In a Decision and Order of this Court dated March 29,
, claimants were granted partial summary
judgment on the issue of liability pursuant to Labor Law § 240(1). Since
comparative negligence is not a defense under § 240(1), the State was found
100% liable for the injuries suffered by claimant Robert Tennant in an accident
which occurred on November 4, 2002, on State-owned property in the Town of
McGraw. A trial pertaining to damages has since been held, and this decision is
limited solely to that issue.
At the damages trial, both Robert Tennant and Penney Tennant, the claimants
herein, gave testimony, as well as Karen M. Clark, the Business Office Manager
at Cortland Regional Medical Center. Testimony from expert medical witnesses
for both claimant and defendant was taken prior to the damages trial. Video
testimony of claimants’ expert Kye H. Bang, M.D., was received into
evidence (see Exhibits 19 and 20), and a transcript of his testimony was also
received into evidence (see Exhibit 18). Similarly, video testimony of
defendant’s medical expert, Patricia J. Numann, M.D., was also received
into evidence (see Exhibits D and E), as well as a transcript of her testimony
(see Exhibit F).
Claimant Robert Tennant
testified that he was
41 years of age at the time of the damages trial, and had been working as a
roofer for most of his life, since he was 17 years of age. He started working
for Murphy Construction in 1999, and was working for this employer at the time
of his accident on November 4, 2002. He does not recall much about the actual
fall, except that he fell several feet from a metal roof. He did recollect that
he stood up following his fall, felt pain on the left side of his body, and that
he had some trouble breathing. He further testified that he did not remember
either going to the hospital for medical treatment or the first few days of his
hospitalization. After several days, he finally became aware of his
surroundings, and realized that he had been hospitalized. He felt pain on his
left side, and any movement or coughing was extremely painful. He also
testified that he was only able to take short breaths, due to chest pain.
While in the hospital, his medical providers encouraged him to sit up and walk,
to prevent pneumonia from settling into his chest. He was also given
respiratory therapy to assist with his breathing.
Claimant testified that he spent eight days in the hospital following his
accident, and that he was discharged on November 12, 2002. He testified,
however, that his breathing was still labored at the time of discharge, and he
was still coughing continually at the time of this discharge. After his
discharge from the hospital, Mr. Tennant testified, he needed assistance to walk
around his home. He was unable to get in or out of bed, and therefore slept on
the couch for approximately three to four weeks. He testified that he continued
to be in pain, and as a result, he spent the vast majority of his time on the
Claimant testified that he continued to slowly improve, and he was allowed to
return to work on February 3, 2003. Although he did not have any specific
restrictions, claimant testified that his duties were reduced for a time, and
that he did not do any lifting whatsoever.
Claimant also testified that he experienced a loss of marital relations with
his wife for approximately three to four months, and that relations did not
become normal for approximately six to eight months. Claimant testified that he
was unable to provide any assistance with housekeeping duties for approximately
two to four months after the accident.
Under cross-examination, claimant confirmed that during the time that he was
out of work following his accident, he usually made less money than in other
months, since there usually was not as much roofing work available during the
Penney Tennant, Mr. Tennant’s wife and also a claimant herein, testified
that during the initial days following the accident, Mr. Tennant was heavily
medicated, and that he was either sleeping or unconscious during that time. She
testified that Mr. Tennant was in the intensive care unit at the hospital for
approximately three or four days, and during that time he was in and out of
consciousness, and was constantly moaning due to the pain from his injuries,
despite the pain medication that he was receiving.
Mrs. Tennant confirmed that upon his discharge, Mr. Tennant needed assistance
while walking, and that he spent approximately one month sleeping on the couch
because he was unable to get in and out of bed.
Karen M. Clark, the Business Office Manager at Cortland Regional Medical
Center, testified with respect to the medical billing procedures of the
hospital. She stated that the medical bills were submitted to the State
Insurance Fund - Mr. Tennant’s medical insurance carrier through
Workers’ Compensation Benefits on this claim. Ms. Clark testified that
although there had been a dispute as to the amount of payment from the State
Insurance Fund, the Fund eventually made total payment to the hospital on behalf
of Mr. Tennant in the amount of $42,396.95. She testified that this total
represented payment for Mr. Tennant’s admission and stay in the hospital,
as well as for five subsequent out-patient visits. Ms. Clark further testified
that the amount paid by the State Insurance Fund was a fair and reasonable
amount for the services provided.
Kye H. Bang, M.D., claimant’s treating physician, provided medical
testimony on behalf of the claimant. Dr. Bang first treated claimant on
November 4, 2002, the date of claimant’s accident. Claimant complained of
pain on the left side of his chest and abdomen, as well as difficulty
breathing. A CT-scan was performed on that date, which indicated that claimant
had suffered a rupture in the lower part of his spleen, and there also were
indications of bleeding within and around the spleen. An x-ray was also
performed on that date, which showed three broken ribs on claimant’s left
side (the seventh through ninth ribs). Based upon a urine test, Dr. Bang was of
the opinion that claimant also suffered a possible contusion of his left kidney.
The rupture of the spleen was treated by an embolization of the splenic artery.
In this procedure, a metallic coil is placed into the artery, which causes a
blood clot to form and block the artery, and stops the bleeding in the spleen.
This procedure is utilized as an alternative to removal of the spleen.
Claimant’s condition remained stable following the procedure, and the
spleen function eventually returned to normal.
Dr. Bang also testified that claimant, during the eight days in which he was
hospitalized, was treated with painkilling medication, including morphine, to
alleviate the pain.
Additionally, Dr. Bang testified that claimant, during his hospitalization,
developed pneumonia, which he attributed to the fact that claimant could not
fully expand his lungs because of the pain caused by his fractured ribs, even
though he was receiving strong painkilling medication. Dr. Bang referred
to a chest x-ray which was taken on November 9, 2002 (Exhibit 4) as evidence of
the pneumonia, which was treated with antibiotics.
Dr. Bang testified that after eight days in the hospital, claimant was
discharged on November 12, 2002, at which time he was given a prescription for
Darvocet for relief of his pain. Following his discharge, claimant met with
Dr. Bang for an office appointment on November 14, 2002, at which time claimant
still complained of pain on the left side of his lower chest, and Dr. Bang
continued the prescription for Darvocet. Claimant then appeared for several
office visits in the succeeding weeks, and following his office visit of January
30, 2003, Dr. Bang authorized claimant to return to work as of February 3, 2003.
Claimant was finally discharged from any further treatment on May 1, 2003. Dr.
Bang noted that claimant was not experiencing any lingering pain on his left
side, nor was he experiencing any problems with breathing.
Dr. Bang concluded that the rupture of claimant’s spleen and his
fractured ribs were the direct result of the trauma caused by claimant’s
fall. Furthermore, Dr. Bang was of the opinion that the pneumonia was secondary
to the fractured ribs, and therefore was also a direct consequence of
Dr. Bang testified that, in his opinion, claimant was totally disabled from
November 4, 2002 until he was cleared to return to work on February 3, 2003.
Finally, Dr. Bang testified that claimant had not suffered any permanent
injuries by this accident, in that he had fully recovered from the injuries
which he described.
Patricia J. Numann, M.D., testified as defendant’s medical expert. Based
upon her review of the medical records, Dr. Numann testified that claimant
suffered fractures of his eighth and ninth left ribs, with a questionable
fracture of his seventh rib. Additionally, claimant suffered a laceration of
his spleen, a bruise on his pancreas, and a bruise on his kidney on the left
side. Dr. Numann also described the procedure which claimant underwent to stop
the bleeding in his spleen.
Dr. Numann’s testimony regarding these injuries, and the medical
treatment received by claimant, was very similar to the testimony of
claimant’s witness, Dr. Bang.
Contrary to the testimony of Dr. Bang, however, Dr. Numann testified that the
breathing difficulties suffered by claimant while he was hospitalized were
consistent with a condition known as atelectasis, rather than pneumonia.
Atelectasis is a condition often found with persons who have suffered broken
ribs, when they do not breathe deep enough to get air into the air sacs at the
bottom of the lungs. Dr. Numann testified that pneumonia, on the other hand, is
characterized by an elevated white blood count, fever, and bacteria in the
sputum, and that there was no evidence in the medical records that claimant
exhibited any of these symptoms.
While Dr. Numann acknowledges that the medical report of November 6, 2002
(Exhibit B) indicates a pleural effusion on the left lung, this effusion was
small and was without definite signs of pneumonia. Dr. Numann further testified
that the medical report of November 14, 2002 indicates that the left effusion
had been resolved, and a CT report of December 3, 2002 indicates that the lung
bases were clear, with no sign of the atelectasis. Furthermore, this CT report
indicates that the spleen was healing and functioning normally.
Finally, Dr. Numann testified that claimant suffered no permanent residual
injury as a result of the accident.
Based upon this trial testimony, as well as the medical records, there is no
dispute that claimant suffered at least two (and possibly three) broken ribs and
a lacerated spleen as the direct result of his fall. As a result, claimant was
hospitalized for a period of eight days for treatment of his injuries, during
which time claimant experienced significant pain, even while he was receiving
morphine, a strong pain medication. After his discharge from the hospital,
claimant continued to experience pain on his left side from the broken ribs, for
which he was prescribed Darvocet. Both medical experts agreed that the broken
ribs were a competent source of significant pain, and that the broken ribs made
it extremely difficult for claimant to breathe normally and remain comfortable.
Furthermore, it is also undisputed that claimant suffered a laceration of his
spleen. Even though Dr. Numann testified that claimant would not have
experienced any pain as a direct result of this injury, claimant was required to
undergo a separate medical procedure, while hospitalized, to preserve his
Testimony further established that following his discharge from the hospital,
claimant was essentially immobile for several weeks, as his condition made it
too painful for him to walk or move. Additionally, while hospitalized,
claimant developed pneumonia-like symptoms due to his difficulties in breathing,
which both medical experts attributed to the broken ribs suffered in this
accident. Whether or not this condition is viewed as pneumonia or atelectasis,
there is no question that claimant experienced difficulties in breathing for a
considerable period of time due to the pain caused by the rib fractures.
Based on the foregoing findings and the entire trial record, the Court finds
that claimant has suffered damages of $80,000.00 for past pain and suffering.
The testimony from claimant and both medical experts establishes that claimant
fully recovered from his injuries, and has suffered no permanent disability or
residual effects from this accident. As a result, claimant does not seek, nor
does this Court award, any sum for future pain and suffering.
Testimony also established that Penney Tennant attended to her husband’s
special needs when he was discharged from the hospital. She provided him with
his pain medication, she assisted him in walking, and she performed the majority
of the housework during his recuperation. Testimony from both Mr. and Mrs.
Tennant established that they experienced a loss of marital relations for
approximately three to four months. Based on the foregoing, therefore, the
Court hereby awards the sum of $7,500.00 on Penney Tennant’s
derivative claim for loss of consortium.
Testimony from Karen M. Clark established that the State Insurance Fund (the
insurance carrier for Workers’ Compensation benefits) was billed the total
amount of $42,396.95 for medical services provided to claimant for the period of
his hospitalization from November 4, 2002 through November 12, 2002, including
some minor charges for subsequent outpatient services. Although there was some
testimony that claimant, if he had been uninsured, would have been billed a
different and lower amount, Ms. Clark testified that the amount billed through
the State Insurance Fund, after a billing dispute, was ultimately paid by the
State Insurance Fund in full satisfaction of the hospital’s charges. She
further testified that this amount was a fair and reasonable amount based upon
Additionally, during his testimony Dr. Bang reviewed his bill for medical
services provided to claimant in the amount of $1,370.00.
Based on the foregoing, therefore, the Court finds that the sum paid to
Cortland Regional Medical Center by the State Insurance Fund in the amount of
$42,396.95 represents a fair and reasonable amount for medical expenses. The
Court further finds that the $1,370.00 representing the bill from Dr. Bang is
also fair and reasonable. Accordingly, the Court hereby awards claimants the
sum of $43,766.95 for medical expenses incurred in this claim.
Claimant also established that he was completely disabled from the date of his
accident on November 4, 2002 until he was cleared to return to work as of
February 3, 2003. Claimant was therefore disabled and unable to work for a
period of approximately 13 weeks. To establish his income, claimant produced
his 2002 income tax return (Exhibit 17), as well as his W-2 Forms for that year
(Exhibit 15). These records established that claimant earned the sum of
$11,695.50 in 2002 and also received unemployment compensation totaling
$5,424.00 for that year. Taking into consideration the fact that claimant did
not work for the last two months of 2002 due to the injuries suffered by him in
this accident, claimant submits that his average weekly wage for 2002 is
approximately $400.00 per week. However, claimant acknowledged under
cross-examination that as a roofer, he does not have as much roofing work
available during the winter months, and admitted that his wages would have been
lower during the time that he was out of work due to his injuries (November,
2002 - January, 2003). Accordingly, based upon the foregoing, the Court awards
claimant the sum of $3,900.00 for his lost wages.
In sum, based upon the foregoing, the Court hereby makes the following awards: