New York State Court of Claims

New York State Court of Claims
KOEPKE v. THE STATE OF NEW YORK, # 2007-044-015, Claim No. 107183


Claimant awarded $176,400 for pain and suffering after 30% reduction of award for comparative negligence, and $101,474 for economic damages, all as result of a fall off a ledge onto a concrete ramp while employed at a state-owned facility.

Case information

UID: 2007-044-015
Claimant(s): KEVAN KOEPKE
Claimant short name: KOEPKE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 107183
Motion number(s):
Cross-motion number(s):
Claimant's attorney: JAMES M. HARTMANN, ESQ.
BY: Joseph F. Romani, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 16, 2007
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


This Court previously found defendant State of New York (defendant) 70% liable for claimant's injuries, which he incurred when he slipped and fell off a ledge onto a concrete ramp at the Homer Folks Facility in the City of Oneonta, Delaware County (Homer Folks), which is owned by defendant (Koepke v State of New York, Ct Cl, Aug. 24, 2005, Lebous, J., Claim No. 107183, [UID #2005-019-017]). By stipulation, the parties agreed that claimant's economic damages totaled $101,474.10, after adjustment for claimant's 30% comparative negligence. Accordingly, this decision pertains to the issue of claimant's damages for pain and suffering only. Claimant was working as a property clerk for Satellite Services, Inc. at Homer Folks on February 6, 2001, the date of his injury. His job duties included distributing clothing from a property room to students at the facility. At the time of his injury, claimant was assisting a student looking for a uniform, and was standing on the room's upper level. He had his back to the edge of the upper level, which was not protected by any sort of railing. When he turned to hand the clothing to the student, he fell onto the concrete ramp leading to the upper level, landing on his right elbow and right shoulder.

Claimant was taken to A.O. Fox Memorial Hospital in Oneonta for an X ray of his elbow, which did not reveal a fracture, although he did sustain a one-centimeter laceration in the elbow area. Claimant was seen initially, and repeatedly thereafter for a period of several months, for treatment for shoulder pain by Dr. Ronald DeThomas. Dr. DeThomas initially prescribed an antibiotic for the elbow laceration, as well as painkillers and cortisone shots for claimant's shoulder for a substantial period of time.

Dr. DeThomas eventually discontinued his practice, and Michael Diaz, D.O., became claimant's attending physician in October 2001. Dr. Diaz's conclusion,(1) after his initial physical examination of claimant and a review of an MRI of claimant's shoulder, was that claimant had post-traumatic impingement(2) with acromioclavicular joint arthritis.(3) Dr. Diaz also thought that claimant had sustained either a SLAP lesion(4) or a tear of the rotator cuff when he fell. He indicated that either of these conditions would cause the snapping and popping noises made when claimant moved his shoulder. Dr. Diaz gave claimant a cortisone shot in the shoulder and sent him to physical therapy in an attempt to relieve his symptoms.

Despite this treatment, claimant continued to have a great deal of pain, and a substantially restricted range of motion. In May 2002, Dr. Diaz's next examination revealed that claimant could not touch the top of his head with his right hand, had abduction to only 90 degrees (the normal range is 180 degrees), decreased internal and external rotation, and forward elevation to only approximately 120 degrees (normal range is again 180 degrees). Claimant also had pain upon palpation in the rotator cuff area. After this exam, Dr. Diaz's additional diagnoses were that claimant had internal derangement of his right shoulder with a possible rotator cuff tear, and adhesive capsulitis.(5)

Claimant and Dr. Diaz discussed the possibility of surgery as a treatment for these conditions. However, Dr. Diaz was concerned that the adhesive capsulitis, particularly when combined with claimant's weight and diabetic condition, would render the surgery at the very least ineffective, and could possibly be detrimental to claimant's situation.(6) Consequently, claimant proceeded with another course of physical therapy.

Dr. Diaz examined claimant again in September 2002, due to claimant's continuing shoulder and elbow pain. In addition to his previous diagnosis of the shoulder, Dr. Diaz diagnosed the elbow pain as olecranon tendonitis(7) with a lateral epicondylitis,(8) again causally related to claimant's fall. Claimant's range of motion had improved by this date due to the physical therapy, although it was still restricted approximately 10 to 15 degrees. Dr. Diaz also concluded at this time that claimant had reached maximum medical improvement without surgery.(9) They discussed the risks and complications that might result from surgery once again, and claimant determined that surgery would not be in his best interest. Dr. Diaz agreed with claimant's decision and closed claimant's file, although he did see claimant twice more subsequent to that time. His examinations on those occasions indicated that claimant's diagnoses and symptoms remained essentially the same.

In his deposition testimony, Dr. Diaz opined that claimant's elbow and shoulder injuries were causally related to his fall, and would be permanent. He stated that claimant would have limitations in his daily activities, which would consist of diminished function, loss of strength and increased pain. He said that claimant would be restricted in activities involving overhead movement, repetitive movement and lifting, and in fact all activities utilizing the shoulder would be impacted to some extent. He also said that the injury could lead to arthritic changes, causing more pain. In his opinion, the condition would not improve, and probably would deteriorate over time.(10)

Defendant introduced the deposition testimony of Edward Sugarman, MD, an orthopedic surgeon, which was taken on January 12, 2007. Dr. Sugarman conducted an independent medical examination of claimant in February 2006. Dr. Sugarman's exam revealed that claimant had a substantially limited range of motion of his shoulder, with 90 degrees of forward flexion (normally 180 degrees) and 85 degrees of abduction (again, normally 180 degrees).(11) Additionally, there was "popping" in the right shoulder, and the right side was weaker than the left. He did not note any limitations in the range of motion on claimant's elbow.

Dr. Sugarman stated that the limitations in motion were compatible with adhesive capsulitis,(12) as well as findings typically associated with rotator cuff tear or impingement syndrome.(13) He also opined that there was no surgery that could increase the motion or improve claimant's condition,(14) and concurred with Dr. Diaz's treatment. Dr. Sugarman estimated claimant's disability to be approximately 50 percent of the usage of the right arm and shoulder,(15) stated that the condition would not improve over time, and affirmed the causal relationship between claimant's fall and these symptoms and disability.(16)

Claimant testified at trial regarding the pain he has suffered as the result of this injury. He confirmed that he is right-handed, which is the side on which the injury occurred. He described the physical therapy sessions, which apparently provided some degree of relief in terms of somewhat increasing his range of motion, but did not help substantially with pain relief. He also said that the cortisone injections did not help at all.

Claimant indicated he had difficulty with daily activities. He cannot lift his right arm past his ear without substantial pain. He cannot lift anything heavier than five pounds without feeling a burning sensation which starts in his elbow and radiates up to his shoulder. He also indicated that the elbow is not as much of a problem at this point, but that for approximately a year after the accident, the cartilage would occasionally pop out of his elbow joint, and he would have to push it back in.

Claimant described the pain as being approximately a 6 on a 1 to 10 scale (with 10 being the highest). He stated that he takes several over-the-counter painkillers two times per day, every day, and that this relieves the pain to about a 4 on the 1 to 10 scale. He said that every day the pain is like a hot poker in his shoulder, then it begins to ache, and then gets sore if he moves it. He indicated that this pain is the result of simple, routine activities, and that if he does something more strenuous the pain is much worse.

Claimant said he used to go bowling every Friday night, which he can no longer do, nor can he participate in his other hobby, fly-fishing. He also said that the pain in his shoulder wakes him up every night when he rolls over, at which point he has to get up and walk around until the pain subsides. He indicated some limitations in driving and in maintaining his personal hygiene routine.

Claimant also described his employment history. He was 56 years old at the time of trial, having joined the Marine Corps after high school. He then worked in a convenience store and at other manual labor jobs. He was a property clerk with the Oneonta Job Corps for approximately one year prior to the accident. He acknowledged on cross-examination that he continued to work in that job until the end of February 2001, when his job was eliminated. He says he cannot perform manual labor at this point because of the pain. Claimant went back to school after he lost his job and obtained an associate's degree in business. However, he has not been able to find a job since then, and has no benefits other than Workers' Compensation.

Claimant also acknowledged that he was never admitted to the hospital for this injury, nor is he currently under a physician's care. He also confirmed that he takes no medication at this time other than over-the-counter painkillers. He has no one assisting him with daily activities.

As claimant's counsel pointed out in his summation, there is no dispute that claimant's fall was the proximate cause of the physical limitations and pain described above. Both parties' experts agreed that maximum medical improvement had been reached, and that surgery would be inadvisable. The injuries to claimant's shoulder are unquestionably both permanent and severe. As requested by the parties, the Court hereby takes judicial notice that claimant's life expectancy at the time of trial was 22.5 years, pursuant to the PJI Life Expectancy Table (1B NY PJI3d, Appendix A, at 1633).

Due to the parties' stipulation regarding the amount of economic damages claimant has suffered, and because no evidence was introduced regarding medical expenses, the only matter upon which the Court must render a determination is claimant's past and future pain and suffering. The Court's analysis of the pain and suffering experienced by another individual is by nature a subjective determination which cannot be precisely quantified; accordingly, courts look

to other damages awards in comparable cases to determine what is reasonable (see Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780 [1998], lv dismissed 92 NY2d 942 [1998]). The Court has conducted an exhaustive review of cases in which the injuries and concomitant damages are comparable.

Claimant's undisputed and credible testimony at trial was that he has clearly suffered chronic pain, discomfort and difficulty sleeping since the accident. He has been unable to perform certain routine daily activities. The evidence further established that claimant will have to live with some chronic pain for the rest of his life, which will likely get worse with time. He will also have permanent limitations of his range of motion. Moreover, the expert witnesses' testimony clearly established that surgery is not a viable option for claimant.

In light of the foregoing, the Court awards claimant $72,000 for past pain and suffering,

and $8,000 per year for future pain and suffering for claimant's life expectancy of 22.5 years, for a total of $252,000. Claimant's damages for past and future pain and suffering, reduced by his 30% proportionate share of liability, amounts to $176,400, plus economic damages in the amount of $101,474.10, for a total award of $277,874.10. Claimant is further entitled to interest thereon from August 24, 2005, the date of the liability decision herein (Love v State of New York, 78 NY2d 540 [1991]) at the rate of 9% per annum (cf. Denio v State of New York, 7 NY3d 159 [2006] [where the defendant requested that the Court apply an interest rate lower than the statutory ceiling of State Finance Law 16]).

All motions upon which the Court previously reserved or which were not previously determined at trial are hereby denied.

Claimant is further entitled to recover the amount of any filing fee that has been paid pursuant to Court of Claims Act 11-a (2).

Let judgment be entered accordingly.

1. Claimant introduced as Exhibit 10 the deposition testimony of Dr. Diaz, taken July 26, 2006, in support of his claim for damages.

2. Post-traumatic impingement was defined by Dr. Diaz as the rotator cuff being pinched beneath the collarbone, due in this case to the physical trauma caused by claimant's fall, and resulting in pain, dysfunction, popping, snapping and weakness (Claimant's Exhibit 10, pp 16-17).

3. Dr. Diaz indicated that acromioclavicular joint arthritis is arthritis at the joint of the shoulder and collarbone (id. at p 18). Dr. Diaz stated that the arthritis was a condition preexisting claimant's fall, but that claimant's fall exacerbated the condition (id. at pp 18, 48-49).

4. A SLAP lesion is a tear of the cartilage surrounding the shoulder, which holds the ball of the shoulder into the socket (id. at pp 18-19).

5. Adhesive capsulitis is also known as "frozen shoulder." Dr. Diaz testified that this was also likely causally related to claimant's fall (id. at pp 22-23).

6. Dr. Diaz stated later in his deposition testimony that he would not recommend surgery for a person of normal weight and without diabetes, where the person had a "frozen shoulder" (id. at p 59).

7. "[O]lecranon tendonitis is pain at the tip of the elbow where tendons insert," according to Dr. Diaz (id. at p 29).

8. "[L]ateral epicondylitis is a tendonitis more consistent with tennis elbow" (id.).

9. Id. at p 30.

10. Id. at pp 35-44.

11. Defendant's Exhibit I, p 16.

12. Id. at p 19.

13. Id. at pp 18-19.

14. Id. at p 20.

15. Id.

16. Id. at p 23.

May 16, 2007

Binghamton, New York


Judge of the Court of Claims