New York State Court of Claims

New York State Court of Claims

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.

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:
BY: Michael G. Bersani, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
August 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


In a Decision and Order dated March 30, 2004[1], 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, 2001.[2] A trial limited to the issue of claimant’s damages was held on March 3, 2008, and this decision addresses that issue.

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 physician.[3] 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 retired.[4]

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 abduction.

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 claimant.

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 2001.
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 and shoulder.

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.


August 28, 2008
Syracuse, New York

Judge of the Court of Claims

[1]. 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
[2]. 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).
[3]. 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 [2/22/08 testimony]).
[4]. 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).