New York State Court of Claims

New York State Court of Claims

THOMAS-VASCIANNIE v. THE STATE OF NEW YORK, #2006-013-514, Claim No. 103602


Damages awarded to Claimants as a result of automobile accident with vehicle owned by Defendant and driven by an employee of the Department of Correctional Services.

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:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 13, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On June 7, 2000 Claimant[1] was injured in an automobile accident involving her minivan and a vehicle owned by Defendant and driven by Timothy Snyder, an employee of the Department of Correctional Services (DOCS). That vehicle was assigned to Snyder and was being operated in connection with his assigned duties on the day of the accident. The accident occurred at approximately 10:30 a.m. on Route 5 in Batavia near its intersection with Route 63. Route 5 is a four-lane road in the area of the accident with two lanes for eastbound traffic and two lanes for those proceeding westerly.

There is little factual dispute regarding the collision itself. The eyewitness account of Edwin J. Mullen differed somewhat from Snyder's deposition testimony and that of Claimant, but the differences were inconsequential and not with respect to the essential facts upon which the total liability of the Defendant is premised. A brief recitation of the facts, however, is required.

Claimant had just left the home of her brother's girlfriend and was traveling in the left-hand or passing lane heading eastbound on Route 5. Her daughter, who was two years old at the time of this incident, was strapped in a car seat located behind Claimant. Snyder was traveling in the opposite direction, westbound on Route 5, also in the left lane, and was on his way to complete some work-related errands. As he proceeded in a westerly direction, he failed to see that the Mullen vehicle in front of him was stopped in the left-hand lane preparing to make a left turn. Mullen recalled that he had engaged his left turn directional signal and was stopped to allow approaching traffic in the eastbound lanes to pass by him before he turned. Snyder was unaware that Mullen was stopped, but acknowledged that he probably saw that the brake lights were engaged on the Mullen vehicle. Unfortunately, by the time he realized that the vehicle was fully stopped it was too late and Snyder turned to his left, directly into the opposing lane of oncoming traffic and into the path of Claimant's vehicle. Claimant was unable to take any meaningful evasive action and there was a significant head-on collision between the vehicles.

There is no credible evidence before me that would in any way warrant a finding that Claimant bore any degree of fault for this occurrence. It is clear that Snyder, through inadvertence or inattentiveness or for some other reason, failed to see the Mullen vehicle in sufficient time to bring his vehicle to a safe stop or to take any evasive action to avoid striking either the Mullen vehicle or the Claimant's van. Consequently, I find the sole cause of this accident is the negligence of the Defendant and its employee who was authorized to operate the DOCS vehicle and was doing so in the course of his employment.

Immediately upon the collision, the air bag deployed in Claimant's vehicle and she reported that she was stunned by its impact with her face. While there is an understandable imprecision in her recollection of the details of what transpired over the next several minutes, what is clear is that initially, at least, she was unable to immediately extricate herself from the van, as her left foot was immobilized or trapped under the foot pedals and she was still confined by her seatbelt. She recalled trying to turn to see and help her daughter who was in a car seat behind her.

Deborah Osbourne, who lived across the road from the accident, heard the collision and called 911 after she saw that both operators were mobile. She was the first person not involved in the accident on the scene and stayed until the ambulance crew arrived. She recalled that Claimant was very upset, shaking, unable to form a lot of thoughts, concerned about the welfare of her child and, according to her, not sure of what she should be doing.

Gina Rieks was the first ambulance EMT to attend to Claimant at the scene of the accident. She essentially confirmed Osbourne's observation of Claimant being outside of her vehicle and the fact that she was very upset. While the passage of time from the date of the accident to the trial affected her ability to remember the scene in precise detail, Rieks recalls that she placed a collar on the Claimant and, with the assistance of the other EMT personnel, placed her on a body board for eventual transport to the hospital. She recounted that while at the scene Claimant stated that she had pain on her left side and hurt all over. Rieks took Claimant's pulse, which was 100, and blood pressure, which she recorded as 122/90. She noted that Claimant denied any loss of consciousness and reported on the Prehospital Care Report (Exhibit M) that she saw Claimant had no deformities, bruising or obvious injury and was conscious, alert and oriented. She stated that Claimant was then transported to United Memorial Medical Center (which at the time of the accident was apparently known as Genesee Memorial Hospital) in Batavia and the Emergency Room staff took control of her. Rieks gratuitously offered that when she returned to the hospital on another matter later that day she observed Claimant with some visitors and that she appeared to be relaxed and laughing. I gave little or no weight to that portion of her testimony since one could engage in a variety of conjectures to reach a plausible explanation of this discrete moment in time.

Dr. Danielle Notebaert, the emergency room physician on duty the morning of the accident, assumed Claimant's care when she arrived at the hospital. She reviewed the Claimant's Emergency Room record (Exhibit 5), and noted among other things that there were complaints of diffuse pain to the face, body and legs. She also noted that after examining Claimant there were "[left] rib contusion, facial contusion and musculoskeletal pain" (Exhibit 5). She also revealed that she called Claimant's family physician since she was concerned that Claimant's complaint regarding the intense pain she was experiencing was not consistent with the apparent injuries she suffered. Dr. Alan Barcomb, who was Claimant's treating physician before the accident and remains so to the present day, informed her that Claimant had a low tolerance for pain and that was probably the basis for her complaints vis-à-vis her injuries. I note that Dr. Notebaert in her workup of this patient recorded that Claimant complained of diffuse pain to her left side and flank when moving her left leg. She also complained of pain to the left side and neck. Dr. Notebaert released Claimant later that day after all tests and x-rays were completed and confirmed that there appeared to be no major or life-threatening injuries. She recommended that Claimant engage in moderate activity to avoid stiffness, apply cold packs to the injured area, and take medication for pain and spasms.

Before proceeding further, I would note that after her discharge from the hospital on the date of this accident Claimant was to embark on what could be described, without exaggeration, as an odyssey through the health care system, enduring a myriad of diagnostic tests, visits with physical therapists and doctors of various specialties, each seeking to resolve the cause of her multiple complaints. While Defendant has a rather jaundiced and somewhat cynical view of her medical history, I am persuaded that each of the referrals, consultations, tests and treatments was appropriate, reasonable and necessary, a determination with which Defendant's own expert was in agreement. I find that Claimant has suffered "serious injury" as defined in §5102 of the New York State Insurance Law.

Claimant called only three of her treating physicians to testify on her behalf but introduced into evidence the bulk of her medical records in order to demonstrate the number of medical and other providers to whom she had been referred. Each of these doctors testified extensively regarding their treatment of Claimant following the accident, including the period just before the trial.

Dr. Alan Barcomb, licenced and Board Certified in Family Practice, testified that he had treated Claimant prior to the accident for complaints relating to the right side of her neck and back. He knew that she was hypersensitive and exhibited a low tolerance for pain. He was very clear and persuasive regarding his opinion that the problems she presented and for which he treated her, post-June 7, 2000, were not related to his preaccident treatment of this patient.

He stated that after the accident Claimant first presented herself at his office on June 9, 2000. His nurse practitioner took a history from her regarding the accident and her physical complaints. She characterized these as musculoskeletal pain secondary to the accident. Dr. Barcomb first saw her a few days later on June 12, and noted tenderness to the left flank or upper body and, despite complaints of pain in the left shoulder, he found that she had good range of motion (ROM). He felt this pain might be related to weakness of her rotator cuff in that shoulder. He opined that his palpation of these areas resulted in the objective manifestation of pain on Claimant's behalf. He did not feel that she was exaggerating her symptoms or pain and did not think she was faking then, or at any time throughout his treatment of her to the present day. At the conclusion of this exam his diagnosis was that she was suffering from musculoskeletal trauma from the accident with possible left shoulder strain. He next saw her on June 28 of that year, and on palpation of her left neck muscle and left lower ribs there was tenderness. He observed muscle tightness by Claimant and prescribed medication for the spasms.

On July 28, 2000 he saw her again and noted that there was tenderness on the left temporal mandibular joint (TMJ), which he stated was the first time he noted this problem. He referred her to an ear, nose and throat specialist at that point and never treated her for any further complaint for her TMJ. He concluded that Claimant suffered from myofacial pain syndrome and referred her to the Pain Clinic at Strong Memorial Hospital in Rochester (Strong). Claimant went to Strong on several occasions for diagnosis and participated in various treatments over a period of several years.[2] Dr. Barcomb testified that over the time he has treated her postaccident, he has noticed that she walks with stiffness, often favoring her left hip and shoulder. He has treated her with anti-inflammatory drugs as well as medicines for her muscle spasms and chronic pain.

He testified at trial that his diagnosis of myofacial pain, for which there is no cure, remains unchanged. His course of treatment presently is attempting to find other medicines with which to treat Claimant and refilling some of the pain medications which appear to give her some relief.

On cross-examination it was revealed that at the June 28, 2000 examination, he referenced pain to Claimant's right side of her face while the workup done by his nurse prior to his seeing Claimant mentions her complaining of "H/A [headaches] severe in left side; Hearing muffled in [left] ear,"[3] while his notes refer to the right side of face and neck with clicking. He acknowledged that he had made an error since the nurse referenced the left side and his examination on that day dealt only with the left side of Claimant's face. He was referred to Exhibit I, a report from Summitt Physical Therapy, which revealed that in April of 2000 Claimant was involved with physical therapy for complaints of low back pain, indicating the severity of such pain as a seven out of a possible ten.

While he did not note it on direct examination, when cross-examined by the Defendant regarding his report of June 9, 2000, he clarified the notation of "LLL" as meaning left lower leg and that Claimant was complaining of left lower leg pain with swelling. He further indicated that Claimant mentioned that she had a hematoma on that leg. He acknowledged that when he examined her on June 12 he made no notation of any complaints of the left lower leg. He further acknowledged his review of the initial x-rays taken at the hospital on the day of the accident as well as a second set of x-ray studies which did confirm fractures to the 11th and 12th ribs. Dr. Barcomb was not able to explain why the first set of x-rays failed to show the injury, conceding that it could be the result of a number of reasons, including that the fractures were not displaced.

He noted that prior to the accident, and more particularly on his examination of her on September 1, 1999, he had findings that he characterized as abnormal. He found that she was tender on her right side but no thigh or calf problems were noted. There were some signs that there may be a nerve being pinched, in other words, a radicular symptom (Exhibit N). He noted on November 3, 2000, for the first time, a subjective complaint of pain in her left thigh/leg, but there is no notation of radiation into her left foot. He discounted any atrophy to the left leg or foot since she was still ambulatory, despite pain and a stiff gait. When confronted with a lack of any notation of swelling to her left foot, ankle or calf, he explained that his care centered on her shoulder, hip and back, but did note that on a November 16, 2001 visit (17 months postaccident) Claimant was complaining of swelling, numbness and tingling down her left leg with some electric shock subsequent to an examination by another doctor retained by what I assume was her no fault insurance carrier. Dr. Barcomb however noted no edema to the ankle.

Throughout his treatment of Claimant he received numerous reports from other doctors representing various specialties, including a Dr. Pettee who saw her twice for nerve conduction tests (in September and December of 2000) and found the results to be in the normal range for both her left leg and arm. However, in his report he states that the tests did reveal some numbness to her face which was an indication of possible trigeminal irritation which, given the trauma she suffered, could be suggestive of trigeminal injury. His report also mentioned that the test results, given her complaints of global numbness, is suggestive of both cervical as well as lumbar radiculopathy. He then concluded that there was nothing he could do for her. She also was seen by Dr. Andrew Hilburger, a neurologist, who ordered an EMG/NCV test to be performed on Claimant. Based on those results, his diagnosis was that she suffered from tarsal tunnel syndrome in her left foot and that there appeared to be a L5-S1 radiculopathy.

Claimant then listed approximately nine other medical professionals and at least one psychologist with whom she consulted over the ensuing years. Dr. Barcomb testified that the report of the psychologist, using the McGill Pain Questionnaire conducted just prior to her first visit to the pain clinic at Strong, noted that she had a fair amount of pain and that she felt there was something wrong. He also noted that the report indicated that she had an elevated degree of disease conviction and was focused on her pain. He went on to state that he found no indication in his records on Claimant that she ever entered counseling, which he acknowledged was another treatment path for people with pain syndrome.

Dr. Martin Lubes, a licensed doctor of dentistry, testified on behalf of Claimant. He first consulted with her on May 2, 2001, on a referral from another dentist primarily because he designed a mouth guard for her that had a latex component to which she has an allergy. The mouth guard was to help treat what he had diagnosed to be temporal mandibular joint dysfunction or disorder, commonly and hereinafter referred to as TMJ. Dr. Lubes has treated hundreds of patients for TMJ, including himself, other family members and his staff. He used his records during the course of his testimony, albeit referring to them only occasionally in reference to his care of Claimant (Exhibits 14 and 66).[4] At her initial visit he recorded her history pertaining to the accident and noted that she had difficulty in opening her mouth fully for examination which he stated was typical for someone with TMJ disorders. More specifically he found that, with her complaints and after his examination, she was suffering from temporal mandibular dysfunction. He testified that during the course of Claimant's treatment she always displayed on palpation a noticeable jaw clicking. He designed an acrylic night guard or appliance which he felt would reposition her jaw and alleviate the attendant pain and inflamation.

Dr. Lubes stated that there can be several causes for TMJ. It can be caused by trauma, grinding or clenching of teeth, arthritis, multiple sclerosis, missing teeth or even orthodontia. Each can throw one's bite off and over a period of time can cause TMJ. He noted that Claimant's history did not indicate TMJ prior to the accident. He also stated that there is no cure for TMJ but there are treatments that help reduce the inflamation and pain, which hopefully can be controlled depending on the damage or long-term inflamation of the bone joint. He opined that the accident on June 7, 2000 was a substantial factor in causing her TMJ. He went on to state, based upon the length of time that she has treated with him, the relative severity of the TMJ and the discomfort she has reported to him, that at best his prognosis is guarded and that he doubted that she would realize a significant resolution of it and that it was, in his opinion, more than likely a permanent condition. He noted further that once the joint becomes inflamed it displaces the joint and, unlike other joint injuries, the jaw cannot be rested, since one has to talk and eat which makes the inflamation constant, resulting in the pulling of the facial muscles, making them sore, painful and swollen, and then the mouth cannot be fully opened. It can also cause the neck to be affected and become painful.

On cross-examination, Dr. Lubes admitted that he was not aware that after the accident Claimant denied striking her head, but he was aware that there was a record indicating that she suffered from a form of rheumatoid arthritis and that she had several missing teeth. He also acknowledged that swollen glands near the ear can cause TMJ, but should that occur, it is generally short in duration.

The last witness to testify for Claimant was her podiatrist, Joseph R. Canzoneri, who is licensed and has earned certification by the American Boards of Podiatric Surgery and of Podiatric Orthopedics, and the American Podiatric Medical Specialties Boards in Surgery and Primary Podiatric Medicine. He is the only podiatric doctor in New York State to hold these four board certifications. He identified Exhibit 13 as the records of his care and treatment of Claimant for what he ultimately diagnosed as tarsal tunnel syndrome (TTS). He stated that he first saw Claimant on January 21, 2002 for severe pain to her left foot and leg. He noted that this problem arose after her auto accident on June 7, 2000 and that she had no prior pain in either the left foot or leg. He reviewed the EMG/NCV studies performed on her by Dr. Hilburger, which was consistent with tarsal tunnel syndrome and an L5-S1 radiculopathy.

Dr. Canzoneri then performed his own examination of Claimant and found severe pain to palpation along the left posterior tibial nerve with plus Tinel sign as well as a plus Veliux sign. He also noted severe pain to palpation anywhere on the dorsal aspect of her left foot which he described as being out of proportion for this type of tarsal tunnel pain. He noted that the Achilles tendon reflex was slightly reduced in the left foot as compared to the right. Based on his findings, and the positive Tinel and Veliux signs, and after reviewing Dr. Hilburger's report, he concurred that she had tarsal tunnel syndrome of the left foot. In addition, he was concerned, based on his examination and her reaction of pain when he palpated her foot as well as Dr. Hilburger's findings, that she might be suffering with complex regional pain syndrome which has very similar findings. He went on to explain that tarsal tunnel syndrome is basically a pain in the foot which can be a neuritis, an inflamation of the nerve, or a compression of the nerve, usually the result of a trauma or injury. He supported his conclusion as to Claimant's diagnosis by noting the nerve conduction study of a delayed prolonged distal latency and no response in the left and medial plantar synapsis.

Dr. Canzoneri determined that he would treat her conservatively and recommended physical therapy and a bone scan in an attempt to determine if in fact there was reflex sympathetic dystrophy (RSD). He was hopeful that physical therapy would improve her function in the left foot and reduce pain. He also ordered electrical stimulation, a TENS unit, as well as ultrasound to ease the pain and improve function. Early in his treatment he informed her that if the pain did not improve he would recommend the use of orthotics and a pain clinic. Finally, if none of these conservative measures helped, he would then direct steroidal injections to the affected foot.

Since she was not improving, he started the injection of cortical steroid injections to the tarsal region under local anesthetic and continued physical therapy and prescription pain relievers. She received her orthotics and, upon his advice, started to use Jobst stockings to help reduce swelling in her left leg. He also ordered a removable brace for her left foot, known as a Cam Walker, to immobilize the injured area to enhance healing.

He went on to say that, while he could surgically intervene to attempt to ease or remove the pain in her foot, he was reluctant to do so since there was only a 40% to 50% likelihood of success. He also noted that, while he was not certain, he felt that a portion of her foot problem could be related to the RSD and the L5-S1 radiculopathy noted by Dr. Hilburger in his tests, and then, if the surgery was not successful, it could exacerbate her condition as well as her pain. He opined that the cause of this pain could potentially be related to her back and leg complaints and the possibility of a radiculopathy as found in Dr. Hilburger's study.

He opined with a reasonable degree of medical certainty that Claimant's tarsal tunnel syndrome is a permanent condition and that the accident on June 7, 2000 was a substantial factor in causing this condition. He stated that she certainly will require continuing and future medical care and treatment for this condition.

On cross-examination he stated that, in addition to other modalities, physical therapy was also recommended, which the record showed that Claimant only attended on perhaps eight or nine occasions. In addition, he referred Claimant to Dr. Webster Pilcher, a neurosurgeon at Strong, who reviewed mylogram and post-mylogram CT scans performed on her on April 1, 2002 at Ide Imaging in Rochester and reported that based on these films he did not see any nerve impingement in either the cervical or lumbar areas and stated that she did not have radiculopathy. When confronted by the results of a bone scan that was negative for RSD, he stated that the scan was just one of the tests performed in an attempt to arrive at a finding and, by itself, was not conclusive of this type of diagnosis. He acknowledged that there can be several causes of tarsal tunnel syndrome. Rheumatoid arthritis is one, but usually only in severe cases. He stated that the lack of atrophy in her legs was not unusual, in spite of her complaints, since she has been able to ambulate and was not confined, has remained mobile and has not been restricted by any device such as a cast.

Defendant called Dr. William J. Kingston, a neurologist it retained to conduct an independent medical exam, to testify regarding Claimant's injuries and more particularly the claim that as a result of her accident trauma she suffers from a radiculopathy and tarsal tunnel syndrome. In preparation for his exam he was provided with a notebook of medical records which he estimated took him approximately two hours to review and noted that prior to the accident she had complaints of neck pain as well as radicular cervical symptoms and low back pain. He also stated that she had been seen prior to the accident by Dr. Barcomb for complaints of left facial pain, radiating toward her left ear. He also stated that some years prior to the accident she had been diagnosed with rheumatoid arthritis and apparently had complaints of neck pain since that time.

Dr. Kingston indicated that while Dr. Hilburger, as a consequence of the EMG/NCV test, concluded that she had a radiculopathy involving the L5-S1 area of her spine there was nothing to confirm this finding. He noted that Dr. Hilburger had tested only her left side and that the deviations he found were not two standard deviations above the norm which, according to Dr. Kingston, put it in the upper level of normal. Moreover, he was critical of the validity of the test results since, in his opinion, the tests should have been performed on both legs. In addition, he noted that Dr. Hilburger's diagnosis is contrary to his written report that there were no objective findings of neurological deficits but that she did have some subjective deficits and the motor exam was normal throughout. He also opined that the finding of a radiculopathy was not supported by the MRI or CT scan reports in her records.

Dr. Kingston saw the Claimant on September 13, 2004. He spent approximately 45 minutes with her which included a 15-minute physical examination. He found her to be normal in appearance and pleasant, noting that when she entered his room she walked with a limp. He took a history from her in which she reported that as a result of the accident she suffered a fractured jaw,[5] ribs and sternum. She also mentioned that she had injured her low back and left ankle, as well as her neck, and that she had intermittent swelling of her left ankle and toes also with some numbness. She described the pain to her leg and neck as constant and rated it to be eight out of ten. He stated that she had a normal ROM of her neck but complained of tenderness of her neck, left arm and left leg. He reported that, while there was some "giveaway" weakness in her left arm and leg, he was able to determine that the strength appeared normal in the upper and lower extremities. He found giveaway weakness in the left ankle due to what he believed was discomfort, and this made it difficult to determine if there was any true weakness there. Her sensor exam was normal and, even though she complained of pain in her left jaw, he found no objective neurologic deficits and felt that her complaints of pain were disproportionate to an objective abnormality. He opined that she did not appear uncomfortable with the pain she described. Furthermore, he was of the opinion that her treatment to the date of the exam was appropriate and did not deviate from the normal care and treatment for a patient having her complaints of pain.

Based upon his examination, his review of the reports of Drs. Hilburger, Pilcher, Pettee, and Femia pertaining to the MRI's, x-rays, CT scans, bone scans and EMG/NCV's performed on Claimant, Dr. Kingston stated that he concluded to a reasonable degree of medical certainty that she did not suffer from tarsal tunnel syndrome; RSD; or lumbar, sacral or cervical radiculopathy. He concluded, based on Dr. Barcomb's notes of May 14, 2004 and September 27, 2004, that he held an opinion to a reasonable degree of medical certainty that he could find no neurologic deficit in Claimant's record that would lead him to conclude that she was suffering any disability.

On cross-examination he agreed that she had suffered fractured ribs and, while he touched on her TMJ in the context of her claim that she fractured her jaw, he offered nothing to refute the findings or testimony of her treating dentist, Dr. Lubes, clearly limiting his conclusions to his area of expertise.

Dr. Kingston acknowledged on cross-examination that he did treat patients who were referred to him for tarsal tunnel syndrome (TTS). He did not perform a Tinel test on Claimant during his 15-minute physical exam, conceding that a positive response can be a positive test for TTS, and he acknowledged that when he palpated her foot and ankle she complained of pain. He testified that in his treatment of patients with TTS he prescribes anti-inflammatory drugs, steroidal injections and surgery, and indicated he does not perform the latter two procedures. He went on to admit that in reviewing her records he saw no mention of tarsal tunnel problems or myofacial pain syndrome in these records prior to June 7, 2000 and that both of these conditions are soft tissue injuries with no objective abnormalities and are not able to be objectively demonstrated by either a blood test or x-ray. In fact, he admitted that people can have permanent pain caused by injury to soft tissue without any objective finding other than the complaint of pain.

Claimant Peggy A. Thomas-Vasciannie testified that as a result of the accident her left foot became trapped or stuck in the area of her vehicle's foot pedals. Since the air bag had deployed, she described the sensation of being "smushed" in her seat and restrained by the seat belt as she attempted to go to the aid of her daughter who was in a car seat behind her. She stated that she was in pain all over but was in great stress over being unable to assist her daughter. After freeing herself, she was finally able to get to her daughter who was uninjured, and she awaited medical assistance. She stated that she believed that she may have lost consciousness and was in shock. By the time the EMT's arrived, she was standing beside her minivan. As noted above, EMT Rieks initially attended to her and, with assistance, placed her in a collar to stabilize her neck and head. After she was put on a board, she was placed in the ambulance and transported to United Memorial Medical Center where she underwent several tests. She complained of diffuse pain throughout her body and was given medication to address that complaint. X-rays were also taken. She was subsequently released and advised to contact her primary care physician for follow-up. While at home she placed ice on her face and leg to control swelling and took the prescribed pain medication she had been given at the hospital.

She was unable to do any of the household work she had done in the past because of her injuries and, as a result, her husband was required to take care of her and the children. If she required to use the bathroom she had to be assisted by family members who would essentially carry her up the stairs where it was located. In addition, she could not lie down because of the breathing problems she was having and thus was only able to recline in an easy chair to alleviate this problem.

She was seen by Dr. Barcomb two days after the accident and has continued under his care, as well as that of Drs. Lubes and Canzoneri, for the injuries relating to the accident. In addition to these doctors, she has been seen by various other physicians and health care providers. Claimant remains restricted from the various activities she performed and enjoyed prior to the accident and, given the permanency of her conditions, will in all likelihood not be able to fully resume them at any time in the future.

At the time of the accident Claimant was 42 years of age. She was a homemaker caring for her son and daughter (who were 10 and 6 years old respectively at the time of trial, some 4½ years after the accident), and caring for her husband. Claimant describes herself as being actively involved in the lives of her son and daughter, engaging with them in the usual activities enjoyed by a growing family. She described her pre-accident activities as bowling, dancing, exercising and walking. She finds that she cannot do these things any longer. And while she still plays with her children, she can no longer do the more vigorous of these activities, like playing basketball outside, the way she used to prior to the accident. She indicated that she is unable to do the more strenuous household tasks she previously performed. She can do some of the laundry but not heavy loads. Some of the vacuuming is done by her, along with limited household cleaning. She described her ability to attend to her care of the children as restricted since the accident due to her pain. She has resumed driving, but states that she is apprehensive when she does drive in large cities such as Buffalo and Rochester. She has tried to resume a normal life and has pushed herself to try to expand her activities, but finds that when she does so, she suffers increased pain and exhaustion.

Prior to the birth of her children, she had attended Genesee Community College and subsequently was employed by Eastman Kodak from 1981 to 1994. At the time she left her employment with Kodak she worked in the human resources field. She stated that at some point she intended to return to work, but was vague as to what employment she would seek.

Her relationship with her spouse David has also suffered. Because of her pain and attendant problems, she has grown moody, is easily irritated and restless. He has been forced to take on the bulk of the household tasks, while at the same time attending to the operation of his construction business. This has put added strain on her friendship and intimacy with him and has adversely altered the closeness they once shared.

David Vasciannie testified how his wife has gone from an active and engaged mother, spouse, friend and partner to a woman in constant pain and no longer able to participate and perform all the activities she did prior to this accident. He noted that since the accident she has been inactive due to the pain and that, coupled with the effects of the various medications she was on, has resulted in mood swings which she never had before. She now walks with a limp and is unable to lift or engage in physical activities that she enjoyed in the past. He noted that she is restless and has difficulty sleeping. He testified to her being unable to engage in play with their children as she did prior to June 7, 2000, which not only frustrates her but also their kids. Now they must wait until he arrives so that they can play outside. Prior to the accident he was in charge of the outside chores and work while his wife attended to the inside household chores. Since the accident, he has assumed the bulk of these activities such as the vacuuming, and lifting and carrying heavier objects. They do not entertain either friends or family as they used to. He believes that all of this is related to the accident and the injuries she suffered, and it has affected not only her but the entire family.

It is the obvious position of the Defendant that Claimant's injuries are exaggerated and unsupported by the medical records. While conceding that the fractures of her ribs permit her to meet the threshold of "serious injury" as defined in §5102(d) of the New York Insurance Law, it argues that there is no medical basis for any of the other claimed injuries. The linchpin of this argument has its genesis in comments made by Claimant in the presence of EMT Rieks, who treated her at the accident and found her difficult to examine. The interesting aspect of Rieks' testimony is that she was apparently the only individual of all those at the scene who testified that she heard certain comments from Claimant stating that she was going to sue (Trial Transcript, p. 166).

Assuming that these words were uttered, is it that unusual for something of this nature to be said when an individual is involved in a spontaneous accident of the type before me? I do not think so. There is nothing in this record to support such a malevolent scheme or plan when viewed in its entirety, and I reject that contention out of hand. It must be remembered that Claimant was innocently and legally driving down the road with her two-year-old daughter behind her in a car seat when, through no fault of her own, she was hit head-on in her own lane of traffic by the Defendant's vehicle. Claimant was temporarily immobilized by her seat belt and the deployed air bag and could not reach her daughter. For the innocent victim of such negligence, it is not hard to imagine a spontaneous outburst to the effect that "someone's gonna pay" or "I'll sue." It is abhorrent under these circumstances to attribute a sinister plot to "milk" the State with allegations of phantom injuries.

In addition, I cannot conclude, as the Defendant urges, that Claimant's interaction with her family (talking and laughing) while they visited at the hospital supports the devious motivations asserted by the Defendant. It is just as likely that it merely represents the comfort and succor one generally receives from family after undergoing a trauma. It might also reflect the relief and joy in being alive or not having sustained paralysis or a life-threatening injury. Regardless, it certainly does not rise to the level of probative value in attempting to demonstrate that she was still not in pain. Common experience informs us that when family is present generally one will respond differently than when a trained physician is near and attempting to determine what injuries a victim has suffered or notes behavioral variants that the Defendant characterizes as "inconsistent."

When Dr. Notebaert became concerned since the complaints of pain by Claimant were inconsistent with the apparent injuries, she took the unusual step of calling Claimant's family doctor. In an attempt to quiet Dr. Notebaert's concern that perhaps Claimant was attempting improperly to obtain drugs, Dr. Barcomb advised her that Claimant had a low pain threshold or a hypersensitivity to pain.
The Defendant also attacks Claimant's credibility by her "I do not recall" responses on twenty-seven different occasions on cross-examination. While that might go to the issue of credibility, it must also be weighed against the fact that one of the questions related to whether she had lower back x-rays taken in 1993. With respect to Claimant's inability to specifically recall her pre-accident complaints contained in her medical record, I find that not to be probative or supportive of Defendant's implication that it is part of an elaborate ruse engineered by Claimant to deceive the Court.

That is not to say that some of the matters the Defendant claims affect Claimant's credibility are without foundation. Most apparent is that Claimant, when giving a history of the accident, repeatedly stated that she suffered a fractured jaw, which is unsupported by her medical record. In fact, it is more likely that the accident caused a misalignment of her jaw resulting in the need for a non-latex appliance for her mouth to assist in reducing pain and misalignment.

That being said, I find that the uncontradicted testimony of Dr. Lubes establishes by a preponderance of the credible evidence that Claimant, as a direct consequence of this accident, now suffers from TMJ, a condition which is permanent. His opinion that there is no cure for TMJ is uncontradicted, and it was his goal to treat her problem in a manner that permits control and management of the pain caused by this condition.
I also found Dr. Canzoneri to be a credible witness and, based on his testimony and the record, conclude that the accident of June 7, 2000 was the cause of Claimant's tarsal tunnel syndrome. He has treated the Claimant since January 21, 2002 when she was referred to him by Dr. Barcomb. He testified credibly regarding the tests he performed during his care of Claimant and how he arrived at his diagnosis. Dr. Canzoneri persuasively testified that surgery for TTS is an alternative to reducing the attendant pain, but the success rate is only 40% to 50%, and that he did not feel that Claimant was a good candidate for that procedure. He based this on the report by Dr. Hilburger which found evidence of a radiculopathy at the L5-S1 level and a concern that Claimant suffers from RSD, or complex regional pain syndrome, which could exacerbate her pain had he performed surgery instead of relieving it. One of the diagnostic tools used in the diagnosis of RSD is a bone scan, which Dr. Canzoneri ordered and was negative. In lieu of the surgery, he would continue with steroid injections in the left foot which, while temporary, nonetheless provided relief for the Claimant. He concluded that it is unlikely that her complaints regarding the pain in her foot would be completely resolved, and that she will need future medical care.

I am persuaded that Claimant now suffers from myofacial pain syndrome as testified to by Dr. Barcomb. He was Claimant's treating physician prior to the accident and she continues under his care. He convincingly testified that Claimant was an individual who had a hypersensitivity to pain, and therefore her rating of pain levels was, and would be, disproportionate to her objective symptoms. He related this factor to a number of her treating physicians and caregivers for guidance in their treatment. Over the period of time that he has seen Claimant since the accident, he formed the working diagnosis that she suffers from myofacial pain syndrome, which has been corroborated by tests and treatments of various other medical providers who have treated her. He opined, and I so find, that the cause of this condition is a direct result of the accident and that it is a permanent condition.

The testimony of Dr. Kingston, Defendant's expert witness, did not dissuade me from the conclusions I have reached. The primary weakness in his opinions is that they are premised on a brief 45-minute encounter with Claimant which included a cursory 15-minute physical examination. In stark contrast is the testimony of the doctors who have cared for her for years and who have had extensive opportunity to observe and know her. Each testified credibly they believed her to be credible and not a prevaricator. I also found her to be credible. The fact that she is someone who is hypersensitive to pain in no way detracts from her credibility or from the description of the discomfort she endures. While it may be disproportionate in relation to her objective symptoms, nonetheless there is nothing in the record that persuades me she is not suffering from pain.

Defendant's wishful thinking to the contrary, Claimant's low threshold for pain is not contrived and it is not her fault -- it is reality. The accident was not her fault, but it is her reality. And, for better or worse, innocent victims of negligence have strengths and weaknesses and come before the Court with a myriad of variable circumstances -- age, vocation, marital status, parenthood, degrees of injury, pre-existing health conditions, etc., all of which become factors in assessing damages.

I am unable to conclude on this record that Claimant suffers from a lumbar radiculopathy. I am cognizant of Dr. Hilburger's test, but I find more persuasive the reports of Dr. Pilcher as contained in Dr. Canzoneri's and Dr. Barcomb's records (Exhibits 13 and 16) which find no objective basis to conclude otherwise. These reports are based upon the MRI and MRI mylogram studies of both the cervical and lumbar areas and show definitively that she has no impingement in either area.

Finally, I am unable on this record to find that Claimant suffers from RSD. While it has been posited that such a diagnosis is one of exclusion, there is little proof before me of what other tests were conducted in an attempt to arrive at this diagnosis.

At the time of the accident Claimant was not employed and had not been employed since the birth of her first child. While there was some testimony by her that she planned on returning to the job market at some time in the future, it was vague and unsupported by any other proof. In addition, there is no proof of any past, present or future medical expenses. While each of her treating physicians testified that she would need future care, there was no testimony as to what such care would cost, and accordingly I make no award in this regard. Similarly, no proof was offered as to any lost wages or diminished earning capacity, and I make no award with respect thereto.

What remains is an award of damages to Claimant for her pain and suffering, past, present and future, and an award to her husband for his derivative cause of action. I have taken judicial notice of 1 NY PJI 3d 1611 ([2006], Table 3, Life table for females).

Prior to the accident Claimant was an active and involved mother, wife and companion. She cared for her growing family in all the normal, loving and caring ways. The proof is uncontradicted that she actively engaged in her children's activities; entertained guests and family; cleaned and worked in and around the house; and engaged in bowling, dancing and exercise. Since the accident she has been unable to return to these activities. She is now reliant on her husband to do several of the tasks she once performed. She stated that when she attempts to exert herself, whether it be in doing modest physical activity or playing with her children, she ends up in debilitating pain for several days thereafter. The same is true of household work. She is able to perform some tasks within the house, but even those are limited. As a consequence of this accident Claimant now suffers from TMJ, tarsal tunnel syndrome of the left foot and myofacial pain syndrome, and will continue to suffer from the effects of these conditions in the future, inhibiting her recovery.

Considering the entire trial testimony and evidence presented concerning the injuries and enduring pain sustained by Claimant Peggy A. Thomas-Vasciannie, I award the sum of $135,000.00 for her past pain and suffering from the day of the accident on June 7, 2000, until the date of the trial on damages, a period of some 4½ years, and, for her future pain and suffering and the loss of enjoyment of life from the trial on damages for some 34.4 years thereafter, I award $560,000.00, for a total award of $695,000.00.

I award Claimant David I. Vasciannie the sum of $175,000.00 on his derivative cause of action: $45,000.00 for past damages and $130,000.00 for future damages.

Since the amount of future damages exceeds $250,000.00, a structured judgment is required and judgment will be held in abeyance pending a hearing pursuant to CPLR article 50-B.

The parties are urged to consult and agree upon the discount rate to be applied and to formulate a structured settlement of their own (CPLR 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 CPLR article 50-B within 45 days of the service of a file-stamped copy 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.

April 13, 2006
Rochester, New York

Judge of the Court of Claims

[1] The claim of David I. Vasciannie is derivative and thus all references to Claimant shall mean Peggy A. Thomas-Vasciannie.
[2] Her attendance could be described as being less than they wanted but, as she stated, often times the treatments did not offer her long-lasting relief and she elected to discontinue them.
[3] Trial Transcript, p.280; Exhibit 16.
[4] None of the exhibits containing the medical records were paginated.
[5] There is nothing in her medical history following this accident indicating that she had fractured her jaw.