New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2008-018-613, Claim No. 105792


Synopsis


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.

Case Information

UID:
2008-018-613
Claimant(s):
CHARLES JONES
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105792
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
CHARLES JONESPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1] 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 capsulitis.[2] 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.



February 27, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1].See Exhibit 2.
[2].Adhesive inflammation of a capsule (Merriam-Webster Medical Desk Dictionary, p. 111 [1996]).