New York State Court of Claims

New York State Court of Claims

MOLODTSOV v. THE STATE OF NEW YORK, #2005-030-003, Claim No. 107063


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 14, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 life.
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 "really"[1]
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 accident.

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 hospital.
[Ibid]. 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 right wrist.
[Ibid]. 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.
[Ibid]. 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.
[Ibid]. 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 knee.[2]
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 accident.[3]
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 back muscles.

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 approval[4]
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 practice. [
See 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 visit.
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 knee.
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.
Laura Nowak
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 $895,210.00.[5]
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 Exhibit 16].
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 testimony.

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.
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[6]
$ 53,871.15
TOTAL $1,663,871.15

Since the amount of future damages exceeds $250,000.00, a structured judgment is required [
See 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 denied.

March 14, 2005
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] Dr. Bishow noted that as Claimant's injury was work related, approval for procedures was required from the Workers' Compensation Board.
[3] The Court notes that in a physical therapy evaluation form completed on October 28, 2002 there is a notation of lower back pain. [See Exhibit 7, p 194].
[4] 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.
[5] 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%).
[6] Exhibit 15; in Court stipulation re: amount of lien.