New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-030-002, Claim No. 108374


Synopsis


Inmate claimant injured while performing work assignment. After damages trial, court finds permanent injury to right ankle including limited range of motion and weakness, and unquantifiable exacerbation of previous lower back pain condition. Damages award for past pain and suffering in the amount of $65,000.00; and for future pain and suffering in the amount of $80,000.00,reduced by the amount of claimant’s comparative fault earlier found to be 30%. Only medical testimony was claimant’s treating orthopedist. No award for diminished work capacity and employment opportunities or medical

expense


Case Information

UID:
2008-030-002
Claimant(s):
WALLACE JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108374
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KALMAN, KAUFMAN & ROSENBLATT, P.C.BY: HAROLD J. ROSENBLATT, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 4, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

s

Decision


In a decision filed May 15, 2007, this Court found that the State of New York was 70% responsible for the accident which resulted in the injuries suffered by Wallace Johnson, and that the Claimant was 30% responsible for his injuries. The Court found that the State of New York had negligently caused Mr. Johnson injury by directing him to perform his inmate work assignment under dangerous conditions at the Fishkill Correctional Facility. This Decision deals only with the issue of damages. A trial of the matter was held on October 10, 2007.

Claimant seeks total damages in the amount of ten million ($10,000,000.00) dollars, as set forth in his claim and amplified in his bill of particulars, for past and future pain and suffering, past and future medical expenses, and for his diminished work capacity and employment opportunities.

At the damages trial, Mr. Johnson, and his treating orthopedist, Dr. Jonathan Holder, were the only witnesses to testify. Additionally, medical records, as well as x-rays and an MRI, were submitted and discussed by Dr. Holder. The defendant did not call any witnesses. Only claimant’s counsel submitted a post-trial memorandum of law.

Wallace Johnson testified that he was born on August 21, 1955, and thus was 47 years old at the time of the accident. He is unmarried, and has two (2) adult children. He obtained his GED while incarcerated, and had worked “as a mover”[1] for approximately fifteen (15) years prior to his incarceration. No evidence of his earnings for that period was submitted. While incarcerated, he worked on the compound crew, working on the facility grounds, and testified that he earned approximately $15.00 every two (2) weeks. The crew mowed lawns, trimmed bushes and did other landscaping work. He has a life expectancy of 26.6 years from the date of trial.[2] According to notations in the medical records maintained by the New York State Department of Correctional Services [DOCS], Mr. Johnson is approximately 6 feet, 4 inches tall and at the time of the accident and thereafter weighed between 285 and 300 pounds. [See Exhibit 2].

Claimant stated that when he fell at the work site on July 25, 2003, he was unable to leave the area unassisted, and was “pushed in a wheelchair” to the regional medical unit [RMU] located at the facility. When he arrived there, photos were taken, he was given pain medication and a video conference was held with personnel at Westchester Medical Center [Westchester] to determine whether he needed to be taken to that facility for treatment. Once a determination was made to transfer him to Westchester, Mr. Johnson testified that he rode in a wheelchair to the facility transport van, and held onto the officers’ shoulders to “hop onto” the van. He recalled that it took “about an hour” to arrive at Westchester, and stated that “nothing had been done in the RMU to stabilize the ankle” and that he “was in severe pain - every time they hit a bump . . . [he] felt it.”

At the Westchester emergency room, he recalled describing his accident as part of the history taken, and complained of pain in his “ankle, leg and back,” although only complaints of ankle pain are recorded in the emergency room records.[3] [Exhibit 1]. He did not receive treatment for back pain on either the first day, or any other day during his eight (8) day stay at Westchester. He was provided with “pain medication” and x-rays were taken. After the x-rays were taken, he was “wheeled to a room on a stretcher.” They “stabilized” his leg. It was his understanding that he had suffered a fractured ankle. He was confined to bed.

He was hospitalized for eight (8) days at Westchester Medical Center. Three (3) days after he began his stay in the hospital, he had bone reduction surgery in his right ankle, and a plaster cast was applied. He was released to the RMU at Fishkill on August 1, 2003.

When he arrived at RMU, no notation was made of any complaint of back pain in the intake information. [Exhibit 2]. Claimant said that at some point he had complained of back pain in the RMU relative to this accident, but “not walking in the door.” He remained in the RMU for three (3) months.

During the first part of his stay in RMU, he was confined to bed, and he “used a wheelchair to get around.” He estimated that he used the wheelchair for the first two (2) months. Thereafter, he used crutches for approximately two (2) weeks, but began to experience lower back pain with such use. He used a cane in the last month also. The first cast was replaced by another two (2) plaster casts during this period, he said. Finally, he was provided with an air cast for support, that he “wears to this day.” There appeared to be some conflicting instructions from his treating doctors with regard to the use of the air cast, in that it was certainly initially prescribed as an accommodation for partial weight bearing, and was to be used for approximately two (2) months and then discontinued - presumably because claimant was expected to improve.

He also said that during that three (3) month period he wore a “back brace.” To his knowledge, he wore the back brace because of the pain he experienced when he got out of the wheelchair and started to use crutches, and was told to try “weight bearing. That’s when the back started to hurt and I couldn’t stand up straight.”

Physical therapy was prescribed while he was in the RMU. He recalled having three (3) sessions of physical therapy, of seven (7) visits per session. Each session lasted about two (2) weeks.[4]

Claimant was released to the general population, on or about October 21, 2003. The only medication he was receiving at the time of his placement in the general population was 600 milligrams of Motrin as memorialized in a prescription dated October 30, 2003. He acknowledged that this was the same pain medication he had received prior to the subject accident of July 25, 2003 because of a prior back injury.

He said he did not “go back to mowing lawns,” but conceded on cross-examination he was offered other programs “after a while.” Specifically, he was assigned to the horticulture program, and did some raking and planting. The only medical limitation upon his work at that time was that he refrain from lifting heavy objects.

Prior to the accident that is the subject of this claim, Mr. Johnson was in a car accident in April 2000. After the April 2000 accident, he admitted he suffered back pain, and had been treated for same on and off since. Such treatment included pain medication, physical therapy, and “electric shock treatment” therapy. He agreed that from April 2000, and throughout calendar years 2000, 2001, and 2002 he had complained of back pain and received treatment for it, including pain prescriptions for Naprosyn and Motrin; and had been referred with some regularity for diagnostic consultations with orthopedists. [See Exhibit 2]. Indeed, the ambulatory health record [AHR] for that period confirms that claimant - two years after the car accident- sought medical intervention and follow up for chronic back pain on April 3, 2002. [Ibid.]. He saw medical personnel at Southport Correctional Facility for complaints of back pain and was referred for consultations throughout 2002, and upon his transfer to Fishkill he complained of back pain in September 2002 and there received updated prescriptions for 800 milligrams of Motrin, three (3) times per day. [Ibid.]. He acknowledged that some of the complaints of pain he had in 2002, concerned not just pain in his back, but pain in his legs and feet. He said he had “shooting pains through the bottom of . . . [his] feet and felt ‘restless’ while lying in bed.” He conceded that this also was one of his current complaints, too, but said that it is “worse now.”

Mr. Johnson said that his back pain was more severe now than it had been before the July 2003 accident; explaining that it had not been as “constant” before. He said that in 2000, 2001 and 2002 he would do something physical and back pain would be triggered; but he had “good days,” and would take Naprosyn or Motrin and feel better. Now, he said, it is “constant.”

A review of Mr. Johnson’s AHR indicates he complained of foot and back problems when he arrived at Southport Correctional Facility in a note dated May 29, 2001. [Exhibit 2]. There are indications of prescription pain medication being issued in response to complaints of back pain for the balance of 2001. [Ibid.]. He was prescribed pain medication in June 2002 (Motrin); August 2002 (Motrin); October 2002 (ibuprofen), November 2002 (Motrin), and February 2003 (Motrin). [Ibid.]. In February 2003 he was also prescribed the use of a cane because of “palpitations and blood pressure problems.”

One week before the subject accident, on July 17, 2003, he complained of numbness and sudden sharp pains radiating to both feet while sitting or lying in bed. He said he had such pains prior to the accident of July 25, 2003 and has had them since. He said he “still has to get up and stomp them out to make it go away.” There are no recorded complaints specifically citing lower back pain between February 2003 and the period after the accident of July 25, 2003 until in or about September 2003, when he began to use crutches to ambulate. [See Exhibit 2].

Progress notes from the RMU in October 2003, included notations to the effect that claimant had no complaints of pain [see Exhibit 2, Progress Notes 10-18-03], and that he was using an ankle brace and one crutch to ambulate.

A smattering of complaints of pain in his ankle, knees and lower back, stiffness, and referrals to the orthopedist as well as prescriptions for pain medication and suggestions for physical therapy are noted in 2004 and 2005, as well as medical restrictions to refrain from lifting more than 25 pounds. [Exhibit 2]. As noted, he nonetheless worked in the horticulture program.

After consulting with Dr. Jonathan Holder - who was a consulting orthopedist under contract with DOCS and first saw claimant commencing in 2003 - a second surgery to remove loosened hardware that appeared to be causing him pain and had been inserted in the first surgery, was performed at Mt. Vernon Hospital [Mt. Vernon] on October 17, 2005. [See Exhibit 3]. Mr. Johnson returned from Mt. Vernon to Fishkill on the day of the surgery, thereafter spending one (1) month in the RMU. The immediate treatment after this second surgery was keeping his foot elevated, bed rest and pain medication. He said he “was in pain all the time.” Additionally, he was receiving injections in his stomach to “thin [his] blood.” He estimated that he “got out of bed by using crutches” for the last three (3) weeks of his one (1) month stay in the RMU.

When he was discharged from the RMU to the general population he said he “could not work on the compound gang,” because he was “not allowed to lift anything over fifteen (15) pounds” as he remembered it. After this second surgery, physical therapy was again prescribed. He had “two (2) more sessions of seven (7) sessions each. The last one was in 2006.” He recalled being prescribed ibuprofen in a dosage of between 600 and 800 milligrams per day. He continues to take pain medication as needed in the same dosage, as prescribed by Dr. Holder.

Mr. Johnson said that when he wears “high-top shoes it kinda bothers my ankles from where I have scars from the surgery on both sides.” Claimant has scars on the left and right sides of his right ankle, each approximately five (5) inches long. The scar on the right side is approximately 1/4-inch wide. The scar on the left side is L-shaped, and narrower than the scar on the right side. He testified that he cannot currently walk or stand for long periods of time, he cannot run, or squat, and “jumping is out of the question.” He said that prior to this accident he had not injured his ankle.

He reported that today he has back pain “all the time,” although some days are worse than others. He said that “it radiates down to the ankle” sometimes, and that he has difficulty sleeping. When he “bends down, [he] feels it; when [he] sits down [he] feels it.”

Dr. Jonathan Holder testified based upon his treatment of the claimant since 2003, review of the medical records [Exhibits 1, 2, 3], an MRI taken on July 16, 2007 [Exhibit 4], as well as a more recent evaluation made on September 24, 2007, when Dr. Holder examined Mr. Johnson and took x-rays of his ankle. [Exhibit 6]. Additionally, he noted that before September 24, 2007 the last time he had examined claimant had been on January 12, 2006 as a follow-up to the October 2005 surgery. At that time, the consultant report from Dr. Holder in claimant’s AHR notes that Mr. Johnson was doing physical therapy, including walking two miles per hour. [See Exhibit 2, page 122]. There was no tenderness and a decrease in swelling, Dr. Holder noted on the consultant report form. [Id.]. In terms of range of motion, the following notes were made: “ROM DF 15° PF 30° Able to squat & full ROM. Stable orthopedically. No restrictions.” [Id.].

He was unaware of any x-rays taken of claimant’s back prior to September 2003. Moreover, he was the “ankle specialist.” Others in his group were “involved with the spine” he explained.

He testified that he examined him in 2003 as an orthopedic consultant rendering clinical care - he did not really testify as to a month - but it was sometime after the accident. A review of the AHR indicates that such examination occurred on or about October 23, 2003. [Exhibit 2; Page 373]. The consultation note for that date provides that the right ankle was still swollen and that the range of motion of the ankle was somewhat limited. [Ibid.]. The directions given by Dr. Holder then were to “continue ankle brace X 1 month, then DC. Continue [physical therapy] for [range of motion], swelling reduction.” [Ibid.].[5]

Dr. Holder testified that on October 17, 2005, he performed surgery at Mt. Vernon Hospital to remove the loose hardware from Mr. Johnson’s right ankle. [See Exhibit 3]. Dr. Holder agreed on cross-examination that the removal of such hardware is not an unusual procedure, and not unanticipated. To perform the operation, he used a fluoroscope in the operating room to visualize the hardware. He agreed that at that time he did not note any marked arthritic changes in his operative report, and that such would have been a significant observation, as would any note concerning the status of the joint concerning arthritis. [See Exhibit 3]. Dr. Holder noted, however, that he was “primarily worried about the hardware.”

The discharge instructions given to Mr. Johnson after the October 17, 2005 surgery were that he was to rest for 24 hours, elevate his right ankle for the same period of time, and not allow it to be weight bearing for three (3) weeks. [Exhibit 2; page 181]. He was to ambulate with crutches for the three (3) weeks, and to take analgesics as needed. [Id.]. Physical therapy was also ordered.

After the follow-up visit of January 12, 2006 while claimant was still incarcerated, the next time Dr. Holder saw Mr. Johnson was after his release from prison. During the examination of claimant on September 24, 2007, Dr. Holder took a full history, he said, noting the accident, the initial surgery to his ankle immediately after the accident, and the subsequent surgery he himself performed in October 2005. When that history was taken, complaints of lower back pain, as well as the earlier accident of April 2000 wherefrom, Dr. Holder stated, Mr. Johnson had experienced “occasional discomfort”, was noted, as was lower back pain occurring in 2003 upon Mr. Johnson’s use of crutches.

In terms of Mr. Johnson’s subjective complaints on September 24, 2007, Dr. Holder reported that Mr. Johnson complained of ankle pain with limited ability to walk, particularly for long distances, or on uneven terrain, when Mr. Johnson would feel some instability of the right ankle. Mr. Johnson complained that he would experience sharp pain and tingling into the foot, and occasional numbness from the knee down to the top of the foot. He said his ankle felt stiff in the morning, as well as at night, and would sometimes swell, particularly when he stood or walked for any period of time. He complained that his back hurt when standing, or walking or after any work activity and he was using ibuprofen 800 milligrams for pain relief. He told the doctor that he was attempting to seek employment at that time, but was not involved with any “active medical treatment.”

During Dr. Holder’s physical examination of claimant on September 24, 2007, he evaluated Mr. Johnson’s lower back and right ankle. While evaluating his lower back, Dr. Holder testified that he observed that Mr. Johnson was standing erect and was not using a brace or cane. No deformities were noted, the legs were equal and he had no pelvic tilting or obliquity. When the doctor palpated the spine, it revealed some tenderness in the midline, as well as some muscle spasms on the sides of the spine. Mr. Johnson’s range of motion was somewhat limited. He had 70 degrees of flexion and 20 degrees of side bending with 20 degrees of extension. A straight leg raise elicited low back pain at the level of 70 degrees elevation off the exam table. There were some “negative nerve tests” and there was a “negative malingering sign. He did have some decreased sensation on the right side, particularly where the L-4 - L-5 nerve root . . . [unintelligible] the skin.” Muscle strength was noted weak on the right great toe elevation which Dr. Holder said is consistent with the L-5 nerve root. Knee and ankle reflexes were equal, and a “modest degree of nerve involvement” was noted. When Dr. Holder performed his examination of the right ankle, he saw claimant favoring the right side with an antalgic gait. There was limitation of motion as well as swelling localized to the front of his ankle, and tenderness on either side of the ankle. Although he saw a modest degree of flat-footedness it appeared bilateral. Mr. Johnson was unable to perform a single leg stance or stand on the right side for greater than 3 seconds without losing balance. On the left side, he was able to maintain a single leg stance for more than 5 seconds. He could not perform a heel raise or go up on the balls of his toes on the right side. Range of motion tests showed 3 degrees of dorsal flexion on the right foot, with 7 degrees on the left foot. Plantar flexion - or pointing the toes downward - was 15 degrees on the right, with 25 degrees on the left. Inversion, or turning the ankle in, was 10 degrees on the right, and 5 degrees on the left. For eversion, or tilting the ankle to the outside, there was 0 degrees on the right, and 5 degrees on the left. He found no ligament problems, or instability of the ankle, and said that the fracture sites and the scars were not tender, and Mr. Johnson had good blood flow to foot. There were no prominences or bone spurs, that he could palpate.

Dr. Holder took an x-ray that day. [See Exhibit 5]. He said that the x-ray revealed a minor degree of calcium loss generally throughout the ankle area. There was a development of joint space narrowing where the cartilage usually is, and signs of early arthritis. The surrounding tarsal joints, distal to the ankle joint, also showed some modest degree of degenerative change. There was some spur formation noted at the distal tibia right at the anterior portion of the ankle joint and also at the tail or neck just on the instep. The fracture sites themselves were “well healed” on this x-ray, Dr. Holder said.

The “impressions or diagnosis” he noted were that Mr. Johnson had a “bimalleolar right ankle fracture treated with open reduction and internal fixation, and an aggravation of a prior low back syndrome with a possible progression of a herniated disc giving rise to a radiculopathy on the right side.” Dr. Holder opined with a reasonable degree of scientific and medical certainty that the accident of July 25, 2003 was a competent producing cause of the right ankle fracture described, and also contributed to the aggravation of the lower back condition when combined with the difficulties with ambulation Mr. Johnson experienced when he started to use crutches. He thought the treatment claimant received for the right ankle, including the two surgeries, was appropriate. He first opined that the post-traumatic arthrosis found in the joint was causally connected to the July 25, 2003 accident, as is claimant’s limited range of motion and limited strength.

He further opined that permanent changes to Mr. Johnson’s right ankle were a result of the subject accident. To reach that conclusion of permanency, he explained, part of the methodology, would be to compare the operation of the two (2) ankles, to review the treatment Mr. Johnson was given for effectiveness - including the courses of physical therapy, braces, the warm soaks - and to observe that these treatments had not had a good effect in increasing his range of motion or strength. If there is no improvement “you can conclude that it is likely that this condition will be permanent.”

Dr. Holder said that it was “likely” that Mr. Johnson would require “some type of procedure on his ankle.” He said it could be a “debridement, that is a cleaning of the joint to remove excessive or accumulated tissues that need to be cleared so that the ankle joint can move more efficiently, or, if there is significant arthritic deterioration, an ankle fusion which would stop the ankle from moving because there is so much pain, or so much arthritis, versus an ankle replacement, which would restore the ankle motion but get rid of the arthritic joint.”

With regard to the aggravation of claimant’s lower back condition, Dr. Holder’s opinions were more circumscribed overall. He opined within a reasonable degree of medical and scientific certainty, that the accident of July 25, 2003 was a substantial cause of aggravation of the prior back condition. He simply could not say - and to his credit, would not - that he could quantify any degree of aggravation of claimant’s chronic lower back pain stemming from the subject accident. The medical evidence supporting a claim of aggravation were essentially claimant’s “subjective complaints and his history of prior back problems escalating after the ankle injury.”

He testified about the earlier x-ray reports - not the x-rays themselves - [Exhibit 2, pages 100 and 105], and conceded that such x-rays of the back would show only bone versus soft tissue in any event. He was asked to discuss an MRI taken in July 2007, by Open MRI of Elmira. [See Exhibit 4]. Comparisons of x-rays to an MRI was acknowledged to be, at best, an inexact science. The July 2007 MRI showed, he said, that there was “extruded disc herniation at the L-4 - L-5 level” of the spine, “impressing on the right ventral thecal sac and causing impression and posterior displacement of the exiting right L5 nerve root from the thecal sac.” This condition would cause, and subjectively does cause, the claimant to suffer pain, and appeared consistent with his physical examination of claimant, he said.

Dr. Holder acknowledged that he could not determine whether the herniation shown in the July 2007 MRI was present prior to the July 25, 2003 accident. He would say, however, that “it is possible that there may have been a more mild condition that progressed to this stage as noted on the MRI,” based primarily on the history that Mr. Johnson reported of complaints of intermittent back pain before the July 2003 accident becoming constant. He testified that it was “more likely than not” that Mr. Johnson would need some type of operative intervention with regard to his back within the next ten (10) years. He said there could be some type of “micro diskectomy with a small incision to remove a small portion of the herniated disk. If there were a more substantial problem with arthritic changes or mechanical problems, some spine surgeons may indicate spinal fusion in a limited capacity.”

On cross-examination, Dr. Holder acknowledged that the August 17, 2000 x-ray report - taken after the previous car accident - and the September 29, 2003 report were written by different doctors and had different levels of detail. [Exhibit 2; pages 105 and 100]. Between those two x-rays, there had been three (3) years of treatment for the chronic back conditions, he conceded, and also conceded that he could not know based upon these or any other medical records available whether Mr. Johnson suffered a herniated disk after the car accident of April 2000. He agreed that most of his opinion concerning aggravation was related to Mr. Johnson’s subjective complaints. Dr. Holder agreed that “for a short period of time not to linger” one might experience pain after spending six (6) weeks in bed and commencing physical therapy and the use of weight adjusting implements such as crutches, and possessing prior lower back complaints of pain.

The last notation the witness made in the AHR of complaints of back pain was in May 2004. Dr. Holder acknowledged that although this was the last notation he had made concerning complaints of back pain, such complaints might have been “delegated” by the facility to the “spine specialist” while claimant was incarcerated.

Notably, although Dr. Holder had indicated that he had reviewed claimant’s AHR prior to testifying, he said he did not review them “extensively”, and was primarily familiar with his own treatment, and then also acknowledged that he did not recall having ever seen the actual x-ray film of August 2000 or September 2003. He again conceded that his conclusions regarding the progression to herniation and aggravation were largely based on Mr. Johnson’s subjective complaints. He did not have, or did not review, a progression of radiographic information. He saw the 2007 MRI. He saw the x-ray he took on September 24, 2007. He conceded again that the x-rays would not show the material of a disk but rather the bone, and the relationship between bone matter, from which one might infer a condition. He agreed that he could infer that there was an ongoing process of degeneration when the x-ray was taken in September 2003, that likely pre-dated the subject accident that had occurred only two (2) months earlier in July 2003. He conceded that because he had not seen the actual earlier x-ray, and relied only on the words of the report, he could not “quantify” any changes. He further agreed, that if he “had two MRI’s” a more accurate comparison might be possible. To draw a conclusion regarding progressive degenerative changes to a reasonable degree of medical certainty based upon an x-ray report and an MRI he ultimately had to concede was not possible.

With regard to the right ankle, Dr. Holder acknowledged that some arthritic changes are expected with regard to this type of fracture, saying it is “inherent in the injury.” There is no indication of how quickly such changes might occur, and it depends on the activity level of the patient. Dr. Holder acknowledged that some post-fracture joints will stiffen with disuse. He indicated also that “in some instances the more you use it the more you will wear it out.”

On redirect examination, Dr. Holder also said that while it is difficult to draw conclusions from the x-ray reports and the later MRI alone concerning the progression of claimant’s back condition, when combined with the patient’s history, his subjective complaints and the available records he could infer to a reasonable degree of medical certainty that there was some progression or escalation of his symptoms probably due to a herniated disk causing some pinching of a nerve.

No other witnesses testified.
CLAIMANT’S MOTION FOR DIRECTED VERDICT/MOTION TO AMEND ANSWER
Claimant’s motion for a directed verdict in the amount of ten ($10,000,000.00) million dollars based on defendant’s purported admissions in its answer is denied. Defendant’s motion to amend its answer with regard to an inadvertent pleading omission is granted. There is no prejudice or surprise to claimant, nor is there any credible reliance upon the inadvertent omission in the pleading. The claim was clearly tried without reliance on such purported admission.


DISCUSSION AND CONCLUSION
There is an inherent subjectivity to evaluating an individual’s experience of pain and to forming a diagnosis or an opinion based in part on such complaints. Dr. Holder, however, was the claimant’s treating physician and was the only expert interpreter of the medical evidence presented at trial. He testified credibly and exercised some caution in rendering the more expansive opinions counsel sought to elicit. Ultimately, however, his opinions as to causation concerning the back condition were tempered somewhat by his failure to use actual x-rays taken in August 2000, and September 2003 - as opposed to the x-ray reports of same - to discuss Mr. Johnson’s back condition, and by the lack of other objective data, such as a succession of MRI’s, to show any progression. The testimony by Dr. Holder regarding evidence of causatively linked degenerative disease is unconvincing, in that, among other things, while some of the earliest films taken after the accident in September 2003, show signs of degeneration, Dr. Holden said that such degeneration would not occur within a two (2) month period following the accident, and must have occurred over time.

The Court is persuaded that Mr. Johnson has suffered a permanent injury to his right ankle as a result of Defendant’s negligence, that has engendered some lasting effects including a limitation on his range of motion and weakness. There has been some unquantifiable exacerbation of a previous lower back pain condition. But the court is also persuaded that claimant is not actively pursuing either medical relief, or work, indeed Dr. Holder noted in the September 24, 2007 examination that the claimant was not currently under medical care, and there was no testimony about any attempts to find work.


Diminished Work Capacity and Employment Opportunities
It was Claimant’s burden to establish this lost earnings aspect to his claim to a reasonable degree of certainty. Papa v City of New York, 194 AD2d 527, 531 (2d Dept 1993), lv dismissed 82 NY2d 918 (1994); O’Connor v Rosenblatt, 276 AD2d 610 (2d Dept 2000). Testimony alone, without documentary evidence such as tax returns or a W-2 form is generally insufficient as a matter of law. Ramirez v City of New York, 279 AD2d 563 (2d Dept 2001); Gomez v City of New York 260 AD2d 598 (2d Dept 1999); Poturniak v Rupcic, 232 AD2d 541, 542 (2d Dept 1996); Razzaque v Krakow Taxi, Inc., 238 AD2d 161, 162 (1st Dept 1997). Indeed, other than Mr. Johnson’s indication that he worked in the moving business prior to his incarceration, and that he was paid prison wages while incarcerated, there was no showing of his past or present ability to earn. There was no mention of whether he had sought work after his release.

Any damage award on this basis would be pure speculation.
Medical Expenses
All past medical expenses appear to have been paid for presumably, since claimant was an inmate in DOCS custody when the medical care discussed at trial was rendered, and no evidence was presented to show otherwise. Indeed, no testimony was elicited as to the cost of claimant’s medical care to date, nor was any appropriate foundation laid for eliciting the cost of any future care. Dr. Holder could only describe very generally all the surgical possibilities which, as presented, remained on the more speculative side of “possible.” Any award for past or future medical expenses would be inappropriate.
Pain and Suffering
Perhaps the most elusive aspect of any damages award for personal injury is the past and future pain and suffering experienced by the Claimant. Courts sometimes look to other awards given because this item of damages is not subject to “precise quantification.” Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782 (3d Dept 1998), lv dismissed 92 NY2d 942 (1998). Indeed, where ankle fractures are involved, a broad range of awards have been found to be either “reasonable compensation”, or not, [see generally Condor v City of New York, 292 AD2d 332 (2d Dept 2002), lv denied 98 NY2d 607 (2002);[6] Clark v N-H Farms, Inc., 15 AD3d 605 (2d Dept 2005);[7] cf.; Ciano v Sauve, 42 AD3d 556 (2d Dept 2007);[8] Hughes v Webb, 40 AD3d 1035 (2d Dept 2007);[9] Lamb v Babies “R” Us,302 AD2d 368 (2d Dept 2003)];1[0]and a pre-existing injury does not entirely preclude recovery where it is sufficiently established that the new accident aggravated a previous condition. See Mihalko v Regnaiere, 36 AD3d 983 (3d Dept 2007).1[1]

Nonetheless, while case law sometimes is of assistance in assessing what circumstances warrant a particular type of monetary award, each situation is different, and is driven by its peculiar facts. The Court is persuaded that immediately after the accident of July 25, 2003 and the bimalleolar fracture of his ankle, Mr. Johnson experienced pain and suffering, underwent surgery placing some hardware in his ankle which was successful, and thereafter underwent a second surgery to remove such hardware, was hospitalized on both occasions, and has experienced a permanent limitation of the flexibility and range of motion of his ankle, as shown in tests performed by his treating orthopedist. Some of his symptomology, clearly, is related to various factors that the treating orthopedist simply could not quantify, including lack of current medical treatment on Mr. Johnson’s part, the level of activity engaged in by claimant who is a large man, and other conditions seen in the medical records such as blood pressure concerns, hepatitis, asthma, and a family history of diabetes not discussed during the trial.

The court finds that Mr. Johnson experienced pain in the past by suffering a bimalleolar ankle fracture that required two (2) surgeries, and that he will experience intermittent pain to some degree and limitation of movement in the future. Such ankle pain is managed with pain medication, and may require further operative procedures. There was nothing in the record concerning the utility of any future physical therapy. He has scars. He cannot stand for long periods or walk for a long time, but does not require the use of a cane or crutches or other implement to ambulate, and the use of the air cast did not appear to be consistent as an actual medical need. Indeed Dr. Holder did not discuss it as a current aid.

Whether Mr. Johnson’s lower back pain is associated with the motor vehicle accident of 2000, degenerative changes resulting from that, degenerative changes resulting due to aging and/or due to other physical ailments, or the incident at issue, is clearly hard to test objectively. As noted above, there are no recorded complaints specifically of lower back pain between late February 2003 and the period after the accident of July 25, 2003 until in or about September 2003 when he began to use crutches to ambulate, which would tend to suggest that some degree of exacerbation resulted from the fall in July 2003. Little to no testimony was elicited to explain which of the neurological tests performed regarding the back had an objective basis, however, and most involved the subjective complaints of the patient. Dr. Holder conceded that he was not a spine specialist. Dr. Holder, however, was the only medical witness interpreting what information there was. Thus while Dr. Holder would not expansively opine any degree of exacerbation caused by the fall, as the only expert his opinion was essentially uncontradicted, as his credibility was not markedly challenged on cross-examination.

Moreover, he appeared to recognize that based upon what objective medical data was available that the present progression or escalation of Mr. Johnson’s lower back symptoms - although probably due to a herniated disc1[2] causing some pinching on a nerve - was not necessarily causatively connected to the accident of July 25, 2003. While some degree of exacerbation of Mr. Johnson’s previous lower back pain condition is supported on the record, there simply was not enough information available to accurately identify the causes.

Accordingly, having reviewed all the evidence and after listening to the witnesses testify, observing their demeanor as they did so, and assessing their credibility in the process, the Court finds that the claimant has suffered damages resulting from the accident of July 25, 2003 for past pain and suffering in the amount of $65,000.00; and future pain and suffering is in the amount of $80,000.00, or a total of $145,000.00, reduced by the amount of claimant’s comparative fault earlier found to be 30 %, for a total damages sum due to claimant in the amount of $101,500.00. The Clerk of the Court is directed to enter judgment in the amount of $101,500.00, together with interest from April 9, 2007, and to return the amount of any filing fee paid.

All motions made at trial and not heretofore ruled upon are hereby denied.

February 4, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. PJI: Appendix A, Table 2 (2006 ed). The Table indicates a life expectancy of 26.6 years at the beginning of the 51-52 age interval.
[3]. Indeed the records provide that the claimant “denies other injuries.” [Exhibit 1].
[4]. Translating to six (6) weeks of physical therapy.
[5]. According to the court’s review of the almost 500 page Exhibit 2 - submitted in partially paginated form - and in theory reflective of the treatment claimant received while incarcerated, Dr. Holder again saw Mr. Johnson on January 5, 2004; May 6, 2004; and was seen by someone in Dr. Holder’s stead in January 2005 [see Exhibit 2, page 157].
[6]. (Trimalleolar ankle fracture jury awarded past pain and suffering $75,000.00, future pain and suffering $300,000.00; new trial unless stipulation to decrease award for future pain and suffering from $300,000.00 to $150,000.00).
[7]. (Trimalleolar ankle fracture with surgery jury had awarded past pain and suffering $500,000.00, future pain and suffering $700,000.00; trial court properly set aside verdict, and reduced past pain and suffering to $200,000.00 and future pain and suffering to $225,000.00).
[8]. (Fracture right ankle and foot, fracture of left foot, four surgeries with hardware; jury awarded past pain and suffering $250,000.00 and future pain and suffering $100,000.00; new trial unless stipulation to increase past to $350,000.00 and future to $375,000.00).
[9]. (Tri-plane fracture of right distal tibia with surgery and hardware; jury awarded past pain and suffering $22,500.00, no future pain and suffering; reversed and remanded because past award too low, and there was sufficient evidence of future damages to support same).
1[0]. (Comminuted fracture in shoulder and arm, bone fragmentation; permanent limitation of movement; jury awarded $7,600.00 past pain and suffering and future pain and suffering $12,615.00; new trial unless stipulation to increase past award to $25,000.00 and future to $40,000.00).
[1]1. (Inversion injury to right ankle after falling off wooden box used as a step, fusion surgery with orthopedic hardware; prior right heel fracture ten years before subject accident, causing some level of pain previously and arthritis. No fair interpretation of the evidence supports jury finding that prior accident was the sole proximate cause of plaintiff’s current pain and suffering. New trial unless stipulation to $25,000.00 past pain and suffering, and $50,000.00 future pain and suffering).
1[2]. It is the subject of some discussion in “serious injury” cases under the No-Fault Law [Insurance Law§5102(d)] that disk herniation or bulging alone is not a serious injury without some connection with objective tests and an inability to perform some normal, daily tasks. See Toure v Avis Rent A Car Sys., 98 NY2d 345 (2002); see also Pommells v Perez, 4 NY3d 566 (2005).