The liability portion of this case was tried by the Hon. Ferris D. Lebous,
wherein he determined liability at 75% to the Defendant and 25% to the Claimant.
I tried the damages portion of this trial in Binghamton on July 25, 2006. The
parties requested and were granted additional time to submit post-trial
On January 31, 2003, Claimant was an inmate residing at Sullivan
Correctional Facility (“Sullivan”) and assigned to an outside work
crew at Belleayre Mountain ski resort (“Belleayre”) where he cut his
hand on a 30-ton log splitter.
Claimant testified that his right hand, specifically the right thumb, had been
caught between the push plate at the end of the machine and the flat end of the
log he was adjusting when another inmate started the machine. Claimant recalled
that first he felt pain in his right thumb and then began to scream and holler,
which caused the other inmate to stop the machine. He believes his thumb was
caught between the push plate and the log for approximately three to five
When the push plate was released, Claimant said he pulled out his
hand and removed the leather working glove to get a better look at his thumb.
He observed that his right thumb looked “very flat” and then
“burst” or “popped,” exposing a “cracked
bone” and blood. Immediately at the scene, the correction officer and
civilian supervisor wrapped his hand in paper toweling and, for approximately 5
to 10 minutes, attempted to stop the bleeding. They then put Claimant in a van
to transport him to the Belleayre First Aid Station.
At the First Aid
Station, two nurses attended to Claimant. Claimant described their treatment of
his injury as just cleaning, bandaging and advising that he be taken to a
hospital right away. Claimant described his hand at this point as immobile,
“stiff.” He also stated that the bandage the nurses applied became
blood soaked, which scared him. He was then transported to Margaretville
Memorial Hospital in Margaretville, New York.
Claimant was seen in the
emergency room at 1:10 p.m. by a physician’s assistant who removed the
bandage, soaked his thumb, treated his fingernail to relieve pressure,
administered a local anesthetic and sutured the wound. The wound was then
bandaged and splinted. The medical record indicates that Claimant suffered a
“tuft fracture distal thumb (right side)” and a “1 centimeter
laceration.” In addition, Claimant sustained a “subungual
hematoma” (Exh. 21). He was given Vicodin and Keflex and told to keep the
wound dry for two days and follow up with a doctor in three days. He was also
instructed not to work until he was seen by a hand surgeon (Exh. 21). X-rays
were also taken at this time, confirming the fracture on the right thumb (Exhs.
21, 19). Claimant returned to Sullivan Correctional Facility
(“Sullivan”) at approximately 4:15 p.m. on the date of the accident
and was admitted to the infirmary (Exh. A). A correction officer photographed
Claimant’s hand as bandaged by the physician’s assistant in the
emergency room. The bandage covered his wrist to the knuckles on his hand and
then it appeared to cover his thumb and splint (Exh. 15).
Claimant stated he
was in the Sullivan infirmary for 14 days. During that time, he was given
painkillers and Motrin for the swelling. He was given a sling to keep his hand
elevated and a special bed that allowed him to sleep sitting up. Claimant
testified that his whole hand was swollen and he was in pain for the entire 14
days. He observed his hand when his bandages were changed, too. He noted that
the blood had dried up, the thumbnail was black and blue, that he could see the
stitches, and that his hand was still swollen; he stated it looked like that for
one to two months.
It was during this time that Claimant was seen at the
Albany Medical Center Emergency Department (“Albany”). The
attending medical doctor at Albany examined claimant on February 12, 2003. He
noted that Claimant was on Tylenol every four hours and that Claimant
“showed decreased flexion of his thumb secondary to pain” and that
he still had sensation in the area. The doctor also noted that, after receiving
a seven-day course of Keflex, Claimant showed no signs of infection. The
diagnosis was an “open distal phalanx fracture of the right thumb”
and a “subungual hematoma.” The plan was to augment the pain
control regimen with different drugs and have Claimant evaluated in the Bone
& Joint Center at Albany Medical Center (Exh. 22).
Claimant was examined
by Dr. Paul Hospodar, Associate Professor of Orthopedics at Albany Medical
College. Dr. Hospodar’s testimony was introduced at trial by his
deposition taken on November 15, 2005. It was admitted into evidence by
Dr. Hospodar first saw Claimant on February 20, 2003. Based on
an examination of Claimant’s x-rays from Margaretville Memorial Hospital,
he concluded that Claimant split the bone at the end of his right thumb (the
bone under the thumbnail). Dr. Hospodar noted that there was no sign of
infection and that it “looked O.K.” so he removed the stitches, gave
Claimant a “stacked splint” to immobilize the thumb and instructed
him to return in two weeks. In addition, Claimant was to undergo physical
therapy to increase his range of motion (Exh. 17, pp. 5 - 6).
commenced an intense schedule of physical therapy (“PT”) on February
27, 2003 and received PT on March 11, 2003; March 13, 2003; March 14, 2003;
March 25, 2003; March 27, 2003; March 28, 2003; April 1, 2003; April 3, 2003;
April 4, 2003; and April 8, 2003. As I understand the testimony, the distal
joint of the thumb, or “DIP” joint, is the joint closest to the
thumbnail, the location where Claimant had the most trouble bending his thumb.
The second joint, or “PIP” or “IP” joint is the joint
closest to the hand, which also had diminished ability to move because of the
flesh wound (Exh. 17, p.12).
Claimant started PT unable to do anything with
only a three to four degree flexion at the DIP and a 30 degree flexion at the
PIP (Exh. A [2/27/03 consult]). By the end of his intensive course of
treatment, his right thumb DIP had a 75 degree flexion (compared to 85 degree
flexion on the left) and the PIP had a 65 degree flexion (compared to 90 degree
flexion on the left). The PT notes also indicate that Claimant had greatly
improved his arm strength and was able to squeeze 50 pounds on the Dynamometer.
Despite mild swelling and a recommendation that he continue PT once a week for
four weeks, his “functional capacity level in using his [right] thumb is
almost [normal]” and he was ready for discharge (Exh. A [4/8/03
Dr. Hospodar saw Claimant again on March 17, 2003. He determined
that Claimant was “doing well” and recommended he continue with the
splint and the physical therapy. He observed that Claimant’s thumb was
still swollen (Exh. 17, pp. 6 -7). At Claimant’s next visit, on April 7,
2003, Dr. Hospodar determined that the “thumb was healed at this
point” and that the “x-rays looked good” (Exh. 17, p. 7, Exh.
Dr. Hospodar also reviewed entries in Claimant’s Ambulatory
Health Record and opined that the entries related to swelling and nail
discoloration through March 28, 2003 were not unusual, given the severity of the
trauma (Exh. 17, pp. 11 - 12).
Dr. Hospodar was asked to comment on a March
11, 2003 entry regarding a “tingling sensation” and high
“sensitivity to touch” as well as soreness in his thumb. He opined
that the “distal nerve” that normally gives the fingertip and finger
sensation was injured when the thumb was crushed and the tingling sensitivity
and soreness Claimant was experiencing was because the nerve was slowly
repairing itself (Exh. 17, pp. 13 - 14).
Claimant also exhibited “weak
grip strength” in his right hand at this time. Dr. Hospodar stated that,
although Claimant did not injure any muscle, the healing process - that is
stiffness, pain and swelling - has an impact on his ability to force a tighter
grip at that time.
Regarding physical deformity, Dr. Hospodar opined that
any visible deformity would likely be permanent (Exh. 17, p. 15). Dr. Hospodar
stated that Claimant’s progress three months from the date of injury was
normal and opined that he expected Claimant to have full range of motion and
normal sensation back in six months to a year (Exh. 17, p.16).
last saw Claimant in April 2003. Between that time and Claimant’s
discharge from the system, Claimant stated he gradually completed his physical
therapy and began to see movement at the base of this thumb and eventually in
the other joints as well. However, he has never been able to move his right
thumb as well as his left thumb. Claimant often requested Motrin, ibuprofen,
and arthritis cream at sick call.
Since leaving Sullivan in late May 2006,
Claimant states he still experiences stiffness in his right thumb and, when it
rains, pain. Although Dr. Hospodar believed that Claimant would be back to
normal in a year at the latest, during the trial, Claimant testified that he is
still unable to lift heavy things, such as ladders and paint buckets. In
addition, Claimant states the physical appearance of his thumb has changed since
the bone fracture and the laceration healed. I examined Claimant’s thumb
and observed that the scarring is visible and after careful study, it appears to
be “flatter” than his left thumb. The right thumbnail is a bit
darker in color as compared to his left thumbnail and, Claimant testified, the
right thumbnail does not grow all the way in and where it does grow, it grows
“into the skin.”
Having carefully reviewed the evidence and
trial testimony, I award Claimant $40,000.00 for past pain and suffering with
appropriate interest from August 11, 2005 (the date that the liability decision
was signed). I make no award for future pain and suffering as Claimant failed
to prove a permanent disability by a preponderance of the evidence. To the
extent that Claimant has paid a filing fee, it may be recovered pursuant to
Court of Claims Act § 11-a(2). Any motions on which the Court may have
previously reserved decision are hereby denied.
LET JUDGMENT BE ENTERED