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
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
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
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
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
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
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
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
and his wife cannot look at it. This is distressing to both of
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
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
Dr. Gerald Ortiz testified, via
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
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
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
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
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
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
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).
LET JUDGMENT BE ENTERED ACCORDINGLY.