New York State Court of Claims

New York State Court of Claims

COLON v. NEW YORK STATE THRUWAY AUTHORITY, #2007-013-506, Claim No. 103357


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):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The liability of the Defendant New York State Thruway Authority was determined in a decision signed on July 27, 2004, and interlocutory judgments dated August 23, 2004 were entered. At the commencement of the trial of damages there was a stipulation on the record voluntarily discontinuing the claim of Clarence L. Gray, Jr. on the merits. This decision addresses the issues of injuries and damages to Claimant Steven A. Colon in Claim No. 103357 and Claimant Lynda L. Dayton in Claim No. 103741.


I address first the Claim of Lynda L. Dayton, who was 38 years of age at the time of the trial on damages, and who was a passenger in the front seat of the vehicle driven by Claimant Steven A. Colon on May 21, 1999, the date of the accident in question. Ms. Dayton was wearing a seat belt at the time, and the right side of her face hit the window of the front passenger door and then the left side hit the head of her son who had been seated, probably without a seat belt, in the rear of the vehicle. She complained of pain to her neck, back and face, and after removal from the vehicle was given a neck brace and was strapped by a fireman to a board and taken by ambulance to Medina Memorial Hospital. She described her pain as being “off the charts.” She was given a prescription and released to her home, whereupon she discovered that her #10 tooth was broken.

She visited her physician, who referred her to a dentist, Lawana Fuquay,[1] D.D.S., and to physical therapy, as she complained of a stiff and painful neck, pain in her lower back and that it felt as though her right arm and leg were “dead.” She testified that she went to physical therapy for a few months, apparently starting at three times a week, and at the end she still felt awful. A TENS unit (an electrical stimulation device) was provided, which she used daily. Ms. Dayton testified that the numbness in her leg made walking, cleaning the house, driving and climbing stairs difficult.

A few months later she began treatment with a chiropractor, Dr. Steven Kratoville, who testified as to her treatment. She also obtained massage therapy from a masseuse. She described treatment with Dr. Amrit Singh, her claustrophobia, which made her two MRI sessions particularly discomforting, and the two nerve conduction studies, which she described as pin tests and extremely painful. She had a third MRI with a surgeon, Dr. Andrew Cappuccino, and she was contemplating the surgeries that he recommended, when she could afford it. At trial, more than six years after the accident. Ms. Dayton described her soreness on her right side, neck and back, which she rated as an eight out of ten, and never lower than six or seven. She described her preaccident activities of walking a dog with her daughter on a daily basis and rollerblading with her every other day, activities she can no longer perform as a result of the accident. As for cleaning her home and cooking, she could not do so for some six months after the accident, and now can do so, but more slowly and in a more limited fashion. She didn’t drive a motor vehicle for perhaps a year after the accident. She cannot swim or ride a horse now because of the physical problems directly encountered as a consequence of the accident. At the time of trial Claimant Steven Colon had lived, on and off, in Ms. Dayton’s home for 17 years although they never married. There was no inquiry of Ms. Dayton into the effect that this accident had on their relationship, and thus no evidence that it was adversely or otherwise affected.

She testified to an earlier motor vehicle accident some ten years prior to the instant accident, and that she had not sustained back or spinal injuries at that time. She did hurt her neck and received medical care, but for at least one year prior to the instant accident she had received no medical care for her neck. No medical records relating to the earlier accident or the duration or scope of the injury or medical care were placed in evidence. The proof reflects that she had no pre-existing injuries that were exacerbated in the accident. The proof does reflect a postaccident “aggravation of already pre-existing symptoms” in an incident on May 9, 2001, some two years after the accident, in which she was a passenger in a car that had to brake suddenly to avoid a deer, and Ms. Dayton was “thrown forward and the flexion extension movements caused an increase in her pain symptoms” (Transcript - p. 727, testimony of Dr. Amrit Singh, her treating physiatrist and pain management specialist). That incident, however, did not change her diagnosis or modify his treatment plan for her (Transcript - pp. 727-728).

Initially, by virtue of the #10 tooth fractured in the accident herein, I find that Ms. Dayton sustained a serious injury for purposes of Insurance Law §5102(d) (Gertis v Jarosz, 284 AD2d 938). Since it is unnecessary to look beyond this qualifying injury, I will review the proof of the injuries that she sustained in the accident and assess an amount of damages therefor.

Ms. Dayton was first treated at the Oak Orchard Community Health Center on May 25, 1999 by Dr. Fuquay, who testified that after a number of visits, the fractured tooth, which initially caused her “throbbing” pain, was repaired, and after appropriate preparation, a permanent porcelain-to-metal crown was put in place. According to the testimony at trial, after the crown’s placement there were no follow-up visits or complaints relating to tooth #10 or the crown.

Dr. Amrit Singh is a board certified physician, inter alia, in physical medicine and rehabilitation and pain management and has treated Mr. Dayton since August 1999, about four months after the accident. She first sought his treatment after some 2½ months of physical therapy which did not alleviate her pain, and the commencement of chiropractic care, complaining of headaches, cervical pain radiating to her right arm, and lumbar pain extending to her right leg. Dr. Singh proceeded to examine her, finding a restricted range of motion and a pulling sensation more on the right side of her neck than the left and noted her complaint of pain with range of motion of her shoulders. His differential diagnosis at that time was a cervical and lumbar strain with low back pain, the possibility of an underlying disc injury and possible radiculopathy (a disease of the spinal nerve roots) along with myofascial pain, referring to soft tissues around the muscle (Transcript - pp. 687-688), testimony I permitted over Defendant’s objections. She described headaches with photophobia, tingling more so in her right hand and right foot. Dr. Singh utilized numerous tests, including an EMG, electromyography, diagnostic testing of the integrity of the neuromuscular system, and nerve conduction studies (Transcript - p. 696). He opined that the pathology that caused the abnormality of the root level in the EMG test would be consistent with disc herniation (Transcript - p. 700), and consistent with injuries that could be caused from a motor vehicle accident. On October 20, 1999, he diagnosed cervical radiculopathy, possible lumbar radiculopathy, in addition to cervical and lumbar strain (Transcript - p. 702), prescribed pain and antiseizure medications and a TENS unit.

Eventually he stopped physical therapy, as it was not providing her with much benefit, but Ms. Dayton returned to chiropractic treatment. By December 29, 1999, he continued his diagnosis of cervical and lumbar strain, cervical radiculopathy and a lumbar radiculopathy at L5 on the right side (Transcript - p. 706), noting that chiropractic care was helpful and that it provided pain relief for perhaps three to four hours after treatment. She was still taking pain medications, described tingling, and noted it was difficult to rollerblade, ride horses, walk, clean the house, etc.

Dr. Singh has regularly and continuously seen Ms. Dayton every month or two or three since he first started treating her. While she has seen a variety of medical professionals, chiropractors, physical therapists, massage therapists, etc., Dr. Singh appears to have supervised her care and treatment and her pain management and made regular and ongoing adjustments to her medications. This is the doctor who, up until the trial of this matter, was able to provide the most comprehensive and credible view of her condition. I found him to be credible and realistic in his assessments of Ms. Dayton’s tolerance and her assessment of her pain. Since he examined her over such an extended period of time, he was in the best position to note changes in her condition.

His medical records and trial testimony reviewed each and every examination and his written reports. Over the entire period, ending with his examination on September 28, 2005, his diagnosis hardly varied, and he consistently adjusted and modified her medications. A recitation of the various anti-inflammatory pills and patches, pain pills and patches, anti-gastric medications over the years, include, in no specific order, Ultram, Amitriptyline, Tylenol #3, Celebrex, Medrol dose pack (oral corticosteroids - strong anti-inflammatory), Serzone, therma care patches, Neurontin, Baclofen, Tylenol with codeine, Lidoderm patches, Prevacid and Xanax. In other words, Dr. Singh keeps trying a mix of medications hoping to find the proper combination and dosages which will alleviate the pain and discomfort his patient complained of.

During the period of time since her accident, the frequency of her visits with her chiropractor were modified, going from five days a week to being reduced, being stopped and then continued again. By September 2000, she was seeing her chiropractor twice a week; in December 2000 she had stopped massage therapy and reduced chiropractic care to once a week. By January 31, 2001, she was back with massage therapy, had repeat MRI’s with Dr. Cappuccino, and still saw Dr. Kratoville. On March 14, 2001, there was some improvement in her TMJ syndrome, which condition has not been sufficiently shown to have been proximately caused by the accident in question, although the notes reflect that it could be compensatory or deferred from other stress and possibly relating to the sequelae of the accident.

On May 9, 2001, Ms. Dayton described an incident where she was a passenger in a motor vehicle that braked suddenly to avoid a deer, and she was thrown forward. This caused an increase in her pain symptoms, but no change in her diagnosis or treatment. By July 11, 2001, Dr. Singh reported that the flare-up from the deer incident was resolved, and that Ms. Dayton was back to her original baseline. On September 5, 2001, she complained of increased weakness in her right side, that she was dropping things, which Dr. Singh noted was possibly the worsening of her neurological lesion (Transcript - p. 730), and her sleep remained poor. She had a flare-up of back and neck pain as reported on October 3, 2001. By January 16, 2002, she had stopped seeing her chiropractor, with Dr. Singh noting a new disc protrusion at C3-C4, also noting disc protrusions at C4-C5 and C6-C7. By May 1, 2002, her symptoms still fluctuated; she rated her pain at eight out of ten, and she started seeing her chiropractor again. On July 24, 2002 there are reports of muscle spasms in her right arm and leg and a clicking sensation turning her neck, with a gastric irritation of her stomach. On February 12, 2003, Ms. Dayton had a slightly better straight leg raise to 50 degrees and Dr. Singh testified, over objection, about trigger points, the palpation of which will cause a twitch of the painful muscle, described as an objective finding (Transcript - pp. 741-742). He noted that she continued a home exercise program he had recommended. In May 2003 another different regimen of pain and other medications was prescribed. On August 13, 2003, he reported upper arm pain, the sensation of swelling in the right upper arm, and twitching, something he noted was often seen with an underlying neurological injury and adjusted her medication. In January 2004, Ms. Dayton still had stomach problems, probably from Celebrex, and there were discussions about steroid injections, which she declined. On March 31, 2004, she still had gastric problems and was prescribed Lidoderm patches. The examination report for October 13, 2004, noted that colder weather makes her more symptomatic, her joints and body were stiffer. In January 2005 she continued with the home exercise program with no chiropractic care, with another adjustment of her medications, and she still has restricted range of motion of her cervical spine, with discomfort reported with Spurling’s maneuver, described by Dr. Singh as an objective test. In May 2005 she was prescribed a Medrol dose pack for a current flare-up, as she had fallen down 13 steps while moving her residence and had increased pain symptoms. In July 2005 Dr. Singh noted that the range of motion of the cervical spine and the lumbar spine was restricted and painful in all directions. He detected, on palpation, tenderness over the cervical spine, cervical paraspinals and upper trapezius muscles, as well as the lumbar spine, lumbar paraspinals, etc. He performed a Trendelenburg’s test to assess integrity of the hip joint to evaluate for a L-5 radiculopathy, an objective test, and he concluded that she had returned to baseline after her fall on the steps.

In her last visit before the trial, on September 28, 2005, Ms. Dayton was back in chiropractic treatment once a week and continued on Arthrotec, an anti-inflammatory medication. She reported significant morning stiffness, that her legs go numb on the right side with prolonged sitting, and that she would have occasional flare-ups of pain when performing her home exercises. In sum, she was exhibiting the same symptomatologies as six years before, still had restricted range of motion of the cervical spine and the lumbar spine, the Trendelenburg’s test showed slight unsteadiness on the right side, etc., and Dr. Singh’s assessment was similar as before, neck and low back pain, cervical and lumbar strain, cervical radiculopathy and lumbar radiculopathy. He concluded that it would be difficult to do tasks that require bending, twisting, prolonged standing, walking, reaching overhead, etc., and that depending on her level of weakness as noted in the hip abduction weakness she had, her balance would be impaired so that she would be at risk for falls which would worsen with more fatigue. He acknowledged that she exhibited no significant atrophy of either her arms or legs, and normal cervical spine and normal lumbosacral spine for her age group. However, he found her credible for the level of pain she expressed and wanted her to continue with his home exercise program consistently, hopefully daily, to continue with her chiropractic care (albeit accepting that it does not normally correct an underlying pathology) and, if she does not undergo surgery, she will need to be seen about every three months to assess her response to medications, etc. Dr. Singh opined, with a reasonable degree of medical certainty, that her injuries are permanent, and causally related to the motor vehicle accident in question.

Dr. Steven Kratoville, Ms. Dayton’s chiropractor, first treated her on December 6, 1999, and continuing through the trial herein, on what was estimated to be over 150 times for a period of over five years. His medical records (Exhibit 35) recount Ms. Dayton’s medical history, his examinations and the administration of tests, including objective tests, etc., their results and his courses of treatment. It was his opinion, based upon the duration of his treatment and the consistency of her symptoms, objectively verified, that her condition was indicative of a permanent injury that was caused by the accident in question. He noted that the beneficial results of each treatment initially would last for some six to eight hours, and that Ms. Dayton’s symptoms would worsen as she performed normal activities of daily living, such as doing dishes and cleaning the house, and that rollerblading or walking three miles a day, as she had done prior to the accident, would make the pain worse. Dr. Kratoville was able to objectively observe muscle spasms on occasions in December 2000, February and April 2001, and April 2002. He concluded that she has suffered permanent limitations of the use of her cervical and lumbar spine, that she suffered from diminution of cervical range of motion, extension, right and left rotations, and that Ms. Dayton was credible in her description of pain.

Ms. Dayton first met with Dr. Andrew Cappuccino, a board certified orthopedic surgeon, on May 3, 2000, and provided a cumulative medical history of the accident and her treatment with a chiropractor and pain management specialist, as well as certain medical records, reports, etc., up until that time, including nerve conduction studies done by Dr. Singh, which were positive for right leg radiculopathy as well as cervical radiculopathy. He examined and evaluated her cervical spine, and found a painful range of motion on flexion and extension, significant impairments in rightward rotation as well as lateral bending perhaps only 20% to 30% of normal, thus 70% impaired, which he described as an objective finding. He also postulated that she was suffering from a disc herniation in the cervical spine as well as in the lumbar spine. Significantly, he concluded that Ms. Dayton was credible in her complaints. He saw her again six months later, found no significant change for the better, even though she had been using chiropractic care and a trial of massage therapy, and believed that the two discs were herniated, affecting her right side, and the symptomologies were consistent with the history of the motor vehicle accident at issue. He described possible fusion surgery in her cervical spine, her neck, albeit with its inherent pitfalls and risks, as well as alternative disc replacement surgery (a discectomy) which he recommended.

As to her lumbar spine injury, Dr. Cappuccino opined that generally upright and prone activities are not too bad, but that there would be limitations for activities that require a lot of bending, twisting or lifting. He provided detailed testimony as he reviewed her MRI’s from November 2000. He saw her again in March 2001 and on June 28, 2001, reaching similar findings and conclusions, raising the potential need for a discectomy and fusion surgeries. On October 31, 2001 he reviewed the exacerbation of her pain, somewhat abated through medications prescribed by Dr. Singh, including Prednisone and cortisone and a sleeping pill, Trazodone, with some antidepressive effects. She still had severe right arm and right leg numbness and weakness, and was approaching the dilemma of living with the pain and discomfort or deciding whether to have neck and low back surgeries.

In March 2002 his examination found the same discomforts in her right neck, shoulder and arm without significant change or decline in her lower extremities. Again on August 21, 2002, his last visit with Ms. Dayton, he noted exacerbation of low back, right buttock, right radiating leg pain, numbness and tingling all the way down to her right foot, and described weakness, trembling and numbness in her right arm from the shoulder into her middle three fingers, all consistent with a C7 nerve root issue. He estimated the cost of the lumbar surgery at about $8,000, with the cost of a cervical discectomy with fusion at $20,000 to $25,000.

Dr. Cappuccino opined, with a reasonable degree of medical certainty, that the lumbar and cervical disc injuries described above are causally related to the accident in question on May 21, 1999. He similarly opined and confidently recommended that Ms. Dayton could and should undergo the two surgeries noted above. He did opine that she would be able to rollerblade, even though she might have a numb foot, as it was a low impact upright activity. He also suggested, as aerobic exercises, walking, swimming and riding an exercise bike, even though they might be pain producing to a degree. Of course, Ms. Dayton had testified that some of these activities, which she had previously enjoyed doing on a regular basis, she could no longer do because of her injuries.

On cross-examination, in reviewing the cervical testing or nerve conduction study, he acknowledged that the report did not note that the results fell outside the standard. In reviewing the November 2000 cervical spine report, Dr. Cappuccino related that there was no compression of spinal cord or existing nerve roots at C4-C5 and C6-C7, there was a small central disc protrusion, and no spinal stenosis (Transcript - pp. 223-225), and no degenerative change in her cervical spine (Transcript - p. 238). He also opined that in her lumbar spine the degenerative change noted by the radiologist was within a reasonable degree of medical certainty to be trauma to the disc sustained on the date of the accident, May 21, 1999.

The Defendant offered the opinion of its expert, Dr. William Haake. Dr. Haake, an orthopedic surgeon, in explaining his orthopedic evaluation (Exhibit II) after examining Ms. Dayton on June 28, 2005, summarized the medical records he reviewed in the preparation of his report, as well as his physical examination. A few preliminary comments are in order. Dr. Haake advised that while he had Dr. Cappuccino’s report from the films of Ms. Dayton’s lumbar and cervical spine of November 10, 2000, he was not provided with the MRI of the cervical spine. Accordingly, his testimony was limited to a review of those medical records and films which he had reviewed in writing his report. He concluded and testified that there was no objective evidence to support Ms. Dayton’s complaint of neck, arm, lower back or lower extremity symptoms. He opined that she did not sustain a serious injury as defined by the insurance law; that she does not have a significant disability as a result of the accident; that her lower extremity tremor is of the intension type; that her migraine headaches are unrelated to the accident (hypothetically linking them to a bathtub fall on March 14, 1997)[2]; that no causal relationship exists between the symptoms and the accident, and no permanent or temporary disability resulted from the accident. He testified that he does not pay a lot of attention to physical therapy reports and that he did not think it very important to have access to

Dr. Kratoville’s chiropractic records of over five years because they did not make any difference to him.

Dr. Haake’s opinions were challenged by Ms. Dayton’s counsel, with persuasive effect. First, Dr. Haake acknowledged that Ms. Dayton articulated complaints of neck pain to her right arm, radicular symptoms in her right leg, and a decrease in mobility, and that prior to the accident she had never seen a doctor for neck or back symptoms[3] and that her symptoms were of sudden onset after the accident. Nonetheless, Dr. Haake wrote that there was no causal relationship between her symptoms and the accident.

He also opined that a serious injury did not occur as defined by the No Fault Law, an opinion he acknowledged might be wrong because he had not seen Ms. Dayton during the first six months following the accident, and relied upon medical records for that period which consisted primarily of physical therapy and chiropractic records which he generally did not pay much attention to or did not have to review (Transcript - pp. 482-483). He was unaware of the fracture of Ms. Dayton’s tooth, even though he was aware that such a fracture satisfied the definition of a serious injury under Insurance Law §5102(d).

Ms. Dayton argues that during his June 28, 2005 physical examination, Dr. Haake found decreased cervical range of motion, decreased lumbar range of motion, decreased grip strength on the right side, and found that a straight leg raising on the right produced (“questionable”) pain in her buttock (Transcript - pp. 466-467), findings that she argues are objective. However, Dr. Haake did not concede that each of these findings were necessarily objective.

Dr. Haake also acknowledged that electro-diagnostic testing and nerve conduction studies are objective tests and that Dr. Singh interpreted them as being positive (Transcript - pp. 472-473). He was asked about medical records that documented spasms that were palpated bilaterally by physician’s assistant Pike, and acknowledged that their presence may be an objective finding, depending upon the definition of a spasm (Transcript - pp. 468-470). When questioned about certain of Dr. Cappuccino’s purported objective findings in a report of May 3, 2000 (Transcript - p. 474), Dr. Haake demurred, noting, inter alia, that it was dependent on whether Ms. Dayton had been cooperating fully. When reviewing Dr. Cappuccino’s November 7, 2000 report to Dr. Singh, which described a positive Spurling’s sign and positive nerve root compression signs in Ms. Dayton’s right arm/right upper extremity (Transcript - pp. 477-478), which he acknowledged were objective signs, Dr. Haake noted that the findings were five years ago.

Indeed, Dr. Haake’s conclusions were seemingly limited to the day of his examination where he found no objective signs, and effectively overlooked objective findings that other medical professionals had made at prior times. He also seemingly ignored the five plus years of ongoing treatment by Dr. Singh and Dr. Kratoville and that of Dr. Cappuccino, all since the accident, when he opined that there was no causal relationship between her present symptoms and the accident. In sum, I found Dr. Haake’s testimony with respect to Ms. Dayton to be unpersuasive and inconsistent with the evidence.

Ms. Dayton makes no claim for lost wages, past, present or future. As to future medical expenses, no specific figures were presented to me, except for the different costs of the two recommended surgeries. While Dr. Singh anticipated continuing treatment at roughly two-month intervals to address pain management and adjust medications, no medical costs were presented for which recompense is sought. Dr. Cappuccino recommended the lumbar disc replacement surgery, less invasive with fewer implications for future surgeries and less expensive than fusion by about one-third, because there is no bone graft and only one overnight, estimated at $8,000, and a cervical discectomy with fusion with a minimal cost of $20,000. Since there was credible testimony from Ms. Dayton (Transcript - p. 44) that she had deferred consideration of the surgery solely for financial reasons, I am persuaded that she intends to undergo the surgeries, and it is not speculative to make an award of $28,000 for what I believe to be medically necessary surgeries proximately caused by the Defendant’s negligence.

As to any other future medical costs, and, for that matter, any past medical expenses, there was no proof thereof, and any award therefor would be speculative and I make none. The other components of damages for which Claimant is entitled to receive compensation are for past conscious pain and suffering accruing as a result of and from the date of the accident until the trial of damages, and then, as characterized by her counsel, for permanency and future pain and suffering from the date of trial on damages when Ms. Dayton was 38 years of age, for the remainder of her life expectancy thereafter, established as being 43.8 more years.[4] I note here that while I make an award for future surgeries, it is speculative to predict the success of such surgeries, how they might otherwise alleviate her future pain and suffering, permit her a wider range of activities that she can no longer perform as a result of this accident, and perhaps diminish my award of future damages. Indeed, Dr. Singh noted that even with surgery, while there is the possibility that she will get better, there is also the possibility that she would not and might require more intervention as far as pain management (Transcript - p. 754). My award of future damages is based upon the evidence that establishes that more than six years after the accident her injuries are permanent, her pain will continue to be managed with the hope of improvement, but without any demonstrable assurance that she will achieve anything more than temporary, short-lived relief, comparable to what she obtains from chiropractic and massage therapy. Moreover, to the extent that there may be inferences that Ms. Dayton has a low pain threshold, or is overly sensitive to pain, which may be implicated in what might be characterized as her reluctance to persevere with exercises and the like which initially generate pain with a hoped-for superior long-term result, I rely upon the ongoing assessment of the medical professionals who have continuously examined and treated her over the years, their objective and subjective observations, as well as her own testimony.

Accordingly, for her past pain and suffering from May 21, 1999 for some 6½ years, upon review of all the testimony, medical records in evidence, and after considering Ms. Dayton’s demeanor and the medical personnel testifying on her behalf, as well as the Defendant’s expert, and noting that I granted counsel’s motion to conform the pleadings to the proof, I award the sum of $82,450.00; for her future pain and suffering, and the permanency of her injuries, and the loss of enjoyment of life, I award the sum of $479,650.00, plus $28,000.00 for future medical expenses, for a total award of $590,100.00, with interest from July 27, 2004, the date of signature of the liability decision herein (Love v State of New York, 78 NY2d 540).

Since the amount of future damages exceeds $250,000.00, a structured judgment is required and judgment will be held in abeyance pending a hearing pursuant to CPLR article 50-B. Ms. Dayton’s counsel and the Defendant are urged to consult and agree upon the discount rate to be applied and to formulate a structured settlement of their own (CPLR 5041[f]). In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing, confirming to the requirements of CPLR 50-B within 45 days of the service of a file-stamped copy of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court. It is ordered that to the extent that Ms. Dayton has paid a filing fee, it may be recoverable pursuant to Court of Claims Act §11-a(2).


Claimant Steven Colon grew up in the Albion, Medina area. His work history reveals his first employment at the age of 14 as an 8th grader for some local farmers doing chores, continuing until his graduation from high school in 1984. He worked for the Medina School District for a summer doing janitorial cleaning, and then worked while attending school for a few months. He had a variety of jobs while continuously working, was then employed at Southland Frozen Foods for a number of years until finding a better job at the United States Gypsum Company (US Gypsum) in Oakfield, New York, as a stack operator starting around March 1988. US Gypsum was still his employer some 11 years later when he was injured in this accident on May 21, 1999, and he remained in their employ until approximately September 13, 2000, when he was “taken out of work by... [Dr. Hilburger]... because I had a disc pinching off a nerve causing my pain and weakness in my left leg” (Transcript - p. 74).

In describing the accident, Mr. Colon was wearing his seat belt and felt two impacts, the first being quite jarring, while the second was more glancing. He was quite angry and got out of the car to confront the other driver, but returned after seeing that it was a woman. He spoke with an officer from the Orleans County Sheriff’s Department and an ambulance crewman, and described feeling a little pain in his back. He then picked up his daughter from school and went to the Emergency Room at Medina Memorial Hospital. After x-rays and examination in the emergency room for what he described as a dull aching pain in his lower back with his left leg feeling a little funny, he was told to stay out of work and was sent to see his personal physician, Dr. David Stahl, who on or about May 24, 1999 prescribed some pain medication. In the latter part of June 1999, Mr. Colon returned and, believing that he merely had a “sprained lumbar,” like a pulled muscle, was prescribed a different pain medication and given a note permitting him to return to work without restrictions.

Mr. Colon returned to US Gypsum in his same job title, what he called a dry end lead man, which involved some supervisory responsibilities which he utilized to delegate tasks that required more strenuous exertion to other employees rather than doing them himself. His “guys” understood his physical limitations and “covered” for him, although Mr. Colon characterized his own actions as “slacking off.”

In May 2000 he next sought medical treatment from Ms. Dayton’s chiropractor, Dr. Steven Kratoville, presenting with complaints in his lower back and left leg. Mr. Colon explained that he felt pain and weakness in his left leg over the entire period, but he needed his job, and feared that if he went to see a doctor he would likely be taken out of work. After the initial examination, he received chiropractic treatment from Dr. Kratoville, at first once a week. He also went to physical therapy, probably in July 2000, on some ten occasions, but stopped because there was no progress.

Significantly, Mr. Colon described an accident at work where he “dropped a bundle board on a friend” (Transcript - p. 91) because of pain in his back and was also “written up” for failing to have moved (because it would have hurt to do so) a quite heavy safety stand. He also avoided tasks that would cause him pain, and he was “busted” by another general foreman in that regard on another occasion.

Eventually, Dr. Kratoville, thinking that more than a sprain was involved, referred Mr. Colon to a neurologist, Dr. Andrew Hilburger in Batavia, who advised Mr. Colon that he came to believe that a pinched nerve was causing the problems. Throughout this period of time through this trial, Mr. Colon remained on pain medications of various sorts and strengths, with the fear, as expressed to him by Dr. Hilburger that pain medications could be addicting.

Thereafter, in December 2000, Mr. Colon went to a pain management specialist, Dr. Jin Chang, who treated him at the hospital with epidural injections that were of some temporary benefit. He also consulted with a surgeon, Dr. Webster Pilcher, at Strong Memorial Hospital in Rochester. He has had MRIs, myelograms, and nerve-conduction studies.

Mr. Colon testified, convincingly, that he can’t work and he loves to work as “that’s pretty much all [he knows] is to work” (Transcript - p.120). This inability to work causes him stress, grief and embarrassment. At the time of trial, more than six years after the accident, he still has lower back pain, his left leg still bothers him and now he has hamstring trouble, with it tightening up, especially in his left leg.

He testified that his chiropractor, Dr. Kratoville, gives him exercises and leg pulls and left leg stretches, cracks his back and sometimes his neck and uses a vibrating-type machine that hurts. He has sensitivity at certain spots on his lower back, feeling “real bad pain” if he is touched just right. He is very nervous about walking in crowds, as he has been bumped/pushed in a crowd, with friends, or even sleeping in bed. He described limitations in bending and twisting, and other motion movements. He testified that all of these discomforts and pain have occurred since the accident, and none preceded it. He still sees Drs. Kratoville and Hilburger.

Mr. Colon described his work history at US Gypsum , the gypsum process, making drywall, noting his work schedule and hourly wages ($13.60/hr. at time of accident) during his employment. He missed six weeks or so after the accident until the end of June 1999. He worked continuously until September 2000, after which he never worked again. He received short-term disability insurance for six months, which he described as being 80% of a 40-hour work week, after which he went on welfare. In February 2001, he was advised that US Gypsum was shutting down the sheet rock division, and he was offered a position at their paper mill division by Ray Dunlevy, the human resources supervisor at US Gypsum. Mr. Colon turned down that opportunity because, inter alia, he was still disabled and believed that the paper mill work would have been more strenuous than the board plant. Upon his separation from the company, Mr. Colon emptied his 401(k) and company retirement accounts. He advised that he was receiving monthly social security disability payments of approximately $1,370.00[5] after the deduction for medicare.

The Defendant’s cross-examination implied doubts about the extent of Mr. Colon’s injuries, his return to work, and whether the injuries he currently endures were proximately caused by this accident or from some intervening event. He acknowledged that he sought no medical care relating to these injuries between his release to return to work from Dr. Stahl on June 25, 1999, and May 4, 2000 when he first treated with Dr. Kratoville. He described two incidents at work for which he was “written up,” one for dropping a drywall board on an employee’s leg, and a second for failing to move a support stand.

Dr. Steven Kratoville, Mr. Colon’s chiropractor, testified with respect to his first examination of Mr. Colon on May 4, 2000, nearly one year after the accident, when he complained of lower back pain. Dr. Kratoville described his examination, the x-rays he took and his diagnosis, inter alia, of lumbar sprain, and measured limitations in bending, lateral flexion and range of motion. He started seeing Mr. Colon regularly, providing chiropractic adjustments perhaps ten times in the ensuing two months. In July, after excusing him from work for three days, treatments continued. A July 26, 2000, MRI report revealed a moderate-sized posterior disc herniation at L5-S1, which the doctor described as an objective test and was, in his opinion, an irreversible chronic condition. Treatment continued more or less twice a week, and ultimately, starting on September 14, 2000, Mr. Colon was excused from work for medical reasons, initially for four weeks, but in fact, that was the end of his work tenure at US Gypsum.

It is not necessary to enumerate all the visits, but it appears that in 2000 there were some 70 visits; in 2001, 56 visits; in 2002, 5 visits; in 2003, 27 visits; in 2004, 8 visits; and 10 visits in 2005, up to the date of trial. Over the course of these examinations and treatment, Dr. Kratoville found a continuation of objective findings and opined that the complaints of pain were consistent with Mr. Colon’s condition; he reported complaints of low back pain with numbness of the posterior left leg, and objective findings of limitation of the range of motion, muscle spasms, etc.

Dr. Kratoville testified that Mr. Colon has been a patient for over five years, and that his diagnosis has not changed, that his condition is pain producing and permanent, and that he will require chiropractic care, physical therapy and pain medication for the rest of his life. It was Dr. Kratoville’s opinion that the motor vehicle accident was a competent producing cause of the injuries sustained, that he suffered a significant limitation of use of his lumbar spine, that he has low back pain as a result of a disc injury, and a permanent consequential limitation since his low back is permanently and irreversibly altered. The Defendant elicited Dr. Kratoville’s acknowledgment that, to his knowledge, Mr. Colon had not been treated for his back pain by Dr. Stahl, or anyone else, for roughly ten months after he returned to work from the accident, and none of the tests could specify the date the disc herniation was first suffered.

Dr. Andrew Hilburger, an expert neurologist, first saw Mr. Colon upon a referral from Dr. Kratoville on July 19, 2000, taking a history, performing a physical examination and a neurological assessment. He found a limited range of motion, a great deal of spasm on the paraspinal muscles on the lower part of the spine, describing this as an objective finding usually caused by injury to the nerve in the area. He ordered the July 26, 2000 MRI, and agreed with the radiologist’s impression of a moderate-sized posterior disc herniation at L5-S1, which impinged on the nerve root.[6] He described this as an objective finding, consistent with his clinical examination, and opined that it could be pain producing. He referred Mr. Colon for physical therapy, where the records in his file reflect continued back pain that appeared to radiate down his left leg.

The examination on September 15, 2000 proved telling, as Mr. Colon had tenderness in his spine and a positive straight-leg raise test at about thirty degrees, which Dr. Hilburger said implied a neurological dysfunction. He prescribed pain medication and therapy and took him off work, and from that day forward has not modified that work limitation. Mr. Colon’s pain and discomfort did not change, and in November 2000, he was referred to an anesthesiologist, Dr. Jin Chang, for epidural cortisone injections. He saw Dr. Hilburger monthly during 2000.

Mr. Colon continued to have back pain radiating down his left leg, and in March 2001 was diagnosed with a lumbosacral radiculopathy due to his herniated disc. An MRI that month revealed that the “disc protrudes out displacing the nerve” (Transcript - p. 614).

In April 2001, Mr. Colon was referred to Dr. Webster Pilcher, a neurosurgeon, who performed a myelogram and a CT scan, and found a significant abnormality at the L5-S1 level where there is a diffuse disc bulge which abuts and displaces posteriorly the descending left S1 nerve root (Transcript - pp. 622-623; Exhibit 52, admitted over the Defendant’s objection). Treatments continued with pain medications being prescribed, and with Mr. Colon’s condition not improving. He was seen approximately every two months in 2001.

In April 2002, Dr. Hilburger’s records reflect complaints of pain shooting down the left leg, numbness in the left foot and weakness in his leg. He noted radicular symptoms, refilling of pain medications (Vicodin), and possible surgical intervention with Dr. Pilcher. His next visit was one year later, April 2003, with continuation of radicular symptoms, another MRI was ordered, pain medications continued, and surgical intervention was still a possibility. Nearly one year later, on February 26, 2004, he reported continuing back pain radiating down the left leg into the foot involving all the toes. By this time, Dr. Hilburger notes the continuation of radicular symptoms, and expresses his doubt that surgery would help. Pain medications were continued, as was chiropractic treatment.

In February 2005, the records reflect symptoms in the right leg, with numbness down the left leg to his toes and down his right leg as well, and Dr. Hilburger ordered another MRI which reaffirmed moderate central disc protrusion with possible subtle impression upon both budding S1 nerve roots, and was consistent with the previous MRI. He testified that Mr. Colon had three additional epidural injections. Things did not improve in June 2005, and, as he was not taking any pain medications at that time, Mr. Colon articulated feeling worse with continuing back pain down the left leg into the toes. His last pre-trial examination was in September 2005, with essentially the same findings as previously, although adding a complaint of cramping in the left hamstring.

As Dr. Hilburger summarized, Mr. Colon has been his patient from July 19, 2000 to the time of trial, with no change in symptoms or diagnosis. It was his opinion with a reasonable degree of neurological certainty that the accident in question was a competent producing cause of the injuries for which he treated Mr. Colon, that they are pain-producing and permanent in nature, and that Mr. Colon has sustained a significant limitation of use of a body function, a permanent consequential limitation of the use of a body organ or member, that he will not ever be returned to work, that he will require medication management of his pain, possibly including epidural injections for the rest of his life.

Dr. P. William Haake, the Defendant’s expert orthopaedist, was called by Mr. Colon to testify on his behalf, and his two reports, Exhibits 65 and 66 were admitted into evidence. It is a somewhat unusual occurrence to have a claimant introduce the Defendant’s IME, but stranger things have happened. Dr. Haake reviewed a panoply of Mr. Colon’s medical records (albeit not Dr. Stahl’s records), MRI’s, x-rays, myelograms, etc., and in his first report of July 14, 2005 (Exhibit 65), he opined with a reasonable degree of medical certainty that the herniated disc at L5 was caused by the motor vehicle accident of May 21, 1999. He noted no prior history of back injury or symptoms, and that Mr. Colon was symptomatic ever since the accident. He did inquire about the lapse in medical records from May 1999 to May 2000, and Mr. Colon reported that he thought he had visited Dr. Stahl and Dr. Kratoville during that period. Dr. Haake opined that Mr. Colon did suffer a serious injury as defined by the No Fault Law and that he has a temporary total disability, and that maximum medical improvement had not been reached.

Subsequently, Dr. Stahl’s records were provided, and in a supplemental report dated August 9, 2005 (Exhibit 66), Dr. Haake summarized visits on May 25, 1999 for lower lumbar discomfort; on June 4, 1999 where he felt that Mr. Colon was better, still not able to work and some pain in bending, sitting or standing for long periods of time; and the June 25, 1999 visit where Dr. Stahl noted “no back pain-totally resolved”, range of motion normal and returned Mr. Colon to work. There were visits on August 11, 1999 and April 14, 2000 for unrelated purposes and there was no mention of back or lower extremity. Dr. Stahl’s records reflect a visit on August 17, 2000 with a complaint of low back pain related to the accident. Dr. Haake also noted the first visit to Dr. Kratoville in May 2000 for back symptoms with radiation into the leg.

Dr. Haake’s supplemental report contains the following:

The above information strongly indicates that he had almost a year free of significant back pain with leg symptoms during which he was able to work. There is no history of subsequent injury to his back. There is evidence on the MRI of degenerative disc disease which pre-existed the motor vehicle accident. It is however, my opinion that the herniated disc resulted from the motor vehicle accident. It is not unusual to find a period of quiescence from symptoms after a significant healing period following disc herniation. Then, at some future time, symptoms may reoccur and will usually persist. [Emphasis supplied.]

All of the physicians who testified, and all of the medical records in evidence, including the reports of the Dr. Haake, support a finding that the automobile accident of May 21, 1999, was a competent producing cause of Mr. Colon’s injuries. But there is a lingering question of the nine-month period when Mr.Colon last saw Dr. Stahl and was returned to work in June 1999, and the next time he sought related medical care in May 2000. Defendant reasonably questions this gap and whether the injuries complained of could have been suppressed over this period and have somewhat abruptly arisen some 11 months after the accident if there was no treatment or complaint over that period.

To add further support to this theory, Defendant seeks a negative inference for Mr. Colon’s “failure” to have called (1) Dr. Stahl, his treating physician, to testify; (2) any of his co-workers for the period following the accident until his final day of work in September 2000, or (3) Ms. Dayton with whom he lived. Much of this relates to the question of whether the accident in question was a competent producing cause of the injuries complained of, primarily because of the gap in medical care between Mr. Colon’s return to work on June 28, 1999, with his back problems putatively “resolved,” until May 2000. Defendant suggests that the failure to call these potential witnesses on his behalf militates against his testimony that he continued to suffer physical complaints from the accident but returned to work and sought no medical care. Since Mr. Colon did not offer such testimonial support, Defendant would have me surmise that his co-workers, who ostensibly covered him for more strenuous tasks, as well as Ms. Dayton, would not support his assertions that he continued to have physical complaints resulting from the automobile accident question. Implicit in this argument is that Dr. Stahl, whose records were admitted into evidence (Exhibit BB), would also be unable to support his testimony.

To be sure, relying upon the testimony of Ray Dunlevy, Defendant argues that during the period of Mr. Colon’s return to work as an Operator V Top (Mr. Colon had called it a dry end lead man) he was not a supervisor and he had to be able to perform a number of job responsibilities covered by the crew, including rather physical tasks, while regularly working 12-hour shifts. This of course suggests that perhaps there were no such ongoing symptoms, and perhaps the automobile accident did not cause the disc herniation, but rather the incident of January 10, 2000 when Mr. Colon was reprimanded for dropping a board when he experienced a sharp pain in his back. This is a little like a chicken or the egg scenario. Did this incident cause the disc herniation? Or did the pre-existing disc herniation from the automobile accident cause the pain that led to the dropping of the heavy board, the lifting of which Dr. Hilburger allowed could be a competent producing cause for herniation?

Given the Supplemental Report of Dr. Haake, and the testimonial opinions of both Drs. Hilburger and Kratoville, all made with full knowledge of the intervening period without related medical treatment, as well as Mr. Colon’s credibility in this regard at trial, I decline to draw the negative inferences requested by Defendant. Indeed, in White v State of New York (____ NYS2d ____, 2007 WL 1774663, App Div, 3d Dept. [June 21, 2007]), considering a subsequent accident caused by the original injuries (perhaps akin to the dropping of the board in January 2000 by Mr. Colon which the Defendant would have me infer was the cause of the disc herniation), the Court found the original responsible party also responsible, adding that “the injured person need not refute and exclude remote or technically possible causes of injury, but need merely show that the defendant's negligence and resulting damage can be reasonably inferred (citations omitted)”. Mr. Colon has done that, and Defendant’s application is therefore denied.

Given its expert’s opinion with respect to proximate cause, Defendant has addressed the question whether Mr. Colon sustained a serious injury as defined by the insurance law. It bears noting that Dr. Haake, in his original report (Exhibit 65) opined that Mr. Colon did suffer a serious injury and that he had a temporary total disability. When cross-examining Dr. Haake, Defendant elicited the opinion that, as of May 1, 2000, Mr. Colon’s records did not indicate “at that time that [he] had suffered a permanent loss or use of a body organ, member, function or system” (Transcript - p. 432). Continuing, when asked if he exhibited any permanent consequential limitation of use of a body organ or member, Dr. Haake equivocated and opined, inter alia, since he had not seen any doctors for about one year, then he agreed that Mr. Colon has not had a serious injury ( Transcript - pp. 432-433), contradicting his written report. I find that he failed to provide a sufficient basis upon which he altered his written opinion. His testimony in this regard is in my opinion unpersuasive and seemingly conjectural as to the existence of a serious injury as of May 1, 2000 (and see Decker v Rassaert, 131 AD2d 626, which suggests when a plaintiff calls the defendant’s expert, such testimony should be limited to the findings and conclusions fully disclosed in the report). Moreover, in Defendant’s examination of Dr. Kratoville questioning whether a review of the MRI report could indicate when the herniation occurred (Transcript - pp. 345-346) , and similarly questioning of Dr. Hilburger (Transcript - p. 649), it elicited negative responses. I find it similarly speculative to have Dr. Haake divine from the records whether a serious injury existed as of May 1, 2000.

But what the proof has established is that Mr. Colon does suffer from a serious injury as defined by Insurance Law §5102 (d), satisfying two definitions (1) a personal injury which results in... permanent loss of use of a body organ, member, function or system, and (2) permanent consequential limitation of use of a body organ or member. The discussion above addresses the proximate cause issue, and I note that in Pommells v Perez (4 NY3d 566), summary judgment dismissed the Pommells action before trial, with only one sworn affidavit from a medical professional, and because of a gap in treatment of several years without any reasonable explanation. Here of course there is the sworn testimony of two medical professionals, and the gap in treatment is readily explained by the Defendant’s expert as it is not unusual for there to be a period of quiescence from symptoms after a significant healing process. The Defendant dismisses Mr. Colon’s reasons for returning to work, that he needed to get money (Transcript - p. 84), because of his entitlement to first-party benefits. But he also testified that he “didn’t have any money” (Transcript - p. 84), and it was not established how quickly first-party benefits were available. Moreover, Mr. Colon demonstrated and articulated a strong work history and ethic, it was all he knew to do, and combined with the period of quiescence, there is a reasonable explanation for his return to work and the gap in treatment. As Chief Judge Kaye observed, while a cessation of treatment is not dispositive, “the law surely does not require a record of needless treatment in order to survive summary judgment” (Pommells v Perez, 4 NY3d at 574).

The record here is replete with objective evidence, including the MRI results showing a herniated disc, quantitative descriptions of subjective symptoms, in the loss of range of motion and straight-leg raising tests, and the effect of the injuries on Mr. Colon’s ability to carry out normal, daily tasks certainly related to his work.

As to the permanent consequential limitation of use of a body organ or member, such limitation need not be a total loss, but must be consequential, to wit, significant, important or of consequence. Mr. Colon has demonstrated that the limitation continues to be painful and disabling. His treating doctors, Hilburger and Kratoville, both provided professional medical opinions that the pain-causing condition in Mr. Colon’s back, with pain radiating to his left leg, is a permanent consequential limitation of the use of his lumbar spine and leg. These contentions are unrefuted. Furthermore, his doctors opine, as supported by the disability determination of the Social Security Administration, that Mr. Colon is disabled from work and unemployable, which it is argued is a natural and expected medical consequence of the injuries.

I find by a fair preponderance of the credible evidence that Mr. Colon has sustained a significant limitation of the use of a body function or system, and a permanent consequential limitation of use of a body organ or member, a determination that his injuries are permanent, that he has not been permitted to return to work for more than five years since September 2000, and there is no evidence before me to believe that he might ever return to work. He has met the serious injury standard of Insurance Law §5102 (d).

I find that Mr. Colon is entitled to past lost earnings from the date of the accident until the trial on damages as follows:

From May 22, 1999, the first date he missed work due to the accident to and including June 27, 1999, the last day before he returned to work on June 28, 1999. The amount of lost wages is based upon his hourly rate of $13.60, and includes the mandated overtime hours and alternating work weeks of 36 hours (weekly total of $489.60) and 48 hours (24 of which were overtime for a weekly total of $816.00), for $3,264.00.

From September 15, 2000 (the day after his last actual day of work at U.S. Gypsum) for the balance of calendar year 2000, he is entitled to a total of 15.35 weeks[7] plus 6.5 weeks for the period ending on February 14, 2001, when the Board Plant at which Mr. Colon was employed closed, at an hourly rate of $14.25 with a different work schedule that consisted of six 8-hour days per week, eight hours of which were overtime, a total of $16,190.85.

I find that, but for his injuries herein, Mr. Colon would have accepted an entry job position as a Bander/Loader at the Paper Mill contemporaneous with the closing of the Board Plant, and would have been employed for one year, starting February 19, 2001 at his then prevailing rate of pay of $14.25/hour, at the hours and work schedule then mandated, and is entitled to a sum for that period of $35,568.00.

According to Ray Dunlevy, the Human Resources Manager at U.S. Gypsum, after one year Mr. Colon’s rate of pay would have reverted to that of an entry level Bander/Loader, except that he believed that Mr. Colon would have learned a second job (Operator II) and been eligible for a pay rate of $11.90/hour (as opposed to $11.25/hour). Mr. Colon’s counsel suggests that he would then have achieved an Operator IV level position by October 2003, but Dunlevy opined, and I accept, that Mr. Colon would have not learned enough positions to move to that level for three or four years [Transcript - p. 551). Accordingly, I find that Mr. Colon would have remained as an Operator II for 3 ½ years, at a pay rate of $11.90/hour from February 19, 2002 until September 8, 2002 (28.86 weeks, with alternating work weeks of 36 hours and 48 hours [24 of which were overtime]) for a total of $16,484.83; at $12.20/hour[8] from September 9, 2002 to October 22, 2003 (58.43 alternating work weeks) for a total of $34,216.61; at $12.50/hour[9] from October 23, 2003 until August 18, 2004 (43 alternating work weeks) for a total of $25,800.00.

I find, again relying upon the testimony of Dunlevy, that effective August 19, 2004, Mr. Colon would have qualified as an Operator IV, with an hourly rate of $14.25 until February 6, 2005 (24.57 alternating work weeks) for a total of $16,805.88; and from February 7, 2005 until the commencement of the trial herein on November 14, 2005 (40 alternating work weeks) at $14.95/hour for total of $28,704.00.

Accordingly, the total award for past lost wages is $177,034.17. As to other benefits Mr. Colon makes a specific claim only for his employer’s contributions to his 401(k) retirement plan, consisting of a 50% match of an employee’s contributions to a maximum of 6% of salary.1[0] Mr. Colon testified that he was contributing in excess of 6% (Transcript - p. 138), and thus he would have received an additional sum of $5,311.03. The total award for past lost wages and benefits is $182,345.20.

As to future lost benefits, I took judicial notice of Mr. Colon’s life expectancy of 36.2 years and his work life expectancy of 20.4 years.1[1] To calculate Mr. Colon’s future lost earnings, I first take his hourly rate ($14.95) that would have applied to his expected position as an Operator IV at the paper plant at US Gypsum, and apply the established bi-weekly work schedule to obtain a gross annual income of $37,315.20, to which is added the employer’s contribution toward the 401(k) plan of one-half of 6% or $1,119.46. Moreover, Mr. Colon has established that he is entitled to his employer’s annual contribution to the company’s retirement plan (separate and distinct from the 401[k]). Counsel has miscalculated the amount contributed annually by the employer, asserting that it should be 2% annually, whereas Exhibit 64B describes the benefit as “Severance” and indicates that it provides “1 week for each year of continuous USG service.” That benefit should be calculated at 1/52 or 1.9%, and, utilizing a gross annual income of $37,315.20, results in an additional annual benefit of $717.60. Accordingly, Mr. Colon sustained the annual lost earnings total of $39,152.26. The next question for the Court is to project those future lost earnings for Mr. Colon’s work life expectancy of 20.4 years.

Counsel proffers the theory that there would have been future increases in Mr. Colon’s future earnings due to general increases of 2.8% of his hourly rate that ostensibly have been awarded on average every 1.5 years. Support for this theory comes essentially from Mr. Colon’s Service Record (Exhibit 64), which it is argued shows eight general increases from March 9, 1988 through January 31, 2000, roughly every one and one-half years. My review of Exhibit 64 shows rate structures starting with an effective date of August 10, 1998, then January 31, 2000, May 14, 2001, September 9, 2002, October 27, 2003 and February 7, 2005. This does not show the period of time Mr. Colon has suggested or the purported number of increases. Moreover, it is not clear to me how the purported average increase of 2.8% every 1.5 years was calculated by Mr. Colon, since the percentage increases seemingly vary within each job title in each general rate structure statement I have reviewed. And, while Dunlevy testified that the frequency of general increases was “probably fourteen to sixteen months at that time period” (Transcript - p. 550), he never answered the question as to how many general increases there were between 1988 to 2001 (Transcript - pp. 550-557), acknowledging that there were several (Transcript - p. 556), but also noting, significantly, that “General increases aren’t scripted .... there’s no contract involved so it depends on business levels” (Transcript - p. 556). As Defendant noted, the economic climate after 2001 may be totally different, as evidenced by the closing of the board manufacturing portion of US Gypsum. Dunlevy was neither asked, nor did he conject (even if he were so qualified) about the future business climate. No expert economist testified in that regard. Accordingly, any award reflecting future pay rate increases would be wholly speculative, as they are neither scripted nor contractually required. I therefore apply no increases to my finding of an annual lost earnings total of $39,152.26, and calculate a total, based upon Mr. Colon’s work life expectancy of 20.4 years from the time of trial, for future lost earnings of $798,706.10.

No claim is made for past medical expenses. As to future medical expenses, Dr. Kratoville testified, and I find, that Mr. Colon will require future chiropractic treatment to be administered two to four times a month, at a cost of $50.00 per visit, for the rest of his life. Taking the average of three visits per month at a cost of $50.00 each, for Mr. Colon’s life expectancy of 36.2 years from the time of trial, I award the sum of $65,160.00. Dr. Hilburger testified that Mr. Colon will require future neurological examinations and treatment consisting of medication management of his pain symptoms, and perhaps periodic epidural injections, probably three or four times a year at a cost of $40.00 to $50.00 dollars, depending on the insurance. While I note that Dr. Hilburger only saw Mr. Colon perhaps once a year for the three or so years prior to the trial, I accept his unrefuted testimony with respect to required future medical care. Therefore, I make an award for three visits per year at $45.00 each for Mr. Colon’s life expectancy of 36.2 years, for a total of $4,887.00. Accordingly, the total award for future medical expenses is $70,047.00.

I now address the more subjective assessment of pain and suffering, past, present and future. Interestingly, just as Ms. Dayton may seemingly have a low threshold for pain, Mr. Colon either has a higher threshold, or is perhaps more stoic and understated. Mr. Colon placed a pain level of two on a scale where ten is the worst. He was able to return to work for some 14 months, hardly missing any time from work (Exhibit AA). He describes pain in his low back and left leg and now in his hamstring, and he is more limited in his movements, like bending, twisting and stooping. He testified that he used to do household chores, like mowing the grass, but now he may have to take a pain break and do everything a little slower (Transcript - p. 247). He is very nervous about walking in crowds, being with friends, or sleeping, as he is fearful of being bumped or pushed. Defendant observes that, other than the limitations of his work activities, Mr. Colon did not elaborate on limitations of other non-work social, athletic or day-to-day activities, and again did not articulate high levels of pain. The parties have attempted to provide some guidance to me in the award of pain and suffering for someone with a similar disc herniation, but it is difficult to compare because some were settlements or verdicts that did not delineate lost earnings or medical expenses, and it is difficult to intuit comparable levels of pain. Regardless, I have relied upon a review of all the testimony and medical records in evidence, and my admittedly subjective assessment of Mr. Colon, and, for his past pain and suffering for some 6 ½ years from the date of the accident to the trial herein, I award the sum of $66,350.00, and for his future pain and suffering, and the permanency of his injuries, from the time of trial for the balance of his life expectancy of 36.2 years, I award the sum of $382,350.00.

In sum, and noting that I granted the motion of Mr. Colon’s counsel to conform the pleadings to the proof, I make the following awards, all with interest from July 27, 2004, the date of signature of the liability decision herein:

June 28, 2007
Rochester, New York

Judge of the Court of Claims

  1. [1]Her name at trial was given as Lawana Fuquay Carter, but she was referred to as Dr. Fuquay.
  2. [2]There was no evidence that Ms. Dayton complained of, or had treatment for, migraine headaches in the two-year period between the date of the bathtub fall and the accident in question.
  3. [3] Dr. Haake did acknowledge that he had overlooked references to the motor vehicle accident some ten or twelve years prior (Transcript - p. 466) in the medical records he reviewed for his report. See pp. 3-4 supra, concerning Ms. Dayton’s testimony in this regard.
  4. [4]Judicial notice was taken of the life expectancy tables contained in 1B NY PJI3d, Appendix A (2007).
  5. [5] I took judicial notice of “Social Security Rule 96-8P, 96-9P, Section 201.00H, and 20 CFR Subsection 404.1520(f) and 20 CFR Subsection 416.920(f)” (Transcript - pp. 142-147).
  6. [6] Many of the medical reports and test results were shared between Drs. Hilburger and Kratoville, and as such each reviewed identical duplicate documents in their own files.
  7. [7]Mr. Colon’s counsel suggested this included 2.35 weeks in September and 14.1 weeks for the remainder of the year. My calculation of the number of weeks for the balance of the year is 13 weeks, for a total of 15.35 weeks.
  8. [8] See Exhibit 64.
  9. [9] id.
  10. [0] The documentary evidence (Exhibit 64A) and the testimony of Mr. Dunlevy (Transcript - pp. 530-532] of other benefits, medical, dental, etc., was vague and unclear and failed to provide any measurable or calculable amount to which Mr. Colon may have been entitled. Accordingly, no award is made therefor.
  11. [1] 1B NY PJI3d, Appendices A and B (2007).