employed at CFI the company's President Frank Fernandez denied that
Claimant testified that as a result of his accident he suffers a lack of depth
perception which interferes with the operation of construction equipment such as
a truck, roller or other heavy equipment. He further alleged that he has
difficulty accurately measuring and cutting pipe, backing up a motor vehicle,
parallel parking and painting. His injury has reduced the speed at which he
works and allegedly subjected him to criticism by his foreman and Mr. Fernandez
when he returned to work at CFI after his injury.
Claimant also professes a post-accident sensitivity to light which interferes
with driving in bright light, snowy conditions and at night and often results in
headaches for which he takes aspirin. He did not wear eyeglasses or contacts
prior to his accident but now wears glasses. He does not use either
prescription or non-prescription sunglasses even on bright, sunny days.
Prior to his accident claimant was an avid outdoorsman who enjoyed hunting,
fishing and boating. Although he still engages in these activities he alleges
that his level of enjoyment has been greatly reduced as a result of his vision
impairment which affects both his depth perception and peripheral vision.
Claimant's pain was excruciating immediately following the accident. The nail
perforated his cornea and entered the back of the eye causing vitreous fluid
from inside the eye to leak through the tear and run down his face onto his
hands and clothing. Claimant was transported to Great Barrington Hospital in
Massachusetts and then to Albany Medical Center where he underwent surgery to
close the wound. He was hospitalized for approximately 24 hours. Following his
release from the hospital claimant testified that he mostly laid on his couch
and inserted eye drops 6-7 times per day.
Claimant testified that he underwent a second surgical procedure on November
28, 2000 to remove pieces of the nail which remained embedded in his
. The procedure was performed under general anesthesia and he remained
hospitalized for approximately one day.
In mid-January, 2001 claimant returned to work at CFI. He was initially
assigned as a flagman and also participated in building a pump house at Diamond
Point, New York. During the period following his injury and prior to his return
to work claimant was compensated for his lost wages and his medical expenses
were paid by Workers' Compensation.
Claimant testified that following his return to work he experienced difficulty
accurately measuring and cutting pipe due to his loss of vision. He also had
difficulty determining whether stone and dirt used in building athletic fields,
sidewalks, parking lots and driveways at a job in Bainbridge, New York was
level. Claimant also recalled that he was moved from higher paying prevailing
wage jobs to jobs with lower compensation during the post-accident period which
he attributed to work problems stemming from his loss of vision. Claimant was
laid off from his job along with other workers in the Fall of 2001. He
alleges that both his foreman Fred Feurer and the company president Frank
Fernandez made it clear to him that he would not be rehired by CFI. Claimant
collected unemployment benefits during the winter of 2001-2002.
At some unspecified time in 2002 claimant started a plumbing business known as
C & C Sewer & Drain (C & C) with his friend Christopher Frank who
later purchased another plumbing business and left C & C. The claimant
testified that he continues to operate the business and estimated that he works
an average of 8 hours per day with occasional weekend work. According to the
claimant he encounters the same functional difficulties in his plumbing business
that he experienced at CFI post-accident including difficulty measuring and
cutting pipe, tripping on stairs and taking longer to perform required tasks.
He alleged that his vision difficulties often require him to adjust prices on
projects to account for the fact that it will take him longer to complete the
Claimant discussed the possibility of further surgery with his doctors but
decided against it due to the risks involved with anesthesia and the fact that
the results are not guaranteed. Surgery would also involve a loss of work and
suspension of income.
Claimant testified that prior to his injury he aspired to become a crane
operator which could have earned him income in the $40 - $50 per hour range but
that obtaining that goal is now impossible due to his lack of depth perception.
The lack of depth perception also prevents his return to landscaping since that
would involve operating machinery and equipment. Claimant states that he cannot
afford to go back to school and continue to meet his ongoing expenses.
Claimant's individual State and Federal income tax returns for the years 2000
and 2001 (Exhibits 6 and 7) along with a partnership return for C & C Sewer
& Drain for the period June 1, 2002 - December 31, 2002 (Exhibit 8) were
offered and received in evidence. Also received were copies of claimant's
Federal and State income tax returns for 2003 (Exhibit 9).
Claimant offered and the Court received in evidence as Exhibit 1 a photocopy of
his employment record with CFI Construction, Inc. The Court's attention was
directed to a two column entry sheet on which it was noted: "Frank took Chris
off high rate due to low performance. Had to have him keep working now that he
has a loan to pay back - hindsight is everything." The Court was also asked to
note an entry dated 2/28 which indicated "Chris paid off loan" referring to a
$2,000 loan he received from CFI Construction on June 11, 2001.
On cross-examination claimant admitted that several other CFI employees in
addition to himself were laid off on October 28, 2001. He further admitted that
during the Winter of 2001-2002 he informed Lucy Fernandez that he was starting
his own plumbing business and would therefore not be returning to work at CFI.
Claimant clarified his direct testimony to indicate that during his post-injury
employment by CFI he was in fact returned to a high rate job at Potsdam, New
York after having been placed on lower rate jobs.
Claimant owns two pickup trucks and acknowledged that although he had one
pre-injury accident backing up a truck while employed by CFI he has had no motor
vehicle accidents since sustaining his eye injury. As to his leisure activities
he testified he is a member of the Caroga Lake Fish & Game Club and
continues to hunt, fish, boat and ride his snowmobile Although he previously
engaged in martial arts he discontinued his training four years prior to his
Although he goes for eye examinations several times a year he is not currently
being actively treated nor is he taking any medication other than aspirin. He
did not require mental health services following the accident. Although
claimant experiences discomfort as a result of his sensitivity to light he has
not obtained prescription sunglasses.
Although Exhibit 9 shows negative income for the partnership of approximately
$1,600, the witness acknowledged making the following monthly and other payments
from income received from the business: truck ($270), auto insurance
($2,000/yr), cell phone ($50), home phone ($50-60), cable ($40), rent ($350),
food (couple hundred), laundry ($50), miscellaneous spending (couple hundred),
vacations (Gloucester, MA., $500 - $600), (New Jersey $150). C & C Sewer
& Drain's gross revenue in 2003 was $36,000 and as of the trial date in
November, 2004 gross revenue for the first three quarters of 2004 was
Claimant alleged that while employed by CFI both before and after his accident
he operated equipment such as a loader and was compensated at the appropriate
rate for such work even though he was not technically an equipment operator.
Except for breaking a sidewalk on the Bainbridge project he had no post-injury
accidents while operating such equipment and was able to operate a dump truck in
reverse with assistance. Claimant continues to operate motor vehicles for both
business and personal purposes including at night. Finally, he recalled that
he informed both Dr. Liberty and Mr. Lomma that he wanted to return to
Claimant stated on redirect examination that as a result of his vision
impairment he does not feel he could currently operate a forklift and has
difficulty making straight cuts with a hacksaw on pipes which are too large for
a tubing cutter which assists in ensuring a straight cut on smaller diameter
pipe. Additionally, he is not able to take accurate measurements and is unaware
of other alternative devices which would enable him to measure and cut
Claimant's testimony on recross examination was unremarkable.
Christopher Frank was called as claimant's second witness. Mr. Frank testified
that he currently owns Universal Plumbing and Heating and has been a friend of
the claimant for approximately 15 years. Claimant and the witness established
C & C Sewer and Drain Services and the two continue to work together on
various plumbing jobs. The witness described the claimant as a hard worker who
learned the craft quickly but worked at a slower pace than others on the job and
often wasted material because he was unable to cut pipe in a straight manner.
On cross-examination Mr. Frank stated that he was involved in C&C from
April 2002 until November 2003 when he started his own business. He related
that claimant now does all the work of C & C and has occasionally done work
for Universal Plumbing & Heating, the witness's present company. The
witness was unaware of any injury suffered by claimant while working for C
& C and knew of no jobs lost by C & C because claimant worked too
slowly. He acknowledged that mis-measurements and other similar difficulties
are a normal part of the plumbing business even for an experienced plumber and
that claimant's lack of speed could be attributed to his professional
inexperience as well as his loss of vision.
On redirect examination the witness testified that C & C lost some work for
which it submitted bids but could not state the reason those bids were lost.
Roxanne Ropeter, claimant's girlfriend of three years, was the next witness.
Ms. Ropeter's testimony focused primarily on the difficulties encountered by the
claimant while boating, fishing and participating in other recreational
activities. She testified that when claimant is in unfamiliar surroundings he
sometimes walks into door casings or trips on stairs. She assists the claimant
in making lane changes while driving and assists him when parking, particularly
when judging distances between objects. The witness has observed the claimant
experience difficulty while grasping or picking up items or objects, squinting
in bright lights and suffering from headaches 3-4 times per week.
On cross-examination the witness acknowledged that she began dating the
claimant after his injury and that the claimant regularly drives at night and
has not had any accidents while parking in her presence. She has not known him
to wear a contact lens in his left eye and has discerned no visible improvement
over time in his ability to grasp objects or avoid tripping.
Although at trial claimant's next witness was Dr. James Lambrinos his
calculation of claimant's economic loss is based largely on information
contained in an employability analysis (claimant's Exhibit 5) submitted by Dr.
Leona Liberty, EdD, CRC, NCC and it is therefore appropriate to consider her
testimony next. Dr. Liberty did not appear at trial but a transcript of her
deposition conducted on November 20, 2004 was admitted in evidence without
objection as Claimant's Exhibit 15. At that deposition the witness related her
educational background and professional experience. She testified that in 1991
she established the Capabilities Evaluation Center which provides employment
related services to the Office of Vocational and Educational Services for
Individuals with Disabilities (VESID), the New York State Workers' Compensation
Program, federal injured workers' compensation programs and to attorneys for
both plaintiffs and defendants. She has testified regarding employability and
vocational rehabilitation in numerous proceedings.
Dr. Liberty's evaluation of the claimant's employability included a review of
his medical records and employment reports followed by a face-to-face interview
and vocational testing. Prior to meeting with Mr. Rector on August 19, 2003 the
witness reviewed claimant's EBT testimony taken on April 28 and July 24, 2003,
the bill of particulars and medical reports from Great Barrington Hospital,
Albany Medical Center, Drs. Krepostman, Patel and Gandham and the Lions Eye
Her understanding of claimant's educational background mirrored the trial
testimony of the claimant and her review of the medical reports led her to
conclude that claimant was legally blind in his left eye. He complained to her
of light sensitivity, occasional eye irritation, difficulty driving both during
the daytime and at night and the loss of depth perception. She found he "would
have difficulty climbing ladders, et cetera or doing heavy lifting and carrying
or balancing of materials" (Exhibit 15). His pre-injury hobbies included
hunting and fishing which led the witness to conclude that since Mr. Rector
enjoyed outdoor activities he would likely prefer outdoor occupations. Claimant
led her to believe that he lost his job as a laborer with CFI after his accident
because he was then a sub-average worker who performed his work poorly.
Dr. Liberty testified that the U.S. Department of Labor publishes a document
entitled "The Dictionary of Occupational Titles" which provides information
describing 12,800 jobs categorized by the level of skill and physical exertion
required. The publication is used by rehabilitation counselors to reconcile a
client's current disabling condition with his or her past employment and
potential future employment.
Based upon claimant's past work experience the witness identified the following
job titles as appropriate to claimant in his pre-accident condition: (1)
construction laborer which is a title classified as semi-skilled (level four)
meaning the individual has skills others might not possess without education,
training or relevant work experience, (2) highway maintenance and (3)
maintenance mechanic classified as skilled (level seven) which requires
The witness opined relative to the claimant in his post-injury condition that
"those two [
] types of occupations would be contraindicated given the limitations
with the vision" (Exhibit 15) because as a construction laborer claimant would
be expected to work on bridges or in other potentially dangerous settings and
would work with and around moving machinery as a maintenance
Thirteen different tests were administered as part of Dr. Liberty's evaluation
including a general intelligence (Slosson) test on which the claimant scored in
the average range. Claimant scored at the high school equivalent level on an
arithmetic test but scored above average on word recognition and reading
comprehension tests. He scored in the average range on a separate intelligence
test requiring abstract reasoning to solve problems in an efficient manner, a
finding which was consistent with the results on the first intelligence test.
Claimant's vocabulary test score was characterized as high average but he scored
below average on a basic information test measuring general and historical
knowledge. These tests were followed by hands-on testing which included tracing
a maze using an Etch-a-Sketch on which claimant scored below average and a test
which required him to place a stylus in a hole and then move on to repeat the
process in subsequent holes. Claimant not only worked slowly on the stylus
test but made numerous errors and thus obtained a deficient score. Claimant
also scored significantly below average on a form assembly test in which he was
given a picture of a prescribed shape and puzzle size geometric pieces with
which to recreate the pattern. The last test given was a vocational preference
inventory test. Claimant's test results demonstrated that he is attracted to
"investigative and realistic" occupations. According to the witness claimant
has at least average intelligence but experiences significant difficulty working
in a timely manner on activities which require hand-eye coordination. This
difficulty, she alleged, precluded future employment in the construction
The witness identified the following three occupational titles as appropriate
matches for Mr. Rector in his post-accident condition: counter clerk earning
$8.61/hour; procurement clerk at an estimated hourly rate of $9.59/hour and
mail clerk earning $10.49/hour
. Dr. Liberty also estimated the hourly earnings for the three occupational
titles she deemed appropriate to claimant in his pre-injury condition including
a construction laborer ($15.21/hour), highway maintenance worker ($13.69/hour)
and machinery maintenance technician ($14.16/hour). According to the witness
information provided by government statistics would generally indicate that
vision in both eyes is a necessary requisite for safely working in any of the
latter three positions.
On the topic of claimant seeking further education the witness testified that
such an option was impractical for two reasons. First, because claimant would
have to continue working to meet his ongoing expenses most of the course work
would be at night and it was her understanding that Mr. Rector did not drive
after dark. Secondly, attending school on a part-time basis would increase the
overall period of time required to earn a degree. Perhaps more significantly
Dr. Liberty found that claimant lacked the temperament to sit in a classroom
long enough to complete the requirements for a degree.
The witness acknowledged that she had reviewed a report prepared by Thomas
Lomma and was familiar with its contents, including that portion discussing the
possibility of claimant becoming proficient in technical or professional
vocations. Without addressing Dr. Lomma's analysis specifically, Dr. Liberty
referred to Exhibits 3 (skilled and professional technology) and 4 (skilled and
professional business) which she identified as part of a career ability
and related various reasons why the claimant was unqualified or would have
difficulty qualifying for such employment. She testified that most if not all
the titles listed require a four-year college degree and that claimant is not
able to perform detailed work accurately as required by the occupations
contained in both the professional technology and skilled technology titles.
Skilled technology occupations generally involve the use of hand tools or work
performed with machines and require an ability to measure and cut
The witness criticized Mr. Lomma's report for failing to narrow its focus and
specifically identify job titles which might be appropriate for the claimant.
Instead she found that Mr. Lomma's report merely recommended that claimant work
with a counselor specializing in dealing with vision impaired individuals.
According to the witness Mr. Lomma made only one recommendation, that claimant
engage in occupations involving computer technology or business skills, and made
no specific recommendation for employment matched to claimant's particular
skills or interests.
On cross-examination the witness stated that Mr. Lomma did not reference
Exhibit 3 or 4 or the list of job titles contained therein in his analysis and
report. Instead Mr. Lomma referred to an interest inventory and numerical
designations referencing job titles contained in a publication entitled the
Dictionary of Occupational Titles. The witness testified that she met with the
claimant on August 19, 2003 for a period of three hours. She also acknowledged
that she was not provided a copy of the claimant's résumé for use
in her analysis and/or report.
As to claimant's current self-employment as a plumber, the witness agreed that
claimant's primary complaint was difficulty in taking accurate measurements and
the loss of production time necessitated by remeasuring. She also recalled that
he expressed some difficulty in drilling but acknowledged that she failed to
note that complaint in her report. When asked if she had concluded that the
loss of vision in one eye prevented claimant from working as either a
maintenance mechanic or construction laborer Dr. Liberty maintained that
claimant's loss of vision and attendant headaches contraindicated working with
machinery or as a construction worker. Although she stated that claimant's
post-injury condition would not preclude work as a landscaper, it was her
opinion that his vision impairment would "preclude that type of work on a
sustained basis in the future". The basis of this conclusion was not
Dr. Liberty attempted to reconcile her finding that claimant is unsuited for
heavy or skilled (level seven) occupations with the fact that he is currently
working as a plumber by suggesting that because he is self-employed the claimant
is able to work at his own pace rather than the pace dictated by an employer.
She thought it unlikely that claimant would be hired as a plumber by another
plumber or plumbing company due to the absence of binocular vision.
With regard to claimant's spatial orientation, the witness related that she
administered two separate tests. The claimant achieved an average score on the
first test but "couldn't work fast enough" on the second. Dr. Liberty
identified claimant's professed inability to take accurate measurements and
difficulty drilling as the primary basis for her opinion that claimant's slow
speed in completing tasks requiring hand-eye coordination or depth perception
would render him less competitive and less productive than other plumbers. Dr.
Liberty explained that scoring of the tests she administered were relative to a
non-visually impaired population and not individuals with vision impairments
because claimant is seeking gainful employment in the private sector rather than
sheltered employment for the visually impaired. While she agreed that there are
assistive devices such as a talking measuring tape which are available she was
not adequately familiar with the various devices to determine their utility to
The witness testified that the ability of a sighted person to adjust to the
loss of vision varies by individual. She avoided defense counsel's suggestion
that claimant might have adapted to his loss in some significant manner during
the year since his testing.
Dr. Liberty explained her occupational title choices by saying that jobs such
as those she selected were readily available in this geographic region and were
a match for claimant's interests. She related that her research revealed no
positions paying more than $10.49 per hour which were suitable for Mr. Rector.
Asked if her opinion would change if she were advised that CFI Construction
would rehire claimant as a construction laborer she replied that she would need
to know additional details such as the level of competency expected. She
expressed surprise at counsel's representation that CFI's president testified
that he would rehire claimant as a construction laborer "tomorrow" given
claimant's previous statements in which he informed the witness he was laid off
from CFI for poor performance. She testified , however, that this additional
information would not cause her to change her conclusions regarding claimant's
employability since she remained concerned about claimant's safety on the job
The witness admitted being familiar with the Americans With Disabilities Act
and the reasonable accommodations required therein but stated that practically
speaking the law "doesn't always work that way" resulting in underemployment
of the disabled.
As to further education the witness stated that returning to the classroom
would impose a financial hardship on the claimant and would involve night
driving which might be unsafe. She also stated that work as a flagger on a
construction site was not appropriate for the claimant based upon the likelihood
of encountering uneven terrain and difficulties presented by glare. Dr. Liberty
expressed some uncertainty regarding claimant's ability to continue his work as
a plumber but did not suggest that he seek vocational counseling since he was
actively employed at the time of her interview. When asked to state the
specific reason(s) Mr. Rector is unable to engage in his pre-injury occupations
the witness stated the following:
Well, I go back to the issue, to the basic issue of safety. It simply is, and
I also go back to the Department of Labor guidelines that identify what people
who work as construction laborers do, the tasks that they may be required to do.
All of the construction sites will vary with regard to specificity, but
generally speaking, it is heavy work. It is work that is physically demanding.
It is work we are traversing on uneven terrain. It is work that could require
climbing. It just simply would not fit well with Mr. Rector's profile.
On redirect examination the witness was asked if her opinion regarding
claimant's employability in the construction industry would change if the
employer who testified he would rehire the employee had previously discharged
that employee for low job performance. She stated that under those facts she
viewed claimant's re-employment by CFI as unlikely. She then reiterated her
earlier opinion that claimant is unsuited to perform the job titles he held
prior to his injury.
Claimant's next witness was Dr. James Lambrinos, a professor of economics and
statistics at the Graduate College of Union University, who testified concerning
the economic loss experienced by the claimant as a result of the loss of vision
in his left eye. As part of his analysis the witness reviewed claimant's tax
returns for the years 2000 and 2001, the report of Dr. Leona Liberty regarding
claimant's employability and a recent study from which the witness concluded
that claimant's work life expectancy as of the date of his injury was 31.3
years. He testified that based upon claimant's educational background he has a
95% likelihood of employment and a corresponding 5% likelihood of unemployment.
The witness testified that he based his analysis and the conclusion stated in
his report (Exhibit 14) upon the estimated earnings for occupations identified
by Dr. Leona Liberty as appropriate for the claimant in his pre-injury and
post-injury conditions for a period beginning October 16, 2001. Dr. Lambrinos
stated his analysis as follows in the Summary of Economic Analysis contained in
Baseline Earnings - Mr. Rector was working for CFI [C]onstruction at
the time of his injury. He earned $23,025 and $26,431 in 2000 and 2001 before
being terminated from this position. The report of Dr. Liberty says that he
could have earned at the rate of an average of $14.35 without his injury. This
translates into an annual salary of $29,855. This is used as a starting point
for 2002 had the injury not occurred. From this amount, it is necessary to
subtract what he can earn with the injury. It would be difficult to project
what he might make from his plumbing business given that he just started this
business recently. However, the report of Dr. Liberty also says that he can
currently earn at the rate of $9.56 per hour which translates into an annual
salary of $19,892. This salary is projected into the future starting with
Applying an annual inflation rate of 3.56% over claimant's work life of 31.3
years Dr. Lambrinos estimated the total amount of income claimant would have
earned had he not been injured to be $1,608,513. He also calculated the total
amount claimant would likely earn in his post-injury condition to be $1,080,552.
According to the witness the difference between these two amounts represents a
net earnings loss to the claimant of $527,961. To this amount was added an
estimated loss in future social security benefits of $112,359 representing a
total economic loss of $608,304 after application of a .950 probability of
employment factor. The witness's report containing these figures was marked,
offered and received in evidence without objection.
On cross-examination the witness acknowledged that one's work life expectancy
may be affected by both health and marital status. He further acknowledged that
on average disabled workers participate in the work force less than non-disabled
workers and have a lower work life expectancy than the average male. The
witness, however, claimed to have chosen a more conservative approach to
calculating claimant's loss and thus his calculations were not based on the
generally lower work life expectancy of a disabled worker.
Referring to a book authored by the witness entitled
Maximizing Economic Loss Damages
defense counsel inquired how the
witness's direct testimony regarding a 95% expectation of employment for a
30-year-old man with a high school education compares to the 89% figure used in
his book. Dr. Lambrinos could not recall whether the 89% figure referred to a
disabled or non-disabled worker
that using an 89% employment factor for a 30-year-old male high school
graduate both with and without injury would result in a smaller estimated loss
than the amount testified to on direct. When referred to table 3-2 in his book,
the witness testified that the figures used therein were derived from Bureau of
Census projections which have proved to be inaccurate in light of actual
experience from 1979 to the present.
The witness testified that it was not possible to project earnings or income
from the gross revenue of claimant's plumbing business. He explained that such
an analysis would require information he did not possess regarding expenses of
the business which could then be compared to gross revenues to arrive at an
estimated net profit from which projected future earnings could be calculated.
In this regard the Court notes the following portion of the trial
Q. Right. So you really don't have the information that you need in order to
more accurately predict what his future earnings will be?
A. Not from the business. Again, as I understand - - I don't have the tax
returns from 2002 and 2003. It's my understanding that they show a loss, um, in
terms of bottom line.
Q. Well, what does a plumber earn in the capitol [sic] district by the
A. I did not look into that.
Claimant was recalled to the stand to testify briefly concerning certain
benefits he received while working for CFI on high or prevailing rate jobs.
Claimant testified that in addition to a higher hourly rate he also received an
additional $5-6 per hour which was paid "to a place called the Open Shop" to
cover medical, retirement, dental and vision benefits. Claimant alleged that he
worked on high rate jobs approximately 80% of the time he was employed by
On cross-examination claimant indicated that he did not collect the accumulated
benefits paid to the Open Shop when he was laid off by CFI in October 2001.
The attorneys for the respective parties stipulated that claimant's medical
expenses were $15,568.40 and that he received Workers' Compensation benefits for
lost earnings in the amount of $81,400. The parties further agreed that
claimant's life expectancy at the time of trial was 44.5 years (U.S. Department
of Labor, Bureau of Labor Statistics) and that the claimant's economic loss
should be reduced in the amount of $41,040.00, monies received by claimant in
the form of Workers' Compensation benefits but not considered in Dr. Lambrinos'
The parties agreed to the receipt in evidence of the PJI Life Expectancy Tables
and claimant's Exhibits 10, 11, 12, 13 and 15.
The transcript of the examination before trial of Dr. Jaime I. Krepostman, M.D.
conducted on November 22, 2004 was received in evidence as claimant's Exhibit
16. In his EBT Dr. Krepostman testified that he is an ophthalmologist
specializing in issues pertaining to the retina. His curriculum vitae was
marked and received as claimant's Exhibit 10.
Dr. Krepostman testified that he examined the claimant at the request of a
Workers' Compensation carrier on January 29, 2002. According to the witness,
his examination revealed that the claimant's left eye had a large cornea
laceration, was aphakic (without a lens) and aniridic (without an iris) and that
his retina contained some laser scarring from prior medical procedures. The
witness's view of the macula in the center of the retina was somewhat obscured
by the cornea scar and could not be fully examined
Dr. Krepostman suggested that the success of possible future surgery on
claimant's left eye would depend on the condition of claimant's macula. If the
macula is damaged vision could not be restored even by a cornea transplant.
Unfortunately, one cannot examine or test claimant's macula without surgically
removing the scarred and damaged cornea. The presence of claimant's cornea scar
also precludes the use of even newly developed means to test for retinal
The witness's examination of the claimant revealed that the vision in his left
eye is so severely compromised that he could only distinguish fingers at a
distance of one foot. He stated that in his opinion claimant's loss will be
permanent unless he undergoes future corrective surgery. Dr. Krepostman stated
that because the claimant's left eye lacks both an iris and a lens the prognosis
for improvement in the future is "not very good". Upon removal of claimant's
cornea scar his peripheral vision would likely improve but he would not comment
on the possible improvement of claimant's central vision without first being
able to fully examine the macula.
Dr. Krepostman testified that the claimant currently lacks depth perception and
is prone to light sensitivity due to the absence of an iris. He explained that
normal-functioning depth perception requires good vision in both eyes. Without
surgery, the lack of depth perception is likely to be permanent.
Photosensitivity, on the other hand, could be improved by the use of a cosmetic
contact lens containing a tattooed iris which has proven helpful in a majority
of aniridia cases.
The witness was asked to review the claimant's medical records, especially
those relative to the surgery performed within hours of his injury. He
explained that claimant's iris, which had extruded through the cornea
laceration, was removed to reduce the possibility of infection and the chance
of a sympathetic reaction in claimant's non-injured eye. He described a
sympathetic reaction as a rare kind of inflammation that can occur in an
uninjured eye 3 days to 50 years after an underlying trauma. The witness
acknowledged that a sympathetic reaction can be triggered by an accident or,
very rarely, through surgery.
When referred to an operative note dated November 28, 2000 (claimant's Exhibit
12) the witness stated that the entry related to a procedure to remove a
vitreous hemorrhage in the back of claimant's left eye. The surgeon performing
the procedure also removed claimant's lens which was damaged in the accident and
had developed a traumatic cataract. The witness opined that the November 28,
2000 procedure improved claimant's chances of visual recovery.
Exhibit 13 was identified as photographs of claimant's eye depicting the cornea
laceration with sutures, a blurred view of the back of the eye, macula and optic
nerve, and a laser photo depicting coagulation spots surrounding a fibrous band
which the witness believed was in the path of the nail as it went through the
On the subject of stereoscopic vision the witness stated that normal depth
perception requires both eyes to be functioning at 20/40 or better. Dr.
Krepostman explained that he has had patients who opted not to have cornea
transplant surgery after weighing the risks and the likely benefits. Cornea
transplantation is performed regularly but carries with it the possibility of
According to the witness the surgical procedures required to repair claimant's
vision would be very high-risk because he is aphakic and potential complications
attendant to surgical implantation of a new lens include hemorrhage, infection,
glaucoma, malpositioning of the lens, macular edema and persistent inflammation.
The success rate of surgical lens implantation was said to be 3 in 10. Dr.
Krepostman's attempt to offer an opinion as to the possible success of a cornea
transplant was met by an objection from defense counsel that an inadequate
foundation had been laid to establish that the witness, as a retina specialist,
was qualified to offer an opinion on the likelihood of success of a cornea
transplant. Defense counsel's objection is sustained and, accordingly, the
Court has disregarded the opinion testimony offered on this subject by Dr.
Krepostman in his EBT.
On the subject of pain the witness testified that while claimant's injury
initially caused excruciating pain he doubted that claimant would be currently
experiencing pain so long after the date of injury. He added, however, that
claimant could experience pain in the future if his cornea healed poorly and the
epithelium or surface layer began to slough off in a process called recurrent
erosion. Without further surgery the witness stated that claimant's visual
impairment would be permanent.
On cross-examination the witness acknowledged that he has not performed a
cornea transplant for over 26 years. As part of his examination of the claimant
Dr. Krepostman performed a visual acuity test and an intraocular pressure test
of only the right eye due to the irregularity of the cornea surface of the left
eye. A light-stimulus test revealed no optic nerve damage and a dilated fundus
exam established that the optic disc and macular region in the left eye appeared
normal. He explained that while the claimant's left macula appeared to be
normal, it was impossible to determine its true status since microscopic damage
to the photo receptors is not evident on such an examination. He observed no
severe damage to the retina and hence no afferent pupillary defect.
With regard to his direct testimony concerning depth perception, Dr. Krepostman
admitted that depth perception can be improved through the use of corrective
lenses. He went on to explain that his earlier statements regarding
complications from a cornea transplant were based upon the assumption that the
claimant would undergo both a cornea transplant and implantation of a sutured
intraocular lens. Although cornea transplant surgery has a high likelihood of
success, implantation of an intraocular lens is an "extremely complicated"
procedure which is "fraught with many complications" including the possibility
of infection and an increased risk of sympathetic ophthalmia and macular edema.
Correction of the claimant's problems with glare and photophobia would be
treated with a contact lens.
The witness acknowledged that his examination did not disclose the presence of
a poor healing cornea or epithelial damage discussed in his earlier testimony
but stated that epithelial damage could occur three months to 10 years after
injury. Finally, the witness noted that the claimant is at increased risk of
developing glaucoma as a result of the trauma to his left eye.
On redirect examination the witness explained that sympathetic ophthalmia is an
autoimmune process in which the body's defenses react to inflammation in the
injured eye by also attacking the good or sympathetic eye. He also defined
macular edema as swelling in the center of the retina where images are focused.
Vision can be severely affected even if the macula sustains only minimal damage
because this area of the retina contains the highest concentration of photo
receptors. On its direct case defense counsel moved to admit defendant's
Exhibit D (testimony of Frank Fernandez), Exhibit H (report of Thomas J. Lomma),
Exhibit I (Curriculum Vitae of Dr. Robert E. Brass), Exhibit K (6 pages of
medical records from the Lions Eye Institute) and Exhibit L (two- page report
of Dr. Krepostman) in evidence. The exhibits were received without
Defendant's first witness was Thomas Lomma. Mr. Lomma is the director of
vocational services for the Northeastern Association for the Blind in Albany
where he supervises vocational programs and provides vocational assessments for
clients referred by the New York State Commission for the Blind and other
agencies. He received a Bachelor's Degree in Law Enforcement/Corrections from
Penn State University and a Master's Degree in Vocational Rehabilitation from
the State University of New York (SUNY) at Albany. He is currently training as
a rehabilitation counselor and is neither licensed nor certified in the
Mr. Lomma testified that he performs between 18 and 20 vocational assessments
per year, approximately 80% of which involve persons with a visual impairment.
His interview with claimant lasted approximately two hours and testing and
monitoring took an additional 12 ½ hours. Claimant was tested for memory,
performance functioning, spatial aptitude, conceptual skills, physical ability,
ability to use his sense of touch to distinguish among objects, physical skills,
speech, strength, dexterity, academic ability, interests and personality. The
testing system used was designed to predict a visually impaired or blind
person's ability to perform in competitive work settings and to perform various
tasks in independent living settings.
Claimant's testing results placed him in the average range overall with above
average performance in spatial aptitude which the witness explained as an
understanding of forms and shapes and the orientation of objects in one's
environment. Claimant's performance was below average only in the area of
tactile memory, a condition usually found in individuals with neuropathy,
diabetes or those individuals exposed to repetitive motion such as laborers and
musicians. In terms of academic achievement, claimant scored at a post-high
school level in reading and spelling but at only an eighth grade level in math
as a result of difficulty calculating fractions and decimals. Claimant
successfully performed a Roto-Tiller blade assembly test in 3/4 of the average
time required for sighted individuals and 2½ times faster than test takers
with visual impairments, although a portion of his success may have been
attributable to claimant's memory of having seen his father perform a similar
task some years ago. Test results for a physical skills assessment which
tested the claimant's dexterity, ability to work quickly and the use of strength
to perform tasks were average but deficiencies were noted in the area of fine
motor skills. The results of this assessment fell in the average range.
Mr. Lomma also conducted a test to compile a vocational interest inventory
which he alleged provides a sense of a person's interests irrespective of
skills, aptitudes or abilities to do various kinds of work. Claimant's profile
demonstrated a primary interest in manual labor but also showed an element of
creativity as well as a certain degree of interest in self-management.
The witness concluded that overall claimant was functioning at least within the
average range compared to other people with vision impairments. He considered
claimant's demonstrated spatial aptitude more important than depth perception in
terms of his mobility and ability to adapt to his environment. Mr. Lomma read
into the trial record a small section of his report (defendant's Exhibit H) in
which he concluded that the loss of vision in claimant's left eye would not
prevent him from continuing his self-employment as a plumber or establishing
his own nursery business. With regard to technical or professional
occupations, the witness testified that while claimant could pursue additional
education and training he evidenced no particular interest in doing so.
On cross-examination the witness disagreed that claimant was not able to return
to his pre-injury job but admitted that claimant's self confidence was affected
by his partial loss of vision. He acknowledged that concerns over safety and
insurance would likely cause employers in the construction industry to hesitate
before hiring a visually impaired laborer.
The witness admitted that certain scores on the cognitive test for the blind
determined the level of claimant's functional abilities relative to visually
impaired test subjects and not in comparison to the general population. The
Haptic Test determines the ability of non-sighted test takers to interact with
items in their environment. The Valpar Tri-Level Measurement test measured
claimant's performance against a population composed of visually impaired
individuals who were previously sighted. The Rototiller Assembly test and
MAND tests also compared claimant to a population of blind or visually impaired
individuals. Claimant's physical skills were tested by the witness and compared
to both sighted and non-sighted test takers. On the Purdue Pegboard test
claimant scored in the average range compared to those with vision impairments
but scored below average when compared to sighted individuals. That test
examines bimanual and fine finger dexterity by measuring an individual's speed
and accuracy in moving small objects.
Mr. Lomma admitted that he is neither certified nor licensed as a
rehabilitation counselor and therefore would be unable to offer rehabilitative
counseling services to private clients outside his place of employment.
The witness testified that claimant informed him that since the accident he
feels less confident and derives less enjoyment from outdoor activities which
now require greater care in execution. Mr. Lomma recognized that many technical
and professional occupations require a level of education which the claimant has
not attained and cited his lack of interest in further education as the primary
reason the witness did not recommend technical or professional employment
options. It was the witness's view, however, that the claimant had sufficient
skills to pursue higher education if he so chose.
Mr. Lomma believed claimant could skillfully use hand tools and machines, could
measure and cut materials accurately, could operate equipment, lift, carry or
pull heavy objects and even operate a forklift with care. He acknowledged,
however, that attitudes toward construction workers with visual impairments
would likely keep claimant from finding gainful employment in the construction
Neither redirect examination nor recross-examination raised new matters
requiring further exposition here.
Defendant's next witness was Dr. Robert Brass, an ophthalmologist licensed in
New York State since 1991. Dr. Brass received a Bachelor's Degree from Clarkson
University and his M.D. from the University of Wisconsin at Madison. After a
residency in ophthalmology at New York Medical College (New York Eye and Ear)
he chose to specialize in conditions related to the cornea including cornea
external disease and laser vision correction through additional study at the
University of Wisconsin at Madison. He is board certified in Ophthalmology and
he is a member of the American Medical Association, the New York State Medical
Society and numerous other medical organizations. He has also authored numerous
publications including a textbook on the cornea. In his practice he regularly
treats patients who have sustained trauma to their eyes, including penetrating
injuries, and often implants intraocular lenses in conjunction with cataract
The witness examined claimant on two occasions, the first in September of 2001
at the request of Dr. Patel, one of claimant's treating ophthalmologists. He
also performed an independent medical examination (IME) at the request of the
defendant on August 12, 2004. He testified from his IME report regarding the
initial injury to claimant's left eye and the treatment provided therefor
including the subsequent development of a traumatic cataract on the lens and
vitreous hemorrhage which were treated by Dr. Willson at Albany Medical Center
Hospital on November 28, 2000. The witness described claimant's initial injury
as a full-thickness perforation of the cornea which caused the iris to extrude
through the open wound. The iris could not be repositioned due to concerns
regarding infection so the iris tissue was removed and the cornea wound closed
by sutures. At the second surgery the lens in claimant's left eye, which by
then had developed a traumatic cataract, was removed along with an amount of
vitreous gel containing blood. Additional laser procedures were performed in
Dr. Willson's office on December 20, 2000 and on March 5, 2001.
Dr. Brass testified that according to notes from an examination conducted on
January 8, 2001 (
defendant's Exhibit K) Dr. Willson identified a visual acuity of
20/60 in claimant's left eye using a +11 lens. The witness opined that such a
finding indicates that the major aspects of the eye were working and that
claimant's prognosis for improvement was good. The notes further indicate that
claimant was referred to Dr. Al Morier to be fitted with a contact lens
containing a cosmetic adjustment which the witness interpreted to mean an iris
which is painted or colored to limit the amount of light received into the eye.
The lens was ordered on July 9, 2001.
With regard to pain, the witness referred to Exhibit K and related a comment
contained in Dr. Willson's note which indicated that aching in claimant's left
eye on 10/21/00 had subsided and that there was no aching on 10/23/00. A
similar note by Dr. Patel regarding the absence of pain was found for 11/15/00
The witness first examined the claimant in September 2001 at the request of
Dr. Patel who sought his advice regarding the possible repair of claimant's
cornea and the feasibility of performing a cornea transplant.
Dr. Brass's second examination of claimant occurred in August 2004 and included
a complete ophthalmologic evaluation of the eye including vision testing with
and without correction. With both eyes open claimant could read a standard
Snelling chart "just fine". Pressure was tested and found to be within normal
ranges in both eyes, i.e., between 10-21 milliliters of mercury. Claimant's
visual-field (field of gaze) test was normal on the right eye and decreased
nasally on the left. This particular test is designed to identify impairments
in peripheral vision. Eye motility, which is movement of both eyes back and
forth and up and down, was normal and without pain indicating no damage to the
rectus muscle or other muscles controlling eye movement. A slit-lamp
examination was performed and revealed a thick cornea scar which blocked normal
tear flow resulting in dryness and likely causing the foreign body sensation or
irritation of which claimant had complained. The witness also examined the
retina at the back of claimant's eye by means of a special focusing lens and
discovered some atrophic or non-functioning areas walled off by small spot welds
placed by laser to prevent retinal expansion and/or detachment. The witness
testified that the damaged portion of the retina affects claimant's interior or
nasal peripheral vision causing a relative blind spot. Further examination
revealed that claimant's left cornea was swollen while his right cornea
thickness was normal.
Dr. Brass opined that claimant's vision would likely be improved by a cornea
transplant with either a rigid gas-permeable contact lens placed over the
transplant or an intraocular lens sewn into the eye. Cornea transplants are
common and the witness testified that he performs the procedure once or twice a
month on a scheduled basis. Dr. Brass explained that the scar which runs
across the center of claimant's cornea clouds or interferes with his central
vision. Transplanting a new cornea would provide the claimant "a clearer window
through which his eye can see". The witness stated his opinion that since there
is no indication that the claimant's central vision has been damaged and Dr.
Willson noted 20/60 vision using a + 11 lens, he was "very hopeful that by
giving him a clear window and then using a rigid gas permeable contact lens on
the surface of the transplant . . . I could get him to at least 20/60 or
better". It was his further opinion that implantation of an intraocular lens
was not necessary and that a rigid contact lens "would effectively be able to do
the work that the lens inside the eye is doing". An opaque contact lens would
provide the additional benefit of limiting the amount of light entering the eye
thus providing relief from the photosensitivity claimant has experienced as a
result of the loss of his iris.
Risks commonly associated with cornea transplants include infection at the time
of surgery and rejection, graft failure, bleeding and retinal detachment
post-surgically. Dr. Brass testified that graft failure occurs in 3-5% of
avascular patients such as Mr. Rector and the risk of retinal detachment is very
low, in the range of 1 in 10,000. In addition, a detached retina can typically
be repaired if reattachment occurs within 24 hours. Macula edema, which is
swelling of the macula, can occur after eye surgery and is treatable. Although
there is an enhanced possibility the claimant could develop glaucoma due to the
trauma to his left eye, the witness did not believe that a cornea transplant
would significantly increase his risk. He ranked the risk of post-operative
infection as low. The surgery recommended by the witness is usually performed
on an out-patient basis and, if the patient is willing and able, is done under
a local anesthetic in the span of an hour to an hour and fifteen minutes.
The witness further testified that with or without surgery claimant should be
seen at least every six months or so for a glaucoma check. The witness stated
that he was able to obtain a good view of the inside of claimant's eye during
his examination and that claimant's optic nerve looked healthy and his macula
appeared normal. Peripheral scarring of the retina might affect his peripheral
vision but should not affect his central vision.
The witness respectfully disagreed with Dr. Krepostman's testimony concerning
the use of a contact lens on an aphakic eye increasing the size of an image and
preventing or interfering with depth perception. He noted that Dr. Krepostman
is a retina specialist who probably does not do refractions or prescribe
eyeglasses. The witness insisted that a properly formulated contact lens placed
on a transplanted cornea would negate the variant image size issues which
concerned Dr. Krepostman.
On cross-examination Dr. Brass admitted that under traditional Workers'
Compensation tables claimant would likely be classified as 100% disabled in his
current state. He admitted further that with only one good eye claimant
currently has no stereoscopic perception and that he is photophobic or light
sensitive although light sensitivity could be corrected by use of an opaque
contact lens. Regarding the restoration of claimant's stereoscopic perception
the witness testified that cornea transplant surgery combined with a rigid,
gas-permeable lens could be expected to restore vision in the left eye to 20/60
and that the difference between his injured and non-injured eyes might then be
close enough to recover or at least improve his stereo perception. He
confirmed, however, that the success of cornea transplant surgery cannot be 100%
guaranteed and acknowledged that some of his own patients have opted not to
assume the risks attendant to the surgery.
Dr. Brass testified that he was not privy to Dr. Krepostman's out-of-court
testimony relating his inability to visualize the claimant's macula to
determine its condition. Instead he referenced Dr. Krepostman's notes which
expressed no difficulty in viewing the macula and stated that both claimant's
macula and optic nerve were normal. The witness conceded that if one's macula
has been damaged cornea modification or replacement will not significantly
The witness stated that the use of a fixed intraocular lens would complicate
the cornea transplant procedure and was an option which should be discussed with
the patient. While insertion of an intraocular lens does not add to the
immediate risk of the surgery issues pertaining to the possible degradation of
the sutures used to hold the lens in place could require additional surgery.
Moreover, while the suggested surgery could be performed under local anesthesia,
if general anesthesia were required due to patient anxiety the risks of the
procedure would increase. In his view the claimant would continue to experience
sensitivity to light unless steps were taken to reduce the amount of light
entering the eye.
With regard to the increased risk of a sympathetic reaction the witness
explained that the actual occurrence of such a reaction is exceedingly rare.
The witness acknowledged that although sympathetic ophthalmia is generally
triggered by trauma it could also result from a planned surgical procedure. In
a worst-case scenario, sympathetic ophthalmia could result in a total loss of
On redirect examination the witness explained that refractive error may result
from a cornea transplant since the shape of the donor's cornea will not
perfectly match the shape of the recipient's eye and therefore glasses or
contacts may be required to obtain optimum vision. He estimated the risk of
sympathetic ophthalmia to be 1.5 in 10,000. He also stated that the condition
is treatable with steroids or topical medication.
Claimant was again recalled and questioned regarding his use of Dr. Morier's
specially prescribed contact lens. He testified that he used the lens for only
a few days and abandoned it due to discomfort and difficulty inserting the lens.
On cross-examination claimant acknowledged that he did not contact Dr. Morier to
explain or attempt to correct the problems he experienced with the lens. The
trial concluded at the end of claimant's testimony.
The parties stipulated to the receipt in evidence of a transcript of the
examination before trial of Frank Fernandez held on November 17, 2004
(defendant's Exhibit D). According to that transcript Mr. Fernandez has been
the President of CFI Construction in Johnstown, New York since October 1991.
He testified that CFI performs highway construction, site work, utility work,
waste water treatment facility and bridge work. As President of CFI his duties
include everything from estimating costs to operating equipment in the field.
The company has approximately 45 employees including laborers, operators,
superintendents, foremen and office staff.
Mr. Fernandez related that laborers typically pour and finish concrete, hammer,
dig, install pipe, grade topsoil and operate machinery such as concrete
vibrators, pumps, power buggies and other small equipment. Laborers are
assigned to crews which are to some extent specialized and hiring is generally
done through referrals or by application pursuant to advertisement. The ability
to work hard and follow instructions rather than the possession of special
skills are the determining factors used by CFI when hiring new employees. The
company's work is primarily seasonal, starting when the frost is out of the
ground in spring and usually but not always ending in winter.
The witness testified that he tries to visit each job at least weekly and
occasionally replaces the superintendent when necessary. Wage rates depend on
the nature of the job. Municipal or federally funded jobs are governed by
prevailing rates set by the State of New York on a county-by-county basis while
rates paid on private jobs are determined by the marketplace. On prevailing
(high) rate projects laborers and operators are classified and their wages are
determined by the work they perform. Operators are typically paid more than
Christopher Rector began working for CFI in June or July 1999. Having observed
the claimant's work on many occasions the witness related that the claimant was
a good worker who was eager and willing to work even outside the normal work
week. In fact, Mr. Fernandez selected claimant to do landscaping work at his
private residence, a task reserved for only a few of CFI's employees.
After convalescing from his injuries Mr. Rector returned to work at CFI in late
winter or early Spring 2001. He was initially assigned to perform basic
maintenance tasks at a rate of $14 per hour as compared to the prevailing rate
on federal, state or municipal jobs estimated by the witness to be between $17 -
$19 per hour. In late Spring or early Summer of 2001 claimant was assigned to a
prevailing rate job at the Bainbridge Central School District which entailed the
reconstruction of several athletic fields under the supervision of Fred Feurer.
Near the end of the project the witness received complaints concerning
claimant's tardiness. After completion of the Bainbridge project claimant was
assigned light duty at a non-prevailing rate but was later assigned to and
successfully completed a prevailing rate work assignment in Potsdam, New
In the Fall of 2001 claimant was laid off due to lack of work along with other
CFI employees. When contacted in the Spring of 2002 to confirm he would be
available to return to work the claimant advised the witness's wife Lucy that he
was starting his own business and would not be returning to CFI. The witness
denied that claimant was laid off in 2001 due to poor work performance and
stated that claimant was a good worker and he would "hire him back tomorrow"
(defendant's Exhibit D).
The witness further testified that while claimant was still out of work on
leave following his eye injury he requested and was permitted to borrow certain
CFI equipment including a 40-foot ladder and a pressure washer.
Mr. Fernandez asserted that another laborer employed by CFI (Dan Battiste) has
vision in only one eye and has worked for the company since the year following
claimant's hiring. Claimant's counsel objected to questions related to this
employee absent an established connection between his vision related problem and
that suffered by the claimant. The objection was overruled.
The witness related that when paying laborers at a prevailing rate CFI
contributes an additional hourly amount for benefits of between $5 - $8 per
hour for straight time only. No similar benefit is paid for overtime work.
The additional sums go to an account used for health, welfare and retirement
benefits. He was unsure of the amount paid into the retirement account by CFI
on claimant's behalf during his employment at the company.
Defendant's Exhibit A was identified by the witness as a letter written by the
Director of Human Resources at CFI to the New York State Labor Department (DOL)
showing claimant's quarterly earnings for 1999 which the witness assumed was
prepared to assist DOL in establishing claimant's unemployment rate. The
Exhibit was received in evidence at Mr. Fernandez's EBT without objection as was
Exhibit B (claimant's W-2 for 2000) and Exhibit C (claimant's W-2 for
On cross-examination Mr. Fernandez admitted that he considered claimant to be
honest and acknowledged that CFI extended a $2,000 personal loan to him during
his leave of absence. He denied that claimant's work was inadequate following
his return to CFI after the accident and that he retained claimant on CFI's
payroll simply because of claimant's then-outstanding loan.
Upon reviewing claimant's Exhibit 1 the witness identified one particular page
as being a copy of a journal from claimant's employee file. He acknowledged
that the page contains a notation which could be interpreted as indicating a
connection between claimant's continued employment and the repayment of the
personal loan. He denied being the author of the note which he ascribed to his
wife Lucy Fernandez but admitted that the journal entry made no mention of
claimant's alleged tardiness on the Bainbridge project. He denied that
claimant operated equipment on the job prior to his injury except occasionally
driving a pickup truck to run errands and using small equipment such as light
duty tractors and tampers.
On re-direct examination the witness stated that the previously mentioned
journal entries were not written in his hand. He alleged that claimant's
removal from the prevailing rate job was due to his tardiness and difficulty
getting to work after being arrested for DWI.
On recross the witness acknowledged that none of the facts about which he just
testified (above) are set forth in the employee's journal (claimant's Exhibit
As this Court noted in an earlier decision (
Obara v State of New York
, Ct Cl, January 10, 2002, [Claim No. 99572, UID
# 2002-015-548] unreported
Claimant bears the burden of proving the damages required to restore the
aggrieved party to the position that he or she held prior to the injury (PJI 2:
277; McDougald v Garber, 73 NY2d 246). Restoration to pre-injury status
is accomplished by awarding a sum of money which reasonably compensates the
party for the actual loss sustained as well as those items that will be incurred
in the future (Id. CPLR 4213[b]).
Section 4213 (b) of the Civil Practice Law and Rules provides in part:
The decision of the court...shall state the facts it deems essential. ..and in
any other action brought to recover damages for personal injury...shall specify
the applicable elements of special and general damages upon which the award is
based and the amount assigned to each element, including but not limited to
medical expenses, dental expenses, podiatric expenses, loss of earnings,
impairment of earning ability, and pain and suffering ... [E]ach element shall
be further itemized into amounts intended to compensate for damages which have
been incurred prior to the decision and amounts intended to compensate for
damages to be incurred in the future. In itemizing amounts intended to
compensate for future damages, the court shall set forth the period of years
over which such amounts are intended to provide compensation. In computing said
damages, the court shall award the full amount of future damages, as
calculated, without reduction to present value.
Pain and Suffering
In determining damages in this case the Court will first consider claimant's
non-economic loss. This analysis necessarily requires a subjective
determination by the Court as finder of fact of the past pain and suffering
incurred as a result of the injury to claimant's left eye and such future pain
and suffering the Court determines is likely to be endured by claimant based
upon the proof presented at trial. Such an award may also take into
consideration the frustration and anguish created by the inability to
participate in activities that once brought pleasure (
see McDougald v Garber
, 73 NY2d 246, 255-256) including the
pursuit of pre-accident hobbies and interests and the loss of self-esteem
(see Davis v Board of Educ. of City of N. Y.
, 168 AD2d 261, lv
78 NY2d 862; Crawford v Williams
, 198 AD2d 48, lv
83 NY2d 751).
Since pain and suffering awards are based on subjective opinions formulated
without the guidance of precise and detailed guidelines the Court may look to
comparable cases to determine what has been found to be reasonable compensation
for like injuries (
Valentine v Lopez
, 283 AD2d 739, 743). In this regard the cases
considered by the Court include Ayala v S.S. Fortaleza
, 216 AD2d 203
($500,000 for future pain and suffering); Crawford v Williams
, 198 AD2d
($1,200,000 past and future pain and suffering); Davis v
Board of Educ. of City of N.Y.
, 168 AD2d 261, supra
future pain and suffering); LaPaglia v Sears Roebuck & Co.
, 143 AD2d
173 ($800,000 for past and future pain and suffering); Alferoff v
, 122 AD2d 183 ($650,000 in total damages).
Despite the sudden and tragic nature of his injury both parties agreed claimant
has not been totally incapacitated by the partial loss of vision in one eye. He
is able not only to drive and work for a living but also to pursue all of his
pre-injury leisure activities although he must do so with greater care and, as
claimant described, with somewhat less enthusiasm (
see Lashbrooks v State of New York
, Ct Cl, October 10, 2002 [Claim
No. 95687, UID # 2002-013-518], Patti, J., unreported).
The record clearly supports a finding that claimant's initial pain was
excruciating and that claimant was fearful of losing his eye for a number of
hours following his on-the-job injury. The medical records suggest, however,
that claimant's subsequent complaints of pain were of lesser intensity and
diminished relatively quickly over time. Mr. Rector testified that he takes
nothing stronger than aspirin for pain and expressed no need or desire for
psychiatric or psychological counseling to assist him in coping with his vision
loss. Although claimant complains of discomfort from glare while driving on
bright, sunny days he has not taken the elementary step of using prescription or
non-prescription sunglasses to reduce or eliminate this problem. He still
engages in the same sporting activities in which he participated prior to his
injury including hunting, fishing and boating. The Court is persuaded that
his enjoyment of such activities has been somewhat diminished by his loss of
vision and the need to constantly assess his environment in a way which he was
not required to in his pre-injury condition.
The parties stipulated at trial that medical expenses incurred to date total
$15,568.40. These expenses are clearly recoverable. Claimant has offered no
tangible proof of anticipated medical expenses over the remaining 44.5 years of
his life. While both medical experts testified that eye examinations should be
regularly scheduled for the remainder of his life to monitor for glaucoma,
neither party offered to the Court an estimate of the costs likely to be
incurred for such examinations. While claimant has at this time opted not to
pursue any surgical procedure to attempt to restore vision to his damaged eye it
is important to note that no estimate of the cost of the much-discussed cornea
transplant was provided. The Court may not speculate what future medical
procedures might be undertaken or what the cost of those procedures might be
absent proof in the record. Accordingly, no award is made for future medical
Finally the Court turns to claimant's economic damages. " 'The basic rule is
that loss of earnings must be established with reasonable certainty, focusing,
in part, on the [claimant's] earning capacity both before and after the
Johnston v Colvin
, 145 AD2d 846, 848)" (Lashbrooks v State of New
, Ct Cl, October 10, 2002, [Claim No. 95687; UID # 2002-013-518] Patti,
J., unreported, supra
). As in Lashbrooks
the instant claimant has
failed to provide any concrete proof establishing the amount of income lost as a
result of his injury, the opinions of claimant's experts notwithstanding.
Prior to the accident claimant was employed by a construction company as a
laborer earning wages and benefits reported to be $14 per hour on non-prevailing
rate jobs and $17 - $19 per hour for prevailing rate work. He earned an
additional benefit of $5 - $8 per hour for straight time worked on prevailing
rate jobs. No proof was offered establishing the amount of overtime worked, if
any. The record reveals that claimant returned to his position with CFI several
months after his accident and worked as a laborer through the Fall of 2001 when
he and several of his fellow workers were laid off. Despite claimant's own
misgivings regarding his post-accident on-the-job performance and the
nonspecific allegation that his foreman and the company president were
dissatisfied with the speed at which he performed his post-accident work,
nothing in the record suggests that he was not going to be rehired as a laborer
by CFI the following Spring.
The Court cannot interpret the note referencing claimant's "poor performance"
contained in his CFI employee file as either the cause of his layoff in the Fall
2001 or the reason claimant did not return to work at CFI in the Spring 2002.
To the contrary, the proof clearly established that it was the claimant who
brought about his separation from CFI when he informed the company that he would
not be returning because he was starting his own plumbing business. Frank
Fernandez testified in this regard that he would rehire the claimant as a
laborer "tomorrow" if he wished to return to CFI. Although perhaps suspect as
potentially self-serving there is no proof to contradict his assertion.
While the claimant related an inability to accurately measure and/or cut pipe
in his post-accident condition, a circumstance central to the opinions of Dr.
Liberty, that alleged affliction has not prevented claimant from being gainfully
employed in his own plumbing business. As a plumber the claimant is required on
a daily basis to measure and cut pipe and determine the levelness or slope of
pipe he installs. The proof reveals that claimant has been able to sustain
himself from the income derived from his plumbing business and that the gross
income generated by the business has grown in each of the three years for which
information is available. There was no evidence of a change in claimant's
economic status or well-being as a result of his injury and, although there
was some testimony that the slower rate at which claimant must work as a result
of his injury caused him lost work and lower profit margins, that proof was
speculative at best.
A personal-injury claimant is required to take reasonable steps to mitigate
damages, including surgical procedures which are reasonably safe and likely to
cure or alleviate the effects of his or her injuries (
Lyons v Erie Ry. Co.
, 57 NY 489; Dishaw v Jones
, 296 AD2d 819).
It is the defendant's burden to establish that the claimant has failed to avail
himself or herself of a safe and effective surgical procedure. Where, as here,
the issue of claimant's failure to mitigate damages is raised it is the Court's
duty to consider the nature of the operation, the dangers posed by the procedure
and the results reasonably anticipated (PJI 2d:325 ). The cost of a
particular procedure is not considered unless the claimant submits proof
regarding his or her financial ability to pay (PJI 2: 325.1  [supplemental
instruction]). No such proof was submitted in this
First, as stated earlier herein, although claimant complains of
photosensitivity and resultant headaches he does not wear either prescription or
non-prescription sunglasses to ameliorate the condition and its attendant
effects. Nor does he wear the colored contact lens dispensed by Dr. Morier
which would accomplish the same end of limiting the amount of light entering the
claimant's left eye. Clearly the claimant herein has failed in this regard to
take those steps which a reasonable person would take to minimize his damages
and mitigate the effects of his injuries.
Secondly, the proof at trial established that although all surgical procedures
present risk, cornea transplant surgery would provide an effective means for
treating the claimant's primary vision impairments. As explained by Dr. Brass,
the claimant's ability to utilize his central vision is significantly diminished
by a corneal scar which extends across the cornea and clouds the vision in his
left eye. By replacing the scarred cornea with a clear transplanted cornea the
primary obstruction to the central vision in claimant's left eye would be
removed. Although Dr. Krepostman testified that claimant's central vision
might also be affected by damage to the macula he could not state that the
macula was, in fact, damaged because the scar across the claimant's left cornea
purportedly prevented him from fully examining that portion of claimant's
retina. The doctor's alleged inability to visualize the macula is not noted in
his report dated February 8, 2001 which states that a dilated fundus exam of
claimant's left eye "revealed a normal appearing optic disc, macular area and
peripheral retina". Dr. Brass testified he obtained a good view of the inside
of claimant's left eye and that his optic nerve appeared healthy and his macula
looked normal. Dr. Brass also cited Dr. Willson's note referencing 20/60 vision
in claimant's left eye with a + 11 lens as additional evidence that his central
vision is intact and uncompromised except by the presence of the corneal
Both experts recognized implantation of an intraocular lens as posing the
greatest danger to the claimant's health. Both described the procedure as
complex and subject to additional complications including the need for further
surgery. Conversely, both experts recognized cornea transplant surgery as
common, safe and highly successful. In Dr. Brass' opinion, since there is no
evidence that claimant's macula was damaged as a result of his traumatic injury
there is every reason to believe that claimant's central vision is intact and
would be substantially improved by providing him a new cornea and rigid gas
permeable lens. The procedure could be performed under local anesthesia and
would enable the claimant to view objects unobstructed by the effects of his
present corneal scar. Dr. Krepostman could not state whether a cornea
transplant would improve claimant's central vision because, as referenced
earlier, he was unable to fully examine the macula in claimant's left eye and
damage to the macula would have the same impact upon the claimant's central
vision as does the existing corneal scar. In this respect it is again noted
that the doctor's report dated February 8, 2002 does not reference any
difficulty in viewing the claimant's macula. Nor does it mention implantation
of an intraocular lens. It does, however, relate the following:
Mr. Rector shows a permanent injury to the left eye with no chance of recovery
of vision unless he undergoes further surgical procedures, i.e., corneal
Upon the proof presented at trial the Court finds that claimant has failed to
minimize his damages by refusing to undergo cornea-transplant surgery which the
evidence demonstrated is both a safe and effective means for restoring or
enhancing his central and peripheral vision. There is no proof that claimant's
macula has been damaged. Absent damage to the macula, the evidence clearly
supports the conclusion that cornea-transplant surgery would, in combination
with a gas permeable lens, result in meaningful improvement to both claimant's
central and peripheral vision. With regard to claimant's peripheral vision, Dr.
Krepostman testified "[h]e would be able to get peripheral vision once the
corneal scar is removed".
The only reason given for his failure to undergo cornea-transplant surgery is
claimant's testimony that the results and safety of the procedure are not "100%
guaranteed". Without more the claimant's position is untenable in light of the
proof submitted which demonstrates that a cornea transplant constitutes a safe,
effective and entirely reasonable vehicle for alleviating the vast majority of
claimant's vision impairments.
The claimant is awarded $350,000 for past pain and suffering and $140,000 for
future pain and suffering over claimant's 44.5 year life expectancy. In
addition, the claimant is entitled to recover his past medical expenses totaling
$15,568.40 for a total award of $505,568.40. The Court makes no award for lost
income as the record does not support a finding that the claimant suffered a
quantifiable economic loss as a result of his injuries.
Claimant shall recover one half of the amount awarded herein together with
interest at the legal rate from May 26, 2004, the date of the Decision on
liability in this matter.
To the extent that claimant has paid a filing fee, it may be recovered pursuant
to subdivison two of § 11-a (2) of the Court of Claims Act.
Let judgment be entered accordingly.
April 22, 2005
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
There was a procedure performed on 11/28/00
but the record does not reflect that foreign objects were removed during that
The witness testified that the hourly wage
information provided in her analysis is based upon data published by the New
York State Department of Labor for the Albany/Capital District area
The witness alleged that this survey is
published by a private agency and is widely recognized and used by vocational
The witness later clarified that the 89%
probability of employment referenced in his book applied to both disabled and
Unreported decisions from the Court of Claims
are available via the internet at