CAMADINE v. THE STATE OF NEW YORK, #2008-015-500, Claim No. 110585
Following trial on damages, claimant alleging a traumatic brain injury was
awarded damages totaling $269,299.63. Claimant on the derivative claim was
RONALD CAMADINE and ANTOINETTE CAMADINE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Goldblatt & Associates, P.C.By: Kenneth B. Goldblatt, Esquire
Honorable Andrew M. Cuomo, Attorney General
EsquireAssistant Attorney General
February 14, 2008
See also (multicaptioned
This case proceeded to trial on the issue of damages on September 24, 2007, the
Court having previously granted the claimants' motion for partial summary
judgment on the issue of liability by Decision and Order dated September 27,
The claim arises out of personal injuries allegedly sustained by the claimant
Ronald Camadine (claimant) when, during the course of his employment as a
courier, he was struck on the head by one or more boxes which fell from the top
of a stairwell to the floor below. The claimant, Antoinette Camadine, asserts a
derivative claim for loss of consortium.
Ronald Camadine testified that he joined the United States Navy following
completion of his Junior year in high school serving on active duty in Vietnam
from 1968 to 1971. After leaving the military he obtained his high school
equivalency diploma and secured employment at American Steel Corporation where
he was a foreman in charge of a crew of 23 workers. He later left American
Steel and worked at Albany Steel Corporation as a foreman. During this time he
also worked during his off hours at a flower shop owned by his daughter. Mr.
Camadine testified that he left Albany Steel Corporation and went to work as a
bus cleaner for the Capital District Transportation Authority. He thereafter
became employed by Consolidated Delivery and Logistics (CD& L), the courier
company by which he was employed at the time of the incident at issue
Mr. Camadine testified that he has been married for approximately 30 years. At
the time of his marriage his wife had three children and the couple later had a
child of their own. The family resided in Colonie, New York, in what the
witness described as a raised ranch with a large lot and an in-ground pool.
They resided there for approximately twenty years and Mr. Camadine was involved
in the maintenance of the home, including landscaping, lawn mowing, and
maintaining the pool. In addition, Mr. and Mrs. Camadine together remodeled the
home's kitchen and constructed a two-story, 16-foot by 24-foot addition. The
couple also enjoyed cross-country skiing, biking and fishing, activities which
Mr. Camadine testified he participated in without restriction.
Mr. Camadine testified that during the time he was employed by CD& L he
routinely made deliveries to the Department of Motor Vehicles (DMV). He was
making such a delivery on November 3, 2004 when he was struck on the head by
boxes dropped from above. According to Mr. Camadine "I was going down a flight
of stairs, and as I got down to the bottom I was struck in the head with some
boxes" (Tr., p. 50)
. He was not at first
aware of what struck him but looked down and observed that there were "boxes all
around me" (Tr., p. 50). He testified that Exhibit 20 is a photograph taken by
the witness four to five days following the incident which depicts a Dell
Computer box of the same type, size and dimensions as the box or boxes which
struck him on November 3, 2004. He described the impact of the box striking his
head as feeling like "I got hit with a weight" (Tr., p. 60). The witness
testified that following the incident he "felt fuzzy . . . like someone hit me
in the head with a spike" (Tr., p. 61). He felt pain on the top of his head
which ran down his neck. Following the incident, the witness went to his
delivery van where he sat and tried to collect himself. After several minutes
Mr. Camadine left the DMV building and completed a delivery to a Rite Aid Store
on South Pearl Street in Albany, New York. He returned to his van and was en
route to his next delivery when the headache he was experiencing began to
worsen. He called his supervisor to explain what had happened and that he did
not believe he would be able to complete his scheduled deliveries for that
From there Mr. Camadine drove to Newton Medical, P.C., his family medical
provider. There he explained that he had been struck on the head by some boxes
and that he was not feeling well. He testified that he was at the time feeling
disoriented, fuzzy and was experiencing "a lot of head pain" (Tr., p. 64). Mr.
Camadine was examined by a doctor and transported to St. Peter's Hospital by
At St. Peter's Hospital Mr. Camadine received a CT scan and X-rays of his neck.
He stated that he was hallucinating at the time and that he was "seeing people
in the clouds in the mural in the examination room where they were doing the
X-rays" (Tr., p. 66). Claimant's wife was notified that her husband was at
the hospital by one of claimant's treating nurses. Mr. Camadine explained that,
at the time, he could not determine how to operate his cell phone. He had owned
the cell phone for approximately one year and had never previously had
difficulty in using the device. He was released from St. Peter's after
approximately four to six hours and was driven home by his wife. At his home
the claimant felt nauseous, his head was spinning and he requested that his wife
close the blinds because he had difficulty tolerating bright light. The
following day the claimant testified that he did little other than lie on the
couch with ice on his head. He had difficulty reading and experienced what he
described as vertigo spells.
In the month following the November 3, 2004 incident the claimant testified
that he experienced dizziness, neck pain, headaches and difficulty tolerating
bright light. He was referred by his physician at Newton Medical, P.C. to Dr.
Holub, a neurologist, who examined the claimant approximately one month
following the incident. Claimant did not return for subsequent visits, stating
that he was experiencing nightmares and vivid dreams as a result of medication
prescribed by Dr. Holub. He thereafter was seen by Dr. Midani, also by referral
from Newton Medical, P.C. Dr. Midani prescribed medication for the claimant.
Although Mr. Camadine returned for subsequent visits to Dr. Midani he
discontinued treatment "[b]ecause he just wanted to push the drugs and I don't
like drugs" (Tr., p. 73).
Following treatment by Dr. Midani, Newton Medical, P.C. referred the claimant
to Dr. McGuire, an orthopaedist, for complaints regarding neck pain and
difficulty holding his head up. Claimant continued to treat with Dr. McGuire
for approximately one year and was referred by the doctor to Everett Road
Physical Therapy. The claimant testified that prior to the incident of November
3, 2004 he had never received either treatment or physical therapy for
complaints related to his neck. During the aforementioned period the claimant
did not return to work.
Following the claimants' move from Colonie to Malta, New York, Mr. Camadine
began treating with Dr. Mark Price. Dr. Price referred the claimant to Dr.
Herzog, an orthopaedist in Saratoga Springs, New York. Dr. Herzog referred the
claimant for a MRI of his neck, which had not been performed as of the time of
trial. In addition, Mr. Camadine treated with Dr. Jorgensen, a rehabilitative
medicine practitioner, Dr. Ferillo, a pain management physician and Dr.
Phillips, a neurologist. Dr. Phillips referred the claimant to Dr. Mina Dunnam,
Ph.D., who performed a neuropsychological assessment of his condition on
November 18, 2006. Finally, claimant was seen by Dr. McMahon who obtained
approval from Workers' Compensation for acupuncture performed by Mr. Doug
LeVerne. Mr. Camadine testified that acupuncture provided only temporary relief
of his headaches and neck pain.
Mr. Camadine testified that he experiences headaches upon waking in the
morning. He also testified that his neck pops and cracks and sometimes locks up
resulting in pain. He attends a health club where he performs range-of-motion
exercises learned at physical therapy. Mr. Camadine has not returned to work
since the date of the incident. He stated that pain and difficulty problem
solving have prevented him from work. The witness testified that as a result of
his injuries he and his wife were forced to sell their home in Colonie because
they couldn't maintain the residence or afford the required monthly payments.
Although Mr. Camadine has received Workers' Compensation benefits, he did not
begin receiving those benefits until forty-four weeks following the incident.
During that time period the only household income was derived from Mrs.
Camadine's salary. Mr. and Mrs. Camadine experienced difficulty paying their
monthly bills, which they ultimately satisfied using credit cards. As a result
of the economic hardships attendant to the loss of Mr. Camadine's income they
were forced to sell their house. They paid their debts with the proceeds of the
sale and moved to a mobile home in Malta, New York. When asked to compare their
home in Colonie to their new Malta residence Mr. Camadine stated:
"There's no comparison. We had a beautiful home, a built-in pool, nice yard,
landscaped. We were proud of it. We did most of the work ourselves. It was
our gathering place, our family and friends" (Tr., p. 89).
The witness testified that he and his wife rarely have friends and family to
their home in Malta because they are embarrassed to be living in a
In addition to the financial difficulties encountered, Mr. Camadine testified
that his inability to maintain their Colonie residence also influenced their
decision to sell the home. He testified that he was unable to perform the tasks
involved in maintaining the home because "[i]t was just causing too much pain"
(Tr., p. 93). He has also experienced emotional problems and has met with Dr.
Lee Nagel, a clinical psychologist, for approximately four months. Mr. Camadine
testified that he has difficulty controlling his emotions and solving everyday
problems. He feels emasculated in that he is not contributing to the welfare of
his family. Prior to the November 3, 2004 incident the witness and his wife
planned to sell their home in Colonie and purchase a smaller home in the Capital
Region area as well as a home in a southern state where they could spend their
On cross-examination the witness testified that he was employed by CD&L as
an independent contractor and owned the van he used to make deliveries on behalf
of the company. He testified that he had been involved in an automobile
accident in March, 2004 and had suffered an injury to his lower spine as a
result of a motorcycle accident while in the military. Mr. Camadine stated that
he suffered recurrent temporary pain as a result of his spinal injuries. He was
also involved in an incident in 2004 in which totes used to carry drugs for
delivery fell on his back.
With regard to the incident at issue herein the witness testified that he was
struck on the head and boxes dispersed around him on the floor. He was not able
to state whether he was struck by one or more boxes and he did not open the
boxes in order to determine their contents. Prior to the incident Mr. Camadine
worked out on a home gym for approximately 1½ hours per day, five days per
week. He attempted to continue his weight-bearing exercise routine subsequent
to the accident but experienced severe pain when his neck "locked up." He no
longer exercises with weights. Instead, he uses an Arc Trainer for
cardiovascular training and performs exercises learned in physical therapy. Mr.
Camadine estimated that the box or boxes which struck him on the head measured
approximately 18 inches by 20 inches by 8 inches.
On redirect examination Mr. Camadine confirmed his previous testimony on direct
examination that he currently drives his own car but that he operates his
vehicle only 20 miles per week traveling from the health club to his home or out
to dinner at a restaurant. He also confirmed his direct testimony that he
sustained an injury to his lower back during his military service, but stated
that he never sustained an injury to his neck prior to November 3, 2004.
Antoinette Camadine, the claimant's wife, was called to the stand. She
testified that she currently resides in Malta, New York, with her husband, the
claimant Ronald Camadine. Mrs. Camadine, who was born on July 25, 1950, first
met her husband when they were approximately 12 years old. She has been married
to Mr. Camadine for approximately 30 years and is currently employed by the New
York State Department of Transportation as a Clerk II.
At the time of their marriage, Mrs. Camadine had three children from a prior
marriage. These children and an additional child born following the marriage
resided with Mr. and Mrs. Camadine at their Colonie residence. The witness
testified that Ronald Camadine raised the children with her and provided them
financial support. She stated that Mr. Camadine has been employed on a
consistent basis throughout their marriage.
Mrs. Camadine testified that she and her husband shared the work involved in
maintaining their Colonie home. In addition, the couple built an addition to
the home and remodeled the kitchen, performing the work themselves. She stated
that there were no physical limitations upon Mr. Camadine's ability to perform
the work required in maintaining the Colonie residence.
The witness testified that she first learned of her husband's accident when he
called her from his truck shortly after the incident explaining what had
occurred. She was later contacted by a nurse from the St. Peter's Hospital
Emergency Room. Mrs. Camadine left work immediately and drove to St. Peter's.
When she arrived at the emergency room she entered her husband's room and
observed him lying on a backboard and stating that his head hurt. She described
her husband as "kind of out of it" (Tr., p. 128), recalling that he was groggy
and that he claimed to be seeing things. Upon leaving St. Peter's Hospital,
Mrs. Camadine drove her husband home where he immediately laid down and fell
asleep. She further recalled that he complained of head and neck pain in the
days following the November 3, 2004 incident.
Mrs. Camadine related that following her husband's incident, Workers'
Compensation benefits were not paid for approximately 10 months. During this
period she utilized deferred compensation money, which the couple was saving for
retirement, borrowed on her retirement and used credit cards to pay the
family's bills. Ultimately the couple sold their home in Colonie, paid off
their bills and purchased a trailer in Malta, New York. She related that she
feels embarrassed to be residing in a trailer park and that she did not want to
sell her house but was forced to do so as a result of economic circumstances.
Although she and her husband shared responsibility for maintaining the home in
Colonie, she now performs the majority of those chores. She explained that her
relationship with her husband has been affected by the incident primarily
because of his forgetfulness, which causes her to feel both frustration and
aggravation. By way of example she explained that she has in the past
requested Mr. Camadine to purchase milk on his way home, but when she arrives,
there is no milk in the house.
The witness testified that although they often entertained friends and family
at their home in Colonie the couple rarely invites guests to their current home
in Malta because she is embarrassed to be living in a trailer park. She
explained that the family had lived in a trailer park prior to purchasing their
Colonie home and that she now feels they are "back to square one" (Tr., p.139),
residing in a trailer in Malta. As to their retirement plans, Mrs. Camadine
stated that the couple planned to sell their Colonie home and purchase a small
home locally and a second residence in Florida. However, the couple does not
now have the money to realize their retirement plans. In describing their
current financial situation Mrs. Camadine stated that they "just about make ends
meet" (Tr. p. 141).
The witness was not subjected to cross-examination.
The claimants rested their case after certain portions of the examination
before trial of Elizabeth Gerighty were read into the record.
The sole witness presented by the defendant was Dr. Neil Lava, a Professor of
Neurology at the Albany Medical College in Albany, New York. Dr. Lava testified
that he has been certified in the practice of neurology since 1979 and is
currently a fellow of the American Academy of Neurology and the American
Association of Electro-Diagnostic Medicine. In preparing to testify, Dr. Lava
reviewed the examinations before trial of Mr. and Mrs. Camadine, the transcripts
of the testimony of Dr. Phillips, Dr. Dunnam and Dr. McMahon as well as the
claimant's medical records. He testified that the medical documents from St.
Peter's Hospital and Newton Medical, P.C. for November 3, 2004 do not mention
"any soft tissue injury or any lacerations or damage to the skull or neck"
(Tr., p. 152). According to the witness:
"The lack of any laceration or bruising or swelling speaks to the strength of
the blow to the head for if you have a more aggressive blow to the head, you're
likely to see tissue damage of some sort or more significant damage" (Tr., p.
Dr. Lava testified that a review of the claimant's medical records subsequent
to November 3, 2004 reveals the absence of objectively verifiable injuries and
that his various tests and examinations are consistently found to be "normal."
On cross-examination Dr. Lava estimated that four to five percent of his
practice involves individuals with traumatic brain injury. He agreed that a
concussion is a form of mild traumatic injury. He estimated that he sees
patients suffering from mild traumatic brain injury once or twice a week. Dr.
Lava has not published any peer- reviewed articles on traumatic brain injury nor
has he been involved in research concerning such injuries. Further, he
testified that he is not considered an expert in the field of traumatic brain
injury within the local medical community.
The witness testified that neither the American Academy of Neurology nor the
American Congress of Rehabilitative Medicine include "a gash or a swelling to
their head" among the criteria used in diagnosing a mild traumatic brain injury
(Tr., p. 167). In fact, he agreed that mild traumatic brain injury may be
suffered without any evident trauma to an individual's head or scalp and he
agreed that most mild traumatic brain injury results from a rapid acceleration
or deceleration of the brain involving no overt trauma of any type. He also
agreed that symptoms typically found in individuals who have sustained a
concussion include disorientation, memory impairment, problems focusing or
concentrating and sensitivity to light. The witness confirmed that Mr. Camadine
was diagnosed as having sustained a concussion by both St. Peter's Hospital and
Newton Medical, P.C.
There was no redirect examination of the witness.
The trial testimony of Mina Dunnam, Ph.D., was taken on behalf of the claimant
on September 4, 2007 (Exhibit 1). Dr. Dunnam, a clinical psychologist and
neuropsychologist, possesses a Ph.D. in clinical psychology and has performed a
post-doctural fellowship in clinical neuropsychology. In 1999 she formed
Adirondack Neuropsychological Associates and a member of the hospital staff at
Stratton VA Medical Center in Albany, New York. She is also a consulting staff
member at several area hospitals. Dr. Dunnam described the field of
neuropsychology as the study of the brain and behavioral relationships. She
testified that neuropsychologists assess patients who suffer some kind of insult
to the brain, whether by disease or trauma, and assess the resultant effects on
memory, attention and concentration, visual and spacial functions, speech, etc.
(Exhibit 1, p. 4).
Dr. Dunnam testified that the claimant was referred to her by Dr. Chris
Phillips, his treating neurologist. She first saw the claimant on November 18,
2006. At that meeting claimant related that he sustained a work-related injury
on November 3, 2004 in which boxes fell on his head. Immediately after the
accident the claimant suffered a headache and blurred vision but no loss of
consciousness. Claimant relayed that in the two years that followed he suffered
headaches and experienced visual problems, tinnitus, disturbance in balance,
depressed mood and memory problems. Dr. Dunnam testified that the symptoms
related by the claimant were consistent with a head injury. To her knowledge,
the claimant was never identified as having learning difficulties or behavioral
health problems and had a good employment history.
According to the witness neuropsychological testing is performed to determine
"ways in which a patient's brain may have been damaged or changed and also seeks
to assess functional impairments" (Exhibit 1, p. 11). The testing is a
standardized assessment in which objective data are gathered over a period of
three to four hours. The results of such tests administered to the claimant by
Dr. Dunnam indicated that he had "variability in divided attentional tasks,
problems in self-regulation or self monitoring" (Exhibit 1, p. 20). She
described "divided attention" as the ability to do two or more things at once.
She testified that this is a "problem that all of us begin to have more trouble
with as we age, but this gentleman had even greater problems with it than he
would have based on age alone" (Exhibit 1, p. 21). She testified that the
claimant's problems with self-regulation and self-monitoring involve "being able
to sort of monitor his own performance on something, to regulate himself"
(Exhibit 1, p 21-22). For example, if the claimant was requested to give a
list of items he would repeat himself without realizing it. She testified that
in the category of visual tracking, which she described as "visually tracking
something, processing information", the claimant scored in the mildly to
moderately impaired range relative to others in his same age group (Exhibit 1,
p.22). She testified that the claimant had difficulty keeping track of things,
which is not a problem with memory in terms of his ability to learn and retain
information, but is what many people experience as forgetfulness. She
testified that a depressive overlay was apparent and complicated all of the
findings and worsened the level of claimant's performance (Exhibit 1, p. 23).
According to Dr. Dunnam, "upwards of 60 percent" of patients who suffer mild
traumatic brain injury experience depression (Exhibit 1, p. 24). Dr. Dunnam
testified that she found the claimant to be very depressed and that the
depression was compromising his overall level of functioning and ability to
perform activities of daily living. When asked what conclusions she reached
upon her examination and testing of the claimant, Dr. Dunnam testified as
follows (Exhibit 1, p. 27-28):
Q. Dr. Dunnam, after doing the assessment and coming to the findings that you
did, did you come to any conclusions with respect to Mr. Camadine?
A. Yes, I did. It was my opinion that he was experiencing an extended mild
Q. What is postconcussion syndrome?
A. Postconcussion syndrome is a complex, a symptom complex. It is in a sense
a mild traumatic brain injury, a symptom complex that involves the aftermath of
a concussion. It has various manifestations in patients, but it is the symptom
complex of various cognitive, emotional, behavioral, psychological features that
are the residual effects of the injury, the insult to the brain.
Q. And what was the competent-producing cause or the event that led to
A. The accident that the patient sustained in November 2004 when he was hit on
The witness testified that her conclusions were independent of those reached by
other doctors. In fact, Dr. Dunnam testified that she received the reports of
claimant's other doctors only after she had prepared her own report. She
testified that she based her conclusion that claimant sustained a concussion on
the fact that "he had a transient change in mental status at the time following
the accident" (Exhibit 1, p.30). She stated that individuals who have
sustained a concussion or traumatic brain injury often do not also suffer a loss
of consciousness (Exhibit 1, p. 30).
It was Dr. Dunnam's recommendation that the claimant obtain psychotherapy or
counseling for depression and that he reduce his caffeine intake. Asked to
assume that the claimant's condition has not changed in the two-year period
since the date of the incident, Dr. Dunnam opined that "many of these problems
will continue" (Exhibit 1, p. 35). She explained that without improvement in
the 11/2 to 2 years following the accident, "his trajectory is not favorable"
(Exhibit 1, p. 36). Her conclusion in this regard was based upon the fact that
the brain is less likely to recover over the age of fifty and according to Dr.
Dunnam "[claimant] didn't have a great deal in the bank to begin with" (Exhibit
1, p. 37). In conclusion, Dr. Dunnam testified that she believed that the
claimant "may not realize substantial improvement" (Exhibit 1, p. 38).
On cross-examination Dr. Dunnam testified that her first contact with the
claimant was two years following the November 3, 2004 accident and that she saw
the claimant for a total of three hours during which time she obtained the
claimant's history and conducted neuropsychological testing. She saw the
claimant on one additional occasion to review her findings and never met with
him again. Dr. Dunnam testified that each test has a standard rate of error and
is administered under standards which permit no deviation from the prescribed
protocol (Exhibit 1, p. 48). She testified that there are "norms" which vary for
each test based on age, level of education and gender (Exhibit 1, pp. 50-52,
70). The test subject is compared to his or her norm group to establish any
deviations or the lack thereof.
Dr. Dunnam testified that depression and prior drug use can magnify symptoms
and are risk factors for a negative outcome. Dr. Dunnam admittedly did not
inquire about the claimant's activities of daily living in reaching her
conclusions. She also testified that there was no evidence of malingering.
On redirect, the witness related that nausea, dizziness, grogginess and an
unsteady gait, all of which she testified are reflected in the claimant's
hospital records, are indicative of an altered level of consciousness subsequent
to a head injury.
The trial testimony of Christopher D. Phillips, M.D., was also taken on
September 4, 2007 pursuant to notice (Exhibit 2). Dr. Phillips is a board
certified neurologist. He graduated from Southern Illinois University in 1995,
performed his internship at Cook County Hospital in Chicago and completed his
residency in neurology at Albert Einstein Hospital in New York City in 2003.
Dr. Phillips testified that the brain, which has the consistency of Jell-O, is
protected from shock by cerebral fluid. He defined a concussion as "a diffuse
bi-hemispheric insult on the brain that causes a transient or an encephalopathy"
(Exhibit 2, p. 11). There are three grades of concussion, the least severe being
a grade one. When the brain is concussed "there is disruption of the
electro-chemical physiology of the brain bi-hemispherically" (Exhibit 2, p. 11).
Typical symptoms of a concussion include confusion, nausea, vertigo, loss of
consciousness and focal neurological deficits. However, neither a loss of
consciousness nor a positive MRI or CT scan are recognized criteria for the
diagnosis of a concussion.
Dr. Phillips testified that he first saw the claimant in May 2006 upon the
referral of Dr. Potluri of Newton Medical, P.C. The reason for the referral was
"status post head injury and neck strain" (Exhibit 2, p. 16). In the history
given by the claimant he explained that heavy boxes fell on his head and that
he has since suffered from blurry vision, neck pain, headaches and memory
difficulties. Claimant also provided his prior medical history which included
angina, hypertension, arthritis, chronic neck and back pain, chronic headaches,
and occasional paresthesia in his fingers and feet. Claimant's then current
complaints were that he experienced difficulty focusing while reading, chronic
headaches, tinnitus, dizziness described as lightheadedness and joint stiffness.
Dr. Phillips performed a mental status examination to detect dementia or
encephalopathy. He also reviewed the MRI of the claimant's cervical spine, and
reached the same conclusion as the
. Dr. Phillips testified that the
claimant had chronic headaches and neck and back pain, all of which were
temporally associated with his accident
testified that his examination of the claimant was normal with the exception of
"some mild remote recall impairments" (Exhibit 2, p. 24). From the history
given by the claimant, Dr. Phillips testified that he appeared to have sustained
a grade one concussion.
The witness testified that postconcussion syndrome is a "phenomena where
symptoms of a concussion will persist after a time in which we would think those
symptoms would resolve" (Exhibit 2, p. 25). The symptoms of postconcussion
syndrome vary among individuals but may, for example, include vertigo or
confusion. Dr. Phillips recommended an EEG, some laboratory work and
neuropsychological testing. He testified that an individual can experience
persistent symptoms from postconcussion syndrome secondary to a mild traumatic
brain injury (Exhibit 2, p. 29) and that symptoms such as dizziness, nausea,
headaches, grogginess and an unsteady gait are all consistent with a concussion.
According to Dr. Phillips, neither loss of consciousness nor positive
neuroimaging were necessary elements in diagnosing a concussion (Exhibit 2, p.
Dr. Phillips next saw the claimant on August 23, 2006 at which time there were
no new complaints although the claimant continued to experience chronic pain.
Claimant's next and last visit prior to trial was on December 19, 2006. The
claimant's constellation of complaints remained consistent with those expressed
at his earlier visits. Dr. Phillips testified that it was his view that the
claimant's symptoms were affected by an element of stress and that the
neuropsychiatrist, who at this point had completed her evaluation of the
claimant, detected some depression. He testified that depression can be related
to a traumatic brain injury. Dr. Phillips testified that in his opinion the
claimant required pain management (for his neck pain) and a psychiatric
evaluation to assess his depression and anxiety as contributing causes of his
problems. Dr. Phillips testified that it was his opinion with a reasonable
degree of medical certainty that the competent producing event of the claimant's
injuries and symptoms was the trauma suffered when boxes fell on his head in
2004 (Exhibit 2, p. 37).
On cross-examination Dr. Phillips agreed that he did not review medical records
which pre-dated November, 2004 in reaching his diagnosis and recommending a
treatment plan for Mr. Camadine.
The trial testimony of Jean McMahon, M.D. was taken on September 21, 2007
(Exhibit 3). Dr. McMahon obtained his Doctor of Medicine degree from Albany
Medical College in 1980. He received his licence to practice medicine in 1982
and is board certified to practice internal medicine. Since October 2004 he has
been the Medical Director of the Occupational & Environmental Health Center
of Eastern New York, a company which evaluates patients with work-related
injuries and illnesses. He first examined the claimant on March 22, 2007 upon a
consultation referral by the New York State Workers' Compensation Board. Dr.
McMahon reviewed the claimant's medical records and took a history from the
claimant. At the time of the examination the claimant complained of daily
headaches, dizziness, difficulty concentrating and memory problems. Examination
revealed some tenderness to the right cervical spine, right trapezius and left
trapezius muscles. Dr. McMahon testified that the claimant had many symptoms of
depression and a history of chronic pain. He stated that Dr. Ferillo had been
treating the claimant for pain and had been injecting the facets of the neck
bilaterally. Dr. McMahon testified that at the time of his initial consultation
the claimant had received two medial branch nerve blocks, one on the right on
October 17, 2006 and one on the left on November 2, 2006. The claimant also
indicated that he was going to the gym, which seemed to help with his physical
pain as well as his feelings of social isolation.
With respect to the claimant's ability to work, Dr. McMahon testified "I don't
really think he's employable" (Exhibit 3, p.16). He explained this
conclusion as follows (see Exhibit 3, pp. 16 - 17):
A. He is in chronic pain. He has cognitive issues due to the concussion.
Depression contributes further to the cognitive issues, and the medications that
he needs to take for the chronic pain contribute even further to the cognitive
issues. I don't think he is safe to be employed.
Q. Do you hold that opinion to a reasonable degree of medical certainty?
Dr. McMahon first saw the claimant 2 ½ years after the accident and
thereafter every 45 days as was required for the claimant to remain qualified to
receive Workers' Compensation benefits. As for the status of the claimant's
treatment, Dr. McMahon testified that the claimant had requested narcotics from
Dr. Herzog and Dr. Price, which they were trying to avoid. The medications
which had been prescribed, Lyrica and Tramadol, caused some cognitive
impairments and the claimant was advised to discontinue the Tramadol as it
should not have been taken in combination with Lyrica. The claimant informed
Dr. McMahon that Dr. Ferillo, the doctor he was seeing for pain management,
scheduled a radio frequency ablation which the claimant cancelled. The claimant
had also discontinued acupuncture treatments as he did not believe it was
helping his symptoms. The claimant related to Dr. McMahon that his therapy
sessions with Dr. Nagel were very helpful. As of August 9, 2007 the claimant
was awaiting authorization for a (second) MRI study of his cervical spine,
electrophysiological studies and the results of certain blood tests. Asked
whether or not he had reason to believe the claimant was malingering, Dr.
McMahon responded, "[n]ot at all" (Exhibit 3, pp. 29-30).
On cross-examination, Dr. McMahon explained that his practice is limited to
occupational medicine with a focus on patients involved in the Workers'
Compensation system. He testified that he reviewed the claimant's medical
records prior to writing his first report and that he was aware the claimant had
been involved in the use of illegal drugs until 1975.
On redirect examination, Dr. McMahon testified that he played no role in
establishing the claimant's eligibility for Workers' Compensation benefits
because at the time of his first visit, claimant's injury had already been
determined to be work related. He also testified that because the claimant
stopped illicit drug use in 1975 and led a productive life since that time "I
don't think that history is pertinent to today's issues" (Exhibit 3, p. 45).
This concluded the trial testimony of the claimant's experts.
Review of the medical records received in evidence indicates that claimant was
initially treated on the date of the accident at Newton Medical, P.C. and St.
Peter's Hospital. He thereafter pursued medical treatment from a multitude of
health care professionals, including four neurologists- Drs. Holub, Midani,
Jorgensen and Phillips, two orthopaedists - Drs. McGuire and Herzog and an ear,
nose and throat doctor - Dr. Setzen. He additionally received physical therapy
at Everett Road Physical Therapy, pain management, acupuncture, and
The records from Newton Medical, P.C. indicate, as pertinent here, that the
claimant was seen on November 3, 2004 complaining that he was hit on the head by
a "heavy computer box." The report for that date indicates that the claimant
suffered no loss of consciousness but felt dizzy and complained of severe
headaches, neck pain, nausea and that his eyes hurt. There is no indication of a
contusion or abrasion. On physical examination it was noted that the patient
had an unsteady gait and "almost toppled over when Romberg done." The Newton
Medical, P.C. records reflect that the claimant suffered from various maladies
on the date of the incident including angina, low back pain with multilevel
degenerative disc disease, pain in his hands and feet, hypertension, and
arthritis. The records also reflect that the claimant was prescribed several
medications for these ailments and that he was involved in several prior
accidents: one on March 31, 2004 in which a stack of totes fell on his head at
work somehow injuring his back; a car accident on July 8, 2002 in which he hit
his head on the steering wheel and "wrenched back" (see report dated
July 9, 2002); another car accident in June of 2003 (see report of July
22, 2004); a fall from a chair causing injury to his back (see report
dated May 19, 1988); and a fall while skiing causing back pain (see
report dated May 19, 1988). The records also reflect a history of dizziness and
headaches. In a report dated February 23, 1996 it is indicated that the
claimant suffered from sinusitis with complaints of vertigo and headaches. The
note of March 12, 1996 states "labyrinthitis- [patient] states sinuses cleared
up but dizziness never went away, c/o headache also."
The records from St. Peter's Hospital indicate that claimant was hit on the
head by a box weighing approximately 20 pounds which fell 15 to 20
. Claimant presented with complaints of a
severe headache, dizziness, and neck pain. There is no mention of contusions
or abrasions and a CT scan was negative. Claimant was discharged with a
preliminary diagnosis of "minor cerebral concussion, cervical muscle strain."
He was given a prescription for Motrin and was instructed "no work today or
Claimant was seen by Dr. Holub, a neurologist, on November 16, 2004. As
reflected in the records (Exhibit 6) the claimant's dominant complaint was a
headache. Claimant's other symptoms included mild nausea, dizziness aggravated
by postural changes and marginal difficulties with memory such as recalling
peoples' names. Both the neurological examination and a electroencephalogram
were noted to be normal. The report also indicated that X-ray examination of
the claimant's cervical spine performed at St Peter's Hospital reflects
degenerative disc disease at C5-6 with no evidence of fracture. Claimant was
given a trial of Neurontin for his headaches and was to undergo an MRI scan of
the brain to rule out cerebral concussion. This concluded the treatment by Dr.
The claimant was seen by Dr. Hani Midani, a neurologist, on January 13, 2005,
March 14, 2005, May 17, 2005 and September 20, 2005. He complained of constant
daily headaches, cervical pain, numbness in his hands, tinnitus, dizziness and
depression. Dr. Midani's initial impression was that the claimant suffered
from postconcussion syndrome with a constellation of symptoms related to the
accident. In the report dated March 14, 2005, Dr. Midani states that the
claimant complained of the same symptoms as reported previously, including
headaches, dizziness, irritability, depression, etc. He noted a sore neck and
normal neurological function. His assessment at that time was that claimant's
symptoms were the result of postconcussion syndrome and noncompliance with the
medications prescribed for him. On May 17, 2005 the claimant's condition
remained essentially unchanged except for the recent onset of left hand
numbness. Neurological examination, including mental function, cranial nerves,
coordination, station and gait, was observed to be normal and it was noted that
the claimant had a depressed affect. Dr. Midani once again advised the claimant
to treat with Elavil and to see an ENT doctor for his complaints of vertigo.
The claimant was next seen by Dr. Midani on September 20, 2005. Claimant's
symptoms of headaches, neck pain, insomnia, irritability, dizziness and tinnitus
were noted as was the fact that the claimant remained out of work. Physical
examination revealed no cervical muscle spasm or limitation and cognitive
function was normal. The neurological examination revealed no focal problem. Dr.
Midani's assessment on this exam was that claimant's symptoms resulted from
postconcussion syndrome and noncompliance with medications. It was noted that
the claimant discontinued the use of Elavil after only ten days in favor of
taking another medication. Dr. Midani discharged the claimant from his care with
the recommendation that he resume taking Elavil or SSRI medications for the
management of headaches, depression and postconcussion syndrome.
Claimant was seen in orthopedic consultation by Dr. McGuire on approximately
ten occasions from December 22, 2004 through March 1, 2006. During this time,
the claimant was treated for a neck sprain and was referred for neurological
consultation with regard to his complaints of headaches and dizziness. Dr.
McGuire's reports note a possible "old" clay shoveler's fracture at C6-7, which
he never definitively diagnosed nor causally related to the accident. On
January 4, 2006 authorization for pain management and an MRI were requested. Dr.
McGuire's records include a cervical MRI report dated January 16, 2006
reflecting disc space narrowing with osteophyte formation at C3-4, C4-5, C5-6.
The MRI report states that "[t]here is no evidence of impingement on the
cervical spinal cord. No evidence of herniated nucleus pulposus is noted." The
report also states that "[t]here is no evidence of fracture, lytic lesion, or
subluxation." Dr. McGuire prescribed physical therapy which, according to his
records, was effective in increasing the claimant's range of motion. The records
also reflect that electrodiagnostic studies performed on March 9, 2005 were
The claimant attended Everett Road Physical Therapy on 71 occasions from
December 2, 2004 through February 20, 2006 (see Exhibit 9). On October
28, 2005 Dr. McGuire requested a functional capacity evaluation as the claimant
had advised him that he could not go back to work. The functional capacity
evaluation was performed by Work Assessment and Conditioning Center of Eastern
New York. The results of the evaluation are contained in a report dated
November 4, 2005 (included in Exhibit 9), which indicates in pertinent part the
"[T]his patient is limited by his subjective complaints of cervical pain and
pain. . . . At this time a sedentary job is most appropriate for this patient.
He does report that the feeling that he needs to get up and go somewhere every
day as when he goes to the gym actually makes him feel better. Therefore if he
was able to gain employment in a sedentary type job he may actually even have a
brighter outlook than he currently possesses."
As of March 1, 2006 Dr. McGuire's records indicate that there was nothing more
he could do for the claimant. Because of his continued complaints of headaches
and dizziness, Dr. McGuire referred his continued care to a neurologist. It
was also noted that the claimant was "unable to tolerate an FCE and subjectively
is worse than when he last tried to get an FCE and, therefore, I have taken him
indefinitely out of work on 100% temporary disability."
The claimant was seen by Gavin Setzen, M.D. of Albany Ear Nose & Throat
Services, P.C. on January 3, 2005, April 20, 2005 and July 20, 2005. Various
tests were performed or recommended. It was noted that the claimant had a
bilateral hearing loss due to noise exposure with tinnitus. In this regard the
report states "I suspect that most of Ronald's hearing loss in the right ear is
related to the firecracker with possibly some worsening over time, consistent
with his left-sided hearing loss" (Exhibit 10, report dated July 20, 2005, p.
4). Various methods of tinnitus control were recommended, including reduction
in caffeine and other stimulants. It was also noted that the claimant suffered
blunt trauma with probable concussion with residual dizziness, disequilibrium
and vertigo. As of July 20, 2005 Dr. Setzen indicated that the claimant is
stable with "overall much improved dizziness and disequilibrium without major
vertigo." An MRI of the brain performed on April 25, 2005 was reported to be
On February 6, 2007 the claimant sought treatment from Dr. Price of Family
Malta (Exhibit 11). He complained of sinus pain, depression and headaches.
Cymbalta was prescribed for the headaches and depression and a referral for
acupuncture was provided at the claimant's request. The claimant returned to Dr.
Price on March 13, 2007 for depression and it was noted that he had not yet
tried the previously prescribed medication.
Claimant saw Dr. John Herzog in orthopedic consultation on May 3, 2007. Dr.
Herzog noted that the claimant presented with complaints of neck pain. Physical
examination was normal with "[r]easonably preserved" cervical range of motion
and full power of both upper extremities. It was Dr. Herzog's opinion that an
MRI (the date of which was not specified in his report) shows cervical
spondylosis and a herniated disc at C5-6 with biforaminal compression. Neither
the MRI film nor the MRI report is contained in his office records and Dr.
Herzog's impression appears to be at odds with the MRI report dated January 16,
2006 in which it was indicated that there was no evidence of impingement on the
cervical spinal cord.
Additional electrodiagnostic tests were performed by Adirondack Rehabilitation
Medicine on July 20, 2007 (see Exhibit 12). These tests revealed only
ulnar neuropathy at the elbow "not likely of cervical origin" (Exhibit 12,
report dated July 20, 2007, p. 2). The test results were otherwise normal and
unchanged from the March 9, 2005 test results.
Claimant received acupuncture for his headaches and neck pain on five occasions
from August 2007 through September 2007 (Exhibit 14). The records indicate only
the temporary relief of pain.
From March 9, 2007 through September 10, 2007 claimant received psychotherapy
from Lee F. Nagel, Ph.D. for depression (Exhibit 15).
The Court finds that the claimant established by a preponderance of the
credible evidence that he suffered a concussion with postconcussion syndrome and
a cervical sprain as a direct result of the incident of November 3, 2004
(cf. White v State of New York, 41 AD3d 1071 ). In
determining whether a claimant has met his burden of proof, the Court, as fact
finder, is required to weigh the evidence and evaluate the credibility of the
witnesses presented at trial (Burton v State of New York, 283 AD2d 875,
877 ). The claimant testified that one or more of the boxes which fell
struck him on the head with such force that it felt as though he had been hit by
a "weight" (Tr., p. 60). Consistent with this testimony, the history provided
by the claimant to personnel at Newton Medical P.C. and St. Peter's Hospital on
the date of the accident reflects that the claimant was struck on the head by a
box which fell from somewhere between 15 to 25 feet. While defendant argues in
its post-trial brief that the box or boxes which struck the claimant were empty
and incapable of causing the injuries alleged, it completely failed to support
this theory with evidence of the actual weight of the boxes or expert testimony
that the force of the blow could not have caused the injuries alleged. Dr.
Lava's testimony regarding the lack of evidence of a laceration or bruising to
the claimant's head is insufficiently definite to permit the Court to infer that
the claimant's alleged injuries were not caused by the accident. Dr. Lava never
examined the claimant and never opined with a reasonable degree of medical
certainty that the claimant was not injured or that his alleged injuries were
not caused by the accident. Medical opinion " 'lacks probative force where the
conclusions are 'contingent, speculative, or merely possible' " (Matter of
Burris v Lewis, 2 NY2d 323, 327 , quoting Matter of Riehl v Town of
Amherst, 308 NY 212, 216 ; see also Sawyer v Dreis &
Krump Mfg. Co., 67 NY2d 328, 335 ; People v Harding, 59 AD2d
897 ; Horn v State of New York, 31 AD2d 364, 366 ).
Moreover, Dr. Lava's testimony was significantly undermined on cross-examination
when he admitted that he is not an expert in traumatic brain injury cases and
that a mild traumatic brain injury can occur even without objective evidence of
trauma to the head.
Dr. Dunnam opined that the claimant suffered a concussion and was experiencing
an extended mild postconcussion syndrome which included various cognitive,
emotional, behavioral, and psychological features. Neuropsychological testing
revealed that the claimant had problems with "divided attention" (being able to
do two things at once), self-regulation and forgetfulness. Drs. McMahon and
Phillips similarly concluded that the claimant suffered a concussion with
postconcussion syndrome. It was also the consensus of these treating physicians
and Dr. Dunnam that the claimant suffered depression as a result of the injuries
sustained in the accident. While the MRI and CT scan of the claimant's brain
were normal, both the claimant's experts as well as the defendant's expert
agreed that a positive test result is not a diagnostic criterion for the
diagnosis of concussion or postconcussion syndrome. On the issue of permanency,
Dr. Dunnam opined that "many of these problems will continue" and that she
believed the claimant "may not realize substantial improvement" (Exhibit 1, pp.
The Court accepts, as it must, the unrefuted testimony of Dr. Dunnam, Dr.
Phillips and Dr. McMahon that the claimant suffered a concussion with mild
postconcussion syndrome and associated depression and that some of the residual
sequelae of these injuries will be permanent (see Matter of Lamont
D., 9 AD3d 630 , lv denied 3 NY3d 609 [a factfinder is
not free to reject unrefuted expert testimony]; Prescott v LeBlanc, 247
AD2d 802  [the determination not to accept an expert's testimony must be
supported by other testimony or by the cross-examination of the expert]). None
of these experts equivocated on cross-examination and the defendant presented no
evidence which would permit the Court to reach a contrary conclusion. Defendant
did not secure an independent medical examination of the claimant nor did it
conduct any independent neurological or neuropsychological testing.
The evidence also established that the claimant sustained a neck sprain and
underwent pain management with some degree of success. There is no credible
evidence indicating that the claimant's complaints of neck pain are permanent,
however. Electrodiagnostic testing was normal and the MRI scan of the
claimant's cervical spine revealed only degenerative changes. Range of motion of
the cervical spine was also reportedly within normal limits. Accordingly, the
Court does not find the claimant's complaints of neck pain to be permanent.
Comparison of similar cases leads this Court to the conclusion that the
injuries sustained by the claimant entitle him to an award of damages for past
pain and suffering in the amount of $100,000.00 (cf. Cardella v Henke
Mach., 283 AD2d 894 [Court awarded $250,000.00 for past pain and
suffering for an eleven year period where plaintiff sustained postconcussion
syndrome with elements of posttraumatic stress disorder, which improved to
adjustment disorder with depressed mood, which was permanent, and a three-inch
scar on his head]; Komforti v New York City Tr. Auth., 292 AD2d 569
 [award of $200,000.00 for past pain and suffering for a five- year period
was affirmed on appeal where the plaintiff sustained three herniated discs and
postconcussion syndrome]; Baker v Shepard, 276 AD2d 873  [award of
$7,500.00 for past pain and suffering for a neck strain, fractured humerus, and
shoulder impingement syndrome was affirmed on appeal]). Given claimant's age,
the Court finds he is entitled to an award for future pain and suffering for a
period of 21.7 years (see 1B NY PJI, Appendix A, Table 2, p. 1633) in the
amount of $125,000.00 (cf. Cardella v Henke Mach., supra
[Court awarded $100,000.00 for future pain and suffering for a period of 25
years]). In the Court's view, these amounts reasonably compensate the claimant
for his past and future pain and suffering while giving due consideration to the
fact that he was and is able to carry on many of his usual daily activities such
as exercising at the gym, cooking, babysitting his grandchildren and driving a
With regard to past medical expenses, the claimant sufficiently established
through the submission of the payment records from the Workers' Compensation
insurance carrier that the sum of $26,449.63 was paid for medical care
necessitated by the injuries sustained in this accident (see Exhibits 18
and 19). As a result, the Court awards the claimant the sum of $26,449.63 for
past medical expenses. However, claimant failed to prove by a preponderance of
the credible evidence that future medical care will be necessary or the costs of
any such care. As a result, no award is made for the cost of future medical
care (see Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339,
1344 ; Cardella v Henke Mach., 283 AD2d at 900; Faas v State of
New York, 249 AD2d at 732, 733 ).
It is well-settled that lost earnings must be established with "reasonable
certainty" and the initial burden of proving lost wages is on the claimant
(Faas v State of New York, 249 AD2d 731, 732-733 ; Johnston v
Colvin, 145 AD2d 846, 848 ) . It is also well-settled that an
injured claimant seeking recovery for loss of earnings has a duty to mitigate
damages by seeking vocational rehabilitation and alternative employment
(Beadleston v American Tissue Corp., 41 AD3d 1074, 1078 ; Murphy
v Columbia Univ., 4 AD3d 200 ; Thompson v Port Auth. of N.Y. &
N.J., 284 AD2d 232 ; Bell v Shopwell, Inc.,119 AD2d 715 ;
McLaurin v Ryder Truck Rental, 123 AD2d 671 ).
Claimant sufficiently established that he was unable to work from November 4,
2004, the date following the accident, through November 4, 2005, the date that a
functional capacity evaluation revealed he could perform sedentary work and
that, should he obtain such employment, "he may actually even have a brighter
outlook than he currently possesses" (see Functional Capacity Evaluation
dated November 4, 2005 included in Exhibit 9). Claimant failed to present the
testimony of a vocational rehabilitation specialist or other expert establishing
a total inability to work in any capacity and the testimony of Dr. McMahon, the
only doctor to testify regarding the claimant’s inability to work, was not
entirely convincing . He opined merely that "I don't think he is safe to be
employed" (Exhibit 3, p. 17). His opinion was not otherwise explained or
supported and appears to be based on claimant's subjective complaints of pain,
depression and the effects of the medications which, he opined, contribute to
his “cognitive issues” (Exhibit 3, p.17, 21). Notably, however, the
claimant's medical records reflect his refusal to take certain prescribed
medications (see Exhibit 7) and that he discontinued further pain
management (radio frequency ablation) for his cervical pain without explanation
(see Exhibit 3, p. 21). The Court concludes that the claimant's failure
to seek alternative employment and otherwise mitigate his damages by following
his physician's instructions warrants the denial of his lost earnings claim
beyond November 4, 2005 (id.; see also Tworek v Mutual Hous.
Assn. of N.Y., 1 AD3d 588, 589 , lv denied 1 NY3d 510 ;
Perla v New York Daily News, 123 AD2d 349, 350-351 ).
Computation of the lost wage claim for the period November 4, 2004 through
November 4, 2005 is complicated by both the fact that the claimant was
self-employed and the lack of evidentiary detail with respect to his net
profits. Although the claimant testified on direct examination that he was
employed by CD & L as a delivery person (Tr., p. 42 ), his lost wage claim
is supported by only 1099 forms (entitled Miscellaneous Income) for the years
1999, 2000, 2002 and 2003 and income tax returns for 2003 and 2004 (Exhibit 21).
These forms reflect that the claimant was a self-employed independent
contractor, a fact he admitted for the first time on cross-examination. No
testimony was elicited on direct examination as to the claimant's net profits
from the business nor was he able to provide this information on
cross-examination. To complicate matters further, claimant set forth in his
Supplemental Verified Bill Of Particulars an "[a]verage salary
1999-2004 per 1099, W-2 and tax return = $37,103" [emphasis added]. A
self-employed person is not entitled to recover gross earnings, however, "but
only . . . his profits lost measured by 'the total receipts that he would have
produced in his business during the period of his disability and deducting
therefrom only such business expenses as would necessarily be related to the
production of that income' " (Bielich v Winters
, 95 AD2d 750, 750 ;
Young v Utica Mut. Ins. Co.
, 86 AD2d 764 ). As the 1099 forms for
the years 1999-2003 do not reflect the net profits for those years, the Court is
left with the income tax returns for the years 2003 and 2004 as the sole basis
on which to predicate an award for lost earnings. The tax return for 2003
reflects that claimant's net profit for that year was
. The tax return for 2004 reflects
that claimant's net profit for that year was $16,877.00. Inasmuch as the
claimant worked only ten months in 2004, claimant's lost wage claim will be
based on his net profits from the year 2003. As a result, the Court concludes
that the claimant is entitled to lost wages for the period November 4, 2004
through November 4, 2005 in the amount of $17,850.00.
As for claimant Antoinette Camadine's derivative claim, the Court awards
$25,000.00 for past loss of consortium and $25,000.00 for future loss of
consortium. The Court credits the testimony of both claimants that since the
date of the accident, Mrs. Camadine performs most of the household maintenance
which the parties previously shared and that their once harmonious marital
relationship has become strained. In addition, the couple's social life has
been adversely affected as a consequence of their declining financial status and
the move from their home in Colonie, New York to a trailer park in Malta, New
In summary, the Court makes the following awards:
Claimant Ronald Camadine
Past pain and suffering $ 100,000.00
Future pain and suffering 125,000.00
Past medical expenses 26,449.63
Lost Wages 17,850.00
Claimant Antoinette Camadine:
Past loss of consortium 25,000.00
Future loss of consortium 25,000.00
Interest shall run from September 27, 2006, the date of the decision
establishing liability (see Love v State of New York, 78 NY2d 540
; CPLR § 5002). All trial motions not heretofore decided are deemed
LET JUDGMENT BE ENTERED ACCORDINGLY.
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
the Court of Claims
. Numbers in parentheses preceded by the
letters “Tr.” refer to the page numbers of the trial
. The report of the MRI of the cervical spine
on January 16, 2006 reflects degenerative changes consisting of osteophyte
formation at C5-6, C3-4 and C4-5 with no evidence of impingement on the cervical
spinal cord or a herniated nucleus pulposus (see
MRI report included in
. Although Dr. Phillips included back pain
among the ailments temporally associated with the accident, claimant makes no
such claim and there is no other evidence to support that conclusion.
. The record also indicates that the claimant
was wearing a helmet which, based on his testimony, does not appear to be the
. In addition to income from self-employment,
claimant's tax returns for 2003 and 2004 include W-2 Wage and Tax Statements
from Klatron, Inc. and Click NJ Acquisition, Corp. The W-2 statements from
Klatron, Inc. reflect income for wages earned in 2003 and 2004 in the amounts of
$2,766.75 and $1,156.75 respectively. The W-2 statement from Click NJ
Acquisition Corp. reflects income for the year 2004 in the amount of $6,852.50.
Claimant made no claim for the loss of this income in his bills of particulars
nor did he present testimony or evidence at trial that this income was lost.