This was a trial to determine damages after having found liability reduced by
Claimant’s comparative negligence. Claimant established that he suffered
pain, loss of strength, and limited range of motion as a result of a fall.
After reviewing awards for injuries similar to Claimant’s (see Gehrer v
Eisner, 19 AD3d 851; Donatiello v City of New York, 301 AD2d 436;
Baker v Shepard, 276 AD2d 873; Faas v State of New York, 249 AD2d
731; Giladov v Kurzweil, 220 AD2d 481; Kuntzsch v State of New York,
Ct Cl, Fitzpatrick, J., dated November 14, 2005, Cl. No. 104687, UID
#2005-018-493), the Court finds that judgment shall be entered for $20,000 for
Claimant’s past pain and suffering and $5,000 for Claimant’s future
pain and suffering with interest to run from the date of the liability Decision.
There was no claim for lost wages or medical expenses.
In a written Decision filed on October 16, 2006, the Court found the State of
New York 50% liable for Claimant’s injury when he slipped and fell on a
wet substance on the gymnasium floor at Ogdensburg Correctional Facility (OCF),
while he was playing basketball on June 17, 2000. This trial was to determine
Claimant’s damages as a result of that injury.
Claimant testified that when he fell on the gym floor, he felt a sharp pain
radiate down his left arm, leaving it numb for a short period of time. He was
sent to the infirmary where a nurse applied ice and gave him ibuprofen for pain
before he returned to his housing unit. He followed up at the OCF infirmary on
June 23, June 29, July 20, and August 22, 2000. He was given pain medication
and exercises to perform. Claimant testified he had trouble sleeping on his
left side because pressure would cause pain in his shoulder. Also, he would
often awaken to numbness or tingling in his left arm. Dr. Mark Chalom, a doctor
at the facility, ordered an X-ray which required Claimant to be transported
approximately four hours to another facility. Claimant said the required
restraints and the travel itself caused significant pain. The X-ray was
normal. Claimant requested an MRI but the procedure was denied.
On October 23, 2000, Claimant was transferred to Lincoln Correctional Facility
in New York City for a work release program. He sought further treatment for
his shoulder at North General Hospital and saw Dr. Patrick Fazzori, who
diagnosed a torn rotator cuff and tendinitis. Dr. Fazzori ordered an MRI of his
left shoulder. That MRI did not reveal a torn rotator cuff, and the diagnosis
was changed to a frozen shoulder. In February 2001, Claimant began treatment
with physical therapy. Claimant testified that the physical therapy did not
help. He experienced pain with normal activities, and was unable to participate
in any sports which he had enjoyed before the fall.
As a veteran, Claimant was entitled to benefits at the Veteran’s
Administration (VA) Hospital. He was seen there on July 10, 2002, and
complained of shoulder pain and numbness in his left hand when he wakes up. The
notes from that visit
reflect no complaints of
radiating pain with a history of minimal relief from prior physical therapy.
Physical therapy was again recommended and Claimant agreed. His initial
physical therapy evaluation was September 4, 2002, which indicated a limited
range of motion in his left shoulder with pain. The plan was for Claimant to
have physical therapy twice a week for four weeks to increase his range of
motion and strength, and decrease the pain. On September 11, 2002, Claimant
returned to the VA physical therapy clinic and discontinued his therapy. He
said he could do the exercises at home. That was the last treatment Claimant
received for this injury as of the time of trial.
Claimant testified that he is still as restricted in his activities as he was
just after his fall. He continues to have the same symptoms and has since
experienced neck pain and upper back pain. On June 12, 2007, Claimant was seen
by Dr. Louis Benton, an orthopedic surgeon, for an independent medical
examination requested by the State.
Dr. Benton was called on Claimant’s direct case. Dr. Benton found
Claimant status post injury of record and diagnosed resulting in a contusion to
the left shoulder which presented at this examination as mild to moderate
decrease in range of motion with mild to moderate adhesive
His findings were different but
consistent with what the VA hospital records reflect. On cross-examination, Dr.
Benton testified that Claimant’s frozen shoulder is not permanent. In his
opinion, a frozen shoulder improves with time, gentle use, and exercise. This
injury would not affect Claimant’s daily activities such as dressing or
brushing his teeth, etc., as he has a functional range of motion. He could
engage in certain sports or activities but would be limited by his loss of
strength and limited range of motion.
Claimant has established that he has suffered pain, loss of strength, and
limited range of motion as a result of his fall at OCF. There was no claim for
lost wages or medical expenses. After reviewing awards for injuries similar to
Claimant’s (see Gehrer v Eisner, 19 AD3d 851; Donatiello v City
of New York, 301 AD2d 436; Baker v Shepard, 276 AD2d 873; Faas v
State of New York, 249 AD2d 731; Giladov v Kurzweil, 220 AD2d 481;
Kuntzsch v State of New York, Ct Cl, Fitzpatrick, J., dated November 14,
2005, Cl. No. 104687, UID #2005-018-493), the Court finds that Claimant has been
damaged in the amount of $40,000 for past pain and suffering, and $10,000 for
future pain and suffering, reduced by Claimant’s comparative negligence.
Accordingly, judgment shall be entered for $20,000 for Claimant’s past
pain and suffering and $5,000 for Claimant’s future pain and suffering
with interest to run from the date of the liability Decision on September 5,
2006. To the extent Claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.