BOUNDS v. THE STATE OF NEW YORK, #2008-009-189, Claim No. 106890
In this damages decision, claimant was awarded the sum of $208,561.28 for past
medical expenses, and past and future pain and suffering.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
MICHAELS & SMOLAK, P.C.
BY: Michael G. Bersani, Esq.,Of Counsel.
HON. ANDREW M. CUOMO
Patricia M. Bordonaro, Esq.,
August 28, 2008
See also (multicaptioned
In a Decision and Order dated March 30, 2004
this Court granted summary judgment on the issue of liability in favor of the
claimant, and found the State 100% liable for injuries suffered by claimant when
he fell while working on scaffolding at Cayuga Lake State Park on February 6,
A trial limited to the issue of
claimant’s damages was held on March 3, 2008, and this decision addresses
Claimant testified that on February 6, 2001, while working at Cayuga Lake State
Park as a participant in the Seneca County Work Relief Program, he slipped and
fell between two planks of a scaffold, causing an injury to his right shoulder.
Claimant testified that he suffered such immediate pain that he almost passed
out while waiting for assistance. Claimant testified that he was then taken to
the emergency room at Geneva General Hospital, where he was examined, x-rays
were taken, given Vicodin for pain and released.
His pain, however, persisted, and claimant testified that approximately one
week later he saw Dr. Charles Jordan, who prescribed both Vicodin and Ketprofen.
Claimant testified that he was still in substantial pain and that he could
hardly use his arm at all.
Claimant testified that his pain persisted, and approximately two weeks later
he again saw Dr. Jordan who continued the medication and also ordered six weeks
of physical therapy. Claimant testified that during this time, he was in
constant pain, both day and night, which made it extremely difficult for him to
sleep. He was unable to work because he could not use his arm.
By the summer of 2001 claimant stated that he was released for light-work duty
( no lifting over 20 pounds) but that this restriction made it impossible for
him to find any work. Eventually, during the fall of 2001, he was able to find
full-time work as a custodian. During this time claimant testified that he
still was under the medical care of Dr. Jordan, that he was still undergoing
physical therapy, and that he continued to take medication for his pain.
Claimant also testified that since the beginning of 2004, he has not been
regularly treated by any physician for the injury to his shoulder, but that
nevertheless he continues to feel aches and pain in his shoulder and arm, off
and on, depending upon his activities. He testified that he still has trouble
sleeping because of his pain, and that he takes over-the-counter medication
(Tylenol PM) for his pain. Claimant is now employed in the warehouse at the
Salvation Army in Seneca Falls, and he testified that he experiences pain in his
shoulder on a daily basis while performing his duties, especially any heavy
lifting or other tasks involving the use of his shoulder.
Claimant also testified as to how this injury had altered his daily life and
activities. Prior to the accident, claimant testified, he played guitar and
drums in a band, but that he had to give this up due to the pain in his
shoulder, and that he still is unable to play his musical instruments. He also
testified that he used to work on classic cars prior to the accident, but is
unable to do this type of work anymore as well. Additionally, he testified that
any typical housework, such as mopping and vacuuming, aggravates his shoulder.
Claimant acknowledged that while he was being treated, Dr. Jordan presented
three different possible courses of treatment for his injury, i.e., surgery,
cortisone injections, or physical therapy. After discussing these three options
with Dr. Jordan, claimant pursued the most conservative treatment of physical
therapy for his injury, and opted not to have either surgery or cortisone
injections, after considering the risks involved with each procedure.
Robert Bounds, claimant’s brother, and Brenda Wheeler, claimant’s
supervisor at the Salvation Army, both testified at trial. The testimony of
these two witnesses essentially corroborated claimant’s testimony as to
the effects and limitations that his injury caused in both his personal
activities and his work duties.
Testimony was also taken from Charles Jordan, M.D., claimant’s treating
Dr. Jordan testified that he
first treated claimant for his shoulder injury on February 15, 2001, and
continued to treat him through September, 2003, when he
On February 15, 2001, and as indicated previously, Dr. Jordan prescribed
Vicodin and Ketprofen for the pain and inflamation in claimant’s shoulder,
and recommended home exercises to strengthen the shoulder. His examination on
that date showed diffuse tenderness in the shoulder with limited flexion and
Dr. Jordan examined claimant approximately two weeks later on March 1, 2001, as
claimant was complaining of constant pain from this shoulder down to his wrist.
At this time, Dr. Jordan ordered six weeks of physical therapy to strengthen the
shoulder, and continued claimant on medication. In addition to physical
therapy, Dr. Jordan testified that the physical therapist had recommended home
exercises as well with the intent of strengthening claimant’s arm and
shoulder. As a result of the physical therapy, at his next appointment with
claimant on May 1, 2002, Dr. Jordan noted that claimant’s mobility with
his shoulder had increased, and that claimant was showing improvement in both
strength and range of motion. Claimant indicated to Dr. Jordan that he was
still experiencing pain, especially at night when he had difficulty sleeping,
although the level of pain had subsided somewhat.
On July 24, 2001, approximately six months after the accident, Dr. Jordan
approved claimant for light-work duty (restricting any lifting to less than 20
pounds), but noted that claimant still had diffuse tenderness in the shoulder
area with some lack of mobility, and that claimant continued to experience pain,
especially at night. In March, 2002, Dr. Jordan examined claimant once again
and prescribed more physical therapy. Dr. Jordan continued to treat claimant
through the balance of 2002, and into 2003 until he retired in September, 2003.
Dr. Jordan testified that although claimant did not suffer a tear to his
rotator cuff, he did diagnose claimant with right-shoulder tendonopathy, or
inflamation of the tendon, and impingement syndrome, which he described as pain
at the mid-range of motion when the arm is raised. During the course of his
treatment, claimant’s condition improved over time, and he regained full
range of motion. However, when claimant overused his arm and shoulder (such as
for activities involving lifting and/or reaching) his pain and symptoms
increased, and claimant would then require pain medication to reduce or
eliminate this pain. When Dr. Jordan stopped treating claimant in September,
2003, claimant was still on prescription medication.
Dr. Jordan examined claimant again on January 18, 2008, prior to this damages
trial. Based on this examination and his prior treatment of claimant, it was
Dr. Jordan’s opinion that claimant has a mild partial, but permanent,
disability with his shoulder, and that he will continue to have difficulties
with any activities which require him to reach over his head, or with any
extensive activities requiring the use of his shoulder. Dr. Jordan noted that
claimant still complained of aches and pains in his shoulder area, and that
claimant still experienced pain when he reached above shoulder height and/or
with repetitive heavy lifting. Claimant also indicated to Dr. Jordan that he
still had difficulties sleeping. Based on these complaints, and his
examination, Dr. Jordan concluded that claimant still experienced both
tendonopathy and impingement syndrome, and that these conditions, since they
were still present seven years after his accident, were permanent in nature.
According to medical records received into evidence (see Exhibit 6), following
Dr. Jordan’s retirement, claimant underwent further medical treatment for
a period of time with Dr. Wong, who continued to prescribe pain medication for
John J. Cambareri, M.D., conducted an independent medical examination on August
3, 2004, and testified at trial as defendant’s medical expert. Dr.
Cambareri’s testimony was based upon this examination of claimant, as well
as his review of Dr. Jordan’s medical records.
Although he agreed with Dr. Jordan that claimant had suffered tendinitis to his
shoulder as a result of his accident, Dr. Cambareri opined that this tendinitis
was resolved by the end of 2001, and he found no indications of any permanency
of this condition. Dr. Cambareri described tendinitis as essentially an
inflamation of the rotator cuff. He stated that tendinitis is not a permanent
condition, since it tends to flare-up at different times.
At the time of his examination, Dr. Cambareri testified that claimant had
regained full internal and external rotation of his arm and shoulder, although
claimant only had a 145-degree forward elevation in his right shoulder, somewhat
less than his left shoulder which had 165 degrees of elevation.
Dr. Cambareri also testified that physical therapy is generally very effective
in treating tendinitis such as claimant’s, and that the physical therapy
in this particular matter appeared to be successful in increasing both the
strength and range of motion to claimant’s injured shoulder.
Dr. Cambareri further testified that claimant’s subsequent complaints
about tendinitis in his shoulder area could have occurred independently, and are
not related to the injuries suffered in this accident of 2001. In his opinion,
the complaints made by claimant were quite minor, and claimant had essentially
achieved full recovery from any injury suffered in this accident by the end of
Based on the medical testimony presented, the Court finds that claimant
suffered an injury to his right shoulder in his fall on February 6, 2001,
resulting in tendonopathy, or tendinitis, in his right shoulder, as well as
impingement syndrome. The injury to his right shoulder was treated
conservatively, including medications to relieve both pain and inflammation, and
also including physical therapy to strengthen the shoulder.
The Court further finds that claimant suffered considerable pain at the outset,
but that his level of pain and discomfort improved steadily over a period of
several months while being treated by Dr. Jordan.
Claimant was unable to work for several months following this accident, and
even though he was released for light work duty in July, 2001, the Court finds
that claimant was still experiencing some degree of pain and discomfort,
especially when engaged in activities requiring extensive use of his right arm
Despite Dr. Cambareri’s testimony that claimant’s injury had fully
resolved by the end of 2001, it is evident to this Court that claimant continued
to receive treatment, pain medications, and physical therapy well beyond 2001.
Claimant resumed physical therapy in 2002, and continued to treat with Dr.
Jordan up to the point when Dr. Jordan retired, in 2003. Furthermore, medical
records of Dr. Wong establish that claimant continued to receive medical
treatment subsequent to Dr. Jordan’s retirement for his condition.
Based on Dr. Jordan’s examination of 2008, and his testimony relating
thereto, the Court also finds that claimant has continued to experience some
pain and discomfort in his right shoulder up to the date of trial. Even though
Dr. Cambareri does not necessarily relate these complaints to the injuries
suffered in 2001, the Court accepts Dr. Jordan’s testimony that the
tendinitis and impingement syndrome are causally related to the shoulder injury
suffered by claimant in the 2001 accident.
Accordingly, the Court finds that claimant has endured both pain and discomfort
to his right shoulder from the date of his injury on February 6, 2001 to the
date of the damages trial, a period in excess of seven years. The Court
acknowledges that over that period of time, the pain and discomfort levels have
substantially decreased, and that the level of pain varies based upon
claimant’s use, or overuse, of his right shoulder. Based on these
findings, the Court determines that claimant has suffered damages in the amount
of $80,000.00 for past pain and suffering.
As discussed above, the medical experts provided sharply contrasting opinions
with regard to the question of whether claimant’s injury was permanent in
nature. Defendant’s medical expert, Dr. Cambareri, did not find any
permanency, testifying that claimant had achieved a full recovery from his
injury within the year following the accident. Dr. Cambareri found that any
aches or pain from claimant’s shoulder tendinitis beyond this time were
both sporadic and minor in nature. Additionally, Dr. Cambareri opined that it
was possible that claimant’s subsequent complaints of shoulder tendinitis
might not necessarily be related to the injury suffered by him in 2001.
The Court, however, after considering both this testimony of Dr. Cambareri and
the testimony of Dr. Jordan, and after hearing the testimony presented by
claimant, finds that claimant has suffered a mild, partial, and permanent
disability as a result of the accident. Claimant has demonstrated to the
satisfaction of this Court that he continues to suffer aches and pains in his
shoulder area, consistent with Dr. Jordan’s diagnosis of tendonopathy and
impingement syndrome. The aches and pains become worse when claimant is
involved in any heavy lifting or activities requiring him to reach above
shoulder height. Although it does not appear that claimant is receiving active
medical treatment for his complaints, this fact does not necessarily establish
that claimant’s injury is fully resolved. Dr. Jordan examined claimant
once again in January, 2008, and found that claimant still has less than normal
range of motion, still complains of aches and pains in his shoulder, and still
tests positive for impingement syndrome.
Although this condition is relatively minor in nature, claimant has established
to the satisfaction of this Court that it nevertheless has restricted and
limited his daily activities and lifestyle.
At the time of trial, claimant’s life expectancy was 37.1 years (see
Exhibit 15). Based on the permanency of claimant’s condition, and the
Court’s finding of a mild, partial disability, the Court hereby determines
that $125,000 is an appropriate award for future pain and suffering.
No evidence was presented with regard to any lost wages, and therefore no award
is made herein.
Claimant, however, submitted documentary evidence that a lien for medical
payments made by the State Insurance Fund had been asserted in the amount of
$3,561.28 (see Exhibit 16), and hereby requests an award in such amount.
Defendant, however, relying upon the same documentary evidence (Exhibit 16),
contends that the proper amount of the lien asserted by the State Insurance Fund
is actually $2,374.19, or two-thirds of the total amount of medical benefits
paid by the Fund.
The Court has reviewed Exhibit 16, consisting of correspondence from the State
Insurance Fund to claimant’s attorney dated December 20, 2004, as well as
subsequent correspondence from the Fund addressed to defendant’s attorney,
dated February 1, 2008. The correspondence of February 1, 2008 clearly
establishes, in this Court’s opinion, that the total amount of the medical
benefits lien is $3,561.28. Although this letter indicates that the Fund will
accept two-thirds of that amount, or $2,374.19, it is clearly stated therein
that the remaining one-third of the lien is payable back to the claimant to
defer claimant’s expenses in obtaining recovery of the full amount. The
Court finds the fact that the Fund is accepting two-thirds of the total paid is
merely a “bookkeeping decision”, since claimant, pursuant to
Workers’ Compensation Law § 29(1), would be entitled to reimbursement
of one-third of any recovery, attributable to his costs and expenses, if the
total amount of the lien was paid to the Fund.
Despite defendant’s contention that an award of the full amount would
result in a windfall to claimant, this Court finds that any award less than the
full amount would result in a financial loss to claimant (or claimant’s
attorney). Simply stated, the one-third of the amount of the lien in dispute
herein is considered by the Fund as the fees and expenses required to generate
recovery of the net two-thirds amount paid to the Fund. Accordingly, claimant
is hereby awarded $3,561.28, the full and actual amount of the lien asserted by
the State Insurance Fund, for past medical expenses.
Based on the foregoing, the Court hereby awards claimant the sum of
$208,561.28, and the Clerk of the Court is hereby directed to enter judgment in
this amount in favor of claimant James Bounds.
The amount awarded herein shall carry interest at the rate of 9% per year from
March 30, 2004, the date of this Court’s initial decision as to liability
(see Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love
v State of New York, 78 NY2d 540).
Any filing fee paid by claimant may be recovered pursuant to § 11-a(2) of
the Court of Claims Act.
LET JUDGMENT BE ENTERED ACCORDINGLY.
August 28, 2008
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. Bounds v State of New York
, Ct Cl,
March 30, 2004, Midey, J., Claim No. 106890, Motion Nos. M-67413 and CM-67661,
[UID #2004-009-18]). Unpublished decisions and selected orders of the Court of
Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.
. By a Memorandum and Order dated December
22, 2005, the Appellate Division, Fourth Department modified the judgment which
had been entered pursuant to the Decision and Order, and remanded this matter
for a determination as to whether claimant was a special employee of the
defendant at the time of this accident (24 AD3d 1212). Following a trial
limited to the sole issue of claimant’s special-employee status, this
Court, in a decision dated March 6, 2007, determined that claimant was not a
special employee of the defendant (UID #2007-009-170).
. Testimony was taken from Dr. Jordan on
December 20, 2004, and again on March 3, 2008. Transcripts of this testimony
were received into evidence (see Exhibit 12 [12/20/04 testimony] and Exhibit 13
. Following Dr. Jordan’s retirement,
medical records received into evidence establish that claimant continued to
treat with Dr. Wong through the spring of 2004 (see Exhibit 6, medical records
of Dr. Wong).