Opinion
CV166009389S
03-05-2019
Timothy YOUNG v. Timothy SULLIVAN, Administrator of the Estate of Linda Bauman
UNPUBLISHED OPINION
Nada K. Sizemore, Judge
CASE BACKGROUND
Plaintiff Timothy Young brings suit in negligence by Complaint dated July 7, 2016 in which he claims personal injuries, losses and damages arising from an auto accident on July 11, 2014 in the Town of Plainville. He claims that he was riding a 2004 Yamaha motorcycle and he was stopped at a red traffic signal on Woodford Avenue, when he was suddenly struck from behind by a vehicle operated by Linda Bauman.
He claims that he suffered the following injuries from this incident: cervical strain/sprain; cervical segmental dysfunction; lumbar strain/sprain; lumbar dysfunction and permanent disabilities to both cervical and lumbar regions. He now seeks damages for the expenses related to his medical treatment, for his physical pain and suffering, and for his permanent impairment. Plaintiff Young was 34 years old at the time of the accident. He was and currently is still employed as an electrician, and he makes no claim for lost wages or lost earning capacity in this suit.
By Answer dated January 19, 2017, the defendant left the plaintiff to his proof claiming that the defendant lacked sufficient knowledge or information to admit or deny the allegations. The parties have presented at trial before this court on February 27, 2019. For purposes of the court trial, liability was not contested, and the case proceeded before the court on damages only. All post judgment collateral source set-offs, if applicable, will be handled by the parties in post-verdict discussion and/or motions.
In support of the claim, plaintiff presented the testimony of Timothy Young and submitted Exhibits 1 through 8 in support of his case. Those full admitted exhibits consisted of the following: Exhibit 2— Hospital of Central Connecticut (hereinafter "HCC") Medical Report (Emergency Room Visit) dated July 14, 2014; Exhibit 3— HCC Medical Bill in the amount of $ 1, 343.00; Exhibit 4— Final Report of Dr. Michael Della Volpe dated July 31, 2015; Exhibit 5— Reports of Dr. Michael Della Volpe for year 2014; Exhibit 6— Dr. Michael Della Volpe Bills totaling $ 6, 248.00; Exhibit 7— Power Systems Time Sheet dated July 19, 2014; and Exhibit 8— New England Cycle Center Repair Order.
The defendant presented the testimony of Dr. Michael Yoel, D.C. and the following three admitted full exhibits: Exhibit A— Report of Dr. Michael Yoel dated July 27, 2017; Exhibit B— Police Report from City of Plainville dated July 11, 2014 (redacted version per court rulings on contested portions); and Exhibit C— Dr. Michael Yoel Curriculum Vitae.
GENERAL DISCUSSION
"The [fact finding] function is vested in the trial court with its unique opportunity to view the evidence presented in the totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties ..." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (Internal quotations-omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 847 (1981). "[N]othing in our law if more elementary than the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded their testimony." (Internal quotations omitted.) Tofforon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977).
In a case tried to the court on damages only, the plaintiff has the burden of proving his entitlement to recover damages by a fair preponderance of the evidence. To that end, the plaintiff must prove both the nature and extent of each particular loss or injury for which he seeks to recover damages, and that the loss or injury in question was proximately caused by the defendant’s negligence. Tuiite v. Stop & Shop Cos., 45 Conn.App. 305, 310-11 n.2 (1997) and see generally, Wright, Fitzgerald & Ankerman, Connecticut Law of Torts 3rd Edition, Section 171 (1991); Bates v. Carroll, 99 Conn. 677, 679, 122 A. 562 (1923); Richardson v. Pratt & Whitney Mfg. Co., 129 Conn. 669, 672, 30 A.2d 919 (1943). In cases with claimed medical expenses, the plaintiff bears the burden of also proving that the claimed treatment and medical expenses were reasonable and necessary.
Once the plaintiff has proven the nature and extent of his compensable injuries and losses, the court must then determine the fair, just and reasonable compensation for those injuries and losses. There is no mathematical formula in making this determination. The court must use human experience and apply sound common sense in determining the amount of the verdict.
CASE ANALYSIS
Plaintiff Young testified that when the defendant struck his motorcycle, the bike pulled forward and fell to the ground and he felt the handle bars being "ripped from his hands" without dragging him to the ground. He claims that he felt pain in the knee at the accident site, but admits that this knee pain was not connected to this accident but to a pre-existing knee issue. Police and ambulance were called to the scene, and the plaintiff was evaluated by the ambulance and EMT team and reported no pain except in the knee. He declined any further treatment.
Three days later on July 14, 2014, he presented at the Hospital of Central Connecticut Emergency Room complaining of both bilateral cervical and low back pain. He was evaluated and had cervical x-rays done, and then was discharged with a diagnosis of cervical sprain/strain. His discharge orders indicated that he should take two days off work and medications were prescribed.
On July 30, 2014, he presented for treatment with Dr. Michael Della Volpe, D.C. complaining of continuing neck and low back pain. He proceeded to treat with Dr. Della Volpe from July 30, 2014 through July 13, 2015 for 54 sessions over an approximate 50-week period. Dr. Della Volpe in an interim report dated November 10, 2014 and in his progress notes from July 30, 2014 to November 2014 makes note that plaintiff Young’s continued episodes of pain seemed to get triggered by his work as an electrician. In particular, he testified and reported to Dr. Della Volpe that when he works in cold or hot outdoor conditions and/or in physically taxing conditions where he is bending a lot or working overhead with arms raised, he reports increased pain in cervical and low back areas.
By July 13, 2015, Dr. Della Volpe issued a final report indicating that plaintiff had met maximum medical improvement. In accordance with American Medical Association guidelines, he found that plaintiff was left with a 5% permanent impairment in his cervical area and 5% permanent impairment in the lumbar regions. He also found the permanencies and medical treatment was all directly and causally related to the motor vehicle accident on July 11, 2014. Dr. Della Volpe also concluded that plaintiff’s occupation would cause him continued flare-ups and anticipated future treatment.
Plaintiff has had no treatment for the injuries in this accident since July 2015— almost four years ago.
Hired defense expert, Dr. Michael Yoel, D.C., testified at trial that he contests the conclusions of the treating chiropractic physician, Dr. Michael Della Volpe D.C. and contests the treatment provided by the HCC.
Specifically, in his report dated June 27, 2017 and during his testimony, Dr. Yoel expresses strong disagreement with the opinions offered by the treating physician. He writes in his report, in part: "This case depicts excessive low value, out of proportion treatment for an uncomplicated simple condition," He finds the treatment and permanent impairment ratings as "non-credible, invalid and not confirmed" and "completely medically unreasonable and not plausible." Yet, Dr. Yoel does support a maximum of 15 chiropractic sessions for the plaintiff as "appropriate" treatment for the injuries from this accident. But, he nonetheless further disagrees with any future treatment prognosis of Dr. Della Volpe calling it "self-serving on the part of the attending chiropractor."
It is noted that Dr. Yoel never physically examined the plaintiff
The damage issue in this matter, therefore, centers on the conflicting expert opinions of the treating chiropractor, Dr. Michael Della Volpe, D.C. and of the defense chiropractic expert, Dr. Michael Yoel, D.C. Dr. Della Volpe treated the plaintiff from July 30, 2014— 19 days post-accident through July 15, 2015.
This court is persuaded by most of the expert opinions offered by the treating chiropractic physician, Dr. Michael Della Volpe, D.C., on the causation, reasonableness and necessity of the treatments provided to the plaintiff Young. Dr. Della Volpe was in the more direct position to assess the progress and condition of the plaintiff from initial evaluation through the last treatment in 2015. The court also believes the expert opinion of Dr. Della Volpe more persuasive on the issue of permanent partial impairment as well. Albeit, the 5% ratings each for the cervical and lumbar areas do not represent significant impairments so as to dictate a high degree of physical pain and suffering. Plaintiff missed only a few days of work, and he has been able to continue with all life’s activities just as before the accident.
The court is not persuaded by Dr. Della Volpe’s opinion on the necessity of future medical treatment, as that appears much too speculative. Plaintiff has not treated since July 2015, and it seems most unlikely that he would seek future treatments as described by Dr. Della Volpe.
CONCLUSION
Having heard the testimony of the parties and arguments of counsel, and having reviewed the documentary exhibits submitted at trial, the court enters judgment in favor of the plaintiff and makes the following findings.
The court finds that the plaintiff Young has proven damages proximately caused by this accident, and the court finds the claimed economic damages presented were reasonable and necessary.
The court also finds that the plaintiff suffered some degree of physical pain and suffering from the accident and is entitled to an award of non-economic damages for pain and suffering.
The court also finds that the plaintiff suffered some permanent impairment as a result of the injuries in this accident. The court does not find that the claims for future medical treatment are proven by preponderance of the evidence, as those damage claims are speculative at best.
The court will enter verdict as follows based on the evidence submitted at trial:
Plaintiff Timothy Young
ECONOMIC DAMAGES $ 7, 591.00
NON-ECONOMIC $ 5, 000.00
TOTAL VERDICT $ 12, 591.00