At trial, Mr. Triantafilidis took the stand, as did his wife, his treating
orthopedist, a vocational rehabilitation counselor and an economist, on
Claimant's direct case. Defendant called an expert orthopedist and an expert
Mr. Triantafilidis is originally from Greece. He completed six (6) years of
elementary school there and, while working as an automobile mechanic during the
day, attended trade school to obtain a diploma as an automobile mechanic at
night. He did not complete the program, because working during the day and then
attending school became "too tir[ing],"
continued to work as an automobile mechanic.
Claimant immigrated to the United States in 1982, at 26 years old. He did not
speak or write any English. He found work in a junkyard disassembling engines
and lamps to be sold for parts, working there for approximately 1½ years.
He next worked as a driver delivering sodas with another worker while he learned
to identify the street names. After that job, he worked in "light
construction", as he described it, making roofing and cement; and laying brick
and fixing iron. Later he worked in "heavy construction," involving working
"with the streets, with the bridges . . . we used to lift heavier things."
[T-22]. Claimant worked continuously from the time he arrived in the United
States, taking jobs as they arose in light construction, and ultimately leaving
light construction altogether and working primarily in heavy construction, where
the pay was better.
Claimant began work in heavy construction at TPK Construction, starting as a
laborer for three (3) years, and then becoming foreman. He was not a member of a
union at the time he began work as a laborer. The company did repairs and
demolition of bridges, and mixed and broke concrete. When he was involved in
demolition, he used a machine as well as a pneumatic jackhammer of the 45 or 60
pound variety seen on the streets. His work involved heavy lifting, in the
vicinity of 100-150 pounds.[T-25]. They would lift metals, the street islands;
or cement in a wheelbarrow.
When Mr. Triantafilidis became foreman, he no longer lifted heavy weights, but
had "other headaches" caused by directing the work. [T-26]. After two years as
a foreman, he became a member of Local Number 731 of the laborer's union.
During this time he also had learned a little English from his wife, his kids
and the television. He used it to communicate with workers who were not Greek.
After joining the union, he began receiving a higher wage as well as medical
and pension benefits. He worked for TPK Construction for approximately 8 to 10
years. When the company closed down, he went to the union hall and put his name
on the list, going out to jobs whenever one was available. He said there were
sometimes months where he could not find a job. During those times he worked on
other things, and tried to find work other than through the union as well. He
recalled working for perhaps two or three different companies after his work
with TPK Construction ended, and work with Modern Continental - his employer at
the time of the accident - began.
On Friday, March 1, 2002 he had been working as a laborer for Modern
Continental for approximately 8 to 10 months. [T-30-31]. He thought it paid
perhaps $2.00 less per hour than his prior work as a foreman.
Right before the lunch break on March 1, 2002, Mr. Triantafilidis was standing
below a bridge overpass while one of his co-workers handed down concrete forms.
A safety rail on the bridge gave way; the co-worker fell off the bridge and
dropped the form. Claimant was struck on his helmeted head and face by the
falling form, by the safety rail, and then the co-worker. He was also struck on
his lower back. He sat and collected himself, feeling dizzy and in pain on his
face and back. After resting and drinking water for the whole lunch period, he
went back to do a little "light work" throwing 2 x 4 pieces of wood onto the
truck, bringing them to the yard and emptying the truck. [T-40]. He finished
the work day, and then drove himself home.
That evening he took a bath, lay down, but continued to feel worse than he had
when he was driving home. He felt dizzy, his neck was hurting, and his shoulder
and lower back were hurting. His wife gave him some kind of pain reliever, but
he slept at most for 2 hours. He could not get out of bed without very sharp
pains. His son and his wife took him to the family doctor, Dominic Anatasio, the
next day. After prescribing painkillers, taking x-rays and suggesting that he
put ice on his facial bruises, Dr. Anatasio referred him to Dr. Kyriakides, a
"sports medicine" specialist. [T-43].
When Claimant saw Dr. Kyriakides - who is his treating physician to this day -
the doctor examined him, took further x-rays, ordered an MRI, prescribed an
anti-inflammatory drug, ice packs to the face and physical therapy. As Claimant
recalled it, he started physical therapy within one day of seeing Dr.
Kyriakides. [T-47]. Pads were placed on his neck and lower back, and ultrasound
was also used. He felt better after the palliative physical therapy for perhaps
one day or two. Later on in therapy, he would walk on a treadmill and do
exercises. For the first few months he went to physical therapy three (3) times
per week for approximately one hour per session. Certain exercises were
prescribed to do at home as well.
After Workers' Compensation had approved the test, Claimant had an MRI for the
lower back and a CAT scan was performed at his neck. [T-50]. Due to a prior
injury to his face, resulting in pieces of metal remaining in his face - as
Claimant reported it - Claimant had an EMG as well for that area.
Despite regular physical therapy and visits to Dr. Kyriakides, he continued to
experience pain. He felt better immediately after physical therapy, but pain
would return to his head, neck, and lower back on the left side. Additionally,
the pain moved sometimes from his lower back into his left leg, "like if you
stabbed with a nail" and became numb. [T-52]. The numbness in his left leg began
"the first night when I see the pain gets worse." [T-53].
Two to three months after the accident, Claimant went back to work for Modern
Continental, "cleaning up and carry things that used to be concrete." His
friends at work helped him out by lifting heavier objects, and he took breaks 3
to 4 times per day when he did not feel well. While he worked, he was also
attending physical therapy. Ultimately, however, he was unable to continue
working because he was in pain. After two tries at working, lasting
approximately one (1) month each, he has not gone back to work. He also stated
that for a time he did continue his contacts with the union, and asked about
being placed on a "light job somewhere." After two such light jobs he "couldn't
do it." [T-60]. Claimant testified that he did not try to go back to work after
those attempts up until 2005, "[b]ecause I used to go to the union and they
didn't have any light jobs, therefore, I didn't go to anyplace else." [T-74].
He continued to be treated by Dr. Kyriakides and to receive physical therapy
until the present time. He also received two epidural injections from another
doctor. Dr. Kyriakides added new exercises and treatment on a traction machine
Mr. Triantafilidis said he is frustrated by not being able to work, and
generally stays home, walks his son to school, visits with friends, goes for a
walk or does physical therapy exercises during the day. In terms of household
chores he used to perform, he said that he could no longer mow the lawn or rake
leaves, and has hired someone to mow the lawn. He has used a snow blower to
clear snow. He also said that when he feels well he washes dishes, washes the
floor, and picks up milk and bread at the store.
Additionally, Claimant traveled to Greece twice during this period to visit his
mother, a nine hour plane ride, and visited his daughter in Boston by car twice.
His wife drove. Before the accident, he used to enjoy weekend trips to the
beach or fishing and hunting with his family, as well as casually entertaining
friends at home. Attempts to hunt or fish since the accident have been
short-lived and very uncomfortable.
Union records from Local 731, which indicate that he became a member in 1997,
show the hours he worked for calendar years 1997 through 2002. [Exhibit 4].
Claimant worked 1005 hours in 1997, 1779 hours in 1998, 2155 hours in 1999, 1035
hours in 2000, 1321 hours in 2001, and 794 hours in 2002.
[id.]. Income tax returns were provided for calendar years
1999 through 2004. [Exhibit 3]. They show that the income between 1999 and
2002, based upon only Claimant's earnings, averaged $41,500.00 annually,
inclusive of calendar year 2002 when he earned approximately $26,000.00.
According to the income tax returns for 2003 and 2004 Claimant himself did not
generate any income in those years, but he had income from his wife and real
estate investments. An Employee Business Expense Form 2106 for 1999 lists
deductible expenses as approximately $2,000.00; and in 2000 the amount listed is
Claimant testified that he receives Workers' Compensation in the amount of
$385.00 weekly. He also receives Social Security Disability in the amount of
$807.00 per month. He testified he no longer receives medical or pension
benefits through the union.
After the accident, six investment properties purchased in Long Island for his
retirement with partners were sold. He was no longer able to pay the college
tuition for the two children who were in college, and his father-in-law ended up
giving him some money.
On cross-examination, he confirmed that he had never tried to get a job outside
of the construction industry since the accident, and stated that had he felt
well enough he would have been able to work at a light duty job in 2004. He
also said he feels worse now than he did in 2004.
Joanna Triantafilidis, Claimant's wife, essentially confirmed that her husband
appeared to have good days and bad days, in terms of both pain and personality.
He was "crankier" since the accident, and unable to enjoy family outings to the
beach, for example, of longer than an hour's duration, when before the accident
they would spend the entire day at the beach. It was suggested that she would
have cut down on the two jobs she had worked for some time before the accident
had it not occurred, but this appears unlikely in a household that was
supporting financing both on the family home, and investment properties, as well
as college educations for two of the three children, albeit with assistance from
Mrs. Triantafilidis' father. Both Claimant and his wife appeared to exhibit the
immigrant ethos of hard work and upward mobility for their children.
Dr. Christopher Kyriakides testified at some length about his treatment of
Claimant and his prognosis. When Dr. Kyriakides first examined Mr.
Triantafilidis shortly after the accident on March 6, 2002, he saw cuts
and bruises on Claimant's head and face, and Claimant complained of headache,
dizziness and severe pain in his neck and back. Mr. Triantafilidis had not been
back to work since the accident. Claimant reported numbness and tingling in his
left hand. The doctor observed that Claimant walked with a mildly antalgic
gait, and favored his left side. When he examined his spine, he observed spasms
in the cervical and lumbosacral areas, and found some range of motion
The preliminary diagnosis on March 6, 2002 was post concussive syndrome with
head trauma, facial contusions and lesions, cervical and lumbar derangement,
left hip internal derangement, and the indication that they would need to rule
out carpal tunnel syndrome. [T-170]. [Exhibit 5]. A CAT scan to check for any
bleeding in the brain came back negative, and x-rays of the neck, back and hip
were taken and reviewed. A physical therapy plan was immediately implemented,
and Claimant was prescribed Vicodin - a very strong pain killer - and Voltaren -
Noting that an x-ray only picks up solid objects such as bones - not the tissue
making up the discs between the bones - the doctor said the x-rays showed a
narrowing at the C-5 and C-6 levels of the cervical spine, leading him to infer
that the disc material "was not there" doing its job of separating the bones.
[T-173]. He also said that he did not see any evidence of any type of
degenerative joint disease, primarily because if such a condition is present,
the spine would not show narrowing at just one isolated level. It is a process
that would affect the spine on more than just the two levels shown. If there
were disc space narrowing at 3 to 5 of the levels, for example, Dr. Kyriakides
opined that it could be the result of trauma, but arthritis would also be
considered. He also noted that "eventually most of us are going to get this
narrowing if you live long enough." [T-174].
Based upon this initial x-ray, the fact that decreased sensation was noted at
the C-6 level, and a positive Spurling maneuver, Dr. Kyriakides concluded that
Claimant had suffered injury to the nerve at the C-5 and C-6 level.
The x-ray of his lower spine showed no evidence of broken bones or fracture, or
any signs of arthritis. The x-ray of his hip - taken because of complaints of
pain - showed nothing in the nature of a fracture or degeneration as well.
On March 22, 2002 an MRI of the lumbosacral area was taken. [Exhibit 5]. It
showed that Mr. Triantafilidis had posterior lateral bulges at the L-4 and L-5
levels, with a greater narrowing on the left lateral neuroforamina than the
right. Bulges were noted at L-5, S-1, and also at L-3 and L-4. The bulges at
L-3 and L-4 were diffuse annular bulges. [T-177]. It was also significant that
the bulge was lateral as opposed to the center, because the nerve roots are on
the side of the spine. Thus, if it were a central posterior bulge while there
could still be inflammation, it is less likely.
As Dr. Kyriakides explained it, the foramina is the hole where the nerve exits.
There are two on each side. He said that "one can technically have a variety of
problems in their disc, in their spine, but as long as the foramina are open,
patent and allow reasonable exit of the nerve, there typically shouldn't be as
much concern. Our main concerns come in when the foramina is blocked . . .
[W]hen that's blocked, that means that the only structure that goes through that
foramina is the nerve and it will impede the nerve." [T-177-178]. A variety of
things can block the foramina, including disc bulges, disc herniations, tumors,
and calcium, the latter blockage occurring often in the elderly. Although there
was some blockage on the right side, Mr. Triantafilidis was totally blocked at
one level on the left side.
After reviewing the MRI, Dr. Kyriakides prescribed Naprosyn, an
anti-inflammatory, with the hope that reduction of inflammation might create
enough opening in the foramina so that the nerve could pass through more easily;
as well as Flexural, which is a muscle relaxant. The Flexural might release the
muscle tension, creating more relaxation in the spine and possible opening of
the foramina. [T-180]. A course of physical therapy three (3) days per week,
including ultrasound, electrical stimulation and range of motion exercises with
some traction, was also prescribed.
Dr. Kyriakides explained that he saw little value in pushing a bulge back in;
something he had never seen done except surgically. As he viewed it, even a
pushed in bulge will re-emerge more easily much as a broken toy with fitted
parts will continue to simply come apart once the spot where it is joined is
broken. Instead, the goal is to get the body adjusted to the new condition and
adapt to it.
Range of motion tests performed using a machine recording the results on March
12, 2002 showed deficits in bending forward (flexion) and backward (extension),
in both his neck and back, and deficits in bending sideways in his neck. When
Claimant returned for follow-up on March 20, 2002 there had been no improvement
in terms of his headaches, pains in his head, neck and back, left hand weakness,
numbness and tingling, and left leg pain. The doctor noted that the weakness,
numbness and tingling are significant because these are all matters that are
controlled by the nervous system, implying a neurological injury. It was after
this follow-up visit that Dr. Kyriakides recommended an EMG - which is a nerve
test that tests the nerve itself as it comes out of the body and tests the
muscles where the nerve is intended to go - as well as the MRI referred to
The EMG confirmed that there was abnormal spontaneous activity at the L-3, L-4
and L-5 paraspinal muscles - fibrillations or twitching - and an abnormal tibial
reflex, showing that something was slowing down the synaptic reactions on the
. [T-193]. Considering the x-ray, the
EMG and the MRI, Dr. Kyriakides' diagnosis as of May 1, 2002 was lumbar
neuroforamina radiculopathy, meaning bulging discs with nerve deficiencies.
[T-194; Exhibit 5]. After these results, the physical therapy was adjusted
somewhat, in that traction was added to the mix, but the doctor indicated
"there's not a whole lot you can do other than wait with these things and treat
them with therapy and the medication." [T-195]. Indeed, on the May 1, 2002
follow-up visit the Claimant complained that it felt like he had a "foreign
leg," which Dr. Kyriakides attributed to the leg feeling numb and the
neurological abnormality whereby the nerve impulses are slowed down on the left
side as shown on the EMG.
Notably, on May 1, 2002 he cleared Claimant to return to work on a trial basis,
directing him to "avoid lifting objects weighing beyond 25 lbs . . . [and] to
avoid unsteady surfaces as well as extreme changes in temperature . . . to avoid
crawling in tight spaces or utilize hammers or any instruments weighing greater
than 2 lbs., in an overhead motion." [Exhibit 5]. This was to be on a 45-day
trial basis subject to re-evaluation. [id.].
Thereafter, according to the medical records, Claimant continued to attend
physical therapy, and was next seen by Dr. Rivera, a now retired partner in Dr.
Kyriakides' office, on October 3, 2002. [Exhibit 5]. Claimant's medication was
changed from Naprosyn to Celebrex. Such a change avoids the problem of
decreased effectiveness of the anti-inflammatory medication over time.
Dr. Rivera's report of the visit indicates that Claimant's neck range of motion
is within normal limits, that his gait was steady and that he could perform toe
and heel walks, although with some pain in the lower back. The noted impression
is "1) Cervical derangement. 2) Lumbosacral derangement. 3) Left lumbosacral
radiculopathy. 4) History of carpal tunnel syndrome."
[id.]. Physical therapy twice per week is continued, as is a
prescription for Celebrex as needed for pain. A follow-up visit in six (6)
weeks is directed.
When Dr. Rivera saw him on January 6, 2003, Claimant is noted as reporting that
the lower back feels better, but that the neck pain continues. Claimant was not
taking any pain medication according to the record. The impression noted is "1)
Cervical derangement. 2) Lumbosacral derangement." The prescription for physical
therapy, and Celebrex as needed for pain, with no refill, is continued. A
follow-up visit in eight (8) weeks is directed.
Follow-up visits with Dr. Rivera are reported on March 3, 2003; June 12, 2003;
August 18, 2003; October 20, 2003; January 12, 2004; March 8, 2004; and April
26, 2004. The report from April 26, 2004 indicates that the patient would be
referred for spinal surgery evaluation, as there has been not much improvement
with a conservative approach. There were also prior suggestions in her report
that he be evaluated for pain management treatment, but approvals had not been
obtained from the Workers' Compensation Board.
When Dr. Kyriakides again saw Claimant on June 24, 2004, he recommended pain
management treatment as well. The procedure involves injections into the
neuroforamina of steroids and cortisone. This direct application, he explained,
would more efficiently send medication to the source of discomfort, rather than
having it detour through the stomach and the bloodstream.
The procedure was approved and the treatment given in April 2005. For Claimant
the relief he gained was not the expected protocol of six months to three years,
but rather only 2 to 3 days. What this showed Dr. Kyriakides, however, was that
some relief was possible, and that steroids alone "couldn't do it because it's
an anatomical blockage. There's an actual disc there and there's material
that's actually compressing the neuroforamina. Now you've got to get in there
and actually remove it" surgically. [T-211]. Dr. Kyriakides explained that what
he was suggesting Claimant try was spinal surgery, but not of a type involving
invasive cutting and fusion but rather a nerve blocking type of surgery in
combination with a therapy designed to vaporize the excess tissue blocking the
nerve. These procedures are called, respectively, selective percutaneous nerve
block and ischiectomy, and neuroblative radio frequency therapy.
There was no indication at trial that Claimant had decided to elect surgical
intervention, nor what the cost of same might be. Since success would be
measured by reduction of pain, Dr. Kyriakides thought that the surgery would
likely be successful, and at least allow Claimant the ability to address his
motor functions with a more "hard core physical rehabilitation program with
heavy training" now unavailable to him because of his limitations.
With respect to Claimant's neck, Dr. Kyriakides said that it was not as painful
as the back overall, and had been more responsive to the conservative management
through physical therapy. Indeed, no testimony about current pain in the
cervical area was elicited.
Dr. Kyriakides opined that Claimant had suffered permanent injury as a result
of the accident of March 1, 2002, and had a fair to poor prognosis if the
surgery is not selected. He explained that "there's no reason to believe that
this will get better . . . [W]e like to look at 18 months as a time frame where
things will get better if they're going to get better. The first six months
dictate the majority of the healing . . . It's been . . . almost four years."
On cross-examination, Dr. Kyriakides conceded that the spurring referred to in
the notation "posterior spurring [at the] C5-6" level shown on an April 2002
CAT scan of the cervical spine might be a sign of arthritis, but said that the
CAT scan generally "doesn't pick up soft tissue very well." [T-223]. He thought
that if it were arthritic, one would see multiple spurs. It is likely, he said,
that an MRI of the neck would find disc injury at that level, whereas a CAT scan
might not since it is a test that is still of the x-ray type rather than
magnetic. Besides the lack of multiple spurs suggesting arthritis, he also
thought it could be a bone chip that broke off because of trauma, therefore
showing up as a spur on a CAT scan.
Dr. Kyriakides agreed that a subsequent MRI of the lumbar spine dated June 10,
2005 reporting "multilevel desiccated discs without current findings or bulge or
herniation", describes a condition that could be the result of aging and
degeneration, but "secondary to a cause," as he saw it. [T-231]. Indeed, in a
follow-up report dated June 29, 2005 in which Dr. Kyriakides refers to this MRI
he writes: "A repeat MRI study revealed desiccation of his disc, which is
typically the natural course of the patho-physiology that occurs to many of
these bulging discs and in fact he continues to have symptomologies consistent
with a radiculopathy." [Exhibit 5]. Later on Dr. Kyriakides explained that there
is no inconsistency in finding an absence of bulges in 2005 when bulges were
present in 2002. He opined that one is a natural occurrence of the other, in
that it is not inconsistent to find that a damaged disc has become desiccated.
Dr. Kyriakides acknowledged that physical therapy notes from April 2002
through June 2004 describe Claimant's symptoms as moderate to minimal, during
the same period that he wrote a June 24, 2004 follow-up report indicating that
Claimant could not "return to work any gainful activity (sic) . . . "
[Exhibit 5]. He explained that the notations of the physical therapists report
what the patient indicates, but that his own analysis includes such reports as
well as objective observations and physical exams. Dr. Kyriakides also frankly
stated that some days Claimant could come in and report that it is minimal or
moderate pain he is experiencing, and "it probably really is" as described.
[T-278]. "That doesn't mean that his injury is getting better or worse
necessarily. It's the cyclical nature of these types of injuries. They do get
better, they do get worse, but there is a subjectiveness to this both on the
interpretation of the doctor, therapist and in the way that the patient relays
He was not surprised that Mr. Triantafilidis expressed a desire to return to
work, and explained that he thought Claimant could probably do light, sedentary
work, just nothing in construction. Indeed, he further explained that Claimant
could return to work with "detailed restrictions and guidelines, that would be
avoiding positions . . . on a trial basis . . . I thought that in ‘03. I
told him to do that in ‘02 in talking to him, and I still think that
today." [T-241]. Dr. Kyriakides said it would not surprise him if Mr.
Triantafilidis "went to work on a construction site today. And he could actually
do it. He could muster up the energy to do it. I'm not saying he can't do it,
or that it's something that is physically impossible for him to do. I think
it's medically unwarranted. I think it's wrong for him to do that. And my
suggestion to him is not to do that work so as to avoid further problems."
The Defendant's expert orthopedist, Herbert S. Sherry, M.D., testified
concerning his findings based upon his examination of the Claimant on October
18, 2004, and the various reports and medical records. [See Exhibit B].
He opined that there was no objective orthopedic evidence of injury related to
the accident of March 1, 2002, but found instead that Claimant's symptoms were
indicative of a degenerative condition rather than the result of trauma. He
noted that 53% of people Claimant's age have bulging discs, yet are
According to Dr. Sherry, during his examination of Claimant, he complained of
pain in his left side while driving, numbness in his leg, pain with weather
changes, and pain in his left arm.
Dr. Sherry testified that he gave Claimant "a standard orthopedic examination,
the same examination that is taught to the second year medical students to be
performed on all first time patients that come to your office, so that the
patient's neck, back, upper extremities and lower extremities are examined."
[T-293]. One test he gave that he said is used to test for a herniated disc or
lumbar radiculopathy - "a pinching of the nerve root in the back causing pain
radiating down the leg" - is raising the leg while the patient is in a seated
position and straightening it so that the body looks like a right angle. This
causes the "sciatic nerve to be on stretch, and if there is any irritation of
that sciatic nerve or dysfunction of that sciatic nerve, it is going to cause
pain radiating from the back down the leg. This did not happen." [T-295]. From
the supine position, the same test resulted in a complaint of pain on the left
side when the leg was elevated to 70 degrees. Although Dr. Sherry testified
that he performed a dorsiflex maneuver on the ankle to test the pain from both
positions to confirm what should have resulted in similar pain down the leg, he
did not record in his written report that he performed this test from the
Dr. Sherry could not say what parts of the body he applied pin prick tests to,
although he noted that there was decreased sensation on the left side in a
"non-anatomic glove distribution," an abnormal finding. [T-297]. He seemed to
suggest that these were faked reactions, but he did not particularize where he
tested for same, saying only that no matter where the left leg was tested, there
was decreased sensation which does not follow the nerve root patterns of the
nerves going from the lower back.
On cross-examination he also indicated that he had given Claimant a standard
test to his big toe that was normal, but did not write it in his report, saying
that if there had been a weakness noted it would have been written in. He
agreed that such a test is an important part of a physical exam if one is
checking for compression or nerve root impingement at the L-4 and L-5 levels of
the lumbar spine, and that he administers it "routinely."
Additionally, he conceded that with respect to checking flexion, in some
instances he had eye-balled the angle, deciding to actually measure only when it
looked abnormal. Notably, the witness had never looked at the actual films
involved in the MRI reports, but instead had only read the reports. Dr. Sherry
also said that a bulging disc could not be the result of trauma, and could not
impinge upon a nerve root. Dr. Sherry agreed that desiccation is the natural
process, whereby discs lose water content over time. He said that a bulging disc
could not block the neuroforamina - although herniated discs might - and would
not agree that what had been bulging discs in the earlier MRI, could now be
desiccated discs shown in the more recent MRI that concomitantly opened up the
blockage by the neuroforamina. He agreed that an individual taking Celebrex or
other anti-inflammatory medication might experience reduced levels of discomfort
during an examination.
Marshall J. Keilson, M.D., the Defendant's expert neurologist, based his
opinion on his physical examination of Claimant on August 31, 2004, and the
medical records and reports made available. [See Exhibit A]. He opined
that there were no objective signs that he was neurologically disabled as a
result of the accident of March 1, 2002.
Dr. Keilson reported decreased sensations on the left side from pinpricks, as
well as decreased sensitivity to vibration and to cold. He observed Claimant
walking, and although he said he saw Claimant get up smoothly from the waiting
room chair, he also saw Claimant dragging his left foot on the floor as he
walked. Pain on forward flexion of the lumbar spine was noted, and no
measurements of range of motion tests were recorded.
In contrast to Dr. Sherry, Dr. Keilson stated that bulging discs may encroach
on a neuroforamina causing an impingement, saying "nothing is never in medicine"
although he thought it "uncommon." [T-446]. He also agreed that the later MRI
showing desiccation did not mean that the bulging discs found in the earlier MRI
were incorrectly reported. Dr. Keilson said, once a bulging disc desiccates,
the MRI film may no longer show a visible bulge because it has lost fluid and
When asked to explain why he disagreed with Dr. Kyriakides' report of lumbar
radiculopathy, he said that Dr. Kyriakides had ". . . reported that there were
what are called denervation potentials, that is a certain irritability of
the muscles in the paraspinal regions. Those are the regions right at the back
area. As a general rule, if there are going to be denervation potentials from a
nerve impairment, those are present usually in the first few weeks after the
offense, and then they disappear and the denervation potentials will be present
further down in other muscles that are subserved by the same nerve, and he
reports the denervation potentials exclusively in the paraspinal region and this
was about five months after the accident. So it would be unusual . . . [He did
not report] denervation . . . in the legs." [T-468]. For radiculopathy, Dr.
Keilson said you would "often" expect to find denervation in the legs.
On cross-examination, however, he agreed that denervation doesn't necessarily
happen right away, and could happen over the course of two years. Indeed, if
denervation is not present five months after an accident, it does not
necessarily mean that it would not happen later.
Dr. Sherry and Dr. Keilson did not find that there was any basis to perform
surgery of whatever nature on Claimant. They also did not refute the testimony
by Claimant's treating physician, Dr. Kyriakides, that his condition would
deteriorate, or that it currently causes Claimant to suffer pain and limitation
of motion he did not suffer from prior to the accident.
Richard Schuster, Ph.D, a psychologist by training, who described his
profession as psychology, neuropsychology and rehabilitation, discussed his
opinions about Claimant's re-entry into the workforce, including Claimant's
limitations in that sphere. [See Exhibit 7]. Dr. Schuster's background
includes working with adolescents with substance abuse and mental health
problems, as well as work with the State's Vocational Educational Service for
Individuals with Disability [VESID], and in private practice, performing
vocational rehabilitational assessments.
In order to form an opinion, he reviewed Claimant's medical records, income tax
returns, and examination before trial, conducted standard vocational tests that
tested both functional and intellectual capabilities, reviewed Department of
Labor reports and job data bases, and interviewed the Claimant. Dr. Schuster
found Claimant to be a motivated individual, who could return to the competitive
work force only in a limited fashion full-time given his age, the unpredictable
nature of the pain he experienced, his limited education to the sixth grade
level in Greece and limited language skills, as well as his lack of transferable
skills from his earlier work as a laborer and foreman in heavy construction.
Dr. Schuster interviewed Mr. Triantafilidis on April 13, 2005. The testing and
interview took approximately 6 to 7 hours. Dr. Schuster noted that the process
"appeared to be a chore for him." [T-365]. Based upon what he termed "trick
questions" [T-371] similar to psychological profiling, Dr. Schuster concluded
that "[t]here was no indications of malingering." [T-375]. Although at times in
conversation Claimant required repetition and simplification of what was said,
overall his ability to understand and speak English was at a second grade level,
marginally better than his ability to read English, which was only at a
kindergarten level. Claimant's overall basic level of cognitive function was
described as low average, and his math skills were on a fifth grade level: what
would be considered low average in comparison with his peers.
When Dr. Schuster compared Claimant's abilities with the United States
Department of Labor profiles delineating all jobs within the country, he said
that he enhanced Claimant's physical and language abilities somewhat based upon
a presumption that accommodations for his limitations could be made at the
workplace, and the possibility that he would improve. The average pay of all
jobs he found paid approximately $25,802.00 annually, or between $8.00 to $13.00
per hour. Dr. Schuster added that part of the "enhanced profile" for Claimant
also included the notion that he could work in the Greek community where the
language skills issue would not impede his employability.
With a less optimistic profile, Dr. Schuster opined that Claimant would likely
work episodically and part-time for his remaining work life - interpreted as a
two-thirds reduction in work life - and could earn an average yearly wage of
On cross-examination, Dr. Schuster conceded that he only had medical records
going up to 2003 when he made his analysis, but did have a form that was part of
his information gathering process given to counsel and completed by Dr.
Kyriakides some time in 2005. From that 2005 form, Dr. Schuster had understood
that Claimant could lift only 10 pounds of weight, and was unaware that Dr.
Kyriakides had testified that Claimant could lift between 25 to 30 pounds of
weight. Dr. Schuster also seemed to be unaware of the physical therapy records
in which Claimant's mild to moderate complaints of pain are reported, and agreed
that he had assumed that Claimant's pain levels were moderate to debilitating.
Dr. Schuster conceded that a person who could lift from 10 to 30 pounds could
work at a security job checking identification, but would be limited were he
asked to walk and climb stairs extensively or complete reports.
Additionally, Dr. Schuster agreed that an auto mechanic in the New York
metropolitan area could earn approximately $40,000.00 per year, but thought that
given the fact that Claimant's training in that field occurred more than 20
years ago it was unlikely he would secure employment. When it was suggested that
a person working as an insurance appraiser for damaged cars in the New York
metropolitan area earned about $52,000.00 per year according to a Labor
Department survey from November 2004 Dr. Schuster indicated he really did not
know, and that there were "hundreds and hundreds of SOC categories" available on
the internet for different localities. [T-406].
Dr. Schuster was also unaware that Dr. Kyriakides had testified that Claimant
could work at sedentary jobs or perform light duty work as early as 2003, but
claimed that information would not change his view of Claimant's employability.
Dr. Schuster did not offer any testimony concerning Claimant's possible ability
to perform light duty work as opposed to sedentary work.
Finally, Konrad Berenson, Ph.D, testified as Claimant's economics expert
concerning his past and future earnings losses, expressed in four tables
submitted in evidence. [See Exhibit 8]. In order to make an economic
projection for Mr. Triantafilidis, Dr. Berenson was provided with information
concerning Claimant's date of birth and injury, dates of birth of his family
members, his occupation, a printout from the union setting forth the number of
hours he had worked during his membership there, agreement concerning wages and
benefits by the union, tax returns and the Bill of Particulars. He said that he
analyzed Claimant's future earnings loss from both the perspective that Claimant
would never work again, and from the perspective that he would work only
part-time. He indicated that Claimant had a future work life expectancy of 13.33
Using the wage and fringe benefit figures from Local Number 731 [Exhibit 8,
Table 1] - Claimant's union - as a guideline, he projected what Claimant's
future earnings potential would have been as a laborer for his work life
expectancy. That earnings increase was derived from the economic practice of
going back in economic history as many years as one goes forward to derive a
percentage to apply to a flat rate projection
On a flat projection, without adding in increases in wages or benefits or
deducting work expenses, the figure is just under
[Exhibit 8, Table 2]. Premised
upon annual wage increases at 3.3% and 4.3%, the number increased to
approximately $860,000.00 and approximately $920,000.00, respectively.
]. Finally, including fringe benefits he projected that Claimant
would have earned either $2,350,000.00 or $2,600,000.00 in the future with the
same respective percentage increases. [id.
This is without
consideration of Claimant obtaining alternate employment.
Using the scenario whereby Claimant obtained alternate employment, and using
the lower figure offered by Dr. Schuster of approximately $9,000.00 per year,
Dr. Berenson, calculated that the flat projection of future earnings less work
expenses would be approximately $107,000.00 over the 13.33 years work life
expectancy. [Exhibit 8, Table 3]. Using the yearly increases over the same
period of 2.7% and 3.7%, he arrived at approximately 127,000.00 and $135,000.00,
respectively. [id.]. Dr. Berenson explained that he used different
percent increases for calculating possible future earnings because Claimant
would no longer be in the same kind of work, so the analysis of what increase to
apply involved consideration of what an average worker in private industry
earned rather than one safeguarded by a union. It is unclear where these numbers
were derived from.
Dr. Berenson did not analyze what future earnings might be premised upon the
larger salary posited by Dr. Schuster.
Notably, Dr. Berenson utilized Claimant's prior work history as a benchmark as
well, saying that he averaged 1572 hours annually - or approximately 39 weeks
per year - prior to his injury. Although Dr. Berenson stated this in the
context of saying that Claimant was entitled to union fringe benefits including
full medical coverage based upon working 1000 hours per year, it is noteworthy
that full time employment for this individual meant a shortened year in any
event, as is routine in the construction industry.
Finally, Dr. Berenson testified concerning how he evolved the final projections
of Claimant's economic loss. [Exhibit 8, Table 4]. Should Claimant never work
again, he opined, at the low percentage his earnings loss would be approximately
$2,490,000.00, and at the high percentage it would be $2,730,000.00.
[id]. He then included household services costs with a flat
projection of $310,000.00, increased to approximately $490,000.00 at the low
percentage, and to $660,000.00 at the high percentage. [id.]. He
also includes future medical costs, using a flat projection of approximately
$210,000.00, increased to 330,000.00 at the low percentage, and $390,000.00 at
the high percentage. [id.]. Including these separate items, Dr. Berenson
concludes that the future loss at a flat rate would be $2,320,000.00, and
approximately $3,310,000.00 at the low percentage, and approximately
$3,780,000.00 at the high percentage. [id.].
Should Claimant work again at the reduced rate of approximately $9,000.00 per
year, and including the household services and future medical expense figures as
well, the flat rate loss would be $2,200,000.00, and approximately $3,190,000.00
at the low percentage, and $3,650,000.00 at the high percentage, he opined.
Part of the calculations inevitably included the benefit lost by allegedly not
being able to secure union work. Contributions to Claimant's annuity and
pension plans through the union would result from work at union jobs, according
to the contracts. [See generally Exhibit 4].
On cross-examination, Dr. Berenson conceded that he had not reviewed income tax
returns for Claimant for the period five (5) years before the injury, although
that is his custom when doing his analysis. He also indicated that he had done
his flat rate projection of what Claimant's past earnings would have been based
upon a salary substantially higher than what Claimant is shown as earning in
Calendar year 2001: the year before the injury. He added that the numbers are
based on assuming Claimant would have worked 1572 hours, and using the union's
hourly wage. Dr. Berenson was unaware that Dr. Kyriakides had indicated that
Claimant could work, nor was he informed by anyone that Claimant could perform
light duty work in 2003, 2004 or 2005. He also indicated that he relied on Dr.
Schuster's characterizations of Claimant's ability to work.
No other witnesses testified.