New York State Court of Claims

New York State Court of Claims

KUNTZSCH v. STATE OF NEW YORK, #2005-018-493, Claim No. 104687


The Court awards Claimant $90,000 for pain and suffering (past and future) and his wife $30,000 for loss of services

Case Information

GORDON M. KUNTZSCH and TRACY KUNTZSCH All references herein to claimant will be to Gordon M. Kuntzsch as the claim of Tracy Kuntzsch is only derivative in nature.
Claimant short name:
Footnote (claimant name) :
All references herein to claimant will be to Gordon M. Kuntzsch as the claim of Tracy Kuntzsch is only derivative in nature.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
ABDELLA LAW OFFICESBy: Robert Abdella, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

In a Decision filed December 22, 2003, the Court found the Defendant 100% liable for Claimant's injury and loss resulting from a motorcycle accident on June 23, 2001, in the Village of Canajoharie. This Decision addresses the issue of damages.

Claimant, whose birth date is June 21, 1970, was 34 at the time of the damages trial. He is married to Tracy Kuntzsch and they have three children in their household.

Claimant testified that when he fell off his motorcycle he landed primarily on his right shoulder. He suffered scrapes to his right knee, his right pinky and ring fingers. Claimant's right shoulder was swelling at the scene of the accident, and he was taken to the hospital by ambulance for treatment. At the hospital, Claimant was given pain medication and a sling, and x-rays were taken. He was released later that day with instructions not to use his arm, keep it elevated, and apply ice. He testified that he was told he had a severe collarbone separation.

On the day of the accident, following his release from the hospital, Claimant's shoulder continued to swell to the point it was almost touching his earlobe. He was in significant pain but after relaxing at home for a few hours, he and his wife went to the scene of the accident to videorecord the area.[1]
Claimant said his body ached, especially his shoulder, and he could not sleep that night due to the pain. He had been advised at the hospital not to use his arm for two weeks.
Claimant described his daily chores before the accident. He was unemployed at the time of the accident and shared much of the housework with his spouse. In the morning, Claimant would feed the animals and do such things as sweep, mop, vacuum, wash clothes, etc. He was responsible for most of the outdoor work such as lawnmowing and vehicle repair. For the first few weeks after the accident, Claimant's wife had to maintain the household and wait on him. His arm movement was limited and he was in constant pain. The prescribed medication made him drowsy.

As the swelling decreased over the first few weeks, Claimant was given stretching exercises to perform. He was told by Dr. Gerald Ortiz, his treating orthopedic physician, to stretch the shoulder, then put ice on it, and put it back in the sling. Claimant performed these exercises a few times each day. Over time, the shoulder improved and the pain lessened.

Claimant testified that his fingers and knee injuries healed completely. His shoulder, however, still aches all the time. He cannot lift his right arm straight up over his head as he can his left arm. Any repetitive movement is painful. On a scale of 1 to 10, Claimant said the pain can get up to a 7 or 8; at best it is a 3 or 4. His shoulder and arm sometimes spasm uncontrollably and his hand and fingers will be cold. He has a prescription for pain medication from Dr. Ortiz but tries not to use it very often. Dr. Ortiz has discussed the possibility of surgery with Claimant, but there is no assurance that his mobility and strength would be any better than it is currently. Claimant has adapted his life to his limitations and, at present, does not seem interested in surgery.

Claimant's activities have been affected by his injury. His nine-year-old son began playing football in 2004. Claimant tries to play catch with him but cannot throw the ball accurately or often. Claimant's wife, Tracy, testified that she had a friend's husband teach their son how to play baseball. Claimant was so upset that he could not help, Tracy took the child to her friend's house for instructions.

Claimant is an avid deer hunter, using both the bow and shotgun to hunt. His archery skills have lessened, and he has had to adjust his equipment to accommodate his injury. He can no longer target practice for the same length of time. He has also purchased padding for the butt of his shotgun to minimize the pain caused by the recoiling of the gun. Despite the pain and aggravation, Claimant has continued to hunt because he enjoys it so much.

Claimant did the mechanical work on the vehicles and lawnmowers at home. He can no longer reach either up or down to fix things. His grip has weakened and his wife has seen him drop things. Tracy Kuntzsch also testified regarding Claimant's frustration about his limitations. Claimant has found ways of coping, however. He gets assistance from friends and he has purchased a pulley device that can lift items on which he needs to work.

Claimant and his wife testified about the grinding and popping sounds his right shoulder makes when he moves it. It is quite loud and upsets Mrs. Kuntzsch when she hears it, and as a result, the couple's relationship has suffered. For a period of time, they were not as intimate as they had been before the accident. Also, Mrs. Kuntzsch insists that Claimant wear a shirt during intimate moments. Claimant's shoulder is deformed,[2]
and his wife cannot look at it. This is distressing to both of them.
Much was made of what Claimant could do after the accident. He helped split wood to heat their home in the fall of 2001. While being assisted by his family, Claimant used a mechanical splitter, mostly moving the handle to and fro. Again, his coping skills have helped him continue working around the house.

Claimant is currently employed as a truck driver and the truck has an automatic transmission. Because the employer has a union shop, Claimant does not assist with other jobs. Claimant is currently working over 40 hours per week, although he testified that after work his shoulder aches.

Claimant has purchased and used snowmobiles since his accident, and as of the date of this trial, was still a member of a local volunteer fire department. He had just received a physical examination to continue as a volunteer firefighter and did not yet know the results. However, since his injury, he has passed physicals and returned to some training. Claimant has attended fire calls as well.

Dr. Gerald Ortiz testified, via videotape,[3]
for Claimant. He is an orthopedic surgeon who has treated 20 to 30 patients with shoulder separations. Dr. Ortiz's primary work is orthopedic surgery. He testified that Claimant first saw Dr. Ortiz's physician's assistant on June 29, 2001. Claimant had been referred by his primary care physician after his emergency room treatment. Claimant gave a history of his injury as a result of the motorcycle accident. He complained of pain and a physical examination revealed a significant deformity of his clavicle. Claimant also had a limited range of motion. Dr. Ortiz explained what he meant by a significant deformity of the clavicle or collarbone: "The AC[4] joint is the joint where the clavicle or collarbone meets the shoulder blade in the front of your shoulder[,] and when it separates or dislocates[,] the collarbone basically sticks up into the soft tissues and is prominent there."[5] The x-rays confirmed the dislocation. Dr. Ortiz continued his explanation saying that a complete separation, as Claimant suffered, meant that at the joint where the collarbone meets the shoulder blade, the collarbone is completely out of the socket of the acromion or scapular bone. This AC joint is the central pivot point that allows for the various movement of the shoulder.
When a person suffers a total disruption of the AC joint, Dr. Ortiz said, the collarbone can protrude into the trapezius muscle on top of the shoulder which results in pain. Also, the shoulder blade no longer has bony support, which can limit the function of the shoulder, especially moving the arm above the head. There is also physical deformity associated with it.

At Claimant's first visit to Dr. Ortiz's office, he was diagnosed by the physician's assistant with a grade 3 AC separation. The physician's assistant discussed treatment options with Claimant and his wife.

Dr. Ortiz first saw Claimant on July 9, 2001. When he examined Claimant he determined that he suffered a grade 5 AC separation, although when Claimant indicated his pain had decreased, he could only raise his arm to shoulder height and his clavicle still protruded. Treatment options were again discussed. Surgery is not always the treatment of choice depending upon the patient's lifestyle and goals. Surgery would involve bringing the collarbone down and tying it down with a ligament. The two ligaments that usually connect between the clavicle and acromion cannot be repaired. The end of the collarbone is removed to allow it to fit without pain. Occasionally additional fixation is used, such as a screw, a heavy band of tissue, or heavy sutures to hold the collarbone in place. It is not always 100% successful in removing all pain and limitation. Claimant has declined surgery but it remains an option.

Dr. Ortiz explained the grading system for clavicle separation. A grade 3 AC separation is a complete separation with 100% displacement of the collarbone; a grade 5 is when the displacement is 300% and the end of the bone can be felt sticking out of the skin. The 100% figure represents the width of the bone, so a 300% displacement indicates the bone is 3 widths above where it should be.

Claimant saw Dr. Ortiz again in March 2002, and told the doctor that he was still having pain with activity but it did not interfere too much with his daily living. X-rays taken at that time revealed some calcification where the ligaments had torn away. Dr. Ortiz next saw Claimant on February 12, 2003. The x-rays from that date show the calcification and the significant separation of the AC joint. Claimant continued to complain of pain, difficulty sleeping, and that the area clicked and caught. Claimant was working at the time but had difficulty with overhead activity. According to Dr. Ortiz, these complaints were to be expected with this injury. The problems Claimant expressed were the result of the shoulder blade not being attached to the body as it should be and the clavicle moving about in areas where it was not meant to be. Dr. Ortiz prescribed Darvocet for Claimant on that visit and again discussed surgery with him.

As of May 6, 2004, Dr. Ortiz said Claimant's condition had not changed. He gave Claimant another prescription and discussed surgery. He last saw Claimant on October 28, 2004, less than a month before this trial, and Claimant's condition had not changed. Claimant was using the Darvocet and, as long as he could continue his daily activities with tolerable pain, he was not interested in surgical intervention.

Dr. Ortiz related Claimant's AC joint separation and chronic pain to his motorcycle accident. Claimant denied any prior shoulder injuries or problems. Dr. Ortiz does not believe Claimant's condition will improve, nor could he say that it would worsen. It will be permanent. According to Dr. Ortiz, Claimant will continue having problems with overhead activities.

In Dr. Ortiz's opinion, Claimant would improve with surgery: the pain in his shoulder, the look of it, and his overhead movements. The cosmetic aspect would not completely resolve the deformity. If he had surgery, Claimant would spend six weeks in a sling, and six weeks after that in physical therapy. At that point, Claimant would start trying to lift his arm over his head. It is a long rehabilitation. There would be pain associated with surgery and the recovery process.

The Court finds Claimant's AC joint separation, ongoing pain, limitation of motion, and shoulder deformity are the result of the motorcycle accident for which Defendant was found 100% liable. There was no proof of lost wages, medical expenses, or personal property damage.

Accordingly, the Court awards Claimant $90,000 for pain and suffering (past and future) and his wife, Tracy Kuntzsch, $30,000 for loss of services. Interest on said awards to run from November 24, 2003, the date of the liability decision.
All motions not hereinbefore decided are denied. It is hereby

ORDERED, that to the extent Claimants have paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).


November 14, 2005
Syracuse, New York

Judge of the Court of Claims

[1]The recording was rendered unusable when given to a third party to duplicate.
[2]The Court observed this during trial.
[3]Exhibit 1 which was transcribed and admitted into evidence as Exhibit 2.
[4]Dr. Ortiz said AC joint stands for acromion clavicle joint.
[5]Exhibit 2, p. 8.