New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-031-521, Claim No. 109395


Claimant awarded $46,296.95 for injuries sustained in motor vehicle accident.

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:
Defendant’s attorney:
New York State Attorney General
BY: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 post-trial memoranda.

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 accident.

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 (“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 $46,296.95.

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.


December 24, 2008
Rochester, New York

Judge of the Court of Claims