|Claimant short name:||RINALDI|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||O. PETER SHERWOOD|
|Claimant's attorney:||Kazmierczuk & McGrath
By: John P. McGrath, Esq. and Joseph Kazmierczuk, Esq.
|Defendant's attorney:||Law Office of Edward Garfinkel, Esq.
By: Leon R. Kowalski, Esq.
|Third-party defendant's attorney:|
|Signature date:||January 7, 2010|
|See also (multicaptioned case)|
In a decision and order dated December 19, 2008, the Hon. S. Michael Nadel granted Claimant's motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1). Thereafter, the case was assigned to this court and trial on the issue of damages was held. John Rinaldi testified as did his treating physician, an economist, and union representative. Defendant called an orthopedic surgeon, a radiologist, an economist, and a rehabilitation counselor.
John Rinaldi - Claimant
On the date of the accident, May 23, 2007, Mr. Rinaldi, was employed through Iron Workers Local 361 as a journeyman-ironworker foreman by DeFoe/Northeast Structural Steel, the general contractor hired by the State of New York for a rehabilitation project of the Brooklyn Queens Expressway. He was 59 years old and had been in the trade for 39 years. His rate of pay was approximately $90 an hour, which included all direct benefits. Claimant acknowledged that there were periods when he was laid off from work, and other times when the industry experienced slowdowns, adding that he was always looking for work. The most recent time that he was laid off was in 2005, a period that lasted for about six months. He is currently unemployed as a result of his injuries, receiving income from his union pension, Social Security disability, and Workers' Compensation benefits.
Describing himself as "paratrooper material" and in good physical condition prior to the accident, claimant testified that he "loved" working as an ironworker, and that the thought of retiring never entered his mind.
Rinaldi was injured when the plywood surface that partially covered a hole at a construction site gave way under his weight. He fell into the hole, feet first onto pieces of concrete.
Mr. Rinaldi was hoisted from the hole and was taken by ambulance to the emergency room at the Long Island College Hospital. Medical records reflect that claimant suffered a trimalleolar fracture of the left ankle (Claimant's Exhibit 10, Medical Records, Long Island College Hospital). He was then moved to the trauma room where orthopedic surgeons manipulated his leg and foot, a procedure known as closed reduction, causing, according to Mr. Rinaldi, a level of pain "I will never forget." After the procedure, he was given pain medication which induced sleep. The next day Dr. Chase, an orthopedic surgeon, performed surgery on the ankle using a procedure known as open reduction with internal fixation. A cast was placed on the left leg. Mr. Rinaldi was discharged from the hospital three days later. He was prescribed pain medication and instructed to rest and keep the leg elevated. In the days that followed, claimant was in "excruciating pain," unable to get up out of bed.
Thereafter, claimant saw Dr. Chase, on two occasions. On the first visit which took place one week after the surgery, Dr. Chase cleaned the incision and replaced the cast with a fracture boot for use with crutches. Claimant testified that during this visit he informed Dr. Chase that he was also experiencing pain in his back and right shoulder. He testified that prior to the day of the accident, he had only had some minor issues with his back, caused by the occasional muscle pull. He continued to use crutches for about six months, and he was told not to put any weight on his left ankle. On the second visit, Dr. Chase removed the surgical staples.
On June 29, 2007, claimant came under the care of Dr. Mark McMahon. At that time, claimant told the doctor of pain he was experiencing in his right shoulder, lower back, and left ankle.
He was prescribed the anti-inflammatory medication, Voltaren, and the narcotic pain killer, Oxycodone and advised to take it easy. Claimant testified that he has been seeing Dr. McMahon on a monthly basis. During this time, he has undergone physical therapy for the right shoulder, lower back and left ankle. He was not receiving any therapy at the time of trial.
He testified and the court observed that he has a limp and walks with a cane. He cannot stand or walk for extended periods of time and continues to have difficulty sleeping due to pain.
Claimant testified that there has been a "marked improvement" in the use of the right arm since the surgery. He is left hand dominant.
On Dr. McMahon's recommendation, claimant consulted with Dr. Mane, a spinal surgeon, about his ongoing back troubles. Dr. Mane recommended back surgery, but as of the time of trial, claimant was not prepared to undergo the procedure. Mr. Rinaldi, however, stated that he recognized that at some point, he will have to have the surgery.
Claimant currently lives in Florida. He travels to New York on a monthly basis to see Dr. McMahon. Mr. Rinaldi testified that he plans to continue seeing Dr. McMahon on a monthly basis for treatment and evaluation, and eventually for surgery to remove the hardware in his ankle. This will reduce the pain and increase maneuverability. Mr. Rinaldi further testified that he is no longer able to work.
On cross-examination, claimant admitted that prior to the accident, he was filling prescriptions for Oxycodone and Voltaren which he used for pain and swelling in connection with a neck injury sustained in 2003. Additionally, prior to the 2007 accident, he had undergone surgery on his left shoulder rotator cuff.
Mark McMahon, M.D. - Orthopedic Surgeon
Mark McMahon, M.D., a is Board Certified orthopedic surgeon, testified that he has seen claimant as a patient approximately 20 times since June 29, 2007. Throughout, claimant has complained of pain in his right shoulder, lower back, and left ankle, all attributed to the May 23, 2007 accident.
Referring to X-rays in evidence, Dr. McMahon testified that as a result of the accident, claimant suffered a trimalleolar fracture(1) with dislocation of his left ankle (Claimant's Exhibit 1, X-rays, Long Island College Hospital, May 23 and 24, 2007). Dr. McMahon testified that claimant underwent a closed reduction of the dislocation, followed by an open reduction with internal fixation. The latter procedure included insertion of a plate and nine screws on the medial malleolus, and the insertion of two screws on the lateral malleolus to hold the ankle together. In Dr. McMahon's opinion, the accident was a substantial factor in causing the injury to claimant's ankle. He testified that over time, the pain in Mr. Rinaldi's foot and ankle has worsened; the metal plate and screws made the region sensitive and painful. Dr. McMahon acknowledged, however, that X-rays indicate that the bones at the fracture have healed and that the ankle bones are in good alignment. At a January 14, 2009 office visit, claimant's ankle was tender to palpation, indicating that he was developing post-traumatic arthritis of the ankle, which according to Dr. McMahon, was "not a good sign in terms of his prognosis." He opined that the injuries to claimant's left ankle are permanent in nature.
Dr. McMahon testified that he has requested authorization for the removal of the hardware from claimant's ankle, which may reduce the sensitivity. He explained that the removal of the hardware was a relatively minor procedure performed on an ambulatory basis. Dr. McMahon believes that in the future, claimant may need arthroscopic surgery to treat the traumatic arthritis, as well as a possible ankle fusion, or an ankle replacement, with fusion being the most likely option. Based on Dr. McMahon's experience, the cost associated with an ankle fusion is $25,000.
With regard to claimant's right shoulder, Dr. McMahon's initial working diagnosis was a torn rotator cuff. An MRI taken of the right shoulder on July 13, 2007 (Claimant's Exhibit 5, MRI of Right Shoulder, July 13, 2007), indicated that there were no torn structures. Initially, the doctor treated the shoulder with cortisone injections, but eventually determined that claimant required arthroscopic surgery to reduce an impingement in the area. On January 22, 2008, the surgery was performed, during which Dr. McMahon found and repaired a partial tear of the rotator cuff or supraspinatus tendon, and a tear of the labrum. He also removed scar tissue from the area. Dr. McMahon opined that the injuries to claimant's right shoulder were caused by the accident and are permanent in nature.
The results of a subsequent MRI of the right shoulder taken on June 15, 2008 did not change Dr. McMahon's opinion that the accident caused the shoulder injury (Claimant's Exhibit 3, MRI of Right Shoulder, June 15, 2008). He acknowledged, however, that during a July 11, 2008 office visit he performed a range of motion test on the shoulder, which revealed 170 degrees of motion, with 180 degrees being normal. When he first saw claimant, the range of motion was 130 degrees. Dr. McMahon stated that claimant's right shoulder will require medical treatment in the future, consisting of ongoing prescription medications, diagnostic studies such as MRI, and possible physical therapy.
With regard to claimant's back, Dr. McMahon's initial working diagnosis was a herniated disc. An MRI of the lumbar spine confirmed that there were two herniated discs, one at L4-5, and one at L5-S1(Claimant's Exhibit 5, MRI of Lumbar Spine, August 6, 2007). Dr. McMahon opined that the herniated discs were caused by the accident. On cross-examination, he acknowledged that it was not uncommon for a man of Mr. Rinaldi's age to have some disc degeneration. He also agreed that a herniated disc is not always caused by trauma and could be caused by age-associated degeneration of the spine. The fact that claimant had back problems years prior to the accident did not alter his opinion that the accident caused the herniated discs.
In August 2008, Dr. McMahon referred Mr. Rinadi to Dr. Mane, a spinal surgeon, in connection with his back condition. According to Dr. McMahon, Dr. Mane did not find any neurological defects to the lower extremities, but recommended an L4 to S1 fusion using pedicle screw instrumentation and a bone graft with a decompression on those two levels. Dr. McMahon estimated the cost associated with this type of spinal fusion to be $40,000.
Dr. McMahon testified that claimant will need follow-up treatment with an orthopedic surgeon and with a pain management physician on a monthly basis, at a rate of $125 per consultation, and that he will need narcotic level painkillers at an estimated cost of approximately $100 per month.
Dr. McMahon was of the opinion that based on the nature of Mr. Rinaldi's injuries, his current physical condition, and his daily doses of narcotics, he is not able to work as an ironworker.
On cross-examination, Dr. McMahon acknowledged that Mr. Rinaldi, when asked by EMT workers at the accident scene, stated that he was not experiencing any back pain, and that he reported no back or right shoulder pain during his stay at Long Island College Hospital. Dr. McMahon observed that a patient experiencing excruciating pain because of a fractured ankle may not focus on the back or shoulder pain. He noted that the pain associated with rotator cuff injuries may not manifest for a few days, and that in the case of a traumatically induced herniated disc, there may be a lag of the onset of severity of symptoms, in that at first a patient may not feel pain or the pain may be mild, only to worsen over time.
James Cush - Union Representative
James Cush, a field representative for the fund office for Ironworkers Locals 40, 361 & 417, stated that all of the member workers are paid based on a negotiated contract. The rate of pay is set out in rate sheets, which contain the hourly wages, and the breakdown of fringe benefits (Claimant's Exhibit 7, Rate Sheet in effect for Jan 1, 2009 through June 30, 2009). The current hourly wage for a journeyman ironworker is approximately $40.50 per hour. The contract in effect at the time of trial was for 6 years, with wages scheduled to increase in January and July each year through 2014.
Mr. Cush explained that the negotiated contract also provides for the following benefits: pension plan, health plan, annuity plan, topping out plan (which is a supplement to the annuity) and vacation plan. The annuity plan is an individual tax deferred account available to the member upon
retirement (like an IRA) with a contribution of $9.38 per hour made on the employee's behalf by the employer for every hour paid. The topping out plan is an individual account, similar to the annuity plan, that each member has access to for unreimbursed medical expenses, unemployment, or upon retirement. The contribution is $8.05 per hour paid. The vacation plan is a taxable individual fund that the employer contributes to at a rate of $13.75 per hour, from which a member can withdraw at any time for a vacation or any other need. The pension plan is a general fund, to which contributions
are made on a member's behalf. Distributions are made monthly commencing upon retirement. The amount paid monthly is based on the pension credits a member has, multiplied by the current accrual rate. The current accrual rate is $125 per credit. One thousand hours worked per year entitles a worker to one pension credit. Credits can also be earned in increments, for example, 250 hours earns one-quarter credit. A worker can earn no more than one pension credit per year, no matter how many hours worked. Mr. Cush testified that based on a document that summarizes claimant's pension
credits, at the time of trial, Mr. Rinaldi had accumulated 16.25 pension credits (Claimant's Exhibit 6).
On cross-examination, Mr. Cush acknowledged that the average retirement age for an ironworker is 62. He added that about 20 to 25% of the members work beyond age 62 in some capacity. There is no mandatory retirement age.
Matityahu Marcus - Economist
Matityahu Marcus testified as an expert economist on claimant's behalf for the purpose of determining claimant's economic loss. Dr. Marcus reviewed the wage contract, which gave him the hourly wage rate, and the union benefit schedule.
As to past income loss, Dr. Marcus determined the average number of hours that claimant worked for the years 2003, 2004, and 2006 ("Three Year Average") to be 1,655 hours per year,(2) he applied the hourly wages for a journeyman ironworker in Local 361 that were in effect at the time and added benefits, with adjustments, that were in effect at the time. He arrived at the following:
• Income Loss - Past (based on a 3 year average: 1,655 hrs/yr)
2007 (5/23 - 12/31) $37,777 ($38.275/hr)
2008 $64,793 ($39.14/hr)
2009 (1/1 - 5/31) $27,342 ($39.65/hr)
Total Wages $129,912
Benefits (with adjustments) $93,536
Total Past Wages Plus Benefits $223,448
As to future income lost, he took the Three Year Average, assumed a retirement age of 65, based on statistical work life, applied an annual four percent wage increase(3) and used the hourly wages for a journeyman ironworker in Local 361. He arrived at the following:
• Income Loss - Future (based on a 3 year average: 1,655 hrs/yr)
6/1 - 12/31/2009 $38,279
1/1 - 11/22/2012 $66,434
Total Wages $243,935
Benefits (with adjustments) $176,610
-benefits consist of vacation time; annuity; topping out fund-
Wages & Benefits $420,545
Total Future Compensation $564,577
- Total Past & Future
Total Past $223,448
Total Future $564,577
Total Past & Future Compensation $788,025
Robert Zaretsky, M.D. - Orthopedic Surgeon
Robert Zaretsky, M.D., a Board Certified orthopedic surgeon, testified as an expert on defendant's behalf. Dr. Zaretsky performed an examination of Mr. Rinaldi on December 19, 2007. He took a medical history and reviewed records from Long Island College Hospital, and MRI reports of the right shoulder and spine, taken on July 13, 2007 and August 6, 2007, respectively.
Concerning the lumbar region, he found no spasms and noted no tenderness upon palpation. Neurologically, it was intact, with reflexes plus-1 at the knee and ankles. A straight leg-raising test was not positive, which indicates that there was no nerve root encroachment or other narrowing in the spine where nerves emerge. He noted that a 60 year old man can be expected to have degenerative changes and disc bulges in the spine. According to Dr. Zaretsky, claimant may need to undergo surgery for the herniated discs if they worsen over time.
He found atrophy in the left calf, which is to be expected when an ankle sustains trauma and a fracture. He did not find any signs of post-traumatic arthritis. However, he explained that such a development happens over time. He would not expect to find post-traumatic arthritis occurring on the date he examined claimant as it was so close in time to the date of the accident. Dr. Zaretsky testified that depending on the outcome of the reduction surgery, there is a possibility that there will be post-traumatic arthritis. He stated that the course of treatment following an open reduction and internal fixation is additional physical therapy.
Dr. Zaretsky found that there was an impingement of the right shoulder, caused by the accident, that required decompression by arthroscopic surgery. He stated that surgery for such an impingement has a very high success rate.
Dr. Zaretsky was of the opinion that Mr. Rinaldi does not require household help, special transportation, or durable medical equipment. However, claimant will require further X-rays when indicated. He also concluded that claimant was disabled.
On cross-examination, Dr. Zaretsky agreed that in his report he concluded based on the history and nature of the injury, and the findings contained in the August 6, 2007 MRI report of the spine, that the herniated discs at L4-5 and L5-S1 were caused by the accident (Claimant's Exhibit 8, MRI Report, August 6, 2007). He also agreed that he had concluded that the right shoulder injury was connected to the accident.
Lewis Rothman, M.D. - Radiologist
Lewis Rothman, M.D., a Board Certified radiologist, also testified on defendant's behalf. Dr. Rothman reviewed X-rays and an X-ray report of claimant's ankle taken on August 13, 2007, an MRIs of claimant's right shoulder taken on July 13, 2007 and June 15, 2008, and MRI of the spine taken on August 6, 2007. He was not provided with any MRI reports or other medical records. He did not examine claimant and was not familiar with claimant's clinical complaints.
Dr. Rothman confirmed that the X-rays of the left ankle show that an open reduction with
fixation surgery was performed. Like Dr. McMahon, Dr. Rothman found that the X-rays show satisfactory alignment and good placement of the bones.
With respect to the lumbar spine, the witness stated that the MRI shows claimant has a mild to moderate degree of chronic degenerative disc disease. He stated that the discs appear darker than healthy discs, which indicates that they have become desiccated, which is part of the normal degenerative process of the spine, resulting from aging. In addition, the L4-5 disc has a tear, which is also part of the degenerative process, and which is not unusual for someone in their sixth or seventh decade of life. The MRI also showed mild disc bulges at L4-5 and L5-S1, which again is part of the degenerative process. Dr. Rothman noted that there is no indication of herniated discs. It was Dr. Rothman's impression that there was chronic degeneration of all of the discs, most marked at L4-5 and L5-S1, with a small tear at L4-5, and minimal disc bulges at L4-5 and L5-S1. Dr. Rothman noted that there is a fundamental difference between disc bulges and disc herniations.
With respect to the right shoulder, Dr. Rothman stated that the July 13, 2007 MRI showed thickening of the joint which is due to degeneration, with no evidence of a tear of the rotator cuff. The June 15, 2008 MRI of the shoulder shows a thickening of the joint, a slight impingement on the supraspinatus tendon with no evidence of a tear to the rotator cuff, and no evidence of a traumatic abnormality. He agreed, however, that a tear to the rotator cuff could be better seen by visual inspection during arthroscopy than by reading an MRI. It was Dr. Rothman's opinion there was evidence of mild-chronic degenerative change involving the joint without evidence of a rotator cuff tear, and with no evidence of any post traumatic abnormalities.
Edmond Provder - Rehabilitation Counselor
Edmond Provder, a rehabilitation counselor, testified on defendant's behalf. He performed a vocational evaluation of Mr. Rinaldi on February 20, 2009 that consisted of a review of the medical records, a diagnostic vocational interview, the administration of a battery of tests, and finally the formulation of an opinion as to claimant's employability and earning capacity in New York City and in Florida. Based on this evaluation, Mr. Provder opined that: claimant could not return to his job as an ironworker; he is able to use his skills to perform sedentary and light unskilled work, such as a production supervisor, cost estimator, manager of housekeeping and janitors, electrical equipment assembler, order clerk, etc., with a salary range from $28,420 to $80,910 in New York City and $22,930 to $60,760 in Florida, and that claimant could be a candidate for state and federal vocational and educational services.
Except for confirmation of the self-evident fact that claimant cannot return to work as an ironworker, Mr. Provder's testimony was not helpful. He did not appreciate the extent of the limitations with which claimant now lives or that he is close to retirement age. The court has disregarded his testimony.
Fred Goldman - Economist
Fred Goldman testified as an expert economist on defendant's behalf. Dr. Goldman reviewed various documents, including claimant's deposition transcript, Dr. Marcus's report, the bill of particulars, the supplemental bill of particulars, and an accident report. He did not interview claimant. Dr. Goldman opined that the analysis used by Dr. Marcus in order to measure claimant's economic loss is flawed.
He testified that the average hours of work calculated were based on years that Dr. Marcus picked and chose, and as a result, he excluded certain years that he deemed non-representative of the hours worked. Dr. Goldman explained that Dr. Marcus's decision to use the "good years" of 2003, 2004, and 2006, and exclude 2005, ignores that a "bad event" took place and assumes that it will never occur again. For example, Dr. Goldman stated that the average of the years 2003 to 2006, is 1,384 hours, as opposed to the 1,655 hours that Dr. Marcus found. Dr. Goldman also noted that by failing to rely on any years prior to 2003, Dr. Marcus ignored the fact that 2003 through 2006 were boom years in the New York economy, and were particularly good years in the construction and building industries. He stated that, "the fair thing to do" is "take the history as it is and use an average."
Dr. Goldman testified that he was in agreement with the wage and benefit growth rates Dr. Marcus used from the time of the injury to the present, as they were based on actual wage and benefit amounts per hour, as found in the collective bargaining agreements. However, he disagreed with the growth rate of four percent used by Dr. Marcus to project future benefits and pension increases, characterizing it as an excessive rate. Dr. Goldman was of the opinion that based on the past five years, a more accurate growth rate would be three percent per year.
Dr. Goldman noted that Dr. Marcus had made the assumption that claimant would have worked to the age of 65. Dr. Goldman points out that based on Mr. Cush's testimony the average age of retirement within the union was age 62, and on actuarial analysis, calculation of loss should have been based on a retirement age of 62. He added that only three percent of active ironworkers are over the age of 60. Dr. Goldman noted that claimant could have worked beyond 62, but that he also could have retired earlier than 62. Rather, he explained, an average is sought.
Discussion and Valuation
Claimant is entitled to be reimbursed for any loss of earnings as a result of his injuries (see PJI 2:290). Lost earnings must be established with reasonable certainty focusing on claimant's earning capacity before and after the accident (see Davis v City of New York, 264 AD2d 379 [2d Dept 1999]; Novko v State of New York, 285 AD2d 696 [3d Dept 2001]; and Calo v Perez, 211 AD2d 607 [2d Dept 1995]).
In addition, claimant is entitled to recover the amount of reasonable expenditures, including future expenditures, as needed, for medical services and medicines arising out of the injuries sustained in the accident (see PJI 2:285 and Kavanaugh v Nussbaum, 129 AD2d 559 [2d Dept 1987], mod on other grounds 71 NY2d 535 ).
Claimant may also recover money which will fairly compensate for past and future pain and suffering caused by defendant (see PJI 2:280). The amount to be awarded may take into consideration the effect that the injuries have on Mr. Rinaldi's ability to enjoy life, including the ability to participate in activities which were a part of his life before the accident, and to experience the pleasures of life (see PJI 280.1).
In this case, both parties rely heavily on the testimony of experts who were called to give opinions on a number of subjects, including the nature, extent and permanency of the injuries suffered due to the accident, loss of earnings and prospects for future gainful employment. The trier of fact determines the weight, if any, given to expert testimony, and as such, the Court is not bound to accept the conclusions of any particular expert (see Felt v Olson, 51 NY2d 977 ; 1A NY PJI 1:90.
Having heard all of the testimony, observed claimant and considered all the evidence, the court makes the findings of fact set forth below.
At the time of the accident, on May 23, 2007, Mr. Rinaldi was 59 years of age and in excellent health. He had been taking pain management medicines in connection with a neck injury sustained in 2003. As a result of the accident, he suffered a severe and permanent injury to the left ankle. The injury caused excruciating pain immediately after the event and for a period of time thereafter. The severe pain has been reduced through pain medication. He was required to undergo extremely painful surgery to repair the injury to the ankle. Two years after the surgery he continued to experience swelling and pain in the left ankle and lower leg. According to Dr. McMahon, he has developed post traumatic arthritis. He also suffers from severe back pain and has difficulty sleeping. He describes climbing stairs as an "impossibility."
The ankle bones have been re-set. However, claimant walks with a limp, requires use of a cane from time to time and continues to suffer severe pain. He cannot stand or walk for any extended period and has difficulty sleeping. He cannot return to work as an ironworker or obtain meaningful alternative employment. Hardware that was inserted during surgery must be removed. Claimant will also need to undergo surgery to fuse the ankle joint.
The court also finds that claimant suffered injury to the right shoulder as a result of the accident. He had a partial tear of the supraspinatus tendon, a torn labrum and inflamed synovial tissue. Claimant underwent arthroscopic surgery and had a good outcome.
As to the alleged injury to the lumbar spine, the court finds that claimant has proved by a preponderance of the evidence that the herniated lumbar disc condition found is causally related to the accident, although chronic degenerative changes due to the aging process may be involved as well. Herniated discs are a common problem and occur more frequently among people who work in the trades. Claimant complained of back soreness prior to the accident. However, both Dr. McMahon and Dr. Rothman concluded that the herniated discs at L4-5 and L5-S1 were causally related to the accident. Dr. McMahon referred Mr. Rinaldi to Dr. Mane who recommended spinal fusion surgery.
Turning to the loss of income claimant suffered as a result of the accident, it cannot be disputed that he suffered economic loss and that such loss will continue into the future. As noted, claimant is permanently disabled as a result of the accident. He has been unable to work for over two years and it is unlikely that he will ever work again.
The evidence establishes that most ironworkers retire from the trade by age 62, although 20-25% work in some capacity beyond that age. Moreover, according to Dr. Goldman, only three percent of active ironworkers are over age 60. Claimant testified that at the time of the accident the thought of retiring never entered his mind. The court notes that prior to the date of the accident, claimant had begun to spend time in Florida with family and to rest. The court finds that claimant has not proved that he would have continued to work as an ironworker past the typical retirement age of 62.
Claimant's economist assumed an average of the annual hours worked of 1,655 hours. This figure was calculated by taking an average of the hours claimant worked in 2003, 2004 and 2006. He excluded 2005 as an "anomaly" year because Rinaldi spent time in Florida assisting his elderly aunt and resting his neck that year. He also excluded 2007 because claimant worked only five months due to the accident. The years selected for the lost hours calculation ranked number 1, 3 and 7 among the 17 years of credited hours of work listed for Mr. Rinaldi on the records of the Ironworkers Pension Security Funds. Claimant's economist conceded that 2003 through 2006 were boom years in construction in the New York Metropolitan area. Use of those years skew upward claimant's average annual hours of work.
The court finds that taking an average of all 17 years of available records best captures the many variables that affect the number of hours ironworkers are able to work in the trade. Using a 17 year average, the court finds that the average annual hours to be applied in this case is 1,233 hours per year. The court accepts the four percent wage increase and the hourly wage figures used by claimant's economist. See fn. 3. Applying these numbers, the court calculates claimant's past lost earnings as follows:
• Income Loss - Past (based on a 17 year average of 1,233 hrs/yr)
2007 (5/23 - 12/31) $28,144 ($38.275/hr)
2008 $48,272 ($39.15/hr)
2009 (1/1 - 5/31) $20,370 ($39.65/hr)
Total Wages $96,786
Benefits (with adjustments) $69,686
Total Past Wages Plus Benefits $166,472
As to future economic loss, the court calculates claimant's damages to age 62 as follows:
• Income Loss - Future (based on average of 1,233 hrs/yr)
6/1/2009 - 11/22/2009 $23,440
Benefits (with adjustments) $16,476
Total Future Wages, etc. $103,029
The court finds that claimant is entitled to recover for past and future medical expenses relating to the ankle, back and shoulder injuries.
As to past medical expenses, claimant proved that there is a workers' compensation lien in the amount of $35,817 relating to the treatments claimant received. The carrier is entitled to recover on the proceeds of claimant's recovery in this case (see Workers' Compensation Law § 29). Claimant is entitled to recover for past medical expenses that are subject to the lien. He will not receive workers' compensation coverage for future medical expenses arising out of the accident (see Burns v Varriale, 34 AD3d 59 [3d Dept 2006]).
Because claimant will require ankle fusion surgery and must remove a plate and screws from the ankle, he will be awarded $25,000 in connection with these procedures. Claimant will also be awarded $40,000 for needed spinal fusion surgery.
Claimant is taking medication to relieve swelling and pain associated with the injuries he sustained. He was taking the same medication prior to the accident for a neck injury. Additionally, claimant visits his physician once a month. He speculates that the pattern will continue for the rest of his life. Although claimant is likely to need to continue to take pain medication and to see his physician on a regular basis for a period of time, it is not clear how far into the future doctor visits and medicines will be required. The shoulder problem has been resolved. Once the hardware is removed, sensitivity to the left ankle will subside, although pain to the lower leg and ankle may continue. Much of the testimony adduced at the trial concerning claimant's more recent visits to Dr. McMahon related to the lower back pain claimant is experiencing and recommended surgery to attempt to relieve it. Spinal fusion surgery is expected to ameliorate the back pain. Upon the expectation that the above referenced medical procedures will, in time, reduce or eliminate the need for frequent visits to the doctor, the court finds that claimant is entitled to an additional $7,500 for the cost of monthly doctor office visits for five years. No award will be made for medication due to a failure of proof as to the cost of the medicines (see Placakis v City of New York, 289 AD2d 551 [2d Dept 2001]).
Accordingly, the amounts to be awarded for medical expenses are as follows:
Workers' Compensation Lien $ 35,817.00
Future Medical Procedures $ 72,500.00
Pain and Suffering
At the time of the accident, claimant was 59 years of age, and was active and in good health. He is now 61 and has a statistical life expectancy of 18.7 years.
As detailed above, the accident itself caused him severe pain, as did the closed reduction procedure to his ankle. That was followed by the open reduction procedure, during which a plate and screws were affixed to the area to hold the ankle in place. As a result, Claimant's leg was in a cast and he walked on crutches, which were eventually replaced by a cane. He still uses the cane to walk. He also has experienced pain to the back, the lower left leg and ankle, and he has undergone arthroscopic surgery to repair the right shoulder.
Claimant testified that he still takes Voltaren and Oxycodone as needed, which is quite often, and that ever since the accident, he walks with a limp and needs a device such as crutches or a cane to help him walk. Currently, he is able to drive a vehicle, but it is uncomfortable for him to do so. He is able to walk only short distances before he needs to rest and he has resorted to using a scooter to shop in the supermarket. He stated that on two separate occasions, he has fallen because of his weak ankle. He is unable to sleep for more than a few hours at a time, and has problems concentrating because of the medication he is taking and the pain he is experiencing. Once an ardent reader, he noted that now even reading the newspaper has become a chore. Mr. Rinaldi stated that he is always in agonizing pain, and unable to lead a normal life and do the things he used to do, such as hang gliding, waterskiing, jogging, and fishing. He now spends most of his days napping and watching television.
The evidence adduced at trial established that: the injuries to the ankle and back are permanent, life altering and will require fusion surgeries. The injury to the shoulder has been treated successfully and is resolved. The lumbar spine injury is permanent and surgery is indicated. The record also reveals that claimant is in frequent pain and discomfort, has a limp, and will need to walk with the assistance of a cane indefinitely.
After conducting an extensive search of awards involving trimalleolar fractures, claimant has offered five cases as the most relevant. The amount of the awards in those cases range from $1,400,000 to $2,800,000 (see D'Amore $1,400,000.00 [2009 WL 1199366, 3/09]; Donovan $1,750,000 [2009 WL 1544557, 2/09]; Gibaldi $2,800,000.00 [2009 WL 1199416, 3/09]; Peters $2,093,500 [2004 WL 3828257, 3/04]; and Rampersad $1,400,000.00 [2006 WL 6192356, 2/08]). The plaintiff in Rampersad appears to have medical facts that are analogous to those of John Rinaldi. Like Mr. Rinaldi, Ms. Rampersad sustained a trimalleolar ankle fracture. Her injury was treated by way of an open reduction and internal fixation. She also had an injury to an additional injury akin to Mr. Rinaldi, which required arthroscopic surgery. However, she did not have herniated lumbar discs. The court found no report of appellate review of the cases cited.
The cases cited by defendant are not similar to this case. The plaintiff in Sanchez v Morrisania II Assoc., 63 AD3d 605 (1st Dept 2009), suffered an ankle fracture, torn rotator cuff and lower back injury. All were satisfactorily repaired and required short recovery periods. In Sanchez v Morrisania II Assoc., 63 AD3d 605 (1st Dept 2009), the court increased a jury award for past pain and suffering to $250,000 on evidence that the 32-year-old plaintiff sustained a fracture of her ankle which required her to wear a cast for six to eight weeks, to walk on crutches for one week, and use a cane. She also sustained a tear of the right rotator cuff for which she underwent surgery and one to two months of physical therapy. The jury's decision not to give an award for future pain and suffering was not disturbed given the lack of permanency. Claimant's injuries are far more extensive and the court has found that some are permanent.
The court notes that in the answer, the State asserted as its fifth affirmative defense, failure by claimant to use safety equipment. The State offered no proof concerning the defense and did not assert it in any post-trial memorandum. Accordingly, no adjustment of the award shall be made in this regard.
In view of the forgoing, the Court finds Mr. Rinaldi's past pain and suffering to be $400,000. The award for future pain and suffering is $1,000,000.
• In sum, Mr. Rinaldi's damages are as follows:
Past Economic Loss $166,472
Future Economic Loss $103,029
Medical Expenses $ 108,317
Pain and Suffering
Past Pain and Suffering $400,000
Future Pain and Suffering $1,000,000
Total Award $1,777,818
Since the amount of future damages exceeds $250,000.00, a structured judgment is required pursuant to CPLR 5041 (e). Accordingly, the Court directs that judgment be held in abeyance pending a hearing pursuant to CPLR Article 50-B. The Court encourages the parties to agree upon the discount rate to be applied and to formulate a structured settlement of their own (see CPLR 5041 [f]). In the event that the parties fail to reach agreement, each party shall submit a proposed order directing judgment in writing conforming to the requirements of CPLR Article 50-B within 90 days of service of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled with regard to the collateral source issue defendant raises in its post trial brief, and the structured judgment. Interest on this award shall run from December 19, 2008, with interest at the rate of 9% per annum.(6) To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act Section 11-a (2).
All motions made at trial and not heretofore ruled upon are denied.
January 7, 2010
New York, New York
O. PETER SHERWOOD
Judge of the Court of Claims
1. A trimalleolar fracture is a fracture of the ankle through the lateral malleolus of the fibula and the medial malleolus and posterior process of the tibia (Stedman's Medical Dictionary, 27th Edition, at 713).
2. He stated that the years 2005 and 2007 were not included in the average because in each case, claimant did not work the entire year.
3. He based his assumption of an annual wage increase of four percent on historical union data and yearly social security projections. The actual annual wage rates for all relevant years are available because the current Ironworkers contract runs to 2014. Defendant's economist would apply a three percent rate. The differences will have no meaningful impact on the loss of income award.
4. Dr. Marcus assumed that but for the accident, claimant would have accrued 5.25 additional pension credits by the time of his retirement at the assumed retirement age of 65. Applying the $125 accrual rate he arrived at a $7,875 annual loss. He adjusted that number to $9,174 to reflect "increases in pension credit amount over time from the time he was injured until the time he would retire." That number was then multiplied by 15.7 (i.e., the years derived from a retirement age of 65 with a life expectancy of 80.7), to arrive at the total lost pension benefits.
5. Based on 2.25 lost pension credits x $125/credit x 12 months/year x future life expectancy of 18.7 years.
6. Defendant asserts that the Court should order an interest rate of less than 9%. The Court of Appeals has determined that, "[o]nly where the State goes so far as to establish that the ceiling rate is unreasonable would the selection of that rate amount to an abuse of discretion, because a court may not reasonably apply an unreasonable rate" (Denio v State of New York, 7 NY3d 159, 168-69 ). Defendant makes no attempt to meet this test.