No credibility regarding worker's injuries from car accident.
|Claimant short name:||BRADSHAW|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||JEFFREY HIRSCH, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: John Healey, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 30, 2009|
|See also (multicaptioned case)|
On August 18, 2005, claimant, a correction officer, was returning from training at Bedford Hills Correctional Facility (Bedford), when the State van in which she was a passenger was struck by a pickup truck that left the scene of the accident. Claimant seeks damages, pursuant to the uninsured motorist coverage set forth in New York State Insurance Law §3420(f)(1), for serious physical injuries she allegedly sustained from the accident. Defendant contends that, inter alia, claimant failed to establish that she suffered a serious physical injury as a result of the accident.
Claimant has been a correction officer at Arthur Kill Correctional Facility (Arthur Kill) for 20 years. On August 18, 2005, she and a colleague, Correction Officer Emilio Santana, attended a training session at Bedford. At approximately 3:00 p.m., claimant and Santana left Bedford and proceeded to Arthur Kill. Santana drove and claimant was a passenger in a State-owned van. As they traveled southbound on the Saw Mill River Parkway in Westchester County, a pickup truck struck the back, left side of the van. The driver of the pickup truck did not stop. Therefore, Santana followed the truck in an attempt to obtain the driver's identity and the pertinent vehicle information.
On cross-examination, claimant's veracity and credibility were effectively challenged. In addition to the numerous inconsistencies in her testimony, claimant's lack of recall of significant facts was disingenuous. Additionally, there were several statements made by claimant which were simply not worthy of belief. For example, claimant testified that, during a high speed chase, Santana, the driver, wrote down the other vehicle's license plate information as best he could (T:13).(1) Claimant maintained that she did not see the plate number and did not record it. On cross-examination, however, claimant conceded that she may have written down the license plate, but she did not recall (T:63). She was then confronted with her EBT testimony that she had written down the plate information as Santana drove at a speed of approximately 65 miles per hour (T:63-65). When asked if she was truthful at her EBT, she responded "[m]ost likely" (T:65). She then conceded that it was possible that she wrote down the plate information as Santana called out the information because he was speeding while "zig zagging" (T:65-68).
Additionally, at trial, claimant testified for the first time that the van struck a guardrail. However, at her examination before trial (EBT), claimant never mentioned that the van hit a guardrail and this information was not contained in the Police Accident Report (Ex. 1), the Motor Vehicle Accident Driver's Exchange of Information report given to the Westchester County Police by claimant and Santana (Ex. A), the New York State Department of Correctional Services (DOCS) memorandum prepared by claimant on the date of the accident (Ex. P), or the DOCS memorandum prepared by Santana (Ex. Q).(2)
Claimant's testimony was also completely inconsistent with regard to how she had reported the accident to the police. The memorandum she prepared detailing the events for Lieutenant Smith at Arthur Kill noted that she "dialed 911 on [her] cell phone to report the incident to NY State Police but kept losing the cell phone signal" (Ex. P). When confronted at trial with her EBT testimony that she had telephoned the police and had reported the accident, claimant testified at trial that she did not recall whether she had spoken to the police on the telephone. Claimant's DOCS memorandum (Ex. P) stated that she encountered a police officer on the side of the road and reported the accident (T:380-81). However, at trial, she said that she and Santana went to the precinct to report the accident.
Clearly, claimant and Santana reported the accident to the Westchester County Police as evidenced by the information recorded in the Motor Vehicle Accident Driver's Exchange of Information (Ex. A). The report indicated that the plate was registered to an address in East Rutherford, New Jersey.(3) When claimant was asked if she tried to ascertain if they had correctly reported the license plate number, she responded, "That's not my job. It's a police job as far as I'm concerned" (T:71). Claimant conceded that she did not attempt to confirm that the plate number they reported was correct. She also did not recall making any efforts to ascertain the identity of the owner of the vehicle or whether the vehicle was insured. Nonetheless, in her affidavit to the Motor Vehicle Accident Indemnification Corporation (MVAIC) requesting recovery under Article 52 of the New York State Insurance Law, claimant swore that she was hit by an uninsured, unidentified car(4) (Ex. T). Claimant testified that, to her knowledge, the police never found the vehicle; however at her EBT she testified that the police did find the vehicle (T:76).
Claimant purportedly could not recall how she got home on the day of the accident. She did not tell Santana that she had been injured nor did she go to the hospital that day. However, two days later, she went to her family doctor, Dr. Leo Parnes, who had been treating her for 10 to 15 years. Claimant complained to Parnes of head, back, shoulder and left leg pain. Parnes examined claimant and prescribed a course of physical therapy twice a week for three to four months. Claimant testified that during the months of therapy, she noticed some improvement, but she continued to experience blurry vision and intermittent pain. She maintained that she could not walk or stand for long periods of time.
Claimant testified that she was out of work for three or four months and did not recall if she had been placed on modified duty when she returned to work. Claimant testified that she still has pain in her leg and back, although not every day and that some days are better than others. She also testified that she has intermittent headaches and cannot jog or stand for long periods of time as is necessitated by her daily tasks of cooking and washing dishes. Claimant maintains that, prior to the accident, she did not have any difficulties performing these activities.
When questioned on cross-examination about her difficulties in handling household chores due to the injuries she allegedly sustained in the accident, claimant said that she lived with her husband, daughter and son in Brooklyn and that they all helped her (T:95-98). She stated that no one mowed the lawn because they did not have a lawn (T:98). While she initially testified that she lived in Brooklyn (T:82), she later testified that she lived in New Jersey (T:359) and conceded that her home in New Jersey had a large lawn that required mowing (T:121).
Claimant testified that she has been with her husband 27 years and that they were married in 2006. When asked her husband's last name, claimant replied, Jean. When further questioned whether he also went by the name Jean Allrich, she replied, "I don't know. I know his last name is Jean. So, I don't know what you're talking about" (T:140). She gave this answer, even though Jean Allrich was the name he wrote on deeds and mortgage documents that both claimant and he had signed (Exs. AA, BB). Moments later, when asked again if he uses Allrich as a last name, claimant said, "Probably. I don't know" (T:143). She maintained that she had no knowledge of her husband using the last name Allrich. She was then shown a check made out to, and endorsed by, her and her husband. His name as it appeared on the check was Jean Allrich (Ex. U; T:417-19). Claimant then conceded, "I guess" he goes by that name (T:419).
In 2005, claimant's husband owned an automobile (Ex. CC). In contrast to the Amended Claim (Ex. DD), claimant's EBT testimony, and her testimony on the first day of trial, that at the time of the accident, neither she nor anyone in her household owned an automobile, claimant testified on the second day of trial, that in August 2005, a member of her household did own a car and had insurance. She stated that if she had previously testified differently, then "I guess" it was a false statement (T:119).
At trial, claimant could not recall how many times over the years she had missed work due to injuries she had sustained (T:122); however at her EBT, she testified to approximately five absences. Claimant was also questioned at trial about her numerous Workers' Compensation claims. She purportedly did not recall a 1993 accident that kept her out of work for six and one half months and could not recall the time frame even though it coincided with her pregnancy and the purchase of a home in Brooklyn (T:128-30). She also claimed not to recall if she was on maternity leave after the birth of her son (T:130).
Dennis Zack, a Senior Investigator with DOCS Workers' Compensation and Fraud Unit, testified at trial that he first became familiar with claimant while investigating Workers' Compensation cases. He testified that claimant has brought nine Workers' Compensation cases. Exhibit W was received into evidence as the Workers' Compensation Employee Summary for claimant(5) (T:485). Zack explained that the summary indicated that claimant went out on Workers' Compensation on January 15, 1993 for injuries sustained in an accident on January 14, 1993 and she did not return to work until January 19, 1994 (T:486-87). Zack also noted that claimant had a Workers' Compensation claim on September 27, 2007 which caused her to be out of work from September 28, 2007 to January 13, 2008 (T:488-89). She again went out on Workers' Compensation from June 26, 2008 to July 9, 2008 due to the September 2007 injury and was also out from July 26, 2008 to August 18, 2008 due to the same incident (T:489).
Claimant also had difficulty remembering recent events. For example, when asked at trial whether she was working in May 2009, when the trial commenced, she replied, "I believe I was" (T:149). After a follow-up question inquiring whether she had been out of work from April 2009 to June 2009, she then recalled being out of work (T:150). Claimant also purportedly could not recall that she and her husband were both out of work due to Workers' Compensation claims in 2005 and again in 2008 (Exs. W, X).
Claimant's purported lack of recall was not believable. When questioned if she was ever treated by Dr. Eric Senat in relation to a January 2000 automobile accident in which she was the driver and her two children were passengers, claimant replied, "could have been" (T:156). Although claimant and her children recovered money damages, claimant could not specify the injuries she had sustained. She stated, "I don't remember what the injuries were during that case (T:157).(6) When defense counsel attempted to refresh her memory with the fact that she had an MRI regarding that accident, her memory was still sketchy and she stated that the injuries she sustained were "probably" to her back (T:158). Claimant also testified that she did not remember who owned the car that she was driving in the accident (T:159). She also did not recall having two MRI's for her lumbar and cervical spine in 2000 until confronted with copies of the MRI reports (Exs. R, S). Only then, did she concede that she was treated for back and neck injuries at that time.
Claimant testified that on January 18, 2005, she sustained a work-related injury when she dropped a drawer on her toe. She claimed to recall being out of work for "maybe two months" (T:161). She actually returned to work almost six months later on July 9, 2005, approximately 40 days before the August 18, 2005 motor vehicle accident which is the basis of this claim. Claimant conceded that it was fair to say that she had not completely recovered from the January 2005 accident as of August 18, 2005. Claimant returned to work in October 2005 after the August accident and was not sure if she ever missed work again relating to that accident. Claimant was absent again, after she returned to work in October 2005, due to a reoccurrence of the injuries she had sustained in the January 2005 accident. After repeatedly answering that she lacked recall of event after event, on re-redirect examination, claimant testified that her memory loss was attributable to the August 2005 motor vehicle accident.(7)
Dr. Leo Parnes testified that he examined claimant on August 20, 2005, when she informed him that she had been a passenger in a vehicle that had been hit in the rear and that she had sustained various injuries. An examination revealed that claimant had a concussion, headaches and dizziness. She also had spasms and limited rotation in her neck, lower back spasms, pain in her left leg, trauma to her left shoulder, tenderness in her biceps, and injuries to both knees and her left ankle. Parnes prescribed physical therapy and an anti-inflammatory drug.
Claimant continued to complain of pain in her lower back and left leg. Parnes referred claimant to a neurologist, who administered an EMG test and sent claimant for an MRI in April 2009. According to Parnes, the results of these tests showed chronic bilateral damage in claimant's cervical spine at C-5/C-6 and a herniated disc in her lumbar spine with radiculopathy, inflamation of the nerve, radiating down claimant's left leg. Parnes opined that these injuries were the result of the August 2005 accident. He further concluded that the herniated disc was a permanent injury that could only be resolved by surgery. When asked to explain why the diagnostic testing relating to the August 2005 accident was not performed until 2009, Parnes responded:
"Well, I know [claimant] a number of years * * * and she always * * * got injured here and there and there and there, and every time she's * * * out for a little while, she gets treated with medication and physical therapy, and she is fine and she goes back to work, and I don't see her for a while."
(T:211-12). Parnes had "no idea" when he first started treating claimant (T:221). It was a "[l]ong time ago. Maybe 2002, 2000. I have no idea" (id.). Parnes later testified that the injuries claimant had sustained in the 2005 accident had worsened so he sent her for testing in 2009. However, Parnes also testified that he saw claimant on April 21, 2009, after she had sustained a work-related injury on April 20, 2009 (T:232-34). At that visit, claimant complained of pain in her head, neck, and left shoulder due to an injury she sustained when her head hit a metal pipe. Parnes then conceded that it was possible that the 2009 MRI related to the work-related injury for April 2009 and not the August 2005 accident which is the basis of this claim (T:237). Parnes was also questioned about an MRI which claimant had on October 19, 2000 that showed a herniation at C5-C6. Parnes claimed to be unaware of these facts (T:228-29).
Prior to claimant's August 2005 motor vehicle accident, Parnes had last seen claimant on June 24, 2005 for treatment related to her January 2005 work-related injury (T:273). Parnes' office sent two "To Whom it May Concern" letters relating to claimant's work-related injury sustained on January 18, 2005 (Exs. J, L) and two "To Whom it May Concern" letters relating to claimant's August accident (Exs. K, M). In regard to claimant's January accident, it was noted on January 20, 2005 that claimant sustained "[l]umbosacral derangement, with sprain, strain and spasm. Bilateral sciatic radiculopathy. Right knee internal derangement." Physical examination revealed SLR (straight Leg Raising) of the left leg at 40 degrees (Ex. L). In regard to claimant's August accident, it was noted that claimant sustained "Lumbosacral derangement with sprain and low back pain. Sciatic radiculitis in the left leg. Traumatic contusion and sprain of the right knee as well as traumatic contusion and sprain of the left knee" (Ex. M). Parnes testified that on August 20, 2005, he did a straight leg test on claimant and she could only lift her left leg 30 degrees as opposed to a healthy 90 degrees and rotate her neck 30 degrees (T:271). Parnes had performed the same test on claimant on January 20, 2005 and she was able to lift her leg 40 degrees (T:291). Parnes testified that he continued to treat claimant on a regular basis until 2007 and then as she presented for pain.
Parnes did not know how far claimant could lift her left leg as of June 24, 2005 or whether claimant had returned to work by then. The evidence revealed, however, that on June 24, 2005, Parnes had completed an Attending Doctor's Report of the New York State Workers' Compensation Board indicating that claimant was totally disabled with low back pain, sciatica and knee injury (Ex. I). Parnes stated that he did not recall if he had found claimant to be totally disabled on June 24, 2005, because "[s]he couldn't be totally disabled if she was working" (T:277). He explained that he did not know if the entry was correct because the "girls" fill out the forms and maybe they checked the wrong box (T:277-78). He later clarified that the "girls" were nursing assistants and not high school students (T:303). He stated that:
"It was just that the girls sometimes make an error, a typographic error. You know, it happens all the time. * * * You know, I try to catch everything. There are things sometimes I don't catch. You know, it's just too much to do, and we try. We try to keep records as accurate as possible. Now, I thought that she went back to work on June 24th because she did have an accident in August, which is only a couple [of] months later. So, therefore - - I mean, you know, the car accident. Therefore, I really thought she went back to work much earlier than June 24th. I'm not - - I can't promise, I can't swear either way."
(T:279-80). Parnes conceded that he did not know claimant's condition when she went back to work in July 2005.
On November 5, 2007 also, Parnes reported that a straight leg test indicated that claimant could lift her leg 40 degrees (T:300; Ex. J). Parnes maintained that this should not have been in his report but, "it's not easy to follow every little thing that the girls do when you see, you know, 25, 30 patients [daily]. You can't look at every little point that they do" (T:301).
Parnes opined that even after claimant returned to work in October 2005, she still had spasms and pain in her back, neck, left knee, shoulder, ankle and foot related to the August 2005 accident. In addition, she sustained a cerebral concussion causing vertigo, headaches and dizziness.Analysis
Insurance Law § 3420(f) requires that uninsured motorist protection be provided in all policies insuring against liability for bodily injury or death arising out of the ownership, maintenance, and use of a motor vehicle (see Matter of State Farm Mut. Auto Ins. Co. v Amato, 72 NY2d 288). The statute explicitly provides that no payment shall be made under such policy provision unless a "serious injury" has been incurred. Here, despite claimant's unrefuted absence from work after the accident, the Court finds that claimant has failed to meet her burden of establishing a "serious injury" as a prerequisite to obtaining benefits under the statute (see also Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 200 ["the payment of mandatory uninsured motorist benefits is conditioned on a finding that the insured suffered a serious injury as defined in Insurance Law § 5102(d)"]). Indeed, claimant failed to establish that her absence and her injuries were causally related to the 2005 motor vehicle accident which is the basis of this claim.
Most significantly, upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the testimony of both claimant and her treating physician, with whom claimant has had a long-term relationship throughout her numerous Workers' Compensation claims, was less than forthright and credible. Claimant's testimony was riddled with inconsistencies and a disingenuous frequent claim of a lack of recall of significant facts and events. She also could not testify with sufficient specificity as to the particular injuries which were purportedly attributable to the accident which is the basis of this claim. Rather, she conceded that, as of the date of her August 2005 accident, she had not completely recovered from the injuries she had sustained in her January 2005 accident. It was also elicited that in October 2005 she was absent from work due to a reoccurrence of the injuries she had sustained in the January 2005 accident. The testimony of claimant's treating doctor was equally unavailing. He was often confused and ineffective in explaining the inconsistencies between his testimony and his medical notes and records. For example, while he initially testified that the results of an MRI performed in April 2009 showed injuries attributable to claimant's August 2005 accident, he later conceded that it was possible that the injuries were caused by claimant's work-related accident on April 20, 2009. Thus, he, like claimant, could not testify with sufficient clarity as to the particular injuries attributable to the accident which is the basis of this claim. Further, he unsuccessfully attempted to explain the inconsistencies in a cavalier manner by summarily stating that any errors were the fault of the "girls" in his office.(8) Claimant's lack of credibility coupled with the lack of clarity and unreliability of her doctor's testimony did nothing to substantiate that her claimed injuries amounted to a serious physical injury that was causally related to the 2005 motor vehicle accident.
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED. All other motions not previously ruled upon are DENIED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 111677.
November 30, 2009
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims
1. References to the trial transcript are preceded by the letter "T."
2. The DOCS memorandum prepared by Santana also fails to mention that the van struck the guardrail (Ex. Q).
3. The New York State Incident Report received into evidence and indicates that the vehicle that struck the DOCS van was a gray, GMC pickup with New Jersey license plate number NKF92E (Ex. O). It was operated by a white male and was "registered to Anthony Urciuoli (6/1/66) 130 Humboldt St. E. Rutherford, N.J." The VIN number was also provided in the Incident Report.
4. Exhibit Z is a letter from New Jersey Manufacturers Insurance Company (NJMIC) dated June 8, 2009 (T:494-95). This letter indicates that NJMIC insured a 2003 GMC, number 1GTHK23173F131991, registered to Anthony Urciuoli, since November 6, 2002 (Ex. Z).
5. Exhibit X was received into evidence as the Workers' Compensation Employee Summary for claimant's husband (T:490).
6. It appeared that, due to claimant's history of accidents dating back to 1993, she could not keep the claim and resulting injuries in order.
7. Loss of memory was never pled in the claim.
8. The girls were nursing assistants.