New York State Court of Claims

New York State Court of Claims
TOLLIVER v. THE STATE OF NEW YORK, # 2019-041-504, Claim No. 124355

Synopsis

Claimant who sustained wrist fracture to non-dominant hand resulting in permanent hardware in wrist, permanent range of motion deficit of 20 degrees, and a limited number of diminished life activities, but who has not shown that  wrist condition is degenerative and lead to arthritis in the wrist, is awarded $135,000 in damages for past pain and suffering and $60,000 in damages for future pain and suffering, reduced by 30%, the previously determined level of claimant's culpability for his injury, resulting in an ultimate award of $136,500.

Case information

UID: 2019-041-504
Claimant(s): MICHAEL TOLLIVER
Claimant short name: TOLLIVER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124355
Motion number(s):
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: LAW OFFICE OF KAREEM R. VESSUP
By: Kareem R. Vessup, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
By: Michael C. Rizzo, Esq.
Assistant Attorney General
Thomas J. Reilly, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 2, 2019
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This Court, by Decision filed January 12, 2018 (Tolliver v The State of New York, UID # 2017-041-512, Claim No. 124355 [Milano, J.]), found defendant 70% culpable and claimant 30% culpable for a fall on December 21, 2012 which resulted in claimant sustaining a fracture to his left wrist. A trial to determine damages was conducted on February 20, 2019. Claimant was the only witness at the damages trial. The claimant and defendant both provided expert medical opinion evidence through admitted trial exhibits and deposition testimony of their respective experts, Dr. Emmanual Hostin on behalf of claimant and Dr. Michael J. Katz on behalf of defendant.

Claimant sustained an ulnar fracture of the wrist of his non-dominant left hand on December 21, 2012. Surgery to repair the fracture was performed on January 2, 2013. The surgery, described as open reduction with internal fixation, aligned the displaced bone and included the insertion of a plate and screws to secure the bone. The hardware will remain in place permanently.

Claimant's employment as a construction laborer has continued after his injury. Off season, he plows snow, and he has collected unemployment insurance benefits, which require claimant to certify that he is physically able to work in his usual employment. Neither expert vocational proof nor expert economic proof, related to diminished earning capacity for claimant, was presented at trial. As such, no award for economic damages is made.

Claimant's expert, Dr. Hostin, an orthopedic surgeon, saw claimant twice, in July 2016 and January 2017, to evaluate claimant and, if need be, to act as claimant's expert. The Court found Dr. Hostin's testimony concerning potential prospective medical costs of claimant to be unpersuasive. The testimony Dr. Hostin provided about future medical costs was general, speculative and entirely conditional, invariably qualifying and tying his testimony to various possible circumstances and/or developments potentially affecting claimant's condition. Also, no expert life care plan or expert economic proof was presented. Accordingly, no award for future medical costs is made.

By reason of the foregoing, the Court will limit its consideration of damages to claimant's past pain and suffering and future pain and suffering.

After incurring his injury in the early evening of Friday, December 21, 2012 at Franklin Correctional Facility (Franklin), claimant went to the facility's infirmary and reported "throbbing pain" and an inability to move his wrist. He was given ibuprofen and an Ace bandage. He returned to his dorm in "tremendous pain" and, using a ruler and a belt, self-splinted his left wrist.

Later that evening, claimant again sought medical treatment but was denied that request by a correction officer and was informed that if his circumstances were not life threatening, he would need to wait until the following Monday for medical care. Even so, claimant again sought medical treatment on Sunday, saw RN Baker and had the wrist x-rayed for the first time. Claimant testified his wrist was red and swollen and that he could not move it, and that he was in pain. Nurse Baker properly splinted his wrist.

After seeing an orthopedist on December 27, 2012, claimant underwent surgery on his wrist on January 2, 2013 at Alice Hyde Hospital as an outpatient and was returned to the Franklin infirmary that day.

Claimant denied being offered physical therapy after surgery, and denied being provided such therapy despite requesting it. Claimant self-initiated rehabilitation of his wrist but had a limited range of motion and was unable to turn a doorknob or twist a bottle cap. His left arm remained in a sling for approximately a month. In the months following surgery, claimant complained about pain in his wrist and was unable to turn his wrist. Claimant was released from custody at Franklin in December 2013.

In the two years following surgery, claimant saw a number of doctors complaining about a limited range of motion when twisting his wrist. Claimant was seen by Dr. Hostin in July 2016 and again in January 2017.

Since his surgery in January 2013, claimant has continued his employment as a construction laborer, albeit avoiding more rigorous tasks such as hard digging and use of a jackhammer. He continues to work a five-day, forty hour work week.

Claimant is currently one month shy of his 50th birthday. Claimant reports that pain arises in two fingers of his left hand with the onset of cold weather, further describing some tingling and numbness as well. Claimant is right handed. He reports having full use of his left wrist and arm except being unable to turn his wrist palm up (the supination position) without tucking his left elbow into his body. This supination range of motion limitation has been observed and confirmed by medical examination and trial proof established that claimant's range of motion in this position is limited to 70 degrees, with 90 degrees being normal range of motion. Claimant has a small, non-prominent scar on his left wrist. Claimant also reported a "clicking" sound in the wrist, and an ongoing inability to twist a doorknob or bottle cap.

Upon cross-examination, claimant acknowledged these circumstances, post-surgery:

1. On the evening of his surgery, claimant declined pain medication;

2. After a February 22, 2013 doctor visit, the doctor placed no restrictions on claimant's activities;

3. During the last eight months of claimant's incarceration at Franklin (April 2013 to December 2013), despite seeking medical attention for other concerns, claimant sought no medical treatment for his left wrist;

4. Following surgery, while at Franklin, claimant "worked out" and sustained a chest injury in October 2013;

5. Other than being evaluated by his expert, Dr. Hostin, claimant has seen no orthopedist for treatment of his left wrist since December 2014;

6. No doctor has ever advised claimant to stop working or to reduce his activity level; and,

7. Since being released from defendant's custody in December 2013, no doctor has prescribed claimant pain medication for his wrist.

Dr. Emmanual Hostin, a board certified orthopedist, provided deposition testimony (Exhibit 12) as claimant's expert. Dr. Hostin described claimant's prognosis as "guarded" and testified that claimant's current range of motion and pain levels weren't "going to get much better at all" (Exhibit 12, p 35), and that claimant had joint incongruity and was "likely" to develop arthritis in the joint (Exhibit 12, pp 36-37).

Dr. Hostin described claimant's functional limitations related to wrist twisting, and, citing joint incongruity, opined "[i]t's going to progress into arthritis" (Exhibit 12, p 41). However, Dr. Hostin, in his written report of claimant's condition, while noting other findings to a reasonable degree of medical certainty, made no such characterization of his finding of joint incongruity, noting instead that an x-ray of the bone "appears incongruent" and that incongruency was "likely" (see Exhibit 12, pp 80-82).

Dr. Hostin conceded that no radiologist had ever reported joint incongruity. Also, contrary to Dr. Hostin's testimonial assertion of "likely" joint incongruity, the report of an x-ray of claimant's wrist taken February 21, 2013 notes "[v]irtual anatomic alignment is present" (Exhibit 5, p 120), and the report of an x-ray taken July 14, 2016 notes, "[a]lignment is maintained" (Exhibit 11, second page).

Dr. Michael J. Katz, a board certified orthopedic surgeon, provided deposition testimony as defendant's expert, having examined claimant on September 5, 2018. He noted that claimant had full range of motion other than supination limited to 70 degrees, observing a 20 degree deficit. Dr. Katz noted no tenderness, no inflammation or "chronic changes going on in the way of arthritic involvement," no nerve impairment and no vascular problems (see Exhibit A-1, pp 19-22). Dr. Katz indicated that the claimant reported no past or present numbness or tingling during his examination of claimant (Exhibit A-1, p 22). Dr. Katz did report "mild"reduction in claimant's left hand grip strength.

Finally, Dr. Katz opined that claimant had an "excellent surgical outcome" (Exhibit A-1, p 26), that no further medical treatment for claimant was recommended, that he had no concerns about claimant having an arthritic condition, and that no medical record or diagnostic testing he had reviewed noted any type of degenerative or arthritic change in claimant (see Exhibit A-1, pp 28-30).

Dr. Katz agreed upon cross-examination that a wrist fracture is a painful injury, that the implanted plate and screws were permanent, that claimant continued to have a limited range of motion, that claimant's need to compensate for certain left hand deficits by using two hands was not "normal," and that claimant's left wrist weakness was "significant."

The parties primary disagreement concerns the prospective pain and suffering claimant will endure. Based upon the medical records admitted into evidence, and based further upon the Court's assessment that defendant's expert medical proof on claimant's prognosis was more persuasive than claimant's expert medical proof, the Court finds that claimant's future damages hew far closer to defendant's position that to claimant's position.

Said another way, although the Court finds that claimant will endure some level of future pain (primarily during weather changes involving a change in barometric pressure), will have permanent hardware maintained within his wrist, will have a permanent range of motion deficit of 20 degrees in the left wrist, and will endure a limited number of diminished life activities (the twisting/rotational difficulties previously described), the claimant has failed to prove by a preponderance of the credible evidence that his left wrist condition will be degenerative and lead to the onset and progression of arthritis in the wrist.

The range of awards for similar, non-dominant hand, wrist injuries, varies substantially, and the Court has reviewed a variety of jury awards, case settlements and Appellate Division decisions ranging from rather low five-figure awards to mid-six-figure awards. Ultimately, the Court found Garcia v Spain (273 AD2d 57 [1st Dept, 2000]), to be most analogous to claimant's situation. In Garcia, "where the injured plaintiff, who sustained a fracture to her nondominant wrist in a fall on a defective sidewalk, is able to perform most of her usual preaccident activities and feels pain only when the weather is bad," the Appellate Division directed a new trial to be conducted after a jury verdict of $300,000 for past pain and suffering and $340,000 for future pain and suffering unless "the injured plantiff stipulates to reduce the awards for past and future pain and suffering to $130,000 and $160,000, respectively."

In consideration of all of the foregoing, and, most significantly, in light of claimant's positive post-surgical recovery, claimant is awarded $130,000 in damages for past pain and suffering and $65,000 in damages for future pain and suffering. This total award of $195,000 is reduced by 30%, the previously determined level of claimant's culpability for his fall, resulting in an ultimate award of $136,500.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly. The Clerk of the Court is directed to enter judgment in favor of the claimant in the amount of $136,500, together with interest to be computed from the date liability was determined, December 14, 2017, together with the amount of the filing fee, if any, pursuant to Court of Claims Act 11-a(2).

August 2, 2019

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims