MOLODTSOV v. THE STATE OF NEW YORK, #2005-030-003, Claim No. 107063
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
DANKNER & MILSTEIN, P.C.BY: ABRAM I. BOHRER, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
March 14, 2005
See also (multicaptioned
Denis Molodtsov alleges in Claim Number 107063 that on October 13, 2002 he was
injured while working at the Taconic Developmental Disabilities Organization -
a State owned and operated mental health facility in Wassaic, New York -
pursuant to a sub-contract for asbestos removal from underground tunnels held by
his employer, Scorpio Enterprises, Inc. (hereafter Scorpio), with Thettalia
Construction, Inc. (hereafter Thettalia). Thettalia had entered into a contract
with the State for removal of asbestos wrapped pipes which had collapsed in an
underground steam/utility tunnel at the facility. Claimant was injured in a
fall while working in an underground steam tunnel.
By decision filed June 4, 2004, this Court granted Claimant's motion for
partial summary judgment [M-68192] on the issue of liability under Labor Law
§§240(1) and 241(6), and found the Defendant to be solely responsible
for the accident of October 13, 2002 which resulted in Denis Molodtsov's
injuries. This Decision deals only with the issue of damages. A trial of the
matter was held on November 30, 2004 and December 1 and 2, 2004.
The claim in this action, filed on December 10, 2002, contained a demand for
$2,000,000.00, including but not limited to past and future medical expenses,
past and future pain and suffering and past and future loss of enjoyment of
FINDINGS OF FACT
At trial, Mr. Molodtsov took the stand, as did his two treating physicians, a
rehabilitation counselor and an economist, on Claimant's direct case. Defendant
called one physician.
Claimant was 22 years old on the date of the accident, having been born on
January 4, 1980, and had worked in his father's construction company doing
heavy construction, carpentry and light plumbing from age 14 until coming to the
United States from Russia on May 29, 2001. While still in Russia, he completed
a high school education, graduating in the top half of his class, and studied
classical guitar with a private teacher. Although he had taken some English
classes in Russia, when he arrived in the United States, he did not
speak English, and strove to acquire the language.
Claimant began work in the United States as a materials handler and assembler
in a plastics plant in Ohio, a job he found through an employment agency in New
York. During his 7-8 month tenure there, he earned one wage increase from $9.45
per hour to $12.99 per hour. He did not file a tax return for the year 2001.
In early 2002, he came to New York, and found work as a carpenter for
approximately four months. No salary was indicated for this job. He reported
that he enrolled in school to learn English, and attended school approximately 5
days per week, 3 to 4 hours per day, for one year.
Thereafter, in May 2002, he took a one (1) week training course to become
certified in asbestos handling and removal at the ANDO trade school. [Exhibit
9]. He completed the course with a grade of 88% - the "highest in his class" -
and became a licensed asbestos remover with the State of New York, the City of
New York and the State of Connecticut. [Exhibits 10, 13]. He testified that he
joined Local 78 Asbestos, Lead and Hazardous Material Workers Union (hereafter
Local 78) in September or early October 2002 at the urging of another employer,
Metro. He produced a receipt for an initiation fee paid on September 11, 2002
[Exhibit 11], and what appears to be an identification card from Local 78, dated
October 1, 2002 and identifying him as a "scaffold user." [Exhibit 12]. He
indicated that there was training through the union for becoming a "scaffold
user", and that he took a test for that skill as well.
He was able to secure work in Connecticut for three months as an asbestos
remover immediately after his training was completed in May, 2002, working 10
hour days at a school for Stobi Construction for approximately $27.00 per hour.
He reported that he "took a couple of days break," and then worked for "Metro in
Brooklyn," who referred him to the union. Between working for Metro and working
for Scorpio he took approximately one week off. When he was "accepted in the
union in September, 2002," he began work for Scorpio at a two (2) week job in
the Bronx. After another break for "a couple of days," he started a new job for
Scorpio. He had been working there for a few days when he had the subject
Claimant did not file a tax return for calendar year 2002, and did not produce
receipts of any kind for his work in the Ohio factory, his work as a carpenter,
and his work for Stobi Construction or Metro. With respect to payment from
Scorpio, he testified that he was paid $20.00 per hour net, based upon a gross
payment of $25.00 per hour, but that he was paid sometimes by check and
sometimes in cash. He produced copies of two checks dated October 9, 2002 and
November 8, 2002 in the amounts of $480.00 and $550.00, respectively. [Exhibit
14]. He said that the check from October was from the first project for Scorpio,
and that the November check represented "two days work." He said it was very
difficult to obtain payment from the company, and that the November check -
dated after the accident - took until December, 2002 to obtain.
Although the Defendant attempted to take issue with whether Claimant was a
full-fledged member of Local 78, and whether he was only at an apprentice rather
than at a journeyman level with the union and concomitantly entitled to a lower
hourly rate, no affirmative evidence was presented to contradict Claimant's
testimony to the effect that at the time of the accident he was a member of the
union, earning between $20.00 and $25.00 per hour for work weeks that were
routinely more than 35 hours, as a result of his training and certification as
an asbestos handler.
Wage and fringe benefit rates furnished by Local 78 for successive years, and
admitted in evidence, show that the hourly rate for members was between $24.15
and $29.20 for the year December 1, 2001 through November 30, 2002; between
$23.85 and $30.20 for the year December 1, 2002 through November 30, 2003;
between $25.50 and $32.55 for the year December 1, 2003 through November 30,
2004; and between $25.50 and $34.05 for the year December 1, 2004 through
November 30, 2005. [Exhibit 16].
Claimant described the accident and the events following it. He said he had
been working in an underground steam tunnel when he fell from a height of
approximately 6 to 8 feet onto a hard surface, striking his arms and wrists and
his right knee. He said he "blacked out", and when he came to he was resting on
a pipe below-ground that his fellow workers had placed him on. He felt pain in
his wrists and knee, and was "hurting inside." Workers put him on a cart to "get
some rest," and then he went "over to the building where the guys were working."
He "lost consciousness again," and next "woke up on some kind of couch."
He was returned to the motel where he and his fellow workers had been staying
for the asbestos removal project. Although an ambulance arrived at the motel to
take him to the hospital, he refused the ride. According to the ambulance call
sheet, he complained of pain in both wrists, and the ambulance crew noted that
his presenting problems were "bi-lateral arm pain," and "fracture/dislocation."
[Exhibit 1]. In the objective physical assessment on the call sheet, it is
noted that there was swelling in the right arm, hand and wrist, and that further
treatment and assessment were refused, as was the advice that he go to the
Claimant testified that he "wanted to go home to Brooklyn."
When the owner arrived, he drove Claimant to Brooklyn as Claimant requested.
Once Claimant got home, and he again lost consciousness, his girlfriend called
an ambulance and he was taken to Victory Memorial Hospital (hereafter Victory)
in Brooklyn. [Exhibit 2]. The ambulance call sheet for the trip to Victory notes
that he was found on the couch and was complaining of pain in his right arm and
. He was given a splint and a cold compress by ambulance personnel
for the ride.
At Victory, x-rays were taken of his right and left wrists and his right knee.
. He was given a "more comfortable splint," and pain medication.
He testified that he "must have complained about pain in [his] back and neck but
[did not] remember." The radiologist's report - discussed more extensively
during the trial by Claimant's treating physicians Dr. Andrew Brown and Dr.
Harvey S. Bishow - indicates in part that both wrists were swollen, that in the
right wrist there was a fracture extending to the intra-articular surface; that
in the left wrist there was a comminuted fracture; and that in the right knee,
there was an "undisplaced fracture of [the] patella with small suprapatellar
joint effusion." [Exhibit 2]. He was discharged, with instructions to see the
orthopedist the next day, and discharge advice concerning wrist fractures, and
knee fractures. [Ibid]
When Claimant first saw Dr. Harvey S. Bishow, one of his treating orthopedists
at Seaport Orthopaedic Associates (hereafter Seaport), on October 17, 2002, he
recalled complaining of pain all over, although he felt focused pain primarily
in his wrists and his right knee. More x-rays were taken at Seaport, new casts
were placed on his wrists as well as a splint on his knee. He was told to rest
in bed. He was discharged with a "Disability Certificate" signed by Dr. Bishow
indicating that Claimant was "totally incapacitated" and due for re-evaluation
on November 14, 2002. [Exhibit 3]. According to the medical records, these
types of notations indicating Claimant's "total incapacity" were made at Seaport
for the balance of the year 2002, and throughout 2003, and there are also
notations that Claimant was "totally incapacitated" made by Downtown Physical
Medicine & Rehabilitation, P.C.
Claimant recalled being confined to his home for several months
with casts on his wrists, and pain in his knee. He said he was unable to bathe
himself, and required his girlfriend's assistance.
In December 2002, he first saw Dr. Andrew Brown - an orthopedist with Downtown
Physical Medicine & Rehabilitation and seemingly associated with Seaport -
who examined his neck and back, and requested approval for an MRI of the area.
Dr. Brown also referred him to physical therapy for these areas as well. Once
the casts were off he recalled attending what he described as "painful" physical
therapy three times per week, for his back, neck, right knee and both wrists.
Claimant testified that his right knee did not seem to improve, but rather
worsened. After an MRI of the area, and Dr. Bishow's diagnosis of a "tear in
the meniscus," Dr. Bishow performed arthroscopic surgery of the right knee in
May, 2003 at New York University Medical Center Downtown Hospital. He went home
that night, with instructions to attend physical therapy 3 times per week within
"a couple of weeks." He testified that he attended physical therapy as
directed, and that it first appeared to improve, but then it worsened. He said
that the knee still hurts "especially when he straightens his leg, turns around"
or is walking. "It feels like a constant needle in your body," and will keep
him awake at night "sometimes." He feels pain when he is "walking, standing,
jumping, climbing up and down stairs, running," and said that while he can walk
for "a distance, 10 to 15 blocks, it will hurt" and he also limps. Dr. Bishow
referred Claimant for another MRI, and intends to perform further arthroscopic
surgery because - as Claimant understood it - "the meniscus is retorn."
His hands have "lost strength," and he feels tingling in his fingers. Claimant
said he can't lift or squeeze, and that turning anything - from the twist-off
top of a bottle of water, to a shower faucet - causes pain in his wrists. When
he dresses he feels pain, in that "any movement of the wrists hurts." He said
that he uses 4 lb weights for exercise. He said that if he sits down at the
computer to write a letter, for example, he will have a "pain strike" and be
unable to continue because of the pain, numbness and tingling.
With regard to his neck and his back, no special exercises have been prescribed
just the use of heat and ice. He said his neck hurts more than his back, and he
experiences numbness and headaches. He cannot turn his neck. In his back he
feels spasms, or "pain like a needle from the spine down to the elbow," and his
arm "feels paralyzed." These sensations can last 2 to 4 days.
In addition to physical therapy, muscle relaxants, and pain relievers, Claimant
received "injections for pain", that seemed to help with pain in his neck and
back for a few months, but then the pain returned. He said he continued to
experience pain in the back of his neck, numbness and cold tingling in his hand,
and wore a "lidoderm patch" on his neck for pain.
He stated that although he had plans to attend college, and had been accepted
to Baruch College to take business courses to commence in the Spring of 2003,
after the accident he did not sign up for classes given his physical state. He
said that he came to this country to work and raise a family, and while at first
"everything went smoothly," since the accident he "sits at home doing nothing"
while his friends move on with their lives. One is getting married. Another has
started a small construction company just as Claimant had hoped to do. Prior to
the accident, he liked to snow board, enjoying the sport in Russia and then in
the United States during the winter months between 2001 and 2002, going to local
recreation areas almost every weekend. Claimant did a lot of hiking prior to the
accident - including treks to California and the Grand Canyon - and enjoyed
playing the guitar and attending what he described as "bard music festivals"
where attendees "camped out" for the festivities. He avowed that while he would
"love to go to work," he cannot do what he used to do, given his strength
limitations and his bouts of intermittent pain that he said he has experienced
"every day since the date of the accident."
Dr. Harvey S. Bishow
Dr. Harvey S. Bishow, from Seaport, testified at length concerning his
treatment of Claimant's wrists and knee, and was qualified as an expert in
orthopedic surgery. Dr. Bishow first saw Claimant on October 17, 2002. Claimant
reported the history of his fall, including the mechanics of landing on his
arms, wrists, and right knee. On physical examination, Dr. Bishow observed
tenderness, swelling and limited range of motion in both wrists, and swelling
and tenderness over the anterior portion of the knee. After reviewing x-rays
[Exhibit 2], he agreed with the operating diagnosis found by physicians at
Victory. He said that Claimant had an undisplaced linear fracture of the distal
radius in the right wrist extending to the articular surface, meaning there was
a fracture in a line into the wrist joint and that although no bones had been
displaced, there were increased chances of problems with the involved joint. In
the left wrist, there was an undisplaced comminuted fracture of the distal
radius, meaning there were more pieces to the fracture, and the fracture was in
the radius - one of the two bones that extends from the elbow down to the wrist
- with potentially more complications than a linear broken bone. Finally, in the
right knee Dr. Bishow agreed that Claimant had suffered an undisplaced fracture
of the right patella, with soft tissue swelling, signaling "that there is
something going on in the knee."
At the initial visit, "short arm casts" were placed on both wrists, and a
course of physical therapy for the knee was commenced. He explained that
initially he had not seen the knee fracture, but the treatment of moving the
knee in physical therapy would have been the same in any event for a "stable
fracture," such as the one suffered by Claimant. Dr. Bishow also explained that
although his evaluation does not note any neck and back complaints, he would
have been focused on what Claimant was seeing him for, and likely referred
Claimant to the soft tissue physicians in his office.
Over the next several months, Claimant went to physical therapy, seeing Dr.
Bishow for follow-up in December, 2002. When Dr. Bishow examined Claimant, the
condition of his knee had changed for the worse in that Claimant now had "medial
and lateral joint line tenderness", and "an effusion as opposed to soft tissue
swelling." As a result, Dr. Bishow sought approval for an MRI of the right
The MRI was done on May 5, 2003, and discussed by the witness. [Exhibit 6].
What he found was a tear of the medial meniscus, or the cartilaginous portion of
the knee that sits between the femur and the tibia. As a result of what he saw
on the MRI films, he prescribed and performed arthroscopic surgery of the right
knee to both conduct further examination of the area, and to repair whatever
might be found. Surgery was performed on May 27, 2003, revealing not only a
tear of the medial meniscus as found on the MRI, but also some scar tissue in
the knee, and a small tear in the lateral meniscus. Dr. Bishow repaired the
medial tear, by inserting an "absorbable implant" that pushes the tear together;
and removed the tear on the lateral side where there was no blood supply to the
tissue in any event. Once removed, he explained, the tissue does not grow back.
Dr. Bishow confirmed within a reasonable degree of medical certainty that a
fall from a height of between 6 to 8 feet from an elevated surface to a stone
floor with his hands in an outstretched position, and his knee landing as well,
would cause fractures to both wrists and to the right patella, and the three
tears to the lateral and medial meniscus. Impact would precipitate the
fractures, and a twisting movement or mechanism in addition to the direct blow
would cause the tears of the right knee.
Claimant was continuously under Dr. Bishow's care from the date of his first
visit to the time of trial. Dr. Bishow stated that although the fractures
healed, Claimant continues to have and will continue to have in his opinion poor
range of motion in his wrists. Additionally, when Dr. Bishow examined the
Claimant on November 20, 2003 he complained of some swelling and tenderness in
the back of his wrist, and upon palpation Dr. Bishow was able to feel a ganglion
cyst of Claimant's left wrist, overlying the wrist joint. Dr. Botwonik, a hand
surgeon in Dr. Bishow's practice, determined that it was a traumatically induced
ganglion cyst, and sought approval for its excision.
Although initially his right knee appeared to improve after the surgery, Dr.
Bishow noted that Claimant developed pain in the tendon area above his right
kneecap toward the side, suggesting that there was either a "recurrent tear," or
that the previous repair had not healed. Dr. Bishow sought authorization of an
additional MRI of the right knee. In the meantime, in September, 2003 Dr.
Bishow had to aspirate liquid from Claimant's knee because of an effusion,
indicative of some kind of inflammation or irritation of the knee joint. He
thought that it was likely related to the implant, since it is not uncommon when
a meniscal repair is done that an effusion may result.
The most recent MRI from September 30, 2004 showed that there was either a
recurrent tear, or some sort of abnormality in the area where the first repair
was made, consistent with Claimant's reports of pain in the area. During a
physical exam on October 7, 2004 Dr. Bishow noted Claimant's guarded gait, or
limp, his decreased range of motion, tenderness at the medial joint line in the
area of the medial meniscus, and a "positive McMurray's test." The McMurray's
test, he explained, would show an abnormality in the knee based upon the
physician's positioning of the patient, and manipulation of his lower leg,
resulting in a clicking or popping sound. As a result of the MRI and the
physical exam, Dr. Bishow sought approval for another arthroscopy to determine
whether it was a recurrent or a new tear. Surgery has been approved and the
witness noted it would be going forward in the near future. The costs
associated with such surgery, Dr. Bishow indicated, would include his surgical
fee of $3,000.00 to $4,000.00; hospital costs, anesthesia, in the $2,000.00
range, and thereafter physical therapy for approximately 12 weeks, 3 times per
week, at a cost of $75.00 per session.
Dr. Bishow stated that Claimant's prognosis was guarded. He stated that since
it is now 2 years after the injury, and Claimant has not achieved full range of
motion in either wrist, it is unlikely that he will ever recover full range of
motion in his wrists. He thought that removal of the ganglion cyst might improve
the motion, but there was no guarantee.
With regard to Claimant's knee, prognosis is "worse than guarded." If what has
occurred is a failure to heal two years after surgery, Dr. Bishow would be chary
of performing a second repair, and would be forced to excise a portion of the
medial meniscus. The long term implications of such removal - which would
include removal of healthy meniscus - statistically increases the risk of
developing traumatic arthritis in the knee.
Finally, Dr. Bishow opined that Claimant was disabled from performing his prior
work as a laborer or heavy construction worker, involving the use of heavy
tools, such as jackhammers and sledgehammers, lifting heavy bags of asbestos
and water and moving these heavy objects from their location by going up and
down ladders and staircases. Additionally, given Claimant's reduced mobility and
weakness in the wrists, and his knee problems, he would be unable to drive for
any extended period of time, do other tasks that require repetitive movements of
the wrists and hands - such as using a keyboard - and would also not be able to
sit for a protracted period of time. He would not be able to play the guitar
except with "difficulty." Finally, Dr. Bishow opined that Claimant would always
have "discomfort" in his wrists, and would likely have a permanent disability in
his knee as well.
Defendant did not cross-examine Dr. Bishow.
Dr. Andrew Brown
Dr. Andrew Brown, qualified as an expert in physical medicine and
rehabilitation medicine, and one of Claimant's treating physicians, also
testified at length. He described his field as one facilitating the return to
society of injured individuals who surgeons and neurologists could no longer
assist, through physical therapy and modification of the environment. He
described himself as a "non-operative orthopedist with knowledge of nerve and
spinal injuries and electrodiagnostic studies." As noted, he first saw Claimant
on December 19, 2002, when Seaport referred Claimant because of continued
complaints of neck and back pain.
Dr. Brown testified as to Claimant's history, including Claimant's reports of
pain in his neck and lower back radiating into his right hip, and conducted a
physical exam, and various objective tests. He noted that complaints of pain in
the neck and lower back were made within 10 to 15 days of the
On physical examination, Dr. Brown saw that the lordotic curve of Claimant's
spine was decreased - one of the body's "protective mechanisms, like a limp when
an ankle is sprained" - suggesting that the muscles of the neck were tightened:
an objective finding observable when viewing the patient from the side. He
noted significant range of motion decrease in all planes of the neck, including
flexion and extension, and upon palpation of the neck he was able to elicit
muscle spasms, as well as complaints of pain. A spasm, he said, is an
"objective finding" while complaints of pain are generally "more subjective,"
but, given the objective observations, consistent in this case.
In his initial neurological examination of the neck, he found that there had
been an isolated nerve root injury affecting the nerves distributing from the
spinal cord at the C-6 level, decreasing his sensation in his upper right arm.
During his physical examination of Claimant's lower back, or lumbar region, he
observed a reversal of the curve in the lumbar region - an objective finding -
and decreased range of motion in all planes. He noted that Claimant had
difficulty arriving from a flex, or bent over, position to a neutral position
needing to use his hands or some other support to come back up, indicating "some
kind of pathology in the lower back." Additionally, the "lumbosacral rhythm was
not smooth" in moving from the flex to the neutral position, with Claimant
evincing another objective guarding mechanism in arching his back to give it
better support as he moved up to neutral. He observed tenderness and spasms
upon palpation of the paralumbar muscle, and weakness in the abdominal and lower
Neurological evaluation of the lumbar region showed a "deficit in the right
lower extremity in the S-1 distribution."
Dr. Brown's working diagnosis at the time was "traumatic cervical pain syndrome
with radiculitis," and "traumatic lumbosacral pain syndrome with radiculitis."
He described traumatic cervical pain syndrome as representing multiple problems
in the ligaments and joints, but he could not yet be sure which of the
structures, i.e.: the ligaments, the joints, the tendons, the muscles; was
causing the problems. Radiculitis he described as an inflammation of the nerve,
as opposed to radiculopathy or compression of the nerve. He suspected that
there was a herniated or slipped or ruptured disk, and needed to rule out those
as causes of claimant's symptoms. The sensory loss on the right leg implied
possible disk herniation in the lumbar region as well. He confirmed that these
conditions were competent pain producing conditions.
After his initial diagnosis, Dr. Brown prescribed a course of physical therapy
for the cervical spine, lumbosacral spine, neck and back. He also requested
of an MRI and an electrodiagnostic study or EMG to rule out nerve compression in
the nerves of his neck, arm, back and leg.
Dr. Brown re-evaluated Claimant on January 30, 2003. Claimant reported that he
had been receiving treatment for his wrist and knee, and had been unable to
attend the physical therapy for the neck and back. The witness stated that
Claimant "did eventually proceed with therapy for his neck and his back" but it
did not result in any long term improvement.
Dr. Brown testified concerning the MRI results taken on October 31, 2003 using
the films entered in evidence to explain his testimony. [Exhibits 5A-C]. He said
that the MRI of the neck showed a bulging disk at the C-5/6 level with foraminal
stenosis, with some mild foraminal stenosis at the C-6/7 level. The MRI of the
lumbar spine - not available during his testimony but discussed and marked -
showed a disk herniation at the L-4/5 level to the right of the midline, and a
bulge at L-5, S-1 and L-3/4.
He explained that in the neck, a bulge can be seen pressing against the spinal
cord, and that the space where the nerve is supposed to pass through is
narrower. As the nerve is coming out it is being "compromised" and there is
"foraminal stenosis," or a narrowing of the hole. He said "stenosis" is "a
narrowing of the canal that the nerve root exits from the spinal cord out to the
extremities." He said that the nerve doesn't have "as much play" as a result
of the stenosis, thus it becomes irritated, and symptoms of numbness, tingling
and pain can result. Although it is not a nerve compression, he called it
"relative compression." Based on Claimant's symptomology, Dr. Brown thought the
narrowing was greater at the C-5/6 level, although there appeared to be some
narrowing at the C-6/7 level as well. Dr. Brown explained that compression
radiculopathy is actually easier to treat than the irritation or radiculitis he
opined Claimant suffered from. Removal of whatever it is that is causing the
compression alleviates the problem generally, while chronic irritations may
continue to be manifested as symptoms of pain, weakness and numbness if the
inflammation is not eased.
With respect to the back, with the disk herniation over time as the body
attempts to guard itself from pain, movements are reduced, and then the joints
become more painful because they are not doing what they are supposed to do,
which is move. As Dr. Brown explained it, even healthy individuals experience
stiffness if they oversleep, or sit around all day. In Claimant's case, the
normal movement of his joints has been disrupted for over two years. Dr. Brown
said that "over time, the structures that become painful in relation to the
initial trauma become more and more not less and less, particularly as our
ability to treat the pain and return him to function becomes less and less."
Dr. Brown confirmed that the defects observed, that is the bulging cervical
disk with foraminal stenosis, and the herniated lumbar disk, were competent pain
producing conditions that within a reasonable degree of medical certainty were
caused by a fall from a height of 6 to 8 feet onto arms and wrists on a stone
floor. His opinion that the fall was the proximate cause of the Claimant's
physical condition was based on the Claimant's excellent health and absence of
any symptoms or limitations prior to the fall, that that type of fall would
definitely produce trauma to multiple areas generally, the timing of Claimant's
clinical presentation, together with the physical examinations he had given the
Claimant, positive findings in the MRI, and the way those positive findings
corresponded with the functional limitations that Claimant presented clinically.
After the review of the MRI and examination of Claimant, and based upon the
lack of response to physical therapy, Claimant was referred for a course of pain
management, including epidural steroid injections. After approval for these from
the Workers' Compensation Board, Dr. Kushnerick, an anesthesiologist
specializing in pain management associated with Dr. Brown's practice, instituted
the treatment in the epidural setting and recommended such injections for the
facet joints as well. Dr. Brown explained that these are injections at the
joints of the back, with the idea being that a "cortisone like steroid" is put
in to reduce the inflammation, and hopefully reduce the pain for the patient.
Dr. Brown reported that Claimant did not respond well to these injections, and
suggested that the likely future course of treatment after injection therapy
failure would be spinal surgery. Notably, as early as November 17, 2003, spinal
surgery is discussed by Dr. Jeffrey Goldstein, a spinal surgeon in Dr. Brown's
Exhibit 3, pp 33-34]. Dr. Brown testified that given the lack of
progress, and the MRI findings, the next step would be two possible surgeries, a
disk replacement in the lumbrosacral spine and, in relation to the neck, a
"decompression and fusion." Prior to pursuing any surgery, however, a new MRI
would be needed to ascertain any change in the anatomy since the October, 2003
MRI, such as any extension of the herniation, or whether there is now more
compression. Any surgery involving the spine is considered major surgery with
possible repercussions such as infection, permanent nerve damage, and risk of
paralysis, among other things. Recovery time could take "up to a year for most
vertebral column surgeries," likely followed by physical therapy. When asked,
Dr. Brown estimated that the cost of such surgery would include the surgeon's
fee, which would be anywhere from $8,000.00 to $12,000.00, plus the cost of
anesthesiology, the hospital, physical therapy for a minimum of 12 weeks, 3
times per week, at approximately $25.00 to $75.00 per
Dr. Brown concluded within a reasonable degree of medical certainty that
Claimant was totally disabled from the date of the accident to the date of
trial, and would continue to be disabled for the foreseeable future from his
permanent injuries. He thought that Claimant's prognosis was poor, in that disks
simply "do not regenerate themselves", and that Claimant suffered from
"significant permanent residual functional and physical limitations in relation
to the injuries that he sustained", and would likely experience pain for the
rest of his 53.6 expected years of life.
On cross-examination, Dr. Brown conceded that he did not know exactly when
Claimant commenced the physical therapy he prescribed on December 19, 2002,
except that as of January 30, 2003 Claimant had not yet commenced physical
therapy for the neck and back and had explained that he was getting treatment
for his wrists and knee at the time, and that by March, 2003 physical therapy
for the neck and back had been undertaken. Dr. Brown noted, however, that in
view of the clinical course he did not think it would have made "much of a
difference" if physical therapy had started earlier. Dr. Brown repeated that
Claimant had complained of neck and back pain within 10-15 days after the
accident, stating that he saw the notation in a Workers' Compensation form
completed by the employee - presumably Claimant - documenting the injury, as
well as a physical therapy form completed by the therapist looking at Claimant's
Edmond Alan Provder
Edmond Alan Provder, a rehabilitation counselor qualified as an expert in
rehabilitation counseling and employability, discussed his opinions about
Claimant's re-entry into the workforce, including Claimant's limitations in that
sphere. In order to form an opinion, he reviewed Claimant's medical records,
conducted standard vocational tests that tested both functional and intellectual
capabilities, reviewed Department of Labor texts and reports, and interviewed
the Claimant. Mr. Provder found Claimant to be a highly motivated and
intelligent individual, who was nonetheless unable to presently return to the
competitive work force full-time given his physical condition, the prospect of
three (3) future surgeries and the recovery time necessary after such surgeries,
as well as his lack of transferable skills from his earlier work as an asbestos
handler and general laborer.
The witness discussed the various jobs and where they fell in a five (5) point
physical demand scale used by the Department of Labor and members of his
industry to describe work. Claimant's past work had been between the "medium
work" to the "heavy" to "very heavy work" category, all entailing an ability to
stand and walk during the work day, and to carry and lift different weight loads
to varying degrees. In the "medium work" category, one would need to lift and
carry between 20-50 lbs "occasionally," and 10-25 lbs "frequently." In the
"heavy work" category, lifting and carrying between 50-100 lbs occasionally,
and lifting and carrying up to 25 lbs frequently, would be required. Finally,
in the "very heavy work" category, lifting and carrying 100 lbs occasionally,
and 50 lbs frequently, would be required.
In terms of Claimant's present physical abilities, Claimant reported to Mr.
Provder - who tested what assertions he could test through objective observation
and testing - that he could sit for 2 hours at a time, stand for 30-45 minutes
while experiencing pain in his right knee, walk for 30 minutes; slowly climb one
flight of stairs, lift and carry up to 10 lbs, grasp and manipulate objects with
his hands but with weakness, and bend only with difficulty and pain in his neck
and lower back. Despite the suggestion that perhaps he could do "sedentary" or
"light work" - other job categories described by the witness in terms of their
physical demands - Mr. Provder found that not only were the physical demands of
sitting for 6 hours out of an 8 hour work day excessive, but that Claimant had
no particular skills or abilities other than his ability to speak English and
Russian that would inspire an employer to hire him. Mr. Provder said that there
are "200 unskilled sedentary jobs" - such as "assembler, inspector, etc." - but
that "all require repetitive use of the upper extremities, that is frequent use
of the arms and wrists." Similarly, semi-skilled work, such as using a keyboard
as a data entry clerk, also requires repetitive use of upper extremities.
Claimant's other physical limitations - in his knee, neck and back - are
triggered by the "light work categories." These would include standing and
walking for most of the day, or sitting most of the time but pushing and/or
pulling arm or leg controls.
Because Claimant's physical condition was not yet "stable," he would be unable
to enroll in any vocational rehabilitation programs presently offered, but once
he was stabilized Mr. Provder agreed he could seek retraining and re-enter the
work force in some of the sedentary work jobs. The witness could see Claimant
working in a clerical job as an information clerk, or as a security guard at the
entrance to a large building, or as an order clerk using headsets. He would not
place Claimant in a job requiring frequent repetitive use of the upper
extremities, such as a "computer job."
Mr. Provder concluded that although Claimant would return to the work force
full-time within several years, he would not be able to return to his prior well
compensated work as an asbestos handler, and had thus sustained a significant
diminution in earning capacity over his work life due to his various
impairments. Given Claimant's motivation and intelligence, however, Mr. Provder
opined that Claimant would rejoin the work force and earn between $20,000 and
$30,000 annually at some future point.
On cross-examination Mr. Provder agreed that Claimant could perhaps presently
perform part-time work - defined as 4 hours per day, 5 days per week - but on an
inherently limited basis. As the work day progressed, Claimant would inevitably
be stalled by one of his physical limitations in the sitting, standing, walking,
and grasping arenas. Ultimately, without acquiring some superior skills
Claimant, as motivated and intelligent as he is, does not presently attract an
employer. When asked, Mr. Provder opined that without an identified disability
and superior skills, despite the existence of legislation prohibiting
discrimination against the disabled in employment, Claimant would not
necessarily benefit from the "reasonable accommodation" requirements of such
legislation. The witness said that employers are far more likely to accommodate
a highly skilled employee who is disabled, than an unskilled one. He affirmed
that once Claimant's physical condition stabilized, it was indeed possible that
being bilingual would be of benefit to an employer, or that other skills would
be acquired, allowing his return to the work force.
Claimant's expert economist, Laura Nowak, also testified concerning Claimant's
past lost earnings and future lost earnings. She indicated that Claimant had a
work life expectancy of 35.37 years, and premised her calculations in both areas
conservatively. With respect to past lost wages, for example, she used a lower
per hour figure when calculating his loss up to the present, including the lower
end of the Local 78 wage scale referred to above [Exhibit 16]. She also used
only a 35 hour work week, when Claimant had worked well in excess of that number
of hours weekly when he was on a job. As noted, laborers would live at a motel
during the job. The accident itself occurred in the very early morning hours.
Accordingly, for the last two months of 2002, she used $20.00 per hour, for
calendar year 2003, she used $23.85 per hour; for calendar year 2004, she used
$25.50 per hour. Together with fringe benefits - granted at different rates for
the different years by the union - she calculated his total past lost earnings
in the amount of $120,000.00 (R).
With respect to future lost wages, she proposed several different scenarios,
involving a comparison between the union rates shown on the Local 78 wage scale,
together with fringe benefits, and the likely salary he might command upon
re-entry into the work force, with two different percent wage growth increases
at 2% and 3%, comparable to the present rate of inflation (i.e.: 2%) and past
rates of inflation (3%). For example, were Claimant to command an annual salary
of $20,000.00 per year, without fringe benefits equivalent to those offered by
union employment, and assuming a 2% or 3% wage growth increase, his future lost
wages would be $1,846,140.00 or $2,184,309.00, respectively. If he were to earn
$30,000.00 per year - a figure suggested by the testimony of Mr. Provder -
without equivalent fringe benefits, the 2% figure would be $1,381,343.00, and
the 3% figure would be $1,628,219.00. Assuming that he were able to obtain
employment with fringe benefits, the future lost earnings decrease accordingly.
Thus if Claimant were earning $30,000.00 per year with fringe benefits the lost
earnings at 2% would be $768,681.00 and at 3% they would be
She stated that she chose these wage growth percentage increases based upon
comparing the difference between the union rates from year to year, in addition
to inflationary trends, and choosing a conservative average. For example, the
December 2003 to November 2004 wage rate went up 6.9%, and the fringe benefit
rate went up 7.78%. [See
On cross-examination, she conceded that in different years the union wage rate
change had also been at a negative 1.24%, and at 0%, but stated that that was
one reason why she chose the conservative figure: because the number had varied.
She also reiterated that the 35 hour per week calculation was used to take into
account that the Claimant would be paid only when he worked. It took into
account potential periods of unemployment, including the possibility that
Claimant would take days off or a week off here or there, as well as the
possibility that Claimant would return to work not just for the regular work
week, but on weekends and overtime. When queried about Claimant's status as an
apprentice or a journeyman, the witness conceded she did not know his status,
but from the information suggested by counsel for the Defendant concerning the
supposed distinction, her figures would not be appreciably different. This is
because - and no real evidence was admitted to the effect that Claimant was or
was not an apprentice or journeyman, and what difference it would make - it was
suggested by counsel for the Defendant that a different salary scale would apply
only for the first 1000 hours, or approximately 2 years.
Dr. Michael Elia
The only witness called by the Defendant was Dr. Michael Elia, qualified as an
expert orthopedist. He indicated that he physically examined the Claimant for
10-15 minutes on November 1, 2004 at Defendant's request, and testified as
memorialized in his report of the same date. [Exhibit A]. Unfortunately, his
opinions were not based on as thorough a familiarity with the patient as one
would hope, and revealed a lack of familiarity with the Claimant's medical
records and history, generally, including testing procedures performed upon this
Claimant in the record. He had not reviewed MRI films or x-rays before the
trial, and did not use those available in evidence to explain his
The physical examination Dr. Elia performed on Claimant was limited, and did
not include objective tests for grip strength, reflexes, and functional
limitations. On the one hand Dr. Elia said Claimant did not indicate his hand
and fingers became painful, tingly and numb on that specific day. On the other
hand, had Dr. Elia examined the medical record more thoroughly he might have
addressed these complaints - despite the Claimant's failure to mention them on
the day of the 15 minute examination - with more probing questions to one
speaking English as a second language, and with testing for various syndromes,
including carpal tunnel syndrome. Dr. Elia did not note the ganglion cyst; did
not observe Claimant's gait; failed to note complaints of neck or lower back
pain in the medical record as early as 10 -15 days after the accident; and did
not note the positive McMurray's test found by Dr. Bishow less than one month
earlier. Indeed, Dr. Elia conceded that he was not as qualified to assess
Claimant's injuries and prognosis, or to diagnose, render treatment and make
recommendations, as were Claimant's treating physicians. Dr. Elia agreed that
there was permanent injury to Claimant's wrists proximately caused by the
accident; that the wrist fractures were not simple, but complex, and hence not
likely to heal as readily and with a greater potential for long term
complications; that Claimant had a permanent disability to his right knee
proximately caused by the accident; and that the spinal injuries - that he had
written and testified initially "could" have been causally related to the
accident - were likely to have been caused by the accident within a reasonable
degree of medical certainty once he was alerted to the earlier complaints of
pain in the medical record.
No other witnesses testified.
CONCLUSIONS OF LAW
As noted, in its earlier decision on liability, the Court had found Defendant
100% liable for the accident occurring on October 13, 2002. Since that date, it
is clear that this energetic young man has been sidelined by his injuries, and
stalled in his attempts to prosper in his new country. Although the Court has
some doubt that Claimant's prospects are as dim as those drawn by his testimony,
and that of his witnesses, in the absence of credible, contradictory evidence
presented by a defense as vigorously presented as was the Claimant's case,
nothing fills the void but the version of events and prospects presented by
Claimant. Indeed, despite their grim prognosis, Claimant's physicians were
optimistic with regard to his eventual return to if not full physical health, at
least health at a level that would allow him to enjoy his remaining years.
Similarly, Mr. Provder was sanguine with regard to his ability to re-enter the
workforce in a productive manner once his condition stabilizes.
Unfortunately, although memoranda of law were presented by both Counsel, only
Counsel for the Claimant furnished some helpful case law allowing the Court to
compare the type of injuries alleged and proven here, to other cases where
damages have been given. Counsel for the Defendant presented nothing, saying,
essentially, give the Claimant less than what he is asking for. Counsel for the
Claimant did cite some cases as noted, thus there was at least an attempt to
analogize the damages given therein to those requested here, however, in some
cases the facts of the injuries were not spelled out by the Courts, so that it
is difficult to correlate the reasoning for the award given the injuries
sustained. In any event, the Court has conducted an exhaustive review of
damages decisions, concluding that it is the particular facts that drive such
decisions, and which have persuaded this Court to fashion its remedy.
Having reviewed all the evidence and after listening to the witnesses testify
and observing their demeanor as they did so, the Court finds that Claimant has
been damaged in the total amount of $1,663,871.15 This represents a finding by
the Court that Claimant was deprived for two years of a loss of enjoyment of
life, and suffered almost daily pain. He will likely suffer pain in some measure
for the balance of his life. Three surgeries, and the painful recovery time
associated with these are also part of the Court's award for future pain and
suffering. Past lost wages, as well as future lost wages - conservatively
assessed in this Court's view by the uncontradicted testimony of Claimant's
expert economist - are included. Future lost wages reflect the likelihood that
Claimant will eventually return to the workforce albeit at a reduced earning
level. Accordingly, reasonable compensation related to the respective
categories is as follows:
Past pain and suffering
(wrists, knee, neck, back) $150,000.00
Past Lost Wages $120,000.00
Future Pain and Suffering $500,000.00
Future Lost Wages $800,000.00
Future Medical Expenses $ 40,000.00
Workers' Compensation Lien
Since the amount of future damages exceeds $250,000.00, a structured judgment
is required [
Civil Practice Law and Rules §5041(e)]. Let judgment be held in
abeyance pending a hearing pursuant to Civil Practice Law and Rules Article
50-B. The Court suggests the parties agree upon an attorney's fee calculation,
and the discount rate to be applied to formulate a structured settlement of
their own [See
Civil Practice Law and Rules §5041(f).] In the event
that the parties cannot reach such an agreement, each party will submit a
proposed judgment in writing, conforming to the requirements of Civil Practice
Law and Rules Article 50-B within 45 days of the service of this decision upon
them by the Clerk of the Court. A hearing will thereafter be scheduled at the
mutual convenience of the parties and the Court.
It is ordered that to the extent that claimant has paid a filing fee, it may be
recoverable pursuant to Court of Claims Act § 11-a(2).
All motions made at trial and not heretofore ruled upon are hereby
March 14, 2005
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
All quotations are to trial notes or
audiotapes unless otherwise indicated.
Dr. Bishow noted that as Claimant's injury
was work related, approval for procedures was required from the Workers'
The Court notes that in a physical therapy
evaluation form completed on October 28, 2002 there is a notation of lower back
Exhibit 7, p 194].
Dr. Brown also explained that because this
was a work related accident, approval from the Workers' Compensation Board is
required prior to any testing or procedure costing over $500.00.
For $20,000.00 per year with fringe benefits
the loss would be $1,233,478.00 (2%); $1,451,300.00 (3%). For $25,000.00 per
year without fringe benefits the loss would be $1,613,711.00 (2%); $1,906,300.00
(3%). For $25,000.00 per year with fringe benefits the loss would be
$1,001,049.00 (2%); $1,173,291.00 (3%).
Exhibit 15; in Court stipulation re: amount