On September 21, 2011 Mark Fabiano, then 49 years old, was injured when he fell 18 feet to the pavement from a scaffold that he was helping to erect under a New York State Thruway bridge in Catskill.

In the ensuing Court of Claims lawsuit, Mr. Fabiano’s motion for summary judgment of liability under Labor Law section 240(1) was granted, and the matter then proceeded to a bench trial on damages.

The judge awarded claimant pain and suffering damages in the sum of $1,000,000 ($400,000 past – 4 1/2 years, $600,000 future – 25 years). Claimant appealed arguing that the award was inadequate; however, it was affirmed in Fabiano v. State of New York  (3rd Dept. 2019).

Here are the injury details:

  • T-12 vertebral body chip and L-1 compression fracture
  • pain and radiculopathy requiring painkillers, two rounds of epidural injections, six months of physical therapy and use of lumbar sacral support belt
  • decompressive lumbar laminectomy surgery to fuse the T-12/L-1 vertebral bodies with titanium screws permanently implanted
  • surgical implantation of permanent spinal cord stimulator
  • continuing chronic and progressive pain and inability to return to work or meaningfully engage in recreational activities previously enjoyed such as fishing and playing with grandchildren
Lumbar Compression Fracture

Evaluating damages, the trial judge noted that claimant conceded that he:

  • declined medical attention of the day of the accident and did not seek medical attention for nine days
  • drives and several times a week cares for his 18 month old grandchild
  • had pre-existing chronic issues in the area of the fracture and,
  • was hospitalized only for two days

Additional damages were awarded for (a) medical expenses in the sum of  $580,298   ($253,098 past, $327,200 future – 25 years) and (b) loss of earnings in the sum of $813,000 ($295,000 past, $518,000 future – eight years).

Inside Information:

  • Claimant also suffered a severely lacerated lip in the fall which required suturing and left him with a scar (that was covered by facial hair at trial) and three broken teeth that required dental crowns.
  • Claimant sought to recover damages for the aggravation of a pre-existing condition of his cervical spine which was attributable to previous trauma and/or age related degeneration) but the judge ruled that there was insufficient proof and made no award of any damages specific to that aspect of the claim.