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]
GEORGE D. MARCHINEK
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Lippman, Krasnow & Kelton, LLPBy: David T. Verschell, Esq.
Eliot Spitzer, Attorney
GeneralBy: John Shields, Esq., AAG
March 28, 2005
Modified 33 AD3d 891 [2d Dept 10/24/06]
See also (multicaptioned
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
The surgery was credibly characterized by Dr. Ronald Match, defendant’s
expert orthopedic surgeon, as a “major reconstruction.”
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
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.
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
Q. And the degenerative joint
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.
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
Q. Okay. Did you ever obtain any college degree?
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
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.
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.
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
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
(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.
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
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
LET JUDGMENT BE ENTERED ACCORDINGLY
March 28, 2005
HON. ALAN C. MARIN
Judge of the Court of Claims
. 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
. 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.
. 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.
. 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.