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Appellate Court Affirms Substantial Reduction of Pain and Suffering Damages Award in Worker’s Back Injury Case

Posted in Back Injuries

On May 2, 2006, Walter Garcia was injured while working on a renovation project at the Plaza Hotel in Manhattan. Mr. Garcia, then 46 years old, was removing asbestos caulking from windows when he fell about two feet while attempting to climb over a scaffold on the roof.

Plaza Hotel Under Construction

In his ensuing lawsuit against the owner of the building (and, ultimately, others), Garcia was awarded partial summary judgment on the issue of liability and the case then proceeded to a trial on damages. The Suffolk County jurors awarded plaintiff pain and suffering damages in the sum of $4,200,000 ($1,200,000 past – nine years, $3,000,000 future – 23 years); however, in Garcia v. CPS 1 Realty, LP,  (2d Dept. 2018), the pain and suffering award has been reduced to $2,000,000 ($750,000 past, $1,250,000 future).

Plaintiff’s injuries appeared at first to be limited to to groin pain and leg numbness and he was diagnosed with an inguinal hernia that was surgically repaired eight months later. About 10 days after the accident, he first sought medical attention for complaints of back pain. Fifteen months later, plaintiff underwent an MRI of his lumbar spine and he was diagnosed with herniated discs leading to spinal fusion surgery at L5-S1 four years after the accident.

Unfortunately, the back surgery failed and plaintiff suffered additional injuries including a foot drop, neurogenic bladder with incontinence and mild reflex sympathetic dystrophy (“RSD”), all causing permanent unrelenting and excruciating pain, leaving him unable to walk without the use of two Lofstrand crutches, requiring extensive narcotic pain relief medication and rendering him permanently disabled from gainful employment.

Lofstrand Crutches

The Workers Compensation Board hired an investigator who surveilled plaintiff on 14 occasions from November 2006 through May 2007. The surveillance tapes were admitted in evidence at the damages trial showing plaintiff standing on his toes to change Christmas lights, raking leaves, kneeling down on a bag of leaves to push the air out and transporting a shop vacuum cleaner and pipe. The defendants argued that the tapes showed a person who was not at all disabled and would not need lumbar fusion surgery (which would not occur until March 2010). They contended that sometime after the activity captured on film, and well over a year after the accident, “something [unrelated to his accident] happened to the plaintiff that led him to seek surgery.”

Plaintiff argued that the video footage actually supported his position that all of his injuries are causally connected to the accident noting that there was not a shred of evidence that he engaged in activities inconsistent with a man with herniated discs in his lumbar spine and that his physicians diagnosed him with an unstable spine that continued to get worse and cause more pain and disability over time.

As set forth on the verdict sheet, the jury also awarded economic damages (undisturbed by the courts) for:

  • loss of earnings – $1,276,000   ($556,000 past, $720,000 future – 10 years),
  • loss of annuity – $127,200
  • loss of social security retirement income – $123,000
  • past medical expenses – $34,923 (stipulated)
  • future costs of therapeutic evaluations and care, medical care, medications, aids and homemaker services -$283,150 (23 years)

Inside Information:

  • Plaintiff commenced his lawsuit in Bronx County but the court ordered a change of venue to Suffolk County because plaintiff resided in Suffolk County at all relevant times. On the summons, plaintiff falsely stated he was a Bronx resident; when he testified at a deposition that he’d always been a resident of Brentwood in Suffolk County, a defense motion to change venue was granted.
  • In summations, plaintiff’s counsel asked the jury to award pain and suffering damages in the total sum of $5,000,000. Defendants argued that the only injury for which plaintiff should be compensated was the hernia and that it had resolved. They suggested about $50,000 for pain and suffering.
  • Plaintiff’s orthopedic surgeon testified that the back surgery led to symptoms of RSD but admitted that the RSD had “calmed down” and “was early in the spectrum and had improved.” The defendants’ doctor opined that plaintiff did not have RSD at all.