New York State Court of Claims

New York State Court of Claims

TRIANTAFILIDIS v. THE STATE OF NEW YORK, #2006-030-002, Claim No. 108196


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):

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Claimant's attorney:
Defendant's attorney:
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Signature date:
March 20, 2006
White Plains

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See also (multicaptioned case)


By decision filed January 21, 2005, this Court granted Claimant's motion for partial summary judgment [M-69019] on the issue of liability under Labor Law §240(1) and found the Defendant to be solely responsible for the accident of March 1, 2002 which resulted in Konstantinos Triantafilidis' injuries. This Decision deals only with the issue of damages. A trial of the matter was held on November 15, 16 and 17, 2005.

The claim in this action, filed on August 27, 2003, and asserting five causes of action contained a demand for $13,000,000.00.
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 neurologist.

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],"[1] but he 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 as well.

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 $1650.00.

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 limitations.

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 - an anti-inflammatory.

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 above.

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 left side[2]. [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." [T-219].

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 it." [id.].

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." [T-242].

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 asymptomatic.

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 sitting position.

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 has collapsed.

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 $8,600.00.

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 years.

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[3]. On a flat projection, without adding in increases in wages or benefits or deducting work expenses, the figure is just under $700,000.00.[4] [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. [id.]. 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. [id.].

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.
As noted by Claimant's treating physician, there is an inherent subjectivity to evaluating an individual's experience of pain and to forming a diagnosis. This is especially true when the pain is intermittent, and its origin is elusive. Dr. Kyriakides, however, as the treating physician who has seen Claimant almost from the day of the accident for which the State was found 100% liable, to the present, and whose office has provided physical therapy for the same four (4) year period, is clearly in a far better position to assess Claimant's condition than two experts hired by Defendant who examined him once, and who were not privy to some of the original films used in diagnosis and treatment, and whose recitation of their examinations appeared perfunctory at best.

While it may well be that there is some exaggeration to Claimant's complaints, the Court is nonetheless persuaded that he has suffered a permanent injury as a result of Defendant's negligence, that has engendered some lasting effects. Despite the prognosis by Dr. Kyriakides that he would not necessarily get better, he was optimistic with regard to Claimant's eventual return to if not full physical health, at least health at a level that would allow him to find work and enjoy his remaining years, particularly if he were to elect nerve reduction surgery. Absent the surgery, the pain management - both through injections and other less direct medication - and the physical therapy, has overall stabilized his situation based upon Dr. Kyriakides' testimony as well as a review of the medical records showing the sporadic improvement.

While it is true, as pointed out by Counsel for the Defendant, that the physical therapy records report that Claimant's complaints of pain describe it as mild to moderate over the past few years, these are nonetheless complaints of pain and limitation of motion that would not be present were it not for this accident. The testimony by Defendant's experts regarding evidence of purported degenerative disease is unconvincing, in that, among other things, the earliest films taken almost immediately after the accident do not show such signs of degeneration.
Perhaps the most elusive aspect of any damages award for personal injury is the past and future pain and suffering experienced by the Claimant. Courts look to other awards given because this item of damages is not subject to "precise quantification." Karney v Arnot-Ogden Memorial Hosp., 251 AD2d 780, 782 (3d Dept), lv dismissed, 92 NY2d 942 (1998).

Only the Defendant submitted case law in order to assist the Court in analogizing Claimant's circumstances, to the circumstances of others. See Maisonaves v Friedman, 255 AD2d 494 (2d Dept 1998); Lamuraglia v New York City Transit Authority, 299 AD2d 321 (2d Dept 2002); Moreno v Chemtob, 271 AD2d 585 (2d Dept 2000); VanNostrand v Froehlich, 18 AD3d 539 (2d Dept 2005). The Court has conducted an exhaustive review of damages decisions in this area, concluding that it is inevitably the particular facts that drive such determinations. The Court has been persuaded that Mr. Triantafilidis was deprived for several years of some loss of enjoyment of life, and suffered - and will continue to suffer - chronic pain in some measure for the balance of his life. He was an industrious individual, and a family man, who has been forced to curtail that industry and has been limited in his ability to engage in family life, because of the injuries suffered in the accident of March 1, 2002. Based upon the Claimant's own treating physician's testimony, the use of pain management therapy and/or the election of surgery could reduce or eliminate the incidents of pain. Accordingly, the Court finds that the reasonable value of Claimant's past pain and suffering is in the amount of $100,000.00; and the reasonable value of any future pain and suffering is in the amount of $50,000.00
It was Claimant's burden to establish his lost earnings to a reasonable degree of certainty. Papa v City of New York, 194 AD2d 527, 531 (2d Dept 1993), lv dismissed, 82 NY2d 918 (1994); O'Connor v Rosenblatt, 276 AD2d 610 (2d Dept 2000). Testimony alone, without documentary evidence such as tax returns or a W-2 form is generally insufficient as a matter of law. Ramirez v City of New York, 279 AD2d 563 (2d Dept 2001); Gomez v City of New York, 260 AD2d 598 (2d Dept 1999); Poturniak v Rupcic, 232 AD2d 541, 542 (2d Dept 1996); Razzaque v Krakow Taxi, 238 AD2d 161, 162 (1st Dept 1997).

Additionally, as argued by Defendant, it is the Claimant's burden to show that there was no work available for him to perform that would allow him to mitigate his damages. McLaurin v Ryder Truck Rental, 123 AD2d 671 (2d Dept 1986). Claimant's unrefuted testimony that he sought work, however, marginally established this. Absent testimony from a union official or other person with knowledge that there was light construction work available, Claimant's version of events stands.

Claimant's work history is somewhat documented, showing that he had intermittent success in securing consistent work even before the accident. Some years he earned over $60,000.00, other years he earned half that amount. Notably, a minimal record was made of any effort to secure union work since the accident.

Although the testimony of the Claimant's experts was not opposed by the Defendant by presenting other experts, what testimony was offered must nonetheless be based upon the record and evidence presented. The Court found that the testimony by Dr. Schuster and Dr. Berenson was in part speculative, and in some instances based upon inadequate information, but it is not

entirely discarded. Dr. Schuster did not adequately explore alternate work possibilities, and did not seem as informed as he should have been about the Claimant's medical condition. Nonetheless, some weight is given to his testimony because the Defendant did not present its own vocational expert.

Because Dr. Berenson relied on the information provided by Dr. Schuster, his presentation was also flawed. Dr. Berenson also included some curious items, for example, a figure for the loss of household services formerly provided by Claimant that did not appear to be based upon any specific information. Arriving at a figure for medical expenses appears to have been based upon one isolated mention during the trial of the cost of a physical therapy visit, and that mention was made by a witness without actual knowledge.

Similarly, his projection of earning losses is based upon an inflated perception of Claimant's earning capabilities, when the history showed that Claimant's income varied from year to year even when he was in good health. However, Dr. Berenson's testimony, too, was not rebutted by alternate economic analysis.

Within the range of testimony presented, and based upon the financial information that can be gleaned from Claimant's tax returns and union history, past lost wages and future lost wages have been more conservatively assessed by the Court for the 13.33 years of Claimant's work life expectancy. Future lost wages should reflect the likelihood that Claimant will eventually return to the workforce albeit at a reduced earning level. While the Court may suspect that Claimant's earning level in the future could be greater, absent evidence to the contrary the Court is constrained to accept the per hour figures testified to by Dr. Schuster. Projecting forward 13.33 years, the Court finds that Claimant could reasonably earn at least $450,000.00, approximately through alternate work.

Having reviewed all the evidence and after listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has marginally established a past and future economic loss based upon loss of earnings. Past lost wages are established in the amount of $150,000.00, and future lost wages are established in the amount of $560,000.00, premised upon Claimant obtaining alternative future work and conservative increases in salary for that future work.
No testimony was elicited as to the cost of Claimant's medical care to date, nor was any elicited concerning the cost of any future care.
Accordingly, a summary of what constitutes reasonable compensation related to the respective categories is as follows:
Past Pain and Suffering $100,000.00

Past Lost Wages $150,000.00

Future Pain and Suffering $ 50,000.00

Future Lost Wages $ 560,000.00
TOTAL $ 860,000.00

Interest shall run from January 18, 2005, the date of the determination of liability.

Since the amount of future damages exceeds $250,000.00, a structured judgment is required [See §5041(e) Civil Practice Law and Rules]. Let judgment be held in abeyance pending a hearing pursuant to Article 50-B Civil Practice Law and Rules. The Court suggests the parties agree upon an attorney's fee calculation, and the discount rate to be applied to formulate a structured settlement of their own (See §5041(f) Civil Practice Law and Rules.) 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 Article 50-B Civil Practice Law and Rules within 45 days of the service of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

All motions made at trial and not heretofore ruled upon are hereby denied.

It is ordered that to the extent Claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a(2).

March 20, 2006
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or the transcript [T- ] unless otherwise noted.
[2] After reviewing the medical records the report from the EMG more consistent with this testimony is dated August 20, 2002. [Exhibit 5].
[3] A flat rate projection would be the baseline, assuming no further increases in salary, projected forward the given number of years, here,13.33 years.
[4]All numbers are rounded to the nearest tens of thousands.