New York State Court of Claims

New York State Court of Claims

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 awarded $50,000.

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:
Goldblatt & Associates, P.C.By: Kenneth B. Goldblatt, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dennis Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 14, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2006.

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 herein.

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)[1]. 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 day.

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 ambulance.

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 trailer.

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 winters.

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. 153).
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 postconcussion syndrome.

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 this?

A. The accident that the patient sustained in November 2004 when he was hit on his head.
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 radiologist[2]. Dr. Phillips testified that the claimant had chronic headaches and neck and back pain, all of which were temporally associated with his accident[3]. He 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. 30).

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?

A. Yes.

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 psychotherapy.

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 feet[4]. 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 tomorrow."

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. Holub.

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 normal.

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 following:

"[T]his patient is limited by his subjective complaints of cervical pain and headache
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 normal.
On February 6, 2007 the claimant sought treatment from Dr. Price of Family Medicine of

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 [2007]). 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 [2001]). 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 [1957], quoting Matter of Riehl v Town of Amherst, 308 NY 212, 216 [1954]; see also Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 335 [1986]; People v Harding, 59 AD2d 897 [1977]; Horn v State of New York, 31 AD2d 364, 366 [1969]). 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. 35, 38).

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 [2004], lv denied 3 NY3d 609 [2004][a factfinder is not free to reject unrefuted expert testimony]; Prescott v LeBlanc, 247 AD2d 802 [1998] [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 [2001][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 [2002] [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 [2000] [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 car.

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 [2007]; Cardella v Henke Mach., 283 AD2d at 900; Faas v State of New York, 249 AD2d at 732, 733 [1998]).

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 [1998]; Johnston v Colvin, 145 AD2d 846, 848 [1988]) . 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 [2007]; Murphy v Columbia Univ., 4 AD3d 200 [2004]; Thompson v Port Auth. of N.Y. & N.J., 284 AD2d 232 [2001]; Bell v Shopwell, Inc.,119 AD2d 715 [1986]; McLaurin v Ryder Truck Rental, 123 AD2d 671 [1986]).

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 [2003], lv denied 1 NY3d 510 [2003]; Perla v New York Daily News, 123 AD2d 349, 350-351 [1986]).

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 from 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 [1983]; Young v Utica Mut. Ins. Co., 86 AD2d 764 [1982]). 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 $17,850.00[5]. 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 York.

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 [1991]; CPLR § 5002). All trial motions not heretofore decided are deemed denied.


February 14, 2008
Saratoga Springs, New York

Judge of the Court of Claims

[1]. Numbers in parentheses preceded by the letters “Tr.” refer to the page numbers of the trial transcript.
[2]. 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 Exhibit 8).
[3]. 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.
[4]. The record also indicates that the claimant was wearing a helmet which, based on his testimony, does not appear to be the case.
[5]. 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.