New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2009-029-021, Claim No. 111489


Damages: lumbardisc herniation, cervical disc impingement; radiculopathy. $157,000.00 past pain and suffering; $250,000.00 future pain and suffering.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jyotsna Gorti, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 1, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


In the court’s prior decision following the liability phase of this bifurcated trial, defendant was found liable for the subject accident in which a tree fell from State property and landed on claimant’s car on October 15, 2003 (Rivera v State of New York, UID No. 2008-029-021, May 28, 2008). This decision follows the damages trial.

Claimant, date of birth November 22, 1965, was driving a Lincoln Navigator owned by his employer, More Trench, when, without warning, the tree struck the vehicle’s windshield and roof with what he described as a “heavy impact” (Trial Minutes [TM], p 334). He was jolted forward and to the right, striking his back on the console separating the bucket seats and striking his head on the upper console (where the reading lights are located).

Claimant testified that he did not feel pain at the time of the accident and he received no treatment at the scene. Later that day, he began to feel pain in his lower back, neck and right shoulder.

Claimant’s employer was a construction company that did a lot of “excavation de-watering” – involving taking water samples and testing for contamination – at construction sites (id., p 339). His job was to go to a site with a pump, well points and hose, put the pipes together and hand feed the well point into the ground. He stated that the pumps weighed 60 to 70 pounds and the pipes about 15 pounds each. In addition to lifting and positioning this equipment, the job involved substantial bending. He had been with More Trench for about three years as of the accident date and earned about $37,000.00 annually, at the rate of $18.00 per hour.

Claimant first sought treatment for back, neck and shoulder pain two days after the accident when he saw Dr. Richard Harvey, a chiropractor who had previously treated him for back pain in the late 1990's and in 2002. He testified that prior to the subject accident, his back pain had subsided. Claimant stated Dr. Harvey examined him, took x-rays and referred him to an orthopedist, Dr. Michael Palmeri, who also examined him and also took x-rays. Dr. Palmeri instructed him to continue seeing Dr. Harvey, which he did, approximately three times per week for one year. Claimant also stated that he continued with Dr. Palmeri for about a year and a half.

After the accident, claimant’s duties with More Trench were limited to desk work due to his inability to do the field work he had done before because of his back, neck and shoulder pain and medical advice not to lift heavy objects. He testified that he was ultimately fired because of these limitations. [1] He was unemployed for six to seven months and, at the beginning of 2005, he was hired by Williams Advanced Material as a shipping clerk, at a salary of $11.00 per hour. He worked there during 2005 and earned $14,604.64 (Exhibit 12). He testified he left that job because his lower back pains prevented him from performing his duties. He then obtained employment with a firm known as Hypotronics as a stockroom supervisor, where he remains employed, earning $14.00 per hour. He testified that in 2007, he earned approximately the same amount that he earned in his last full year at More Trench.

In the fall of 2005 claimant began seeing Dr. Michael J. Bank, who is located closer to his home than Dr. Howard and Dr. Palmeri. Claimant testified that, at that point, his major complaint was lower back pain. Dr. Bank put him on a regimen of physical therapy which continues to date. Claimant stated that the therapy helps in alleviating his pain, but he still continues to experience lower back and buttocks pain, with some good days and some bad days. He also stated that he is bothered by neck stiffness once or twice a month and that he suffers pain – not severe – in his right shoulder. He cannot ride his motorcycle without getting back pain and can no longer go dancing with his wife. He also has difficulty playing ball with his son and is intermittently totally unable to do so.

Claimant stated on cross-examination that he had first consulted with Dr. Harvey in 1998 for “muscle aches . . . in general” (TM, p 369). In 1999 he complained to Dr. Harvey of sharp pains in his lower back, made worse by bending and lifting. He also recalled seeing Dr. Harvey in 2002 and 2003 for neck and back pain. With respect to his treatment by Dr. Harvey subsequent to the subject accident through 2004, claimant testified that although his neck substantially improved, his back did not. In fact, he still gets sharp pains shooting down his left side several times per week and also occasionally gets pain shooting down his right side. He infrequently takes Vicodin, prescribed by Dr. Bank, for back pain. He also gets a dull pain in his neck radiating to his right shoulder, about twice a month.

Dr. Harvey, a chiropractor in private practice since 1986, testified for claimant, whom he saw two days post-accident. The doctor related that claimant had been a patient of his from 1998 through 2002. In September 1998 he complained of sharp radiating back pain while doing work at home and received treatment through June 1999, by which time the pain had lessened. Claimant again saw Dr. Harvey in August and September 1999 complaining of neck pain, and next from April through December 2002 complaining of neck and back pain. He did not refer claimant to any other provider nor did he prescribe any diagnostic tests such as an MRI because he felt he was able to address the situation without additional consultation. He did not suspect any disc pathology at that time.

When claimant next sought Dr. Harvey’s assistance, the day after the subject accident, claimant complained of pain in his back, neck, arm and shoulder, and Dr. Harvey found muscle spasm (which he explained occurs when there is a nerve irritation and the resultant muscle tightening) in the neck and lower back and reduced range of motion in both the neck and lower back, [2] indicating nerve irritation. He found a positive result on two leg-raising tests, also indicating nerve irritation. His opinion was that claimant was suffering from a total disability at that time which improved to a partial disability after treatment including spinal adjustments, physical therapy and exercise rehabilitation. Dr. Harvey last treated claimant in August 2004. On that examination, the range of motion in claimant’s neck and lower back had improved but not to normal levels. His opinion at that time was that claimant was able to work but should avoid repetitive bending, lifting more than ten pounds and standing or sitting for more than 20 minutes at a time. Dr. Harvey referred claimant to Dr. Palmeri, an orthopedist, who ordered MRI’s of claimant’s back, neck and shoulder. These studies were taken in September 2004.

According to Dr. Harvey, the lumbar MRI (Exhibit 20, No. 1) shows a herniated disc at the L5-S1 level, with an indentation into the spinal cord. The MRI report (Exhibit 17) states: “At L5-S1 there is a large extruded central and left paracentral HNP compressing the ventral aspect of the thecal sac and impressing upon both S1 nerve roots, left greater than right.” Dr. Harvey’s opinion was that this was a relatively recent herniation, based on the absence of any marked degenerative changes. He indicated that the rest of the spine was relatively healthy, except for some lordosis due to muscle spasm. His opinion was that the herniated disc was caused by the subject accident, that it was not present when he treated claimant in 1999 and that if the herniation were that old, there would be degenerative changes and a narrowing of the disc spacing on the 2004 MRI. He also opined that the disc herniation was not related to any condition that he treated claimant for in 2002. On cross-examination, he described the herniation as “fairly large” and offered that he was 95% sure that it was caused by the subject accident.

Looking at a film of the cervical MRI, Dr. Harvey noted that there was a bulging disc at the C-4-C5 space and herniations at C5-C6 and C6-C7. The MRI report (Exhibit 16) states: “1. At C4-C5 a diffuse posterior disc bulge flattens the ventral surface of the spinal cord. 2. At C5-C6 there is a large left-sided central HNP compressing the ventral surface of the spinal cord. 3. At C6-C7 there is a large central HNP compressing the ventral surface of the spinal cord.” Dr. Harvey’s opinion was that this damage was caused by, and did not pre-exist, the subject accident, based on the lack of degenerative changes, the lack of any decrease in the disc spacing and the lack of any bone spurring.

Dr. Harvey testified it was not unusual for a patient not to feel pain immediately upon impact; that the initial injury could weaken the disc and cause it to bulge or herniate over time, which could be days, weeks or even months.

Dr. Harvey also testified concerning the report of a nerve conduction study and electromyography (EMG) performed in July 2006. The report of that study (Exhibit 22) concludes that claimant was suffering from “Left L5 (S1) radiculopathy, appearing chronic “(id.), which was consistent with Dr. Harvey’s initial diagnosis and with the herniated L5-S1 disc shown on the MRI.

Dr. Harvey next examined claimant in October 2008, in preparation for trial, and found that the range of motion in his neck and lower back were essentially the same as they were in 2004. He characterized the range of motion in claimant’s neck as “mild to moderately reduced” and in his lower back as “moderately reduced” (TM, p 111). Additional testing was positive for low back pain and spasm and there was weakness of the deltoid (shoulder) and gluteus medius muscles. He concluded that claimant suffered from a permanent partial disability as a result of the injuries sustained in the subject accident.

On cross-examination, Dr. Harvey was asked if he thought, when he saw claimant in October 2003, that what he was seeing were symptoms of an exacerbation of a prior condition in claimant’s neck and back. He replied in the negative, stating it was his opinion that “this was a new injury because the last time I saw him prior to this injury he was pretty much pain free” (TM, p 76). He noted that the range of motion he found in claimant’s neck and back was “a little bit more reduced” in 2003, immediately after the injury, when compared to the testing he performed in 1999 (id., p 82), and that the test results were “relatively the same in September 1999 and April 2004 (id., p 83).

Dr. Michael Bank, a board-certified internist, first saw claimant in September 2005. Claimant complained of low back pain radiating to the left gluteal region, severe and constant, without radiation to the legs, and right shoulder and neck pain that were both mild and occasional. The doctor found reduced range of motion and muscle spasm in the lower back, but claimant had a normal neurological examination with respect to the nerves in his legs. Dr. Bank also noted claimant walked with an antalgic gait, meaning shifted over to one side in an apparent attempt to decompress a compromised disc. He did not have claimant’s MRI results at that time, but he suspected lumbosacral disc pathology and radiculopathy. Dr. Bank recommended physical therapy and claimant commenced a course of treatment at his office, two to three times per week. He also prescribed Vicodin and Aleve for pain, ordered the EMG study (Exhibit 22) and referred claimant to another physician in his office for trigger-point injections, involving injection of an anesthetic and a steroid directly into a region where a muscle is contracted due to pain.

Dr. Bank described the EMG results as demonstrating a left L5-S1 radiculopathy with nerve injury to the muscles leading to the left leg. Looking at the MRI films, Dr. Bank noted that claimant’s L5-S1 disc was herniated and impinging on the spinal cord. (Exhibit 20, no. 1). His opinion was that this was caused by the subject accident, because the mechanism of the injury, as described to him, was consistent with the damage to the disc and because claimant “did not have, in my opinion, a significant prior history of low back problems” (TM, p 150). He stated that the damage shown on the MRI was more consistent with a relatively recent injury as opposed to one that was five years old, and particularly “most consistent with the picture one would see of a more recent herniation of within a year” (id., p 213). He testified on cross-examination that the probability that the disc herniation did not exist when claimant first sought treatment from Dr. Harvey for back pain in the late 1990's was very high.

With respect to claimant’s neck, Dr. Bank noted the two disc herniations at C5-C6 and C6-C7 and stated that it looked like they were pressing against the spinal cord.

At the time of trial, claimant was still receiving treatment at Dr. Bank’s office, sometimes a few times weekly and sometimes a few times monthly. The doctor indicated that it seems like they are keeping his pain controlled and that he thinks claimant would benefit from continued treatment, although no proof as to the projected cost of any future medical or physical therapy treatments was received. He testified that claimant should avoid doing any kind of work that involves heavy lifting (more than 25 pounds), repetitive bending or twisting, and opined that “his current complaints will be ongoing and may worsen over time” (id., p 177).

Dr. Michael Elia, a board-certified orthopedist, examined claimant on February 6, 2008 and testified as an expert witness on behalf of defendant. The doctor testified that claimant told him he had been in a motor vehicle accident and complained of lower back pain and some pain in the right shoulder. He found claimant to have full range of motion in his neck, mild signs of impingement in his shoulder, negative straight leg raising tests and limited flexion and extension of the lower back because of pain. He stated that claimant did not complain of neck pain at the time he saw him. He did a “gross neurologic exam” (id., p 237) which was normal, indicating that there was “most likely no gross injury to a nerve in the neck” (id.). When Dr. Elia examined claimant’s back, he complained of pain upon superficial palpation, indicating to the doctor that the pain was possibly not real. Claimant had limited range of motion because “[a]t a certain point, he complained of pain and couldn’t flex anymore or extend anymore” (id., p 240). Dr. Elia did not record the degree of limitation of range of motion, although he recalled that it was “very limited” (id., p 290).

Between his examination and his trial testimony, Dr. Elia reviewed claimant’s MRI films. He agreed that they showed a herniation at L5-S1. Unlike Dr. Harvey and Dr. Bank, he could not tell anything about the age of the herniation, testifying that it “could have been there three months, it could have been there three years” (id., p 250) and asserting that the lack of bone spurring was irrelevant on this question.

With respect to claimant’s cervical spine, Dr. Elia noted bulging discs at C3-C4 and C4-C5 and herniations at C5-C6 and C6-C7. He did not see “significant impingement” on the nerve roots or “significant compression” of the spinal cord (id., pp 252-253). His opinion with respect to claimant’s shoulder was that claimant had a “little maybe tendinitis of the rotator cuff, a little inflammation, but no tear” (id., p 260).

Dr. Elia also testified that claimant’s complaints on his pre-accident visits to Dr. Harvey were consistent with a herniated disc. He also noted that the vast majority of people with herniated discs get better over time, with physical therapy and analgesics.

Dr. Elia’s opinion was that the trauma sustained by claimant in the subject accident was “a competent producing cause, or I would say it was probably an aggravation of a pre-existing problem” (id., p 270) with respect to both his lower back and neck pathology. Later, he testified that he was not sure whether claimant’s herniated discs were caused by the subject accident or were pre-existing. With respect to the shoulder, the doctor felt that the accident “could have been a competent producing cause” (id., p 272). He stated that claimant’s prognosis was good but that he has a mild disability: “probably physical labor is not a good thing for him to do” (id., p 308) and he agreed that claimant’s symptoms were most likely permanent.

On cross-examination, Dr. Elia was asked about claimant’s EMG, which he described generally as one of the best tests available to show the integrity of the peripheral nervous system. He did not recall ever previously reviewing claimant’s EMG report. He agreed that the test showed radiculopathy at L5-S1, where the MRI shows a herniation, and characterized the EMG result as demonstrating permanent nerve injury. He stated: “It does show that there’s injury there, sure, and it is consistent with his MRI. You can’t refute that, no” (id., pp 303-304). Although he indicated that claimant did not complain of radicular symptoms on the one day he saw him, he agreed that people with such injuries have good days and bad days and that the nature of the injury is such that the radicular symptoms might not be present on any given day.

The medical witnesses all basically agreed as to the nature and extent of claimant’s injuries, which was not surprising since all injuries were confirmed by objective testing. The sole point of disagreement was whether the injuries were the result of the subject accident or whether they were pre-existing and merely aggravated by the accident. On this point, claimants’ proof was much more convincing than defendant’s. While it is true that claimant had experienced problems with his back and neck in the past, the testimony of claimant and Dr. Harvey that these problems were less severe than what claimant experienced post-accident, and had resolved prior to the accident was credible. Both Dr. Harvey and Dr. Bank testified with close to medical certainty that what was shown on the MRI films reflected relatively recent injuries. Dr. Elia, in contrast, merely testified that there was no way for him to tell. It is the court’s finding that the totality of the evidence requires the conclusion that it is substantially more likely than not that claimant’s post-accident symptoms were the result of the trauma he sustained in the subject accident. The record before this court more than meets the required “preponderance” standard for this determination.

Additionally, claimant was an extremely credible witness. He did not appear to this court to be feigning or exaggerating his injuries in any way, despite Dr. Elia’s speculation to the contrary. He candidly testified that his shoulder and neck problems have essentially resolved, limited to very occasional dull aches. He did not use his injuries as an excuse to avoid gainful employment and, notwithstanding his claim for lost wages for a period of two years, acknowledged that he was able to restore his earnings to pre-accident levels despite his continuing physical limitations. His testimony that prior to the subject accident he was able to engage in the strenuous physical labor required by his employment at More Trench but that after the accident he could no longer do so was credible and fully supported by the objective medical evidence.

The parties stipulated that claimant incurred medical bills amounting to $39,328.24. As to lost earnings, claimant requests an award of $15,304.68 for 2004 and $22,219.42 for 2005 (total $37,524.10), representing the respective amounts by which each year’s earnings fell short of his 2003 total of $36,824.36, before he lost his job with More Trench. Claimant’s request is supported by the proof and this court finds such awards fully justified.

Although claimant also requests an award for future medical expenses, there was no testimony concerning the likely cost of any such treatment. The only proof in the record as to medical expenses, other than the parties’ stipulation as to the total expenses incurred, related to chiropractic treatment by Dr. Harvey which ceased years ago. Although Dr. Bank testified that claimant would likely benefit from continued physical therapy, he did not know the cost of such treatments and any award of damages for future treatment would necessarily be based wholly on uninformed speculation by the court (see Huff v Rodriguez, 45 AD3d 1430 [4th Dept 2007], Sanvenero v Cleary, 225 AD2d 755 [2d Dept 1996]; compare Komforti v New York City Transit Auth., 292 AD2d 569 [2d Dept 2002]; Strangio v New York Power Auth., 275 AD2d 945 [4th Dept 2000]). Thus, the court has no basis in the record supporting an award for future medical treatment.

The court further concludes that claimant is entitled to an award of $175,000.00 for past pain and suffering and $250,000.00 for future pain and suffering (noting claimant’s remaining statistical life expectancy of 33.5 years; 1B NY PJI3d, Appendix A Table 2, at 1679 [2009]).

Finally, the court notes that although Maria Rivera was also named as a claimant, she did not testify and there was no proof relating to any cause of action on her behalf. Her derivative action is therefore dismissed.

Accordingly, the Clerk of the Court is directed to enter judgment in favor of claimant in the amount of $501,852.34, together with interest from May 28, 2008, the date of the liability decision and the return of any filing fee actually paid.

April 1, 2009
White Plains, New York

Judge of the Court of Claims

[1].Claimant’s tax records showed he earned $35,824.06 in 2003 (Exhibit 10) and $21,519.38 in 2004 (Exhibit 11).
  1. [2]Cervical: flexion 35 (normal [N} 60); extension 25 (N 50); left rotation 50 (N 80); right rotation 40 (N 80); left lateral flexion 20 (N 40); right lateral flexion 15 (N 40).
Lumbar: flexion 55 (N 90); extension 15 (N 30); left rotation 15 (N 30); right rotation 20 (N 30); left lateral flexion 10 (N 20); right lateral flexion 10 (N 20).