Claimant testified that she was born on December 18, 1946, and married Hector
Gonzalez on November 23, 1991. At the time of this accident, claimant was a
licensed practical nurse (LPN) working with special needs children as a private
nurse, earning approximately $400.00 to $450.00 per week. Prior to the
accident, claimant testified that she was in excellent health and had never had
any major medical diseases, illnesses or surgeries. In fact, claimant testified
that she had never been hospitalized, except at the time when she gave birth to
Although claimant does not have any specific memory about the actual accident,
she testified that she was wearing her seatbelt at the time, but the seatbelt
apparently malfunctioned and she was ejected from her car by the force of the
Immediately following the accident, claimant was transported to Upstate Medical
Center by ambulance, where she remained a patient for the next two weeks.
Claimant suffered several facial injuries in the accident. She had a
laceration on the right side of her head, which required between 20 and 30
stitches to close. She also had a laceration which ran down from her forehead,
across her nose and onto her chin. She received a black eye, bruises and other
abrasions on her face, and also suffered a broken nose, a crushed right ear, and
the loss of her two front teeth.
Claimant also suffered significant internal injuries: her clavicle was
fractured in two places, her right scapula was shattered, and she suffered five
broken ribs on her right side. She also suffered a punctured lung, resulting in
pneumothorax, a lacerated liver, causing abdominal bleeding; a fractured pelvis,
and a bruised and swollen right hip. In addition to all of these significant
internal injuries, claimant also suffered cuts and bruises to her right hand,
arm, and chest.
As indicated, claimant was confined to University Hospital for approximately
two weeks following the accident. During this time at the hospital, claimant
testified that she was constantly dizzy and had difficulty breathing (as a
result of her fractured nose), as well as having difficulty swallowing due to
the swelling in her neck. Despite medication, claimant testified that she was
in constant pain, especially in her right side and arm.
Following her discharge, claimant returned home where she was bedridden for the
next six months, during which time she received assistance from her daughter and
a nurse’s aide.
Dr. Daniel G. DiChristina, an orthopedic surgeon who was on call at University
Hospital on the day of the accident, treated claimant for her fractures and
internal injuries during her two weeks at University Hospital, and also provided
claimant with follow-up medical care after her discharge. Dr. DiChristina
testified that claimant suffered a displaced fracture of her clavicle on the
right side, and that it was cracked right through to the middle of her collar
bone. He testified that the comminuted fracture of her scapula on the right
side, also displaced, was so severe that her right shoulder blade was completely
shattered. With regard to her rib fractures, at least one or two of those
fractures were comminuted, and that both her punctured lung and lacerated liver
were caused by these comminuted rib fractures.
After claimant’s admission to the hospital, Dr. DiChristina testified
that he took immediate steps to stabilize claimant, including the insertion of a
chest tube. He embarked upon a conservative course of treatment, deciding
against surgery, and treated claimant throughout her two-week stay at University
Hospital. He then continued to treat claimant after her discharge.
Dr. DiChristina also testified that claimant developed calcific tendinitis in
her shoulder area, resulting in a limitation in her range of motion. Her
injuries also resulted in a decrease in muscle size, and Dr. DiChristina
testified that the muscle strength in her right arm is now approximately 75% of
what he considers to be normal. Based upon all of the injuries suffered by
claimant, he determined that claimant has suffered a 32 ½ % loss of use
with her right arm, and that this loss of use is permanent.
Dr. DiChristina also testified that when claimant’s fractures healed, the
bones ended up shorter than their original lengths. In other words, the
right-sided fractures to claimant’s clavicle and scapula caused a
significant disfigurement of claimant’s right shoulder when these bones
healed. According to Dr. DiChristina, claimant has essentially lost her right
shoulder, and as a result, is unable to wear any bras or other clothing that
require straps that fit over the shoulders. Dr. DiChristina concluded that
this deformity is both significant and permanent.
In her accident, claimant also suffered multiple tooth fractures, which were
treated by Paul Longo, D.D.S. Dr. Longo testified that he had first started
treating claimant for dental work in February, 1992, two years prior to this
accident. Following the accident, Dr. Longo began a lengthy course of treatment
to repair those teeth which were affected by the collision. He first
concentrated on teeth #’s 8 and 9 (claimant’s two front teeth),
since claimant had lost crowns to each of these teeth in the accident. Root
canals were first performed on these two teeth by an endodontist, and following
the root canals, Dr. Longo then proceeded to repair the teeth by means of a post
and core, to provide additional structural support for those two front teeth.
Dr. Longo also placed a crown on tooth #7, and connected this tooth to teeth
#’s 8 and 9 for additional support. As noted, this entire course of
treatment involved several separate procedures, starting in November, 1994 and
continuing through January, 1995.
In addition to this extensive dental work on claimant’s front two teeth,
Dr. Longo also treated claimant for a cusp fracture of tooth #2, an upper molar,
and he also replaced a filling in tooth #12. He testified that the injuries to
these two teeth, as well as teeth #’s 8 and 9, were causally related to
Medical records also established that claimant suffered a fractured nose in
this accident. William M. Harmand, M.D., a specialist in otolaryngology,
testified on behalf of claimant. Although he did not begin to treat claimant
until July, 1997, Dr. Harmand testified that, in his opinion, the injuries
sustained by claimant to her nose were post-traumatic and attributable to the
accident of August 30, 1994. He testified that there was no indication that
claimant had suffered any injuries or trauma in the intervening three years
which would have resulted in a fracture, and based his conclusion on this
Based on his initial examination of claimant, Dr. Harmand diagnosed a
post-traumatic internal and external nasal deformity with nasal obstruction.
This diagnosis was confirmed in a subsequent CT scan, performed on July 8, 1997,
indicating that claimant’s septum was buckled, which Dr. Harmand
attributed to the trauma sustained by claimant in the accident.
In August, 1997 claimant underwent surgery at St. Joseph’s Hospital in
Syracuse, in which Dr. Harmand reset the bone and cartilage. During the
surgery, claimant’s nasal bone first had to be refractured before it could
be straightened. Following surgery, claimant was prescribed Darvocet, as well
as Tylenol with codeine, to relieve her pain.
Based upon his continued examinations of claimant during follow-up
appointments, Dr. Harmand testified that claimant recovered reasonably well
from this surgery, although in March, 1998, claimant developed a bacterial
infection, which was treated with an antibiotic and topical corticosteroid. Dr.
Harmand testified, however, that even with the corrective surgery, further
surgical intervention might still be necessary to treat some residual scarring
and other issues resulting from the trauma, as these conditions still affect
claimant’s breathing. Dr. Harmand testified that claimant, at the
time of trial, had not yet decided whether to undergo this second reconstructive
surgery. In his opinion, claimant will continue to have problems with her nose,
such as difficulty breathing, crusting, and the possibility of future
infection, for the rest of her life.
Claimant testified that she still suffers from the lasting effects of her
injuries. She continues to undergo physical therapy twice a week, a primary
focus of which is to try and reduce the pain that she constantly experiences in
her right arm. She testified that the circulation in her right arm is impaired,
as her fingers often become numb and prickly, and that she simply does not have
the strength in her arm that she had prior to the accident.
Claimant further testified that it is extremely difficult for her to perform
even the simplest of tasks around her home, such as cleaning, vacuuming,
laundry, and washing dishes. Due to the permanent injuries to her right
shoulder, claimant testified that she is unable to wear a bra, or any other
garment which requires the use of shoulder straps.
Based upon the foregoing testimony, claimant has established, to the
satisfaction of the Court, that she suffered multiple fractures and internal
injuries directly as a result of the motor vehicle accident of August 30, 1994.
These injuries (fractured clavicle, fractured scapula, fractured pelvis, five
fractured ribs, multiple facial lacerations, multiple tooth fractures, fractured
nose, punctured lung, and lacerated liver) were all competent producing sources
of the pain and suffering endured by claimant following this accident. Claimant
has clearly established the severity of these injuries. Additionally, except
where noted, the Court has accepted the testimony establishing and describing
the medical and dental procedures which claimant was required to undergo for
treatment of these injuries.
Although claimant has made a substantial recovery from these injuries,
testimony also established that she continues to experience pain on a daily
basis. In particular, claimant has suffered, on a permanent basis, significant
loss of use of her right arm. Claimant has also suffered a permanent deformity
and disfigurement to her right shoulder as a result of this accident, and
continues to experience breathing difficulties. These lasting effects, all
attributable to the accident, must be considered permanent in nature, and have
resulted in, and continue to cause, some restrictions on claimant’s daily
activities. In sum, claimant will continue to experience pain and suffering
from the after-effects of this accident for the remainder of her life.
Accordingly, in order to adequately compensate claimant for her non-economic
losses, and after a consideration of the foregoing and the entire trial record,
the Court finds and determines that claimant is entitled to damages in the
amount of $450,000.00 for past pain and suffering, and $175,000.00 for future
pain and suffering.
In addition to damages for pain and suffering, claimant also produced testimony
with regard to economic losses.
Approximately one year after the accident, Dr. DiChristina, claimant’s
treating orthopedic physician, determined that claimant was capable of returning
to light work. Claimant, however, testified that it was more than two years
before she felt capable of returning to work. She testified that she then
attempted several different jobs, but was unable to continue with any of them.
She testified that she could not physically handle the requirements of those
jobs, due to the pain that she continued to experience from her injuries, and in
particular with her right arm and shoulder.
Ultimately, in 2004, claimant began working again as an LPN, providing home
health care for a special-needs child. To her credit, claimant continues to
work in this job as an LPN, even though she testifies that she endures
significant pain in doing so.
Peter D. Stickney, an expert in the field of vocational rehabilitation,
conducted a transferable skills analysis of claimant, and testified as to his
analysis at trial. Dr. Stickney testified that this analysis begins with a
review of the job skills possessed by claimant, and then attempts to match
claimant with a job that she can adequately perform, taking into consideration
her physical limitations. His analysis was based upon a functional capacity
evaluation, which had been ordered by Dr. DiChristina when he was treating
Based on the functional capacity evaluation, Dr. Stickney concluded that
claimant was only capable of working in a sedentary position, a type of job
which requires the least strength, due to her physical limitations. Although
claimant is presently working as an LPN, Dr. Stickney noted that an LPN position
is not classified as a sedentary job. In his opinion, an LPN position, which
may require lifting of at least 50 pounds, is not one of the jobs that is suited
Dr. Stickney then prepared a report setting forth claimant’s earning
capacity as an LPN both prior to the accident and after her accident, taking
into consideration her physical capabilities and limitations attributable to the
accident (see Exhibit 5).
Lawrence M. Spizman, an expert in economics, also testified on claimant’s
behalf. Relying upon the report prepared by Dr. Stickney, Dr. Spizman testified
with regard to claimant’s loss of earnings and benefits. Dr. Spizman
determined the total amount that claimant would have earned (post-accident and
up to the date of trial) if she had not been injured, and compared those figures
with the actual amount reported as earnings by claimant during those same years.
Additionally, Dr. Spizman calculated her projected earning potential as an
LPN during the remainder of her work life (if she had not been injured), and
compared these potential earnings to the projected earnings from a sedentary
job, in accordance with the physical limitations caused by the accident (see
This analysis as to loss of future earnings, however, was obviously based on an
assumption that, due to her physical limitations, claimant would only be capable
of performing light-duty, sedentary work. This analysis, however, fails to take
into consideration the fact that claimant, in 2004, returned to medium-duty work
as an LPN, and has demonstrated the capability of earning approximately the same
income as she did prior to the accident. Accordingly, the Court makes no award
for any loss of future income, notwithstanding the testimony from Dr. Stickney
and Dr. Spizman.
Furthermore, defendant contends that claimant has not established that she was
incapable of returning to medium-duty work, such as that of an LPN, since 1995,
evidenced by the fact that she has demonstrated the ability to perform this type
of work at the present time. Based upon claimant’s testimony, and the
other evidence submitted at trial, the Court remains convinced that claimant
made several good-faith, albeit unsuccessful, attempts to maintain light duty
employment in the years following her accident, but was unable to do so solely
as a result of the pain and complications resulting from the injuries suffered
by her in the accident. The Court therefore accepts the calculations provided
by Dr. Stickney and Dr. Spizman as to the loss of earnings sustained by
claimant from 1994 through 2004, when she returned to steady employment as an
LPN. Based on those calculations (see Exhibit 6), and after taking into
consideration the actual earnings of claimant during those years, the Court
hereby awards claimant the sum of $309,630.00 for past lost earnings. Claimant
also testified that during the time that she was out of work, it became
necessary for her to withdraw contributions from the 401K plan maintained by her
husband, Hector Gonzalez. She testified that not only did she suffer an early
withdrawal penalty, but that she also lost the benefit of compounded interest
that would have accrued on these contributions. The Court finds that such
claims are speculative, and therefore makes no award for these alleged economic
Accordingly, the Court finds that the direct economic losses suffered by
claimant consist entirely of past lost wages in the amount of $309,630.00.
Hector Gonzalez, the husband of Sharlene Gonzalez, also sustained personal
injuries in this accident. As previously noted, Mr. Gonzalez passed away on
February 18, 2000, from causes unrelated to the injuries suffered by him in this
accident. Sharlene Gonzalez Nunez, therefore, as his surviving spouse and
primary caregiver, provided testimony at the damages trial regarding the
injuries and suffering endured by Hector Gonzalez as a result of this accident.
At the time of this accident, Hector was 56 years old, and was employed as a
packer-operator at the Anheuser-Busch plant in Baldwinsville, New York. He was
described by Sharlene as a very loving, selfless, and jovial man who enjoyed
going out dancing with her several times a week.
Hector was operating the Gonzalez vehicle when it was struck by the State
Police vehicle. He was wearing a seatbelt, but suffered a laceration to his
scalp and was knocked unconscious when his head struck the windshield. He was
transported by ambulance to St. Joseph’s Hospital in Syracuse, where he
was treated for a mild concussion, multiple contusions, and a laceration to his
right knee. Tests and observations did not reveal any fractures or neurological
damage, and Hector was discharged from the hospital on the day after the
Hector spent the next month out of work, recovering from his injuries sustained
in the accident. During that time, however, the abrasion on his right knee,
which did not initially appear to be serious, became infected and developed into
a case of necrotizing fasciitis, commonly known as flesh-eating bacteria.
Necrotizing fasciitis is a rare, life-threatening infection which spreads
underneath the skin, eating away at the body’s soft tissues.
Hector went to the emergency room at Crouse-Irving Memorial Hospital in
Syracuse on September 17, 1994, for treatment of his infection, and was
prescribed a strong antibiotic medicine.
The infection worsened, however, and on September 20, 1994, Hector was admitted
to Crouse-Irving Hospital and emergency surgery was performed that day. This
surgery involved debridement of the skin to remove dead and infected tissue.
Following the surgery, Hector was placed on intravenous antibiotics and remained
in the hospital to insure that the infection had been contained. Once it was
determined that all of the infection had been cut away and would not spread, a
skin graft was performed, in which layers of skin were taken from Hector’s
right thigh and grafted onto the open area around his right knee.
Hector remained in the hospital for over one month while receiving treatment
(including the debridement and skin graft) for this infection. Hector was
finally discharged from the hospital on October 21,1994, and given a
prescription for pain medication. Hector continued with antibiotic treatment,
and also underwent physical therapy for approximately three months.
Dr. DiChristina testified as claimant’s medical expert. He confirmed
that the abrasion on Hector’s right knee, which he sustained in the
accident, directly led to the necrotizing fasciitis. Dr. DiChristina testified
that the procedures for treatment of this condition (the debridement and skin
graft) resulted in significant scarring over Hector’s right knee.
Significantly, Dr. DiChristina also testified that claimant endured substantial
pain and suffering during treatment of this condition, and furthermore, even
after completing treatment, Hector still experienced pain on a permanent basis.
Additionally, it was Dr. DiChristina’s opinion that Hector suffered
permanent limitations in his range of motion, even after physical therapy, as a
result of this condition.
Dr. DiChristina also treated claimant, post-accident, for pain and swelling in
his left knee. After Hector recovered from the treatment for the necrotizing
fasciitis, he was released for restricted light-duty work in February, 1995.
Approximately one month later, Hector fell and sustained an injury to his left
knee. Dr. DiChristina first treated Hector in March, 1995, and observed that
Hector had significant swelling in his left knee, resulting in a limited range
of motion. An MRI was performed, revealing a tear of the medial meniscus. Dr.
DiChristina recommended physical therapy as a course of treatment. In April,
1995, however, Dr. DiChristina drained approximately 25 cc’s of fluid from
Hector’s left knee, and injected a corticosteroid to hopefully decrease
the inflammation. Although it is possible that Hector suffered this tear of
his medial meniscus in the motor vehicle accident on August 30, 1994, there were
no medical records or other evidence documenting this injury at that time. Dr.
DiChristina could not affirmatively state whether this injury was suffered in
the accident, or in the intervening fall after Hector had returned to light-duty
work. Accordingly, the Court has not considered this injury, or any pain and
suffering attributable to this injury, in making its award.
There is no question, however, that Hector suffered a concussion in this
accident, as well as the abrasion on his right knee which led to the painful and
potentially life-threatening necrotizing fasciitis, for which an award must be
made. From the testimony of both Sharlene Gonzalez Nunez and
Dr. DiChristina, the Court is convinced that Hector suffered agonizing pain
from this necrotizing fasciitis during his month-long stay in the hospital, and
that he continued to suffer pain, as well as restrictions in motion, which had a
direct and limiting impact on his daily activities, on a permanent basis, until
his death in February, 2000.
Based on the foregoing, therefore, claimant Sharlene R. Gonzalez Nunez, as
Executrix of the Estate of Hector M. Gonzalez Sr., is entitled to the amount of
$300,000.00 representing past damages for the pain and suffering endured by
Hector as a direct result of the injuries sustained in this accident. This
amount represents the total award made by the Court in Claim No. 90644.