Jerry D. Walker v. State of Illinois

OPINION

BURNS, J. This matter comes before the Court on the claim of Claimant for personal injuries sustained when the truck he was driving was struck by snow and ice falling from an overpass. An evidentiary hearing was held before a commissioner. The Court being advised in the premises hereby finds as follows.

I. Introduction

On February 24, 2016, Claimant was driving an 18-wheel truck on northbound Interstate 57 near Mt. Vernon. As Claimant approached the overpass supporting State Route 15, his vehicle was struck by snow and ice being plowed off the overpass onto I-57 below. The snow and ice struck his windshield causing him to lose control of his truck. Claimant asserts that the snowplow pushing the snow and ice from the overpass was an Illinois Department of Transportation (“IDOT”) plow. Claimant asserts that plowing off an overpass is contrary to IDOT Regulations and breached the duty of care. Claimant alleges that he suffered personal injuries to his neck that required two surgeries. Respondent denies liability and asserts that there is no evidence that the snowplow that caused the snow and ice to fall from the overpass was an IDOT plow.

II. Background

The first witness was the Claimant, Jerry D. Walker. Claimant lives in Hendersonville, Tennessee near Nashville. He lives with Craig Reynolds, a longtime friend. He is not currently married. He has no children. Claimant has been an over the road truck driver since 1994.

On February 24, 2016, Claimant was working for Madison Truck Lines, a contractor for FedEx Ground. Claimant was driving a set of trailers from Nashville to Kansas City, Missouri. He left Nashville about 10:30 a.m. planning to drive to Kansas City. He stated that his truck was a 2011 and that he was very familiar with it. He was pulling two 28-foot “pups” trailers.

Claimant testified that as he drove through northern Kentucky and into southern Illinois, there was light blowing snow. He noticed ice and slick parts on the road, and snowplows were out in both Kentucky and Illinois. He testified that he specifically saw IDOT snowplows on the [*128] interstate in southern Illinois. He described them as orange dump trucks with plows attached to the front along with salt throwers equipped to the back.

At about 1:25 p.m., Claimant was on northbound I-57 approaching the intersection with State Route 15, which intersects I-57 via an overpass. Claimant stated that as he approached the State Route 15 overpass he noticed an orange IDOT truck on the bridge. He also saw snow being thrown up and off the overpass onto the highway below. He described traffic as medium.

Claimant testified that as he approached the snow being thrown off the overpass, he let off the accelerator and hit his exhaust “Jake” brake to let off speed to try to avoid the snow and ice. He was traveling about 48 mph, as the speed limit was 50 mph due to construction. Claimant stated that the snow and ice hit the road in front of his truck and then came up over his hood, hitting and shattering his windshield.

Claimant testified that he lunged forward but his seatbelt stopped him, bruising his left shoulder. He snapped back and hit his seat. The GPS flew off his dash and struck his face. He jerked the wheel to the left. He could not see due to the shattered windshield. He heard his truck go over the rumble strips on the side of the road as his truck was heading toward the median. He jerked his wheel to the right, but there was another car, so he jerked the wheel back to the left.

He hit the rumble strips again and jerked back to the right. At this point, he noticed his rear trailer had come off the ground, so he hit the accelerator to try to pull out of it. Finally, he was able to control his truck and he pulled to the side of the road.

Claimant testified that he was pretty shook up and his head was hurting from being struck by the GPS as well as either the microwave door or a glass plate in his cab thrown about during the incident. An ambulance and Illinois State Trooper responded to the scene. He reported to the state trooper that snow and ice was pushed over the State Route 15 overpass by an IDOT snowplow. The ambulance attended to him and took him to Crossroads Community Hospital. He said he had pain in his head and his neck hurt. He was treated and released.

After being released from the hospital, Claimant rented a car from Enterprise and went to the local Freight Line dealership, the location where his truck had been towed. He gathered his personal effects and took some photos. While at Freight Line, he called IDOT. He spoke to a person at IDOT and reported the incident. The person took the information and said he would look into the matter. He then drove home to Nashville.

Claimant testified that his neck pain worsened by the next morning to the point that he could hardly move. He said his eye was swollen and his face hurt. His boss directed him to go to Concentra for medical care. He was ordered physical therapy. During the first month postaccident, his headaches got worse. He still had neck pain. He had vision problems. He had tingling in his arms and hands. He continued physical therapy. He went to see Dr. M. Robert Weiss. Dr. Weiss ordered additional physical therapy and an MRI. Claimant stated that he was diagnosed with a herniated disc in his neck. Claimant underwent surgery in April 2016 at St.

Thomas West Hospital in Nashville. The first surgery was paid for through a worker’s compensation claim.

[*129] Claimant testified that after surgery he had some relief from his symptoms. He returned to work. He was put on a light run from Nashville to Knoxville. He testified that driving was rough because he kept replaying the accident in his mind, and it was physically difficult.

Claimant was taken off work again. He returned to full duty in July 2016. In May 2017, he went back to Dr. Weiss because he was having recurring symptoms. He had headaches and tingling in his arms and hands. He testified that when he was cranking a handle attached to a trailer, he felt a slight “pop.” He continued to work after the incident until August 31, 2017.

He communicated the occurrence to Dr. Weiss, who ordered another MRI. Soon thereafter, Dr. Weiss brought in another physician named Dr. Adam Reig. The two physicians soon suspected that his first fusion surgery had not fully fused. Claimant was scheduled to have a second surgery on September 6, 2017. However, worker’s compensation declined to pay for the second surgery, so the September 6, 2017, surgery was canceled. Claimant had the second surgery on September 19, 2017, which was performed by Dr. Weiss and Dr. Reig at St. Thomas Medical Center. Worker’s compensation did not pay for the second surgery.

While in recovery from the second surgery, Claimant was asked by Dr. Weiss to lift his right leg and he could not do so. He was able to lift his left leg, but not his right. Dr. Weiss immediately had him taken to the operating room. Claimant testified that he was put out, and he woke up in the intensive care unit. He was in ICU for 24 hours. Dr. Weiss informed him that he had suffered a blood clot and would have died had it gone undetected for another 15 minutes.

Claimant testified that the recovery after the second surgery was tougher. He needed a walker for about three weeks. Dr. Weiss had retired, so Claimant began treatment with Dr. Reig.

Claimant testified that he has permanent limited range of motion in his neck. He stated that the second surgery helped with the headaches, and initially with the tingling, but the tingling in his fingers returned about a week or so before the trial in this matter. Claimant testified that Dr. Reig indicated to him that the fusion had taken in the second surgery. He still has the hardware from the surgery in his neck. He has permanent scars on the front and back of his neck from the surgeries. Dr. Reig eventually found Claimant to have reached maximum medical improvement.

However, Claimant could not work as an over the road truck driver. Claimant ceased working on August 31, 2017. Claimant applied for social security disability and was denied.

Claimant then testified as to the effect his injuries and surgeries have had on his life. He stated that prior to the accident he rode horses, dirt bikes, four wheelers, wave runners, jet skis and water skis. He testified that he can no longer do those activities because the bouncing around hurts his neck. He testified that prior to the accident he loved to run cross-country and go on trails, but he cannot do that anymore. He testified that he is scared for his future.

On cross-examination, Claimant stated that I-57 and the exit ramps were clear, and the interstate did not have any buildup of snow or ice. He said he first noticed the IDOT truck on the State Route 15 overpass when it was about three truck lengths from the bridge. It was seconds between when he first saw the IDOT truck and he reached the overpass. He conceded that he could not actually read any IDOT markings on the orange truck because of the distance. He does not recall if the truck had flashing lights. He cannot recall much about the truck, but he does [*130] recall it had a sand/salt spreader on the back. He testified that the snow and ice being pushed from the overpass was a steady stream. He stated there was no construction on the left shoulder of northbound I-57 but there was lane modification work being done to the right.

Claimant's next witness was Craig Reynold's, Claimant's roommate. Reynolds has known Claimant for over 15 years. Reynolds stated that they do typical friend stuff like dinner, fishing, working on cars, etc. Prior to this incident, Reynolds never knew Claimant to complain about pain, nor did he observe pain to limit Claimant's activities. Reynolds also assisted Claimant with cleaning limousines and never knew Claimant to complain of stiffness in his neck or headaches. Prior to the incident Reynolds said Claimant would take all the work in he could as a truck driver. Reynolds was present when Claimant came home after the accident. Reynolds testified that Claimant was pretty beat up. Reynolds took Claimant to his first surgery and helped him while he was recuperating from the first surgery. Reynolds stated that Claimant is not the same and cannot do the same activities as compared to before the accident. Reynolds also testified that he has observed that the accident and injuries have taken a mental toll on Claimant.

At the conclusion of the testimony of Reynolds, Claimant's Exhibits 2-16 were admitted into evidence without objection. Claimant's Exhibit 23 was admitted without objection. Claimant then moved to admit Claimant's Exhibit 24, which was the answer to Interrogatory No. 4.

Respondent objected that it was admitted for the limited purpose of evidence that there were IDOT snowplows on the date in question but not as evidence of whether it was an IDOT snowplow on State Route 15 at the time of the accident. Claimant's Exhibits 28, 29, 30 and 31, the depositions of other witnesses, were admitted into evidence. Claimant's Exhibit 39 was a thumb drive with videos of the depositions. Finally, Claimant's Exhibit 17, a summary of medical bills, and Claimant's Exhibits 35, 36, and 37, were admitted as demonstrative exhibits.

Claimant then read excerpts from the Claimant's exhibits into evidence.

Claimant's Exhibit 28 was the deposition of Illinois State Police Trooper Paul Moak.

Trooper Moak testified that on February 24, 2016, he was sent by dispatch to the accident on northbound I-57 near the overpass with State Route 15. Trooper Moak testified that he saw the damage to the truck and spoke to Claimant. He testified that he prepared an incident report and that the information in the report about an IDOT snowplow being on the overpass came from statements from Claimant. Trooper Moak testified that he was familiar that different municipalities in the area have snowplows of various colors; however, he knew that all IDOT snowplows were orange. Trooper Moak stated that his understanding was that some local roads are plowed by other entities but interstate and state routes are plowed by IDOT. Trooper Moak testified that he did not undertake any further investigation other than responding, taking statements, and preparing the incident report.

Claimant's Exhibit 29 was the deposition of Keith Miley. Miley was a civil engineer for IDOT. At the time of the hearing, he was a bureau chief of operations for District 9, which includes the intersection at issue in this case. As part of those duties, he oversees snow removal in District 9. He testified that IDOT rules and regulations provide that a snowplow is to reduce speed when plowing on a bridge to avoid throwing snow and ice over the parapet onto the area below the bridge. Miley acknowledged that State Route 15 is a roadway under IDOT's jurisdiction. He also stated that there was no intergovernment agreement for another municipality [*2] to plow State Route 15 in the area in question, Miley testified that he was not aware of any investigation by IDOT into the incident; in fact, Miley testified he was unaware of any complaints being recorded with IDOT. When asked about Claimant’s testimony that Claimant had called IDOT, Miley said it was possible that Claimant spoke to a receptionist who would not have responsibility to record the call.

Claimant’s Exhibit 30 was the deposition of M. Robert Weiss M.D. a board certified neurological surgeon. On March 9, 2016, Dr. Weiss first treated Claimant for his injuries sustained during the accident in question. Dr. Weiss testified that Claimant had bulging discs in his cervical spine. He prescribed physical therapy and continued to treat Claimant. Eventually, it was determined that Claimant would need surgery. On April 26, 2016, Dr. Weiss performed anterior fusion at two levels of Claimant’s cervical spine including the insertion of hardware. Dr.

Weiss testified that Claimant’s symptoms were relieved by the surgery, and on August 1, 2016, he released him from his care. About a year later on May 1, 2017, after an issue while cranking a handle on a trailer at work, Claimant returned to see Dr. Weiss complaining of axial neck pain syndrome. Dr. Weiss ordered an MRI. Dr. Weiss indicated that he was unsure at this time if a nonunion of the previous surgery was present.

At this point Dr. Weiss referred Claimant to Dr. Adam Reig in order to perform a posterior fusion surgery. The posterior surgery performed by Dr. Reig involved a decompression at C5, C6, and C7 levels and then a posterior fusion surgery at those levels. Dr.

Weiss said the surgery went well, and Claimant’s recovery was going all right until later in the evening when he developed a hematoma that was compressing on his spinal cord. Dr. Weiss testified that the hematoma could be life threatening but in this case was more limb threatening if not treated immediately. Claimant had to be taken in for emergency surgery to alleviate the hematoma. Dr. Weiss testified that the medical treatment and two surgeries were reasonable and necessary to treat Claimant’s injuries and were a result of the February 26, 2016, accident. Dr.

Weiss also testified that the medical bills were reasonable and necessary for like services. When asked about whether Claimant could return to work, Dr. Weiss testified that it was up to Claimant based upon what he could tolerate.

On cross-examination, Dr. Weiss clarified that Claimant had degenerative disc disease but as a result of the accident, he had suffered an acute injury with two disc protrusions. Dr.

Weiss was asked about the May 2017 incident involving the handle crank. Dr. Weiss testified that while the May 2017 incident was probably an acute occurrence that exacerbated Claimant’s symptoms, he did not see any structural abnormalities as a result of his cranking the handle. As such, Dr. Weiss believes that the second surgery was necessitated by the February 2016 tractortrailer accident. Dr. Weiss deferred future prognosis to Dr. Reig.

Dr. Reig is a board-certified neurosurgeon that first began treating Claimant just prior to the second surgery in 2017. Dr. Reig testified that he met with Claimant on July 31, 2017, in regards to doing a posterior fusion on his neck. Dr. Reig took a history, including his February 2016 truck accident, reviewed Dr. Weiss’s medical records, and conducted a physical examination of Claimant. Dr. Reig diagnosed Claimant with stenosis, or narrowing of the spinal canal, and pseudarthrosis, which means a nonunion of his previous fusion surgery. Dr. Reig testified that he participated in Claimant’s second surgery on September 19, 2017. Dr. Reig [*132] testified that the actual surgery went fine; however, later that day during recovery Claimant developed a hematoma. Dr. Reig testified that during the surgery he was able to determine that there was in fact a nonunion of the first fusion surgery. Dr. Reig testified that Dr. Weiss then conducted a procedure to alleviate the hematoma issue and was successful.

Dr. Reig then took over the care of Claimant as Dr. Weiss was retiring. Dr. Reig testified that there were follow-up treatments and physical therapy. Dr. Reig testified that Claimant’s neck injuries exacerbated his pre-existing degenerative conditions causing Claimant to become symptomatic and necessitating the treatment and surgeries he underwent. Dr. Reig also testified that the medical bills for the treatment were reasonable for the services rendered. Dr. Reig conceded on cross-examination that he did not review information pertaining to Claimant’s May 2017 injury at work. On redirect, Dr. Reig testified that Claimant will have permanent weight restriction of lifting no more than 30 pounds, and that continued work as a truck driver could lead to a reinjury.

Counsel made oral closing arguments. Claimant argued that the evidence is clear that it was an IDOT snowplow that pushed the snow over the State Route 15 overpass onto I-57 causing the accident. Claimant points to the testimony of Claimant that the snowplow was orange and the testimony of IDOT employee Mikey who acknowledged that IDOT had jurisdiction to plow State Route 15 at the intersection in question. Claimant further argues that because the accident was caused by a state-owned vehicle that the statutory cap for tort claims contained in 705 ILCS 505/8(d) does not apply in this case. Claimant is seeking damages between $2.3 million and $2.8 million for past medical bills, pain and suffering, disfigurement, loss of normal life, lost future wages, and future medical.

Respondent counters by arguing that Claimant has not met his burden of proof that it was an IDOT snowplow on State Route 15. Respondent does not dispute the circumstances of the accident but just whether Claimant met his burden of proof that it was an IDOT snowplow.

Respondent also argues that not all medical treatment, particularly the second surgery, was causally related to the February 2016 accident. Respondent further argues that Claimant had a degenerative condition in his lower back that would be the cause of any future medical bills.

Finally, Respondent argues that the statutory cap applies.

III. Analysis

Claimant has made a claim for negligence. In order to prevail Claimant must establish a duty owed to Claimant, a breach of that duty, and damages resulting proximately therefrom. See Dominique Alexander v. State, 63 Ill. Ct. Cl. 131 (2011). The Claimant bears the burden of proving duty, breach, and damages by a preponderance of the evidence in order to prevail. See Pugh v. State, 54 Ill. Ct. Cl. 447, 452 (2001). The Court will address each element in order.

The law is well established that the State owes a duty to maintain its roads and highways in a reasonably safe condition. See Smith v. State, 42 Ill. Ct. Cl. 19 (1990). There is no doubt that this duty includes plowing snow in a reasonably safe manner. In fact, §2-200.7.1 of the IDOT Snow and Ice Control Manual for Districts 2-9 provides, “Plowing speed shall be reduced to prevent throwing snow over bridge parapets…” See Claimant’s Exhibit 23. This duty of care is [*133] further supported by IDOT District 9 Bureau Chief Miley, who testified that employees are instructed and trained so as to not plow snow and ice over the parapets of bridges. Thus, Respondent owed Claimant a duty to plow the snow on the State Route 15 overpass in a reasonably safe manner.

The next issue is whether Respondent breached the duty of care; stated another way, was it more likely than not that an IDOT snowplow was the plow that threw snow off the State Route 15 overpass? Respondent argues that because Claimant could not specifically identify markings on the snowplow stating “Illinois Department of Transportation” that there is insufficient evidence to find that it was an IDOT snowplow throwing the snow onto I-57 on the date and time at issue in this case. Respondent is essentially arguing that the totality of the evidence does not make it more likely than not that the snowplow at issue was an IDOT snowplow. However, Respondent fails to appreciate the direct and circumstantial evidence upon which this Court makes its finding.

The Court of Claims case of Alexander v. State, 63 Ill. Ct. Cl. 131 (2011) is informative as the claims in Alexander are very similar to the case at bar. In Alexander, the claimant was traveling on an interstate when snow fell from an overpass onto the claimant's windshield. The interstate in question was a tollway. The overpass was a state roadway. The claimant testified that he saw a yellow snowplow on the overpass throwing snow onto the tollway. The claimant stated that after being hit by the thrown snow he pulled over on a ramp. The claimant stated that he then saw the yellow snowplow proceed to plow another ramp connected to the tollway. The Court, relying on multiple facts and particularly the color of the snowplow, held that the claimant had not met his burden of proof. See Alexander, 63 Ill. Ct. Cl. 131. The Court noted that the color of the plow was not the same as IDOT plows, which are orange. The Court further noted that while the overpass was a state roadway, IDOT did not have jurisdiction to plow the tollway or its ramps. Thus, taking all facts into consideration the court held that the direct and circumstantial evidence did not lead to a conclusion that it was more likely than not an IDOT snowplow that was throwing snow onto the vehicle of the claimant. See Alexander, 63 Ill. Ct. Cl. 131.

Based upon a totality of the evidence presented in this case, the opposite conclusion is reached. The evidence at trial shows that Claimant identified the snowplow as being orange.

IDOT District Bureau Chief Miley testified that all IDOT snowplows are orange. While it is acknowledged that non-IDOT snowplows may also be orange, it is undisputed that all IDOT snowplows are orange. Miley also testified that IDOT had jurisdiction over State Route 15, including the responsibility to plow snow. Respondent speculates that it is possible that another unknown entity or private company was plowing State Route 15 on the date in question but there is no evidence to support this conjecture. The only fact that Respondent relies on is that the Claimant testified that he could not see IDOT markings on the side of the truck. Despite this one detail the totality of all direct and circumstantial evidence leads to the finding that the snowplow at issue in this case was an IDOT snowplow.

The testimony of Claimant is undisputed that the snowplow threw snow off of the State Route 15 overpass onto northbound I-57. The thrown snow hit Claimant’s truck and caused him [*134] to lose control and become injured. The Court finds that the Respondent breached its duty of care and is liable for the accident and resulting injuries to Claimant.

The final step is to assess fair and reasonable damages.

Since Claimant is seeking damages in excess of the statutory cap, the Court must first determine whether the statutory cap for tort claims applies in this case. §505/8(d) of the Court of Claims Act provides:

“An award for damages in a case sounding in tort, other than certain cases involving the operation of a State vehicle described in this paragraph, shall not exceed the sum of $2,000,000 to or for the benefit of any claimant. The $2,000,000 limit prescribed by this Section does not apply to an award of damages in any case sounding in tort arising out of the operation by a State employee of a vehicle owned, leased or controlled by the State. … The changes to this Section made by this amendatory Act of the 100th General Assembly apply only to claims filed on or after July 1, 2015.” See 705 ILCS 505/8(d).⁵ Claimant argues that the accident in question was caused by snow being thrown off an overpass due to the operation of an IDOT snowplow, i.e. a state vehicle, so the statutory cap does not apply. While this argument seems straightforward, there have been cases that have addressed what it means to be “… arising out of the operation by a State employee of a vehicle owned, leased or controlled by the State.” 705 ILCS 505/8(d).

In the case of Starr v. State, 52 Ill. Ct. Cl. 271 (1999), the court addressed the applicability of the statutory cap in regards to a tractor-mower operating in the median of a highway. In Starr, an IDOT tractor-mower was mowing the median of a highway at the precise moment that the claimants’ vehicle was passing the area. The tractor-mower expelled a rock propelling it into the windshield of the claimants’ vehicle causing injuries. The issue of the statutory cap was addressed. The claimant argued that the tort claim arose from the operation of a State vehicle, i.e. the IDOT tractor-mower. Respondent argued that the tort claim was not of the type contemplated by the statute. The Court held:

“Here the tractor which was pulling the mowers were not being operated on the roadway itself but was being used as equipment. The Court believes that it was the legislative intent that “vehicle,” for purposes of the Act, meant vehicles being operated on the roadway.” See Starr v. State, 52 Ill. Ct. Cl. 271 (1999).

Thus, an argument can be made in this case that the snow and ice were being propelled by the piece of equipment, i.e. the actual plow attached to the truck, and not the vehicle itself, as contemplated by the statute.

Another case addressing the statutory cap is the case of Hannon v. Illinois Dep’t of Transportation, (61 Ill. Ct. Cl. 214 (2008)). In Hannon, IDOT snowplows had built up mounds ⁵ While this claim arose before the amendment to 705 ILCS 508/8 the plain language of the current statute indicates that the $2 million cap would be the applicable cap as the complaint was filed after July 1, 2015.

[*135] of snow at the intersections of two roadways. The claimant was struck by another vehicle due to the alleged inhibited sight line due to the snow mounds. The claimant argued that since the snow mounds were created by the operation of a state-owned snowplow then the statutory cap should not apply. In addressing the applicability of the statutory cap, the Court held: “To remove the [statutory cap] the vehicle must be in the active exercise of some function by performing work or producing effects at the time and place of the injury.” The Hannon court concluded that the statutory cap applied because the time and place of the injury did not occur while the state vehicle was in active operation.

After consideration of these cases this Court holds that Hannon accurately states the proper meaning of “… arising out of the operation by a State employee of a vehicle owned, leased or controlled by the State.” 705 ILCS 505/8(d). It is the holding of this Court that in order for the statutory cap exception to apply a state vehicle must be in the active exercise of some function by performing work or producing effects at the time and place of the injury. In this case, it is clear that at the time and place of the accident an IDOT snowplow was in the active operation of its function to plow snow. Thus, the statutory cap does not apply to this tort claim.

Since it has been determined that Respondent is liable, the final question is damages.

Claimant claims significant injuries. He claims that as a result of the accident he hurt his neck requiring an anterior fusion surgery on his cervical spine in April 2016. This surgery, performed by Dr. Weiss, was paid for by worker’s compensation. Claimant asserts that he improved; however, a little over a year later he became symptomatic again. He received further treatment and required a second surgery. The second surgery was necessitated in part because the first surgery did not fully fuse. The second surgery was a posterior fusion of the cervical spine.

Claimant testified that eventually in August 2017 he was no longer able to work his job as a truck driver. Claimant provided testimony on his pain and suffering due to his injuries and medical treatment. He also informed the Court how his current condition limits his normal life activities. Claimant seeks the following damages:

Past Medical Expenses $214,839.84

Lost Earnings:

Past: $ 43,104

Future: $933,570

Disfigurement: $100,000

Pain and Suffering: $500,000 - $750,000

Future Medical: $ 50,000

Before the Court issues the award in this case it denotes a few important points as to the evidence of damages presented. It is undisputed that Claimant sustained significant injuries as a result of the accident. He went through two surgeries that both Dr. Weiss and Dr. Reig related to the accident. He suffered significant pain associated therewith, and his injuries have limited his normal life activities. While the Court wonders how the first surgery was covered by workers compensation but not the second, the evidence at trial in terms of medical bills and setoff was not disputed. We note as well that this Court applies the collateral source rule, which holds that money received from a source independent of the tortfeasor may not be deducted from damages, and accordingly, it is the policy of the Court to allow a set-off in a tort claim only when the [*136] monies received are from the State or another tortfeasor. Makkay v. University of Illinois, 61 Ill.

Ct. Cl. 225, 232 (2006); Fuchs v. State, 70 Ill. Ct. Cl. 175 (2018). Thus, the Claimant is entitled to $214,839.84 for reimbursement of his medical bills.⁶ Claimant also seeks recovery of lost earnings for the periods in which he was out of work due to his injuries. Claimant testified that he was unable to work from the date of the accident, February 24, 2016, until roughly July 2016, and then again from October 2017 to present. He submitted W2s from 2012-2017 showing his earnings as a truck driver and limousine driver during those years that reasonably support this aspect of his claim, and, thus, we award him $43,104 in reimbursement for lost earnings.

Claimant’s request for future earnings is less clear based on the evidence.

According to Dr. Weiss, after Claimant’s first surgery he had an impairment rate of 19%.

See Claimant’s Exhibit 30, pg. 31:8-12. Dr. Weiss’ further testified about the Claimant’s ability to work:

Well, I wouldn’t add to his restrictions. So, I think he could go back to it if he wanted to, but I am thinking if he were uncomfortable or he felt it was mitigating his response times, or in some way affecting his speed or perception or performance operating a rig, you know, he shouldn’t do it. I think that would - I would leave that up to him at this point, in terms of how he feels about handling a tractor-trailer. See Claimants Exhibit 30, pg. 54:2-10.

Also, asked about permanent work restrictions Dr. Reig testified: “I would say no lifting more than 30 pounds.” See Claimants Exhibit 31, pg. 38:19-20. When asked about the effects of repetitive “stooping, jumping off and on of trucks, those activities,” Dr. Reig stated “Those activities would put him at risk for a reinjury.” See Claimants Exhibit 31, pg. 38:22-25.

In Illinois, recovery of future earnings must be limited to such loss as is reasonably certain to occur. Branum v. Slezak Construction Co., Inc., 289 Ill.App.3d 948 (1997). Future loss of earnings cannot be speculative or conjectural. Id. Testimony as to loss of earnings that is merely speculative, remote, or uncertain is improper. Id.

The testimony and evidence here is speculative. Claimant was assigned work on an asneeded basis. His employers could employ his services one year and not another. Meanwhile, his own doctors did not rule out his return to work and Dr. Reig testified only to a risk of “reinjury” going forward. Furthermore, Claimant testified that he applied for and was denied permanent disability. We find the Claimant here has not met his burden to establish lost future earnings or future medical bills, and thus decline to grant any award on that basis.

As for disfigurement, it has been defined as that “which impairs or injures the beauty, symmetry, or appearance,” Stift v. Lizzardo, 362 Ill.App.3d 1019. Even a permanent scar as a result of neck surgery does not automatically merit a damage award if it is not noticeable or if ⁶ Claimant’s counsel indicated in closing arguments that Claimant has a $100,000 worker’s compensation lien in this case.

[*137] there is no evidence or testimony that it caused embarrassment or grief, *Id.* at 1031. In *Richardson v. Chapman*, 175 Ill.2d 98, 114 (1997), our Supreme Court upheld a jury’s decision to award no damages to the victim of a traffic accident that was left with a scar from a laceration on her forehead similar to the one described by the Claimant here. Here, we find the Claimant’s damages due to the scar to be similarly minimal, and we likewise decline to make an award for disfigurement in this case.

The Claimant clearly has endured pain and suffering as a result of the Respondent’s negligence, though such damages can be difficult to quantify. *Snover v. McGraw*, 172 Ill.2d 438, 448 (1996). In *Makkay v. University of Illinois*, supra, this Court awarded $20,000 for pain and suffering and loss of normal life to a claimant who had suffered a concussion and ongoing neck and jaw pain after a slip-and-fall at a wrestling meet at Assembly Hall in Champaign. In *Giovanetto, et al. v. State*, 42 Ill. Ct. Cl. 106 (1990), we awarded $75,000 to a claimant bus driver who had suffered back injuries in a fall caused by a broken railing at a state park. The back injuries were of a similar nature to those seen in this case, and the claimant had to give up her bus-driving job due to the lingering effects. In *Kmetz v. State*, 09-CC-0653 (2016), we awarded $100,000 for pain and suffering and loss of normal life to a claimant who had suffered back and neck injuries, including a related surgery, as a result of a vehicle collision caused by a state trooper.

We find the injuries sustained by the Claimant in this case, including the loss of normal life, to be similar in nature and extent to the claimant in *Kmetz*. However, we note that the claimant in *Kmetz* never underwent back surgery while the Claimant here had to undergo two separate surgeries, one of which resulted in complications. Claimant, therefore, is entitled to an award of $150,000 for pain and suffering and loss of normal life.

Based upon the evidence presented at trial, the Claimant is awarded $407,943.84.

IT IS HEREBY ORDERED that Claimant’s claim is granted. He is awarded $407,943.84 in total damages.