New York State Court of Claims

New York State Court of Claims

ASHLEY v. STATE OF NEW YORK, #2007-018-582, Claim No. 105854


Synopsis


The Court awards $21,500 for past and future pain and suffering with interest from January 28, 2005. There is no award for lost earnings.

Case Information

UID:
2007-018-582
Claimant(s):
PATRICK R. ASHLEY
Claimant short name:
ASHLEY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105854
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
THE ROTHSCHILD LAW FIRM, P.C.By: Martin J. Rothschild, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 13, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In a Decision[1] on liability after trial, this Court found the State and Claimant were each 50 percent responsible for Claimant’s injuries. Claimant fell on a staircase and broke his right “pinkie” finger on October 24, 2001, while he was incarcerated at Oneida Correctional Facility (OCF). This Decision addresses the damages portion of this claim.


The medical experts agreed that Claimant’s fall resulted in a fracture of the neck of his fifth metacarpal (knuckle joint) on October 24, 2001. At the infirmary, Claimant was given ice for the swelling, an Ace bandage and was told to elevate his hand.[2] The following day X-rays were taken and sent to University Hospital, University Emergency Medical Services, Inc. The fracture was diagnosed and a fiberglass cast was applied via telecommunications from Emergency Medical Services.[3] Claimant testified it took about 45 minutes for the splint to be applied because the nurse had to keep adjusting it. Claimant was taken out of his masonry work program.

The testimony regarding the length of time Claimant wore the splint was inconsistent with the ambulatory health record from the facility and with the University Hospital records. The Court relies upon the written documentation and not the memories of witnesses. The medical records show that Claimant had regular follow-up visits at the facility infirmary, and he was seen at University Hospital Orthopedic Clinic on October 31, 2001, where it was determined that the bone alignment was good.[4] A new splint was placed and Claimant was to be seen again in two weeks. Claimant continued to visit the facility infirmary and received Motrin for pain. He returned to University Hospital on November 14, 2001, and it was determined that the fracture healed in a satisfactory position. The plan was to buddy-tape his little finger to his ring finger for three weeks and to have Claimant work on flexing and extending his little finger. He was seen at the infirmary after that and was issued cloth tape to keep his fingers together.

On December 4, 2001, Claimant went to the infirmary complaining of pain and swelling in the area of the fracture. He was concerned that the bone hadn’t healed correctly. They gave him Motrin for pain. He returned to the infirmary on January 28, 2002, and said he had difficulty picking up things and still had pain. He was scheduled for an evaluation on February 8, 2002. At that time, Claimant again complained of pain and restricted movement. He was having trouble extending his little finger but could flex it normally. He was advised to continue his hand exercises and to return in two months.

Claimant attended sick call on March 4 and March 11, 2002, still complaining of pain and limited hand strength. He was given a hand splint. On March 21, 2002, Claimant was removed from his program and new x-rays were ordered. He was told not to participate in any sports. Claimant was seen by the nurse practitioner on April 1. No X-rays had been received so Claimant’s appointment was rescheduled and he was told not to lift more than 10 lbs. The X-rays were to rule out a re-fracture. On April 23, the X-rays showed that the fracture had healed.

Claimant saw the nurse practitioner again on May 2, still complaining of pain and weakness. Physical therapy was ordered. On May 30, it was noted that Claimant was unable to tolerate the therapy and more X-rays were ordered before he could continue therapy. Claimant was transferred to Hale Creek Facility on July 3, 2002, where he was assigned a job as a porter, which required him to sweep, mop, and empty the trash. He said he couldn’t use the broom or mop without pain so he was removed from that program.

The ambulatory health record indicates Claimant was receiving physical therapy in early July. Later that month and in early August, Claimant still complained of pain in his hand and requested more physical therapy. The note of August 22, indicates Claimant had not received any physical therapy after May 29. He was seen at the infirmary, again, on September 17, and was given ibuprofen. Claimant was seen regularly at the infirmary and asked for physical therapy again. It was determined that physical therapy wasn’t necessary, as Claimant could do exercises himself. In December, Claimant complained of his hand aching in the cold weather.

In January 2003, Claimant was released from prison. He went home to Ogdensburg, New York, and attempted employment with his father’s fencing company. He testified he couldn’t lift the materials. He then obtained employment at Price Chopper in the seafood department. He did well and was moved to full-time in the meat department, but the repetitive cutting motion caused him pain, and the cold made his hand swell. He went to Claxton-Hepburn Medical Center on June 17, 2003, complaining of “unbearable pain” in his hand.[5] The X-rays taken at that time were unremarkable. He was told not to work for one week and given medication for the pain. There is a notation in the records about physical therapy but it is illegible. Claimant applied for and obtained disability benefits.

In December 2003, Claimant’s parole was violated and he was housed in St. Lawrence County jail. He received no medical treatment for his hand there; he didn’t participate in any work programs or sports due to the problems with his hand. In February 2004, Claimant returned to the State prison system, and his intake medical information indicated he had no medical problems or complaints and was not on any medication.

On June 11, 2004, Claimant was seen by Dr. Bruce Shafiroff, an orthopedic surgeon, for an independent medical exam as part of the discovery for this action on behalf of Defendant. Dr. Shafiroff found minimal abduction deformity of the little finger which had healed well. Although Dr. Shafiroff didn’t see any “triggering,” based upon Claimant’s complaints, he suspected stenosing tenosynovitis, or trigger finger,[6] and attributed Claimant’s complaints of continuing pain and inflammation to this condition.

The first reference to pain in his hand, after the visit with Dr. Shafiroff, is on September 10, 2004, while he was at Bare Hill Correctional Facility. Claimant requested to see a doctor and did so on November 1, 2004. He was given Motrin. On November 4, Claimant requested Celebrex for the pain but the doctor wanted to give the Motrin time to take effect. Claimant continued on Motrin and ibuprofen while at Bare Hill, although no further complaints of hand pain are noted in the medical records through March 2, 2005. As of April 5, 2005, the medical records indicate Claimant was in St. Lawrence County jail until November 25, 2005, when, based upon the same records, he was back in State custody. He complained again of pain in his hand on January 5, 2006. Later in January 2006, he was transferred to Groveland Correctional Facility, where it was noted that Claimant couldn’t lift or do the work required of porters due to his hand.[7] Claimant made regular visits to the infirmary complaining of pain in his hand. Claimant’s hand was re-evaluated and treatment options were discussed. In early March, Claimant had a cortisone injection which helped for about five days. When the pain returned, surgery was recommended.

On May 25, 2006, Claimant had surgery on his right hand at Erie County Medical Center to release the trigger finger. He returned to Groveland Correctional Facility that day and stayed in the infirmary for two nights. The facility would not give him the pain medication prescribed at Erie County Medical Center, and Claimant testified that he couldn’t sleep because of the pain after the surgery. He was eventually given Tylenol with codeine.

Claimant was released from Groveland Correctional Facility in early June 2006, and returned to Ogdensburg to reside with his parents. His hand was still tender and he had pain. On June 9, 2006, he went to the Emergency Department at Claxton-Hepburn Medical Center.[8] He was given more Tylenol 3 and told to follow up with a hand surgeon, or to return if the symptoms changed. He was referred to Dr. George Mina, also an orthopedic surgeon.

Claimant saw Dr. Mina twice before trial.[9] At trial, on August 28, 2006, Claimant said he still had pain, swelling, and weakness in his hand. He has a small scar and the bone is closer to the surface than before the fracture.

Claimant’s educational background and work history were explored on cross- examination. He graduated high school in 1990, then entered the Marine Corps from which he was honorably discharged. He reenlisted and took an administrative leave in 1998. He worked for his father’s fence company during the summer, then attended college for less than one semester, during which time he was arrested and convicted. As previously mentioned, upon his first parole release in January 2003, Claimant worked at Price Chopper, not having the strength to work for his father. After about one month of employment at $7.00 per hour, he went on disability. He received about $100.00 per week for six months. When the disability benefits ended, he returned to work for Price Chopper and handed out leaflets. In December 2003, Claimant violated his parole and was re-incarcerated until June 2006. At the time of trial, Claimant was incarcerated at St. Lawrence County Jail on a criminal contempt charge which Claimant believed would be dismissed. Prior to his most recent incarceration, after being released from the State Department of Correctional Services, he worked full-time at Ashley Home Center.1[0] Claimant’s job at Ashley Home Center was checking out contractors’ receipts when they picked up materials. He was paid $6.75 per hour for 40 hours per week. No income tax returns were produced to verify any of Claimant’s income. Claimant’s date of birth is March 17, 1972; he was 29 at the time of his fall and 34 at the time of this trial. Claimant is unmarried and has one child who is three years old. Claimant’s mother has had custody of the child for the past two years.

Both Dr. Mina and Dr. Shafiroff testified. Dr. Mina first saw Claimant three weeks after his surgery to release the trigger finger. Claimant still had stitches and was complaining of pain in his hand, movement was limited and it was still tender. Dr. Mina reviewed Claimant’s ambulatory health record and noted several entries reflecting Claimant’s ongoing pain and stiffness in his hand. Dr. Mina testified that as of November 16, 2001, the fracture had healed sufficiently to remove the splint and tape two fingers together, allowing for some movement but also affording some protection. Stretching exercises were advised at that time. Dr. Mina was asked about Claimant’s complaints of pain and stiffness, and he opined that residual stiffness and weakness was expected. Dr. Mina felt that the wrist splint provided to Claimant in March 2002 was to provide comfort and protection. In April 2002, Claimant still complained of difficulty gripping, and he was restricted from lifting more than 10 lbs. Dr. Mina said he would have prescribed physical therapy or home exercises. He reasoned physical therapy could help the patient recover more quickly by building strength and movement. The continuing lack of strength and pain, according to Dr. Mina, is residual if the fracture has healed. He again would recommend stretching exercises. He said that after a fracture, complaints of pain in cold weather could occur up to two years following the injury.

In Dr. Mina’s opinion, Claimant’s fall on the staircase was the cause of Claimant developing a “trigger finger,” which he described as a separate injury from the fracture. The symptoms, as described by Claimant, were a grabbing feeling in his hand and an inability to completely flex or extend the little finger. The doctor said that “[a] trigger finger means the flexor tendon that flexes the finger is caught in the sheath or tunnel where the fracture is. So if the flexor tendon [is] tight in the tunnel, the finger will trigger or snap...”1[1] Surgery was required to correct the problem as all other treatment options had failed. The procedure is to open the area near the sheath and cut the sheath. The sheath heals itself with a wider capacity. Dr. Mina said he prefers to do a transverse incision; however, Claimant’s surgeon made a longitudinal one. There is a greater chance of developing adhesions with the longer longitudinal incision, which could cause some residual pain or stiffness. Claimant exhibited these symptoms when seen by Dr. Mina a few weeks after the surgery. If they continued, Claimant could have some limitation of motion and some difficulty with gripping hard objects or doing heavy manual labor.

On cross-examination, Dr. Mina agreed that the tenderness, swelling, and limited movement are expected and common only four weeks post surgery. Dr. Mina didn’t examine Claimant after that time and could not testify about any improvement of Claimant’s condition. Based upon the medical records, Claimant’s fracture healed well and the pain Claimant experienced years after the fall was due to the trigger finger. Dr. Mina opined that the blunt trauma of the fall caused swelling to the tendon and sheath, which eventually developed into trigger finger. Although, without seeing a patient postoperatively on more than one occasion, it is difficult to give a prognosis, Dr. Mina said generally most patients do well after this surgery; only a few don’t.

Dr. Shafiroff testified on behalf of the Defendant. His testimony was very similar to Dr. Mina’s. He agreed that Claimant suffered a minimally displaced fracture that healed without operative intervention and in good position. He also agreed that Claimant developed a trigger finger caused by his fall. Dr. Shafiroff saw Claimant on June 11, 2004, before his surgery, but reviewed the medical records from that procedure and the other related documents.

Due to the short period of time between the surgery and Dr. Shafiroff’s testimony, he, too, said it was too soon to tell what the outcome of the surgery would be. He said the operation itself was basic and safe. The surgeon was able to check the tendon for adhesions. Generally after this type of procedure, the pain reduction is dramatic although some patients still suffer some tendinitis. It was his opinion that most of Claimant’s symptoms will improve but it will take several months for him to heal. Because Claimant suffered a single injury, was young and healthy, he would have minimum inflammation but may be intolerant to the cold for the first year, and his hand may be somewhat weaker. Claimant should fully recover.

When asked about Claimant’s complaints when doing porter work or using tools, he said pressure on the palm could cause discomfort and vibrations are annoying. After the surgery, most of the complaints of pain should end. Heavy gripping may be difficult, but Dr. Shafiroff felt Claimant would probably not need any lifestyle modifications. He said Claimant had at least a 95% chance for full recovery.

In addition to the medical witnesses, Claimant called Peter Stickney, a vocational rehabilitation counselor. He met with Claimant on January 24, 2006, at Groveland Correctional Facility and administered achievement tests, an intelligence test, and personnel test. Claimant scored at the high school level for reading and spelling but at a sixth grade level in arithmetic. The intelligence test result was at the 50th percentile. The personnel test was at the 26th percentile. He would be qualified for basic work settings. He also attempted to determine what type of job Claimant can do based on work history, injury, personality, aptitudes, etc. Mr. Stickney utilized several publications from the U.S. Department of Labor, New York State Department of Labor Wage Data, and a computer program called “MVQ5 2005" that objectively looks at a person’s abilities to work, to analyze Claimant’s employment possibilities. He considered only jobs of a sedentary nature and with limited hand use. He matched some jobs in the local economy. The jobs he arrived at were theater usher, exterminator, molding machine tender, and housekeeping cleaner. Mr. Stickney said that the jobs are similar to Claimant’s abilities and would be available in the local community. He then determined what the jobs pay. The data showed that the starting salaries are $14,685 per year, excluding fringe benefits. Mr. Stickney relied heavily upon the MVQ5 program because he felt it was more accurate than the New York State Department of Labor information. The MVQ5 System program, according to Mr. Stickney, could be narrowed to specific jobs which would likely be available in St. Lawrence County where Claimant resides. The MVQ5 program also permits access to the starting salaries in that county, which may be different than the statewide statistics that include downstate information.

By looking at work history, Mr. Stickney determined Claimant’s pre-injury income; specifically, the fencing work Claimant did for his father. Mr. Stickney did not limit his analysis to a “fence erector” job, feeling that Claimant, pre-injury, could have worked other jobs as well in the construction field. The average salary for a construction worker, according to Mr. Stickney, was $31,800 per year in the north country; this was not a starting salary.1[2] Defendant brought out, on cross-examination, that the average starting salary for construction workers for the entire State was $21,850, and this Mr. Stickney expected would be higher than the average starting salary in the north country. It was Mr. Stickney’s opinion that Claimant could work as a construction worker with his physical limitations. He also considered whether Claimant would return to college. He determined Claimant could consider a two-year degree but would need some remediation in arithmetic. He did not believe Claimant was likely to complete the degree. If he could complete the degree, he would earn about $26,000 per year. It would cost over $17,000 for Claimant to attend college. The Court discounts this testimony as Claimant testified he had no intention of returning to school and Mr. Stickney opined that he would not be successful in completing college.

Mr. Stickney also looked at the salary for meat cutters, based upon Claimant’s work history at Price Chopper. The average income is $29,980 per year. It is his opinion, based on the medical opinions he read, that Claimant could not do the job for medical reasons.

If, after a period of rehabilitation, Claimant’s medical condition improves, Mr. Stickney noted Claimant would be able to do the jobs he could not do when Mr. Stickney’s evaluation was done. In that case, any difference in income would dissipate over time.

In reaching Claimant’s pre-injury income on cross-examination, Mr. Stickney acknowledged he had no documented income information supporting Claimant’s ability to do construction work. It was apparent that Claimant’s voiced interest in taking over his father’s fencing business was speculative, given Claimant’s aptitude and skills, and without any indication Claimant’s father or business partner were interested in Claimant filling such a role in the business. Mr. Stickney’s finding of Claimant’s capabilities for working in the construction field as a laborer, pre-injury, was based upon Claimant’s brief work history consisting of less than one summer’s employment with his father’s fencing business and a summer job during high school, working in lawn care for the park’s department. Yet, Claimant did receive certification through course work completed while an inmate for air conditioning, refrigeration, and masonry. Claimant was in the process of completing additional course work in masonry at OCF when injured.

Claimant also called Dr. William C. Blanchfield, an economist. Dr. Blanchfield is a professor of economics at Utica College of Syracuse University and he works as a private consultant.

Dr. Blanchfield analyzed the economic losses to Claimant as a result of his injury utilizing the potential pre-injury and post-injury income calculations of Mr. Stickney.1[3] Dr. Blanchfield based his analysis on the assumptions that Claimant was 29 at the time of his injury, his pre-injury earnings were either $31,080 or $21,170 per year as a construction worker, and his post-injury earnings would be either $14,685 or $26,250 (with a college degree) per year. He included a 3% increase for inflation, calculated a 10% unemployment rate for the construction field, and a 10% loss of fringe benefits. Based on these assumptions, Dr. Blanchfield estimated Claimant’s economic losses to be $238,741, based on pre-injury wages of $31,080 and post-injury wages of $26,250; or $811,596, based on the same pre-injury wages and $14,685 per year post-injury income. As an alternative analysis, assuming a pre-injury wage of $21,170 annually, if Claimant worked as a meat cutter, and $14,685 post-injury income, the loss was $321,025. He again assumed the same 10% unemployment rate and 10% loss of fringe benefits. The wages also include the same 3% inflation rate. All of these calculations also assume losses until age 65. The higher post-injury income is also based on Claimant getting a college education; a premise the Court has herein previously rejected based upon Claimant’s aptitude and lack of interest.

After listening to the witnesses and reviewing the documentary evidence, the Court finds that Claimant suffered a fracture of the knuckle joint of his right little finger as a result of the fall he sustained on October 24, 2001. Following his fracture, he suffered pain and discomfort as a result of developing a “trigger finger” condition, a related separate injury which required surgery on May 25, 2006. Claimant has a small scar from the surgery. Based upon the medical testimony of both Dr. Mina and Dr. Shafiroff, a full recovery is expected following that surgery, which was performed only three months before this trial. Claimant may suffer some intolerance to the cold in that joint for up to a year after the surgery. The Court finds Claimant will fully recover without limitations.

Claimant seeks future lost wages as a result of this injury. No documentary evidence such as pay stubs, W-2's or tax returns were introduced to support Claimant’s earning capacity. Claimant seeks the Court to focus upon his vocational training in prison and his loss of earning potential. It is Claimant’s burden to prove his damages for lost earnings with reasonable certainty (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495-496; Gomez v City of New York, 260 AD2d 598, 599; Kirschhoffer v Van Dyke, 173 AD2d 7, 10). The focus is on Claimant’s “earning capacity both before and after the accident” (Johnston v Colvin, 145 AD2d 846, 848; Butts v Braun, 204 AD2d 1069, 1070).

Before Claimant’s injury, he had almost no work history outside the military and prison. No independent evidence of his prior employment earnings were provided. Claimant’s argument that he would work for his father and uncle or perform other construction-type jobs earning $31,080 per year is not supported by anything other than Claimant’s opinion and Mr. Stickney’s calculations based upon that opinion. Claimant spent several years in prison and in fact, was incarcerated again at the time of trial. The alternative analysis of Mr. Blanchfield, utilizing Claimant’s pre-injury earnings as a butcher or meat cutter, is not supported by any pay stub or evidence of what Claimant was actually earning when he performed that job for Price Chopper in 2003. In any event, with Claimant’s anticipated full recovery, there is no reason why he cannot return to this employment. Claimant has not met his burden to establish any loss of earning capacity as a result of his injury.

Accordingly, based upon the evidence, the Court finds the sum of $35,000 for Claimant’s past pain and suffering and $8,000 for his future pain and suffering. Since the parties were each found 50% responsible by this Court’s liability Decision, Claimant is entitled to an award of $17,500 for past pain and suffering, and for future pains and suffering he is awarded $4,000. No award is made for lost future earnings. Interest on Claimant’s award shall run from January 28, 2005. All motions not decided herein are deemed denied. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2). LET JUDGMENT BE ENTERED ACCORDINGLY.



September 13, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1].Ashley v State of New York, Ct Cl, Claim No. 105854, Fitzpatrick, J., dated January 28, 2005, (UID#2005-018-452).
[2].Exhibits 5 & 11.
[3].Claimant remained at the facility and a doctor instructed the facility nurse how to apply the splint.
[4]. Exhibit 12.
[5]. Exhibit 7.
[6].Dr. George Mina, an orthopedic surgeon, defined a “trigger finger” as the flexor tendon that flexes the finger is caught in the sheath or tunnel where the fracture is, so the flexor tendon is tight and the finger will trigger or snap.
[7].Exhibit 11, Health Services Unit “Program Clearance” (Groveland Correctional Facility Health Services) memoranda dated January 18, 2006, and February 14, 2006.
[8]. Exhibit 9.
[9].Only once before Dr. Mina’s videotaped testimony (Exhibit 10-A).
1[0].No familial relation to Claimant.
[1]1. Exhibits 10 and 10a, p. 36, l. 11-15.
1[2].Defendant objected at trial to Claimant’s failure to provide accurate disclosure of the source of Mr. Stickney’s calculation of pre-injury earning capacity based upon Mr. Stickney’s testimony at trial that he relied on the North Country New York State Department of Labor Occupational Employment Statistics for Construction Labor. The parties were directed to brief the issue in their closing memoranda. Since the issue was not addressed by Defendant, the Court finds it has been waived. However, after reviewing Claimant’s expert disclosure, the Court finds the disclosure was adequate for purposes of CPLR 3101(d).
1[3].See Exhibit 15.