On June 7, 2000 Claimant
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
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
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
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.
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]
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
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
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
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
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.
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
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
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
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
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.
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
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
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
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 (, 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
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
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