New York State Court of Claims

New York State Court of Claims

MARCHINEK v. STATE OF NEW YORK, #2005-016-027, Claim No. 102737


Following damages trial, 46 year-old worker with pre-existing knee condition was found to have lost five years of work because of a job-related injury.

Modified 33 AD3d 891 [2d Dept 10/24/06]

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Lippman, Krasnow & Kelton, LLPBy: David T. Verschell, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 28, 2005
New York

Official citation:

Appellate results:
Modified 33 AD3d 891 [2d Dept 10/24/06]
See also (multicaptioned case)

George Marchinek was injured June 28, 1999 while working on a construction job in Suffolk County under a contract his employer had with the State of New York. By Decision dated April 7, 2003, the State was found fully liable for the accident and any resulting injuries when a sandblaster “came down on me, onto my right leg” (p. 3 of the Decision).

After the accident, Mr. Marchinek drove himself to Brookhaven Memorial Hospital in Patchogue, reporting pain to his right leg and knee. Claimant was examined and x-rayed: a contusion of the right knee was found, but there was no fracture, dislocation, laceration, hematoma or sprain (cl exh 1).
Marchinek was released later that day with instructions to ice the right knee and keep it elevated. He was given a brace so as not to put weight on the knee, and was also issued a pair of crutches. A painkiller was prescribed for claimant. Marchinek drove himself home, using his left leg and keeping the right one stretched out. Claimant testified that he was advised to see an orthopedic surgeon; there is apparently no such reference in the records of Brookhaven Memorial for claimant’s emergency room visit (cl exh 1). In any event, he did see Dr. Noah Finkel, an orthopedic surgeon, within two days, on June 30, 1999.
In addition, the following was written in the Aftercare Instructions at Brookhaven Memorial Hospital: “ No work 1[one] week.” Born in April of 1953, Marchinek was age 46 at time of the accident, has not returned to work since, does not expect to, and maintains he had intended working until the age of 65. Although the hospital’s records indicate that claimant was a laborer, the recommended one-week period away from work may have been addressed without due regard for the demanding physical nature of Marchinek’s employment:
I was a laborer . . . we were doing concrete work. At that point, we were jackhammering bridges and then pouring . . . [I]t’s called heavy road - - it’s road construction. So, you know, you’re doing asphalt, drainage . . . bridge building. I worked on a lot of building bridges.

The amount of recoverable damages in this matter turns on the relationship between the pre-existing condition of Mr. Marchinek’s right knee and the accident of June 28, 1999. As a college junior in 1975, claimant injured his right knee while wrestling. His opponent had fallen against the medial aspect of the right knee; Marchinek heard three “pops” and noted pain and swelling, according to the records of the University of Rochester Strong Memorial Hospital, where surgery was performed at the time (cl exh 4). This involved the repair of two torn ligaments in claimant’s right knee - - the medial collateral and anterior cruciate. During the preparation for surgery, the knee was found “grossly unstable” (def exh B).
The surgery was credibly characterized by Dr. Ronald Match, defendant’s expert orthopedic surgeon, as a “major reconstruction.”
This was not claimant’s first problem with his knee, although it is unclear if an injury prior to the wrestling one was to the same knee: the April 25, 1975 Strong Memorial Records state that Marchinek had torn ligaments “several years ago [but] ? which knee” (def exh B).
On October 18, 1979, also at Strong Memorial Hospital, claimant underwent another procedure on his right knee. Marchinek had come to the hospital stating he had injured his right knee while playing rugby, and complaining of pain. Dr. Match, without challenge, explained that according to the records from Strong Memorial Hospital, claimant had continued since the 1975 reconstructive procedure “to have effusions. That’s swelling with fluid in the knee . . . ” Degenerative joint disease was also noted at the time (def exh B).
An arthroscopy and an arthrotomy were performed. The operative note recorded that “flap tear[s]” of the lateral and medial meniscus were trimmed and the knee was “thoroughly irrigated.” In addition, what was described as the “ remaining peripheral rim” was trimmed until it was stable. The wounds were dressed with a “massive” compression wrap. (Def exh B). The records state that the “previously repaired anterior cruciate ligament was present, but had approximately 50 percent of the bulk of the normal ligament,” which, according to Dr. Match, meant instability and continuation of the degenerative process.
Returning to the subject injury (of June 28, 1999), the radiologist’s report at Brookhaven Memorial Hospital reflected this pre-existing condition (cl exh 1): “Study of the right knee shows extensive degenerative disease, joint narrowing, irregularity of the contour, [and] osteophyte formation . . . ” Dr. Bruce A. Seideman, an orthopedic surgeon who saw claimant on February 7, 2000 noted “marked degenerative change with very large osteophytes” (def exh B). Dr. Finkel also had said that before the subject injury, Marchinek had “severe arthritis”; his impression was “severe degenerative joint disease, right knee.” (Def exh B, consults of June 30, July 7, August 18, and October 15, 1999). At the time, two staples from the 1975 surgery were still in his right knee.
Dr. Finkel, who as noted initially saw claimant a few days after the accident, testified he last saw Marchinek on March 8, 2002 (cl exh 4). Dr. Finkel focused considerably on the nature of Marchinek’s construction work. When he saw claimant on November 12, 1999, Dr. Finkel wrote, “we again discussed avoidance of abusive activities and modifications in his ADLs.” On the stand, the doctor explained that he meant “anything that requires weight bearing . . . kneeling, ladders, getting in and out of trucks for example . . . ” At the close of his direct testimony, Dr. Finkel concluded that claimant was unable to do heavy labor and that such limitation was permanent.

Claimant contends that until June 28, 1999 his right knee was asymptomatic. Such contention, to this trier of fact, does not square with the credible evidence:
i) The Brookhaven Memorial emergency room records from June 28, 1999 showed only a contusion.
ii) As to a potential causal nexus, Dr. Finkel responded: “I do believe that that traumatic episode stimulated this arthritic process to become active, create fluid and create pain and dysfunction.” But defendant’s expert, Dr. Match, very credibly undercut this conclusion by observing that the 60 cc of fluid drawn by Dr. Finkel from Marchinek’s right knee was yellow-straw colored, which indicates degenerative arthritis. Dr. Match explained that the fluid would have been bloody were there a new injury.
iii) Both Drs. Finkel and Match agreed not only on the severe degenerative condition of Mr. Marchinek’s knee, but that he should undergo a total knee replacement. While Finkel is an experienced orthopedic surgeon who has performed numerous knee replacements, he was not particularly focused on differentiating the effects of the subject June 28, 1999 injury from claimant’s long-term degenerative problems with his right knee. On cross-examination, Dr. Finkel seemed to concede that the reason for the total knee replacement would be the long standing condition of Mr. Marchinek’s knee:
Q. Now, you mentioned if . . . Claimant were to pursue total knee replacement . . . he would be able to lead somewhat of a normal life . . .
A. Well, your hope is that he leads a pain-free life. A knee replacement is really done for pain relief. That’s the primary reason.
Q. And on direct, you also said that the condition wouldn’t resolve itself without surgery. And what condition would that be? Would that be the severe arthritis?
A. Yes.

Q. And the degenerative joint disease?
A. Yes.

Dr. Finkel’s testimony, that the purpose of a knee replacement was to alleviate pain and that such surgery would be in response to his degenerative condition, implied that Marchinek experienced pain there prior to June 28, 1999. Therefore, the responsibility for a knee replacement, which claimant has not had and does not have scheduled, if and when it is performed, I do not find to be the responsibility of defendant.
iv) Claimant talked about experiencing pain as a consequence of what happened June 28, 1999; he mentioned that Dr. Finkel recommended a cane which he uses from time to time. At a number of places, claimant’s testimony diminished his credibility. For example, the following exchange, to this trier of fact, came across as disingenuous, arguably intended to show Marchinek’s limited possibilities elsewhere in the workforce.
Q. Sir, can you tell the Court what your highest rate of education was?
A. I finished high school.

Q. Okay. Did you ever obtain any college degree?
A. No.

Claimant may not have obtained a bachelor’s degree, but he had a number of years of college. At the time of his surgery; the Strong Memorial Hospital records described him as a college junior (Brockport). Furthermore, he told Dr. Seideman in 2000 that he had surgery from a wrestling injury while in college (def exh B).
When asked about the 1979 procedure at Strong Memorial involving the trimming or shaving of the cartilage, claimant denied it was caused by a rugby injury, as his hospital records stated.
Claimant maintained that the trimming was necessitated by running - - when he ran he had heard clicking. Marchinek was told by Drs. Seideman and Finkel that he needed knee replacement surgery, but at the time of trial 3 to 4 years later, had not done so, and offered no credible reason for failing to do so. Nor was he persuasive in explaining what led to his discontinuing physical therapy a year and half after the subject accident. Marchinek was also, as described below, less than forthcoming about the vocational training opportunities that were presented to him.
Mr. Marchinek admirably persevered through his degenerative knee condition, performing physical labor day after day for years to support his family. With that said, the State of New York is not an insurer (Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977)); the objective medical evidence - the effects of the June 28, 1999 accident - - must be causally connected to the resultant claimed loss of function.
PJI 2:282 is entitled “Damages - - Personal injury - - Aggravation of Pre-existing Injury.” The Instruction provides that a plaintiff can recover for the damage caused by a condition aggravation, not the condition itself, only to the extent the pre-existing condition was made worse.
In any event, this trier of fact can conclude that the June 28, 1999 injury was that last added burden, the exacerbation that pushed him past the point where he was able to work as a laborer. The sometimes less than forthcoming testimony and the lack of objective medical evidence as to the effect of the injury makes unconvincing claimant’s contention that he would have worked another 19 years. Given the unassailable testimony that his condition was worsening, five more years of such work is not unreasonable; such conclusion obviously does not have a precise derivation.
Claimant is under a duty to try to mitigate his loss of earnings by reasonably seeking other employment, and if necessary, obtaining vocational rehabilitation by way of preparation therefor. Bell v Shopwell, Inc., 119 AD2d 715, 501 NYS2d 129 (2d Dept 1986). Claimant denied in his testimony that vocational training was offered from any quarter. Yet in claimant’s exhibit 4, there is a letter to Mr. Marchinek from Sheila Polkes, dated August 27, 1999, which in part provides that:
I am a Vocational Case Manager for the State Insurance Fund. I am offering my assistance in helping you to return to work if you have not already done so . . . [W]e can make a variety of vocational rehabilitation services available to you at no cost. These services include support for returning to your former employer, alternate training and/or job accommodations . . . If you are interested in our vocational rehabilitation services or would like more information, please contact me at your earliest convenience.

Marchinek’s testimony suggested once his children were born, he had no longer considered going back to school to become a civil engineer, yet on February 7, 2000, Dr. Seideman noted: “He is no longer going to work in labor. He is going to study to be a civil engineer” (def exh B).
In the winter months, as needed, Marchinek worked at an airport as the manager of the snow removal operation, supervising a number of employees - - demonstrating to some extent his potential abilities. His earnings were quite modest therefrom; see claimant’s 1998 and 1999 tax returns (cl exh 5).
It is a not unreasonable assumption that claimant could have been retrained after three years, and by such time, equaled or exceeded what his construction income would have been - - at least with respect to wages. He had an excellent benefit package that would be hard to match. Even though a new position at three years would obviously offer some benefits, the issue was not developed at trial, and without more, in measuring damages attributable to lost benefits, it will be assumed that Marchinek lost his benefits for the five years by which his injury shortened his heavy construction work.
Claimant put on the stand an economist, Dr. Albert Ovedovitz. As to claimant’s work year, Dr. Ovedovitz was asked to assume Marchinek worked 36 weeks a year, forty hours a week, with 10 hours of overtime. These assumptions generate a work year of 1800 hours.
The figure of 1800 hours annually is inconsistent with claimant’s work history. Marchinek worked 1277.5 hours in 1998 and 1395 hours in 1997, the last two calendar years before the mid-1999 injury (cl exh 3). Claimant contended that these lower hours were caused by weather and that he was the “new guy” in a smaller company. However, going back to 1984 and using a fifteen-year work history of 1984 through 1998 yields a median work year of 1371 hours and an average work year of 1388 hours (id.). Using the latter figure results in 38.5 hours weekly for a 36-week year, or 35.5 hours weekly for a 39-week year. (Claimant’s testimony that he worked 9 months, of course, calculates to 39 weeks).
It is undisputed that under claimant’s collective bargaining agreement, he is entitled to time and a half the hourly rate after 40 hours. Even though under either the 36- or 39-week calculation, the average weekly hours is below 40 hours, that does not mean he did not work overtime. Instead of the 10 hours a week Dr. Ovedovitz assumed, a fair approximation, more reflective of his work history is a total of 180 hours of overtime annually at time and one-half, which leaves 1208 hours at straight time. For three years, that is $23.12 for straight time (the applicable wage rate throughout this period) and $34.68 for the overtime hours, or a three-year total of past wage loss amounting to $102,514
(cl exh 3).
As a construction worker subject to seasonal shutdowns, Marchinek was entitled to unemployment insurance. In his last full year of work, 1998, claimant collected $6,195 in unemployment, which is not inconsistent with the utilized assumptions, and thus using that figure for each of the three years results in $18,585 in lost unemployment insurance.

Claimant’s benefits under his labor contract are calculated as a dollar amount for every hour worked for certain benefits such as a pension, or as is the case with the welfare fund, a similar hourly-based calculation, but capped at 40 hours weekly. Using a five-year period from his injury, the benefit numbers increase for the year June 1, 2003 through May 31, 2004. Five years from his injury brings us to June 28, 2004; we will use four years at the June 1, 1999 to May 31, 2003 rates and one year at the 2003- 2004 rates: four years’ past lost benefits, and one year of future loss.
For the four years preceding the accident, benefit contributions would have been made on Marchinek’s behalf at the rate of $14.22 per hour for the first 40 hours, and $8.97 per hour for the overtime hours (cl exh 3). The calculation is: 1208 hrs x 4 years x $14.22 plus 180 hrs (overtime) x 4 years x $8.97 yields $68,711.04 + $6,458.40, or $75,169 in past lost benefits.
For the one year of future benefit losses, the hourly contribution rates have increased: 1208 hrs x $17.52 plus 180 hrs (overtime) x $10.67 yields $21,164.16 + $1,920.60, or a total of $23,084.
The past earnings loss is the sum of lost wages ($102,514), unemployment insurance ($18,585) and benefits ($75,169), for a total of $196,268.
The future loss is the one year of lost benefits, namely, $23,084.
Pain and Suffering
Given claimant’s credibility, the lack of objective evidence linking his post-June 28, 1999 condition to what happened that day, rather than a severe degenerative arthritis and that such was, as the term indicates, worsening, I conclude that claimant’s greatest pain and suffering was limited to the period immediately following the injury with some effects through his cessation of physical therapy a year and half after the injury. Recovery for pain and suffering thus lies only for the past, which I find to be $75,000.
The Clerk of the Court is directed to enter judgment for claimant George D. Marchinek in the amount of $294,352 with interest from April 7, 2003, the date of the Decision on liability in this matter. A filing fee paid by claimant may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act.

March 28, 2005
New York, New York

Judge of the Court of Claims


[1]. The trial of the damages portion of this matter was held on October 21 and 22, 2003. Subsequently, the parties had asked the Court to withhold any decision, a request that remained in effect until recently.
. Defendant’s exhibit B are excerpts from the medical records from claimant’s exhibits 1,2 and 4.
. On redirect, Dr. Finkel added playing softball to this list.

[4]. Claimant testified that he gave up rugby some ten years after the reconstructive surgery, and well before the accident that is the subject of this case, although he did not directly explain why. Dr. Finkel in the context of the 1970's surgery, noted, “The patient returned to full activity. He had to modify his exercise and sports activities; however, he was able to return to a fairly normal life” (def exh B, June 30, 1999) .
. The figure of $102,514 is the sum of $83,787 + $18,727.

[6]. The unemployment insurance benefits received in 1998 are consistent with the assumptions here: 36 weeks of work a year while subject to the maximum unemployment benefit of $365 week for 16 weeks a year yields $5840. (Effective September 1, 2000, the maximum would increase as a function of the statewide average weekly wage in all covered employment as calculated by the State Department of Labor). See Labor Law §590.5, as amended by Chapter 589 of the Laws of 1998.