New York State Court of Claims

New York State Court of Claims

TABERSKI v. THE STATE OF NEW YORK, #2007-042-001, Claim No. 108043


This is an action by claimants seeking damages against the defendant resulting from a construction related accident. Partial summary judgment of liability on Labor Law Section 240 (1) was granted prior to the trial. This trial was held on the issue of damages and based upon all of the testimony, the Court awarded the following: Past lost wages of $134,000.00; future lost wages of $782,000.00; pain and suffering of $100,000.00 and future pain and suffering of $420,000.00. The Court awarded the sum of $100,000.00 to claimant Terry Taberski for loss of services of claimant Rebecca Taberski.

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
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants, Rebecca and Terry Taberski, have brought an action against the State of New York seeking damages resulting from a construction related accident which occurred on property owned by the State of New York. A motion was decided by the Honorable Richard Sise on the 8th day of April, 2005 granting partial summary judgment of liability to the claimants on the Labor Law Section 240(1) cause of action. Judgment was entered on the 19th day of April, 2005. A trial on damages was held by this Court on the 8th, 12th and 13th days of March, 2007 on the issue of damages. The Court’s decision follows.

The claimant, Rebecca Taberski, was injured while working on a construction job on property owned by the State of New York; said accident occurring on the 19th day of June, 2002. Claimant, Rebecca Taberski, was a construction laborer working on site when her foot went through the pavement causing her to fall, striking her coccyx and right shoulder. Claimant wiggled out of the hole by herself and went back and finished her job as directed by the foreman. Claimant testified that she was in pain in her right shoulder and left leg immediately after the accident. About 45 minutes after the accident, claimant testified that she went to see her superintendent, “Frank”, and told him about the accident. Her superintendent told her to go and clean out another manhole and she did in fact do that, working until 5:00 p.m. at which time she drove to her home, according to her testimony, once again in considerable pain. Claimant and her husband both testified that when she arrived home, her husband helped her out of her vehicle. She went to see the doctor the next morning. Claimant stated that the next morning she had trouble sitting on her buttocks and could not put any pressure on her left leg. She also stated that she had pain in her right shoulder.

Claimant testified about previous injuries to her body as follows:

In 1992 or 1993 she strained some muscles in her right arm and was out of work for approximately one month because of the muscle strain. Claimant testified she had no prior pain in her tail bone area. She did testify that she had low back complaints in 1988 after lifting a grain box and that lifting the grain box did result in a herniated disc in the lower back. She treated the lower back in 1989 by a chiropractor. In 1992 and 1993 claimant had pain in the lower back, but it did not disable her from work. Between 1995 and 2002 she had no problem with her lower back and had no pain in her shoulder or arm. Claimant did testify that she had a herniated disc which manifested itself in sciatic pain down the right leg. She testified that that pain was different from the pain she is experiencing as a result of this accident. Claimant stated further that she could not return to work in 2002 after the accident because of the pain. Claimant testified that she received cortisone shots and epidural injections, but could not do anything during the Summer of 2002. She went for physical therapy pursuant to directions from her doctor, but testified that the physical therapy did not help and she was told by the doctors that she could no longer do construction work. She went to school from September of 2002 through May of 2003 from approximately 9:00 a.m. to 2:30 p.m. for five days per week. In September of 2002 she started cosmetology school. (Claimant finished cosmetology school in the Spring of 2003). Claimant stated she had problems during school; she could not bend and could not lift her arm over her head; she took pain killers when she got home. Claimant did do a one week internship; she stated that she received her license from the State of New York in cosmetology in November of 2003. However, because of her pain in her shoulder and her lower back, she was unable to pursue a career in cosmetology.

Claimant testified that she received medical care and treatment on a continuous basis from 2002, the time of the accident, through the time of the trial in both New York State and Vermont. She had various types of pain injections, medications, physical therapy, chiropractic care, exercise programs and eventually had three surgical procedures. Claimant further testified that as a result of the injuries she was unable to do her normal and usual household duties, such as mowing the lawn, vacuuming, doing household chores and was unable to have sexual relations with her husband because of the pain in her coccyx. This inability to have meaningful sexual relations with her husband has continued up through the date of trial.

Claimant further testified that although she tried to take various pain medication, she generally had to stop taking the pain medication because it caused stomach problems with which she was unable to cope. As a result, claimant has basically been unable to take any pain medication to alleviate the pain caused by the injuries.

At the present time, claimant states that her shoulder pain is worse now than before the surgeries; she cannot lift; she is in constant pain; she has lost range of motion in her shoulder; a portion of bone was shaved off of her shoulder in November of 2006; there has been no improvement in her tail bone; and she has lost 32 pounds since the accident. Claimant also testified that since the accident she has developed a propensity for migraine headaches. However, the Court does not find any convincing medical testimony which connects the migraine headaches to the accident.

Claimant has also testified that since the accident she suffers from depression. A considerable amount of time was spent by the two medical experts concerning the issue of depression. The expert for the claimant testified that the depression was related to the accident and was caused by the long term pain and disability suffered by the claimant. The doctor testified that it is a natural consequence of long term physical pain and long term physical disability for people to become depressed and despondent and concerned that their life will never be the same. The physician for the defendant testified that the claimant had pre-existing depression and that the accident did not cause the depression. The Court has reviewed all of the testimony and it is the finding of the Court that the claimant does suffer from depression brought about by the long term effects of continued pain, disability and frustration in not being able to do the things that she did prior to the accident. The claimant testified that since the accident she has not been able to snowmobile, has not been able to cross country ski, has not been able to ride a bicycle, has not been able to play basketball with her son, has not been able to have meaningful sexual relations with her husband, has not been able to take care of her dogs and has not been able to do any of the things which gave her pleasure prior to the accident. The Court believes it is consistent for the claimant to suffer from what we would call depression as a result of constant pain, constant disability and constant inability to do those things which previously gave her pleasure.

The Court would also point out my observation of the claimant while sitting in the courtroom: she consistently tilted to one side while sitting in her chair and appeared to be in a constant state of discomfort. I do not believe that this was an act by the claimant and I believe that her discomfort and her pain are genuine and consistent.

Claimant called Mr. Peter Stickney as an expert in vocational rehabilitation. Mr. Stickney is a Vocational Rehabilitation Specialist, with a master’s degree in Vocational Rehabilitation. Mr. Stickney graduated from St. Bonaventure University with a bachelor of science degree and obtained a master’s degree in 1978 from the University of Wisconsin. He is also certified by the United States Department of Labor in Rehabilitation. Mr. Stickney was retained by the claimant in the Spring of 2005. He reviewed the medical records, interviewed the claimant and reviewed the tax returns and W-2s of the claimant. On May 11, 2005, he did academic testing which showed the claimant to be on the low average scale. He found her intelligence level to be average and her aptitude testing to be low, especially in spacial relations and numerical evaluation. Claimant’s expert also did a transferable skills analysis after reviewing the medical information and considering her low back and shoulder pain. He testified that he looked at jobs with light duty requirements because he determined, based upon his review of the medical records, that she was unable to do anything that required serious physical lifting or straining. Mr. Stickney determined that claimant was qualified to do clerical jobs, even though he testified that her functional capacity test showed that she might have trouble sustaining a light duty job for 8 hours a day, 5 days a week.

Mr. Stickney testified that the pre-injury wage of the claimant for the year 2001 was $34,648.00 and that, when adding her unemployment insurance, her wages for the year 2001 were $41,534.00, which was consistent with a construction worker in the northern part of New York State. Post-injury, Mr. Stickney said that the starting wages for claimant would be $14,560.00 per year as a clerical worker.

Mr. Stickney further testified concerning a life care plan and said that the claimant would have approximately 4 to 10 visits with the doctor per year, would require medication and would require other visits to a physical therapist in the future. He testified that the orthopedic surgeon’s visits would be $140.00 per visit four times per year or $560.00; medications would be $10,875.49 per year; and physical therapy would be between $1,700.00 and $3,400.00 per year.

On cross-examination Mr. Stickney tesified that he did not use any New York State Labor Department’s statistics in determining whether or not the income for claimant for the year 2001 was consistent with Labor Department statistics in New York State and he also testified that he did not consider income for the year 2000 - which totaled approximately $34,000.00 as opposed to the $41,000.00 that claimant earned in the year 2001. Mr. Stickney also assumed that the claimant would take medication for the rest of her life, would go to the doctor for the rest of her life, and would go to physical therapy for the rest of her life.

That testimony was subsequently contradicted by both of the expert physicians who each opined that in cases of chronic pain and chronic discomfort such as that exhibited by the claimant, the claimants generally discontinued medical treatment and medications when it became apparent to them that the medical treatment, medications and physical therapy were not providing relief to them. The claimant in this case has already testified that she is not receiving benefits from her medical visits, physical therapy or medications for the shoulder pain and the back pain.

Professor William Blanchfield was then called as the claimant’s economic expert. Professor Blanchfield is a Professor of Economics at Utica College. He received his bachelor’s degree from Rensselaer Polytechnic Institute, his master’s degree from Rensselaer Polytechnic Institute and his doctorate degree from State University of New York at Albany. He was retained by the claimant on December 19, 2006. The Professor stated that his testimony was predicated upon the following facts:

Claimant was born in June of 1968. The accident occurred on June 19, 2002. Claimant earned $41,534.00 in the year 2001. Claimant would earn $14,560.00 per year in a clerk type job after the accident. Inflation is increasing at the rate of 3% per year. Fringe benefits are approximately 15% of the salary of the worker, and of that amount $333.00 per month was for health care. The 15% fringe benefit was made up of 7.3% social security, approximately 2% to 3% workers’ compensation and 5% health benefit. Professor Blanchfield also testified that he used the Stickney report dated 1-24-07, Federal Reserve reports from Cleveland, Ohio, and data from the Census Bureau. He said that the average work life expectancy of a person in the construction field is 60 years old and that all of his calculations are included in Exhibit 16 which has been received in evidence, which is his report. Professor Blanchfield also testified that the average work life expectancy for a clerical employee would be 65 years of age, rather than 60. Even though he did testify that the average work life expectancy for a construction worker was 60 and the average work life expectancy for a clerical employee was 65, he did not take that into consideration in determining what he considered to be the economic loss for the claimant which he opined was $1,490,423.00.

Claimant, Terry Taberski, testified next. He testified that he was 46 years old and that he and Rebecca Taberski were married on August 29, 1994. He has a high school diploma, an associate’s degree in criminal justice, and works for Verizon. Mr. Taberski testified that claimant Rebecca Taberski got out of her car in substantial and considerable pain on June 19, 2002 when she returned to the home. He said he felt very badly for his wife and that he could see that she could not sit, could not sleep and could not lie down on the sofa. He said that since the accident she is unable to vacuum, unable to make beds, unable to do any of the outside chores such as snow removal or grass cutting, and that if she did try to do them, she was in considerable pain. He also testified that they have had no sexual relations since the accident and that his wife cried when they attempted to have sexual intercourse. He testified that this has caused some strain in their relationship.

Mr. Taberski further testified that he and his wife had separated for a couple of months in 2001 and that the reason for the separation was a difference of opinion as to whether or not they should have another child. He stated that he has been required to do much of the work that his wife formerly assisted him in doing around the house, such as taking care of the interior and exterior of the house.

Mr. Mark Barbano testified on behalf of the defendant. Mr. Barbano works for the New York State Department of Labor in the division of Research and Statistics. He is familiar with the New York State Department of Labor website and he offered into evidence several exhibits which purported to show what the wages in various parts of New York State were between the years 2002 and 2006. The exhibits all state at the top “Wage data are from the 2002, 2003, 2004 and 2005 OES survey, and have been adjusted to second quarter 2006 by making cost-of-living adjustments. These wage estimates reflect New York State’s minimum wage of $6.75.” The Court received these exhibits into evidence. However, the Court gives very little weight to the above-referenced exhibits since they are averages of four years and I do not believe that they are particularly helpful to the Court. They do, however, show the various sedentary jobs such as bookkeeping, accounting and auditing clerk, and do show minimum starting wages to be approximately $20,000.00, and not the $14,000.00 referred to in the Stickney report.

Dr. Bedros Bakirtzian, a physician board certified in orthopedic surgery, then testified on behalf of the claimant. Dr. Bakirtzian testified that he has been licensed to practice medicine in the State of New York since 1989 and that he is board certified in both New York State and in Canada. He received his bachelor of science degree from McGill University and his medical degree from Sherbrooke Medical School. He first saw the claimant, Rebecca Taberski, on the 20th day of June, 2002. His records indicate that she was a 34 year old laborer who injured her back and landed on her shoulder and buttocks. She complained of pain in her right shoulder and coccyx pain. He explained that the coccyx is also referred to as the tail bone. Claimant returned to the doctor on the 25th day of June, 2002, complaining of discomfort in the shoulder and the lower back and the doctor testified that he noticed signs of impingement in the right shoulder. He ordered physical therapy for the back and shoulder and cortisone injection in the shoulder. He ordered her off work. Dr. Bakirtzian testified that the injury to the shoulder and the coccyx were causally related to the fall at work. In July of 2002, claimant returned to the doctor and told him that the pain in her shoulder had reduced, but that it had not gone away completely. She further testified that she had pain in the bottom of her heel, across her chest when she moved her arm across her chest, in her sacroiliac joint region when she crossed her legs, and in her tail bone area.

The doctor stated that when he examined her on the 18th day of July, 2002, she had pain in the buttocks and down the leg and that the pain in the buttock and down the left leg are caused by the damage to the back, the sacroiliac joint. The doctor testified that the sacroiliac joint pain was causally related to the fall of June 19, 2002.

He further testified that the claimant informed him that she had pain during sexual intercourse. The doctor said that this pain was causally related to the injury to the coccyx and sacroiliac joint. On August 20, 2002, claimant Rebecca Taberski returned complaining of pain in the coccyx area. The doctor testified that he prescribed a cortisone injection and that she not return to work. On September 17, 2002, claimant testified that she still had pain on the left side of her buttock which was consistent, according to the doctor, with the injury to the coccyx. He also testified that he told her it would take a long time to heal, if ever. On October 29, 2002, claimant reported to the doctor that she had pain when sitting or lying down, and the doctor testified that she had significant tenderness over the area of the coccyx. He continued physical therapy for her.

On November 14, 2002 the doctor’s records indicate that the claimant had pain sitting or lying on her back or side, that she had pain with intercourse, the physical therapy was making her worse and she started crying. Claimant complained of pain and inability to sleep. The doctor said that these were symptoms of depression because of constant pain. Without going into detail of each and every visit for the next three years, suffice it to say that Dr. Bakirtzian sent claimant to Burlington, Vermont, to a pain specialist in an attempt to have her pain alleviated and also sent her to Dr. Aziz to try to get her pain alleviated with special pain injections. According to Dr. Bakirtzian’s reports, none of that proved helpful and the pain continued. His records also indicate that she did cry again during his office visits complaining about pain during attempts at sexual intercourse and sitting.

On April 22, 2003, his office records note that he had diagnosed claimant as having chronic problems with her sacroiliac joint and her coccyx, determined a marked disability and an inability to return to work.

In August of 2003, Dr. Bakirtzian sent claimant to Dr. Vasquez at Massena Memorial Hospital for epidural injections. However, they too proved to be ineffective.

On April 27, 2004, claimant again complained of recurrent shoulder pain and still had pain in her shoulder. On July 8, 2004, claimant told the doctor she wanted to pull her hair out because of pain, was crying in the office and told the doctor that her marriage was falling apart. The doctor diagnosed the situation on that day as sacroiliac joint instability.

The doctor testified that in November of 2005 he performed arthroscopic decompression of the shoulder. The surgery was done at Massena Memorial Hospital.

On April 3, 2006 a small nodule at the acromioclavicular was removed. The doctor opined that the nodule was caused by the cortisone injections into the claimant’s shoulder; the cortisone injections being necessitated by the injury of June 19, 2002.

In August of 2006, he noted that claimant has persistent right shoulder pain status post acromioplasty. He testified that he gave an injection of depromedrol and lidocaine and sent her for an MRI. The MRI showed no tear in the rotator cuff, but it did show some inflammation of the synovism of the acromioclavicular joint.

On September 13, 2006 the claimant told the doctor that she had pain when she moved her shoulder across her chest and numbness in her fingers. The doctor decided to do an excision of her distal clavicle.

On November 22, 2006, a surgery was performed to remove some of the bone of her distal clavicle. As of November 30, 2006, claimant still had swelling and was still having pain.

The doctor opined that the injury to her coccyx was permanent, the injury to her sacroiliac joint was permanent and the injury to her shoulder was permanent. The injury to the coccyx will cause problems sitting, problems with intercourse and problems with bowel movements. The sacroiliac joint pain will cause problems abducting her legs, ambulatory problems, to wit: pain down her legs which will cause an inability to lift and an inability to twist without pain. The doctor testified that her shoulder pain should be resolving and that the only permanency in her shoulder will be some chronic weakness.

During cross-examination, Dr. Bakirtzian testified that at the time of his initial examination of the patient, her primary complaint was the coccyx and the shoulder was secondary to the coccyx. From that he concluded that she hit her coccyx first and then her shoulder.

The doctor further testified on cross-examination that it was his understanding that claimant had no prior injury to the coccyx or the shoulder. He testified that the coccyx is a very sensitive area, that it is very hard to treat, that it can’t be fixed, and can only be treated for pain.

He also testified that everyone with chronic pain is frustrated. He stated that claimant had depression because of the pain, not because she had indication of a depressive personality. The doctor testified on cross-examination that the spur which he removed from the claimant’s shoulder was there prior to the accident. However, he testified that the injury to the shoulder caused swelling, the swelling caused the pain, and that is why the surgery had to be performed.

He testified that the second surgery was caused because a nodule formed as a result of the injections which claimant received in the shoulder to treat the injury. He said that the third surgery was different from the first surgery in that the first surgery involved a minimal procedure and the third surgery was a more radical procedure.

The doctor also testified on cross-examination that the migraine headaches are not related to the shoulder problem or any other injury which she sustained. The doctor further testified that the shoulder injury will resolve itself in time because of the successful surgeries. Dr. Bakirtzian stated on cross-examination, that based upon his experience, patients with chronic pain eventually give up on physical therapy, stop going for physical therapy, and also eventually stop going to doctors. It was his opinion that claimant would not continue to go for physical therapy the rest of her life and would not continue to see orthopedic surgeons four times a year for the rest of her life. He did not, however, give any opinion as to how long she would continue.

Martin Schaeffer, a physician licensed in New York, Pennsylvania and Colorado, specializing in pain medicine, physical medicine and rehabilitation and also board certified in that field, testified on behalf of the defendant. Dr. Schaeffer graduated from Lehigh University and the Medical College of Pennsylvania. He is on the staff at Crouse-Irving Hospital, Community Hospital and St. Joseph’s Hospital, all in Syracuse, New York. He conducted an independent medical examination on June 10, 2005. The doctor listed all of the documents that he referred to and used in his evaluation. Dr. Schaeffer determined that the claimant did suffer from left sacroiliac pain. He testified that the claimant’s headaches were not related to the accident, nor was the depression related to the accident. Dr. Schaeffer testified that trauma can cause migraine headaches. However, he stated that the type of trauma involved in claimant’s accident could not cause migraine headaches.

Dr. Schaeffer further opined that the surgeries to claimant’s shoulder were not related to the June 19, 2002 accident. He said that the gap in treatment for the shoulder was proof of that. He said she was seen by many doctors between June of 2002 and 2004 and she was not treated for the shoulder. Dr. Schaeffer did admit that the shoulder injury could limit claimant’s ability to work in the cosmetology field.

I believe it is relevant that Dr. Schaeffer was asked the following questions and gave the following answers concerning the sacroiliac joint:
Question: All right. Would you be able to draw any inferences or any connections with a reasonable degree of medical certainty of those particular concerns of her sacroiliac joint pain and the injury that she sustained in the June 2002 accident?

Answer: Are you asking me for causality?

Question: Yes.

Answer: It would be my opinion that her sacroiliac pain is related to the work injury of 2002.

Dr. Schaeffer further opined that claimant was suffering from and had a history of chronic depression in the 1990s. Dr. Schaeffer went on to explain that people who suffer from depression have a lower threshold for pain and that it is more difficult to treat them medically if they also suffer from depression. It was his opinion that claimant was suffering from depression and therefore the treatment of her medical problems was going to be more difficult than if she didn’t suffer from depression. At no time did he say that the subjective feeling of pain by claimant was not genuine. He only said that it may have been (and these are the Court’s words and not his) exacerbated by the fact that she suffered from depression. The doctor specifically said:

“[t]he fact that she has a history of significant depression lowers the chance that otherwise successful treatments will be successful. So I am not saying that the treatments she had were inappropriate; I’m not saying that. But certainly this history of depression lowers the chances that the treatments would be successful in someone otherwise. And it also, as I said just a moment ago, enhances or increases the likelihood that she’s going to continue with subjective complaints.”

Dr. Schaeffer also said that he observed no abnormalities on any test concerning claimant’s coccyx and opined further that an injury to the coccyx is not generally a chronic condition.

During cross-examination of Dr. Schaeffer, the following questions were asked and the following answers were given:
Question: And when she walked, you noted that she walked with a limp that was secondary to her left-sided pain?

Answer: Yes.

Question: She also demonstrated what you’ve referred to as decreased lumbar extension due to pain, is that true?

Answer: Yes.

Question: And extension is what movement?

Answer: Arching your back - - arching backwards. Versus flexion, which would be bending forward.

Question: And when you did your exam of her you found her to be pleasant and cooperative?

Answer: That is correct.

Question: And you observed during exam that she sat with what you’ve called a tilt. Is that right?

Answer: Yes.

Question: And that means that she was leaning to one side throughout the exam?

Answer: Yes. She was protecting her left buttocks or sacroiliac region, yes.

Question: And she was unable to lie flat because of her low back pain?

Answer: Yes.

Question: And when you palpated her left sacroiliac region that elicited pain?

Answer: Yes.

Question: And in fact, her pain symptoms were particularly strong on the left when compared to the right?

Answer: Yes.

Question: And when she walked you noted that she walked with a limp that was secondary to her left-sided pain?

Answer: Yes.


Question: And you’ve, if you will, gotten used to evaluating whether people are telling you the truth or on the level with their pain complaints?

Answer: Yes.

Question: And you specifically charted in your report that the movements that you observed Rebecca make throughout the course of the examination were very consistent with regards to the pain pattern noted. Correct?

Answer: Correct.

Concerning claimant’s injured shoulder, Dr. Schaeffer testified that he believed that the claimant suffered causally related injury to her shoulder at the time of the accident. However, he also testified that as of the date of his examination, which was in 2005, it was his opinion that the claimant’s pain had resolved and her shoulder condition had resolved.

Concerning claimant’s sacroiliac region, Dr. Schaeffer recommends that she may need a sacroiliac brace in the future.

Concerning the surgeries performed upon the claimant by Dr. Bakirtzian, Dr. Schaeffer opined that the first surgery, to wit: the removal of the spur, had nothing to do with the accident, was not causally related, and stated that in his opinion the third surgery was not causally related to the accident. The doctor stated that the second surgery was probably caused by a granuloma type lesion that is sometimes caused by steroid leakage. If that in fact is the case, then although the nodule is not directly caused by the accident, the Court believes the doctor would agree that the nodule was indirectly caused by the accident. Dr. Schaeffer further opined in his independent medical report under the “impression” section that left sacroiliac pain was consistent with a medical history consistent with coccydynia.


The Court is now called upon to determine the damages suffered by the claimants as a result of the accident on June 19, 2002. Based upon all of the testimony of Dr. Bakirtzian, the testimony of Dr. Schaeffer and a review of all of the medical records introduced into evidence, the Court finds that claimant suffered a permanent injury to her sacroiliac joint and her coccyx. These injuries prevent her from returning to her work as a construction laborer. However, the Court does find that claimant is capable of doing light duty work, such as clerical work, in the future, and further finds that the average work life expectancy of a construction laborer is 60 years and the average work life expectancy of a clerical worker is 65 years.

The Court further finds that claimant suffered an injury to her right shoulder, which injury has been treated successfully. However, there will be a residual loss of strength in claimant’s right arm and shoulder as a result of the injury.

The Court determines the pre-accident wage for the claimant to be $37,845.00 per year and the post-accident wage for the claimant in a clerical position to be $15,000.00 per year, starting wage.

Based upon the above, the Court finds past lost wages of $134,000.00 and future lost wages of $782,000.00.

The Court now turns to pain and suffering for the claimant, Rebecca Taberski. The testimony of Dr. Bakirtzian, which the Court finds to be credible, was that claimant has been in considerable distress from the day of the accident until the present day. Dr. Bakirtzian testified that her condition is permanent, that her pain is chronic, and testified to several occasions where the claimant cried during her office visits. Claimant testified to the chronic pain that she endures. Dr. Bakirtzian has testified that the condition is chronic and will continue to cause pain for the rest of claimant’s life. Dr. Schaeffer acknowledges that the claimant has pain in the sacroiliac joint area and says that that injury will cause pain for the rest of her life. However, Dr. Schaeffer does not think that the claimant should have pain in her shoulder at the present time and minimizes the pain in her coccyx at the present time. The Court is of the opinion, based upon all of the expert testimony, that the claimant’s shoulder will resolve itself in the near future with the exception of some limitation of arm strength. However, the Court also finds that the pain in the coccyx is chronic and continuous and that the pain in the sacroiliac joint is chronic and will continue for the rest of her life. In addition, both physicians opined that chronic pain causes depression, which exacerbates the pain. It is therefore understandable that the claimant is suffering from a degree of depression, that her pain is real and genuine, and adversely affects her life.

As a result of the above, the Court finds past pain and suffering of $100,000.00. The Court also finds that the claimant’s life expectancy is 42 years and her future pain and suffering is $420,000.00.

Peter Stickney testified concerning a life care plan. His testimony was that claimant would see an orthopedic surgeon between 4 and 10 times per year. He testified concerning medications that she would be taking and also physical therapy visits. There was no proof submitted to the Court concerning claimant’s actual medical expenses up to the date of trial. Mr. Stickney testified that the orthopedic visits, the medications and the physical therapy visits would continue for the rest of her life. That testimony was contradicted by both Dr. Schaeffer and Dr. Bakirtzian who said that with chronic conditions such as claimant’s, patients generally give up on going to the orthopedic surgeon, taking the medications and going to physical therapy since it does not do any good and they become frustrated and stop going. In addition, Mr. Stickney testified that his medications, his physical therapies and orthopedic treatments were all predicated upon permanent injuries to the coccyx, the sacroiliac joint and the shoulder, without any specific portion being delineated for any specific injury. It is therefore impossible for the Court to award anything for a life care plan since there has been no credible proof as to which medications go with each injury, which physical therapy goes with each injury and which orthopedic visits go with which injury. It is not up to the Court to speculate on these items and therefore the Court makes the determination that the claimant has failed in this aspect of her proof.

There has been clear and convincing evidence that the life of claimant, Terry Taberski, has been severely and adversely affected by the injuries sustained by the claimant, Rebecca Taberski. There has been testimony that the sexual life of Mr. Taberski and Mrs. Taberski has been adversely affected, there has been testimony that Mrs. Taberski previously did many of the outside chores such as snow shoveling and lawn care, as well as many of the indoor chores, such as dishwashing, vacuuming, bed making, etc. It is therefore the decision of the Court that claimant, Terry Taberski, is entitled to an award for loss of the services of Mrs. Taberski and the Court finds that award to be in the sum of $100,000.00.

Since the amount of future damages exceeds $250,000.00, a structured judgment is required pursuant to CPLR Section 5041(e). Accordingly, the Court directs that judgment be held in abeyance pending a hearing pursuant to CPLR Article 50-B. The Court encourages the parties to agree upon the discount rate to be applied and to formulate a structured settlement of their own (See CPLR Section 5041[f]). In the event that this does not prove possible, each party shall submit a proposed judgment in writing conforming to the requirements of CPLR Article

50-B within 120 days of service 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 with regard to the collateral source issue and the structured judgment. Interest on this award shall run from March 29, 2005 at the “legal” rate of interest. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act Section 11-a (2).

July 24, 2007
Utica, New York

Judge of the Court of Claims