New York State Court of Claims

New York State Court of Claims

ARAUJO v. THE STATE OF NEW YORK, #2007-010-032, Claim No. 97238


Damages knee.

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):

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
SACKS AND SACKSBy: Joseph P. Carfora, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: Ellen S. Mendelson, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 15, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 Court.

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.[1] Claimant testified 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 osteoarthritis.

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.

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 ACL.

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 PCL (T:33-34).[2] 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 insufficiency (T:44).

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 notes.

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 testified that:
“[W]e know that the radiologist was focused on whether there was a fracture, dislocation. The radiologist just didn’t write a very astute report, when he commented that there was a rod that had been removed, which we know wasn’t the case. So, I don’t think, you know, if you showed me those x-rays, I would – no doubt that it would show arthritis, but I don’t see – he did not note it in his report.”

(T:110-11). Similarly, while crepitus was found in 2001 and was not noted in the 1997 report, this did not evidence to Crane that the knee was normal in 1997 (T:115). He further stated that, while the radiologist who read the 1997 x-ray stated that the joint was intact, as opposed to dislocated, according to Crane, that did not mean that the knee was normal.

Finally, on Crane’s cross-examination the following ensued:
Q: Are you telling us that major arthritis, torn meniscus, surgeries done in Africa, that didn’t do the job, that would never be successful, they didn’t find any of that in the Saint Joseph’s Hospital [the 1997 x-ray report], did they?

A: They didn’t find the scars. They didn’t mention the screws.

Q: Right.

A: They didn’t do anything on the exam.

Q: Right.

A: They found minimal swelling. They felt he had a minor sprain and they gave him some Tylenol and an Ace bandage.

Q: Right. And they told him to go see the orthopedic surgeon if it still bothered him, correct?

A: No, it said follow with – follow with private physician in one to two days.

Q: Right. Right.

A: It didn’t say orthopedic surgeon.

(T:116-17). Crane further explained that if the emergency room felt an orthopedic surgeon was necessary, then they would have called for a consult (T:122). As Crane noted, there was minimal swelling, no deformity, no ecchymosis (black-and-blue), no fluid in the joint and they were unable to find any laxity (T:124); therefore they did not seek an orthopedic consult.
It is well established that:
“[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury”

(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 $65,000[3] 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.


November 15, 2007
White Plains, New York

Judge of the Court of Claims

[1]. He also testified that, in August 1998, he injured his left knee on a job and had arthroscopic surgery in 1998. He has not had any problems with his left knee since that time.
[2]. All references to the trial transcript are preceded by the letter “T.”
[3]. Claimant submitted a certified letter to the Court dated June 8, 2007 indicating a Workers’ Compensation lien in the amount of $33,147.15, less allowable costs and legal fees and subject to change.