Johnnie Green (“Claimant”) was injured in an automobile accident on
November 27, 2002. In April of 2006, after a trial on the issue of liability, I
determined that Claimant and Defendant were equally at fault and apportioned
liability at 50% each. I conducted the damages portion of the trial on February
26, 2008 and April 4, 2008. Claimant requests damages for the
“substantial and serious injuries” he suffered, psychological
trauma, as well as reimbursement of his student loans for the State University
of New York at Potsdam (“SUNY Potsdam”) in the Fall semester of 2002
and Spring semester of 2003. Counsel were given the opportunity to submit
In his direct case, Mr. Green described the accident. He testified that his
body was thrown at impact and his head hit the area of his car between the door
and the windshield. Immediately after the accident, he was “out of
it.” He stated his head throbbed and he had trouble with his vision and
his hearing. When he arrived at the Samaritan Medical Center, he was in “a
lot of pain,” his head ached and he was dizzy. The pain was specifically
in his neck and back. Claimant described his symptoms as vertigo, feeling
dizzy, neck and lower back pain, and the symptoms have been with him since the
Claimant underwent two Independent Medical Examinations (IME) prior to trial.
The results of these two IMEs are discussed below. I found Dr. Philip J.
Davignon’s January 15, 2004 IME report (see Exhibit A) particularly
helpful in my evaluation of the various certified medical records (Exhibits 8
through 16) Claimant submitted, covering his treatment while living in
Watertown, New York.
Claimant told Dr. Davignon that he went home immediately after the accident on
November 27, 2002. Claimant felt stiff all over, his head ached and his eyes
bothered him. He felt worse the next day so Claimant went to the emergency room
at Samaritan Medical Center. Claimant was seen at approximately 6:00 p.m. on
November 28, 2002 and was sent home about 8:00 p.m. after being diagnosed with a
“cervical strain” and multiple cuts. He was prescribed Tylenol with
codeine and the muscle relaxant Flexeril and instructed to follow up with his
own doctor (Exhibits 16, 11).
Claimant consulted Dr. Douglas Sloan at Paul S. Curtis, M.D., P.C., in
Watertown after an Urgent Care visit on December 5, 2002 at the Canton-Potsdam
Hospital. From approximately December 19, 2002 until October 30, 2003, Dr.
Sloan guided Claimant’s care. In all of Dr. Sloan’s file notes,
Claimant complained of a persistent headache, pain in his neck, shoulders and
lower back. Dr. Sloan appears to have tried to address Claimant’s
symptoms with medication and physical therapy, but Claimant did not improve.
Dr. Sloan then referred Claimant for an MRI of the cervical spine and for a
neurology evaluation. The MRI showed “some foramenal narrowing at C6-7
but no disk herniation” (Exhibit 11, p. 4). Claimant then had an MRI on
his lumbar spine. That showed “a left paracentral disk protrusion at
L5-S1" (Exhibit 11). Claimant’s neurologist, Dr. Abdul Latif, assessed
that Claimant suffered from “posttraumatic headaches, chronic neck and low
back pain. He had no significant neurologic deficits and had normal motor
strength and normal sensation.” His medication was changed and Claimant
was instructed to continue physical therapy (Exhibit 11).
Claimant received physical therapy services from Hoose, Knight and Associates
between December 12, 2002 and October 24, 2003 (Exhibit 15). Therapists
completed “Daily Notes” for each session. In addition, Brent
Knight, PT, OMPT, made progress notes in the file. Those notes indicate that
Claimant failed to show up for his sessions, refused to do certain exercises,
neglected to complete his home exercise program and consistently showed up late
to sessions he did attend. Mr. Knight concluded that Claimant exhibits
“symptom magnification,” that is, Claimant experiences pain, but the
amount of pain he is reporting, and the limitations he places on himself because
of that pain, are inconsistent with Mr. Knight’s observations of
Claimant’s physical abilities.
Dr. Garry Weischedel, M.D. testified on Claimant’s behalf. Dr.
Weischedel is a physician licensed to practice in the states of Vermont,
Wisconsin and Minnesota. He was a resident in family medicine and is also
certified in that area. Claimant first consulted him in his practice on
February 4, 2004. Dr. Weischedel’s notes indicate that Claimant moved to
Vermont in December 2003 and that he has been experiencing neck and back pain
and headaches since the motor vehicle accident in November 2002. Dr. Weischedel
believed Claimant would be best served at a local pain clinic (noting that
Claimant mentioned he had intended to do that in Watertown) and initiated the
referral process in Vermont.
When Dr. Weischedel saw Claimant again on March 19, 2004, Claimant’s
continued struggle with pain had caused Claimant to reduce his 20-hour work week
as a “prep cook” at Smuggler’s Notch Ski Resort
(“Smuggler’s Notch”) to four hours. By this time, Dr.
Weischedel had the benefit of Claimant’s Watertown medical documentation.
Based on Dr. Weischedel’s review of the files and his examination of
Claimant he determined that Claimant’s pain was “chronic” and
that any intervention Dr. Weischedel could prescribe, such as medication and/or
physical therapy would not resolve Claimant’s problems. Thus, Dr.
Weischedel referred Claimant to the New England Spine Institute
Claimant consulted with Dr. Warren T. Rinehart, M.D., at the Institute. Dr.
Rinehart was able to rule out a physical or organic cause for Claimant’s
pain that could be resolved by surgery. Dr. Rinehart had Claimant try an
epidural, but that failed to provide Claimant with relief from his pain. Dr.
Rinehart finally concluded that Claimant would have pain for the rest of his
life. His Progress Notes on April 30, 2004 (in Exhibit 5) recommends Claimant
be evaluated by physical therapy professionals at the “Work Enhancement
Rehabilitation Center” (“WERC”) to get Claimant ready to go
back to work and give him ways to learn to live with the pain.
The full three week WERC program cost $12,000.00 in 2003. Claimant
participated for one week. It was not explained at trial who paid for the one
week course. At the conclusion of that program, Claimant was discharged with a
“medium work capacity,” having partially met the goals of the
program (Exhibit 5). A psychological evaluation was also done at WERC. The
June 15, 2004 Report noted Claimant feared re-injuring himself. He was
diagnosed with “Adjustment Disorder with Mixed Anxiety and Depressed
Mood” (Exhibit 5). That diagnosis was confirmed in the August 13, 2004
“Functional Restoration Program Progress Note Week 1" (Exhibit 5).
Dr. Weischedel saw Claimant last on July 19, 2007, but he had seen or talked
with Claimant several times since June 22, 2005, even though Claimant no longer
lived in Vermont. Dr. Weischedel’s opinion was that Claimant’s
condition was worsening, but the underlying diagnosis remained the same.
As discussed earlier in this decision, Dr. Davignon conducted an IME of
Claimant. In preparation for the IME, Dr. Davignon was given Claimant’s
Watertown medical records to review. His opinion was that Claimant’s back
and neck pain could not be resolved by surgery and that a further neurologic
evaluation might be helpful for the headaches. Dr. Davignon referred to
Claimant as “fairly pain focused,” suggesting that Claimant might be
helped by a “work hardening program with behavioral evaluation” like
the one at the New England Spine Institute (Exhibit A).
Dr. A. Kenneth Ciongoli, Neurologist, also gave Claimant an IME and had access
to Claimant’s medical files from Watertown. In a report dated February 2,
2004, Dr. Ciongoli indicated that he believed Claimant suffered from
“cervical and lumbar strain syndrome.” Dr. Ciongoli noted one
objective finding, a “slightly winged” right scapula (Exhibit B). I
had no proof of note before me that explained the significance of that finding
and what, if any, connection that had to Claimant’s condition. Dr.
Weischedel had both IME reports in his file and testified he found no marked
inconsistency between what Drs. Davignon and Ciongoli reported and his own
diagnosis and opinion.
Claimant was born on February 3, 1972, making him 30 years old on the date of
the accident. Claimant has graduated from high school and attended various
colleges, but does not have a college degree. Claimant is the father of five
children and has never been married.
Claimant testified he was on track to obtain a degree from SUNY Potsdam after
finishing courses at Jefferson Community College. He started matriculating at
SUNY Potsdam in the Fall of 2002. His significant other and their children
remained in Watertown when he moved to Potsdam to attend school. Claimant
stated he was attending classes during the day and working in the evenings. He
used a bicycle to get around campus. He described his progress during the Fall
semester prior to the accident as doing “well” but, after the
accident, he had trouble concentrating because he was in so much pain. He also
had to leave work because of the pain. He believes that he did go back to work
in January 2003, but only for a couple of weeks.
Despite the pain and poor performance on his exams, Claimant went back for the
Spring 2003 semester. Claimant stated he was still in pain but he wanted to
work through it and complete his schoolwork. He performed poorly but signed up
for Summer courses anyway. He testified that he could not complete those
courses because he was in too much pain and had too much to handle with all the
doctors’ visits and physical therapy sessions. Also, by this time, his
relationship with his family was deteriorating. Driving to Watertown to visit
was difficult as driving long distances increased his neck and back pain and was
unsafe, he felt, due to his vertigo. Claimant also stated that he could not
afford to pay for the trips home too often. By this time, Claimant had quit
working and was living off his student loans and savings. He received no-fault
insurance checks in the amount of $85.00 per week between 2003 and 2005.
In October 2004, SUNY Potsdam took a judgment for Claimant’s outstanding
education debt and Claimant decided to look elsewhere to continue his education.
He determined that Johnson State College in Vermont had classes compatible with
his goals, so he left his family in Watertown and moved to Vermont. Once there,
he found work as a “prep cook” at Smuggler’s Notch, but that
only lasted a couple of months because the pain prevented him from performing
the activities necessary for his job.
Claimant testified that school was going well for him at Johnson State College.
Claimant thought that the WERC program helped him learn to cope with his
condition well enough to try attending school at Alfred State College
(“Alfred”). Claimant left Vermont in the winter of 2005 and
enrolled at Alfred for the Spring semester. He found that his class work was
physically demanding and hard on his body. The artwork required him to lift,
use his arms, bend and stand for long periods of time. Claimant also worked in
the school’s kitchen and then at the “clay store.” Claimant
testified he was still “down” and, even though Alfred was a great
school, he was “missing something.”
Claimant then applied to the College for Creative Studies in Detroit, Michigan.
By this time, Claimant felt alienated from his children - they were distant and
non-verbal. Claimant believed his children had adjusted to not seeing him.
Claimant had hoped for a fresh start in Detroit and borrowed money from his
father to get there. Two to three weeks into his courses, he still owed
$5,000.00 and he could not pay, so he had to drop out. He stayed in Detroit for
a year to a year and a half.
Claimant next moved to Cincinnati, Ohio, where a friend was going to help him
make a new start. This friend let Claimant live with him but, after a short
while, this situation, too, did not work out for Claimant. In October 2007,
Claimant moved back to Vermont and again took a job at Smuggler’s Notch.
Claimant stated that he worked there until he had another car accident. He
found a different job working at the University of Vermont for the food service.
He works about 6.5 hours each day. The State called no witnesses in its
defense, but submitted the IME reports (Exhibits A, B).
Having carefully reviewed the evidence and the trial testimony, I find that
Claimant has demonstrated that he suffered a permanent partial disability and,
therefore, “serious injury” as defined by the insurance law. I
award Claimant $30,000.00 for past pain and suffering with appropriate interest
from June 14, 2007 (the date the liability decision in this matter was signed).
I award Claimant $60,000.00 for his future pain and suffering. I also award
Claimant $2,593.90, the amount of his tuition at SUNY Potsdam for the 2002 Fall
and 2003 Spring semesters in the form of a judgment taken by the State against
Claimant (Exhibit 3).
I decline to make any award for lost wages or child support as the proof
presented at trial does not support one. The amounts set for past and future
pain and suffering and tuition reimbursement shall be offset by Claimant’s
contributing negligence, that is 50%, making a total award to Claimant of
To the extent Claimant has paid a filing fee, it may be recovered pursuant to
Court of claims Act § 11-a(2). Any motions on which the Court may have
previously reserved decision are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.