In a decision dated May 19, 2003 and filed June 2, 2003 (Motion No. M-63125),
the Honorable S. Michael Nadel granted summary judgment in favor of claimant,
finding defendant 100 percent liable for the injuries claimant sustained as a
result of an elevation-related risk while engaged in an activity covered by
Labor Law Section 240(1). The issue of damages was tried before this
Claimant was born on October 16, 1964 in Cape Verde, West Africa. In 1988,
claimant injured his right knee, had ligament surgery, and underwent a regimen
of physical therapy. He had no problems with his knee after the surgery. In
December 1988, claimant immigrated to the United States. He was employed as a
factory worker and played in an amateur soccer league. In 1993, he joined the
Bridge Painters Union, Local 806. As a bridge painter, he had to climb to
significant heights and lift heavy objects.
On August 6, 1997, claimant was working as a painter along the Westside
Highway in Manhattan. He was situated on a hanging scaffold when the scaffold
cable broke, causing claimant to fall and to be suspended by his safety harness.
As claimant fell, he twisted his right knee and then the cable hit his kneecap.
Claimant went to the emergency room at St. Joseph’s Hospital with
complaints that his right knee was swollen and painful. His knee was x-rayed.
He was given an Ace bandage, treated with ice, Tylenol, and ibuprofen, and sent
home. He was not given crutches, a wheelchair or a knee immobilizer.
Two weeks later, claimant went to Dr. Francis Pflum with complaints of right
knee pain. Claimant continued to see Pflum sporadically over the years and in
2000, three years post-accident, Pflum recommended arthroscopic surgery. The
surgery was performed in July 2006, nine years post-accident. Claimant
testified that the surgery was delayed so long because he was waiting for
authorization from Workers’ Compensation approving the surgery. Claimant
continued to work as a bridge painter during those nine years prior to surgery
despite his knee problems.
that after the surgery in July 2006, he felt better until October 2006. Since
that time, however, his condition has worsened and he can no longer work as a
bridge painter. He still has pain in his right knee and is still seeing Pflum.
As a union bridge painter, claimant earned $18.00 per hour plus benefits.
Dr. Francis Pflum, a board-certified orthopedic surgeon, testified that he
first treated claimant on August 12, 1997 for complaints of pain in his right
knee. Pflum observed that claimant’s knee was swollen and had scars.
Pflum examined the records from St. Joseph’s Hospital which noted that the
x-ray report evidenced no acute fracture, an intact joint, and screws in the
knee. There was no indication of degenerative changes in the knee,
chrondomalsia (damage to the articular surface of the knee) or
Claimant saw Pflum again on November 4, 1997 and December 4, 1997. He
determined that claimant had a decreased range of motion and a possible
posterior cruciate ligament (PCL) injury, as well as an anterior cruciate
ligament (ACL) insufficiency. Pflum noted that claimant had a “reference
compensation number and authorization is requested for an arthroscopy of his
right knee and indicated debridement and arthroscopic surgery in addition to
diagnostic arthroscopy” (Ex. 5). Pflum did not prescribe a brace for
Claimant’s next visit with Pflum was more than two years later, on May
3, 2000. Claimant reported that he had continued pain in his right knee and
that it sometimes gave out on him. A physical examination showed synodical
thickening. Claimant’s x-rays showed degenerative changes in all three
compartments of the knee. Pflum opined that these changes were causally related
to the accident and that claimant’s continued walking would cause his knee
to worsen. Pflum explained that because of claimant’s decreased stability,
the menisci are more stressed and more likely to tear. Additionally, the
increased stress on the articular cartilage causes deterioration.
Nine months later, claimant again presented to Pflum with continued complaints
of pain. Authorization for arthroscopic surgery was requested. Claimant was
not seen again until October 2, 2003, three and one half years later, and then
on July 1, 2004. Thereafter, claimant returned to Pflum on August 12, 2004 and
reported that he was working on light duty. At a subsequent visit on October
24, 2004, claimant stated he had swelling and daily pain in his knee. He also
complained that his pain increased in the cold weather. Pflum’s office
notes indicate the subsequent two visits were on June 2, 2005 and May 18, 2006.
Claimant articulated similar complaints at each visit. There is no indication
that Pflum had any contact with claimant between office visits.
Surgery was finally performed by Pflum on July 20, 2006, nine years
post-accident. The post-operative diagnosis was “[t]ear of the medial
meniscus, tear of the lateral meniscus, incompetent anterior cruciate ligament,
and chondromalacia, extensive tricompartmental and extensive synovitis”
(Ex. 2). Pflum opined that since claimant had ACL reconstructive surgery in
1988 and thereafter played soccer and worked as a bridge painter, he did not
have these injuries prior to the 1997 accident. Viewing the hardware and screws
apparent on claimant’s x-rays, Pflum concluded that claimant’s 1988
operation was only an ACL reconstruction. He agreed that, had the surgery been
for both ACL and PCL tears, claimant would most likely have developed arthritis.
In Pflum’s view, the accident was consistent with the injuries found
during surgery based upon claimant’s history, medical records, and x-rays.
Comparing successive x-rays, Pflum concluded that claimant’s condition had
progressed after the 1997 accident. The surgery removed debris and smoothed
out the articular surface so that there would be less friction and reduced
inflammation. Pflum considered this procedure a temporary measure and stated
that claimant’s knee will continue to worsen.
Pflum examined claimant on July 27, 2006 and referred him for physical
therapy. Pflum also counseled claimant that there was a high probability he may
need ACL reconstruction surgery, which would cost approximately $60,000. Pflum
opined that claimant would never be able to return to work as a bridge painter.
Claimant was last examined by Pflum on April 19, 2007.
Dr. Edward Crane, a board-certified orthopedic surgeon, offered expert
testimony on behalf of defendant. Crane examined claimant on May 5, 2005 and
prepared a report of the visit. Crane testified that claimant had right knee
ligament reconstruction in the 1980's in West Africa and left knee arthroscopy
in November 1997. Crane observed claimant walking without the use of a crutch,
cane or brace, and noted that he walked normally without a limp. Claimant
complained of pain in his right knee that increased in cold weather. He also
complained of instability in the right knee and intermittent swelling. He
exhibited signs of laxity in his knee, meaning that the ligaments were stretched
and the joint was unstable. Another test (Lachman) indicated an insufficient
Coincidentally, on June 22, 2001, Crane had examined claimant in regard to a
different lawsuit resulting from another accident injuring claimant’s
other knee. During the course of that evaluation, x-rays were taken of both
knees. Those films “showed mild to moderate degenerative osteoarthritic
changes in the right knee with a large erosive area on the lateral femoral
condyle and irregularity of the articular surfaces” (Ex. A).
In Crane’s opinion, claimant had suffered a major ligament injury to his
right knee in the 1980's which resulted in major reconstruction of the ACL and
As a result of that injury,
claimant had residual instability in his knee and developed osteoarthritis.
Upon evaluation of claimant’s medical records and the physical
examination, Crane concluded that on August 6, 1997, at most, claimant suffered
“a minor temporary injury to his knee,” a “minor
sprain,” which “did not fundamentally change his underlaying
condition or cause anything other than a temporary minor exacerbation”
(T:34). Crane emphasized that the objective findings from the St.
Joseph’s emergency room indicated minimal swelling of the right knee, with
no indication of fracture or dislocation (Ex. 1). Claimant was given an Ace
bandage, Tylenol, ibuprofen, and released without a crutch, cane, or a brace and
an MRI was not recommended (T:36-37). He had a posterior sag indicating a PCL
Crane explained that in the 1980's the results of ACL reconstruction surgery
were variable and the results of PCL reconstruction were fair. He also
characterized surgery performed in West Africa as more primitive compared to the
advancements in surgical procedures performed in the United States.
Crane opined that a patient who had surgery in the 1980's for tears of both
the ACL and PCL would certainly develop arthritis and that someone who had only
ACL surgery or PCL surgery in the 1980's would also likely develop arthritis
(T:40-41). Crane concluded that claimant had indeed had both ligament
reconstructions as evidenced by the number, location, and type of screws
apparent on the x-rays.
Crane’s review of Pflum’s medical notes of August 12, 1997 also
suggested to Crane that claimant had sustained a temporary injury. At
claimant’s visits with Pflum in November and December 1997, no treatment
was prescribed and there was no indication that claimant should return. There
was no recommendation for an MRI, which can be performed on a patient with
hardware. When claimant returned to Pflum three years later, on May 3, 2000,
degenerative changes in all three compartments of the knee were noted.
Nonetheless, neither immobilizers nor medications were prescribed and there was
only a recommendation for arthroscopy. Similarly, at the October 2, 2003 and
July 1, 2004 visits, no treatment was provided.
The July 20, 2006 operative report of claimant’s arthroscopy of his
right knee revealed extensive arthritis, joint thickening, tears of the medial
and lateral meniscus. In Crane’s view, the changes indicated in
claimant’s x-rays were unrelated to the 1997 incident (T:83). Crane
opined that claimant’s 1997 injury was a temporary exacerbation of an
already compromised knee and that claimant’s remaining knee issues are
unrelated to the incident (T:84). Crane stated that claimant suffered
absolutely no residual injuries from the 1997 accident (id.). Crane
based his opinion on the emergency room report and Pflum’s office
On cross-examination, Crane conceded that claimant would probably have knee
pain for the rest of his life and that his knee would worsen (T:85). He further
stated that at some point in the future, claimant might require joint
replacement (T:86). However, Crane maintained that claimant’s knee
problems were unrelated to the 1997 accident. Also on cross-examination, Crane
was asked to reconcile the findings of claimant’s 1997 x-rays, which
showed no arthritis, with the 2001 findings of mild to moderate arthritic
changes and the 2005 findings of moderately severe degenerative arthritis
(T:111). Crane explained that merely because the 1997 x-ray report did not
mention arthritis does not establish that the x-ray itself did not show
arthritis; rather Crane maintained that the x-ray report was incomplete. Crane
(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also
Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New
York, 179 AD2d 947).
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that
claimant has failed to establish that the condition of his right knee is
causally related to the August 6, 1997 accident. Notably, on the day of the
accident, claimant presented at the emergency room with minimal swelling and was
released after being treated with an Ace bandage, Tylenol and ibuprofen. He was
not given crutches, a cane or a knee immobilizer. The x-ray report showed no
indication of a fracture or a dislocation. Defendant’s expert concluded
that claimant sustained a minor temporary injury to his knee in the 1997
accident which resolved itself. The expert further opined that the temporary
minor exacerbation of claimant’s already compromised knee did not change
his underlying condition. Further, the expert concluded that the major
reconstruction surgery which claimant underwent in West Africa in the mid-1980's
was the cause of claimant’s continued knee pain and worsening condition.
Indeed, claimant’s own expert conceded that if claimant’s surgery in
West Africa had addressed both ACL and PCL tears, then claimant would most
likely develop arthritis. Finally, the expert concluded that the surgery
performed in West Africa, and not the 1997 accident, was the cause of
claimant’s continued knee problems. The Court finds the testimony of
defendant’s expert to be more persuasive than the testimony of
claimant’s expert (see Scariati v St. John’s Queens
Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony
regarding causation]). Indeed, the Court finds that the evidence was
inconclusive and purely speculative as to whether claimant’s right knee
condition was attributable to the 1997 accident.
Accordingly, the Court finds that claimant is entitled to an award of
for his past pain and suffering
regarding the injury he sustained to his right knee on August 6, 1997 and there
is no award for future damages. Interest shall run from May 19, 2003, the date
of the determination of liability.
LET JUDGMENT BE ENTERED ACCORDINGLY.