Edward S. Winchell v. State of Illinois

OPINION

ZETTLER, J.

This is a claim arising out of a motor vehicle accident involving a work crew inmate from a correctional institution. A hearing was held before Commissioner Reid on February 5, 2019, at the Court of Claims, Springfield, Illinois. The evidence consisted of the testimony of the Claimant and the testimony of Correctional Officer Jerimiah Varble (the driver of the motor vehicle), together with Exhibits 1-10 and 12-20. These Exhibits consist of photographs, medical records, expert witness depositions by medical personnel and discovery depositions pertaining to this case.

A HIPAA Protective Order was entered for personal medical information, including Exhibit 17.

BACKGROUND

The Claimant, Edward S. Winchell, was an inmate with the Illinois Department of Corrections serving a nine (9) year prison term. The Claimant was taken from his Lincoln, Illinois correctional facility to the State of Illinois Fairgrounds in Springfield, Illinois to perform manual labor. On the morning of July 22, 2013, the Claimant was a passenger in a motor vehicle, namely a pick-up truck driven by Correctional Officer J. Varble. The Claimant was seated in the front passenger seat. Two (2) other inmates were seated in the back of the pick-up truck. During the drive northbound on Farmalana Lane at the fairgrounds, the driver of the pick-up truck apparently momentarily “blacked-out” and lost control of the vehicle. The motor vehicle veered off the road and hit an I-beam supporting a roof on the side of the road. The pick-up truck was traveling fast enough to collapse the front of the truck and cause it to partially wrap around the I-beam. There were no seat belts in the motor vehicle. As a result of the crash, the Claimant hit his head on the windshield and dashboard and caused the windshield to crack. The Claimant was subsequently transferred to St. John’s Hospital in Springfield, Illinois where he was examined, x-rayed, scanned, and fitted with a collar prior to his return to the infirmary at the Department of Corrections Lincoln, Illinois facility later that day. The Claimant subsequently underwent surgery to relieve pressure to the spinal cord.

During the presentation of evidence during the hearing, the Respondent stipulated that the driver of the motor vehicle was an employee of the State of Illinois; the Claimant inmate was within the custody of the Illinois Department of Corrections; the vehicle was owned by the Illinois [*113] Claimant. However, the Respondent has disputed the damages in excess of $1.0 million dollars sought by the Claimant.

Due to this Stipulation, it is only necessary to review the injuries of the Claimant for purposes of setting a damages amount to be awarded the Claimant. The evidence depositions and medical records are set forth in Exhibits 5, 6, 7, 8, 9, 10, 11, 12, 12A, 13 and 16. The other Exhibits in the record pertain to issues other than the amount of damages to be awarded.

FACTS

The Respondent has admitted liability for the accident and injuries. A review of the Claimant’s medical records and physician evidence depositions shows the following facts for purposes of damages. The Claimant has the burden of proof as to his injuries and pain and suffering.

The evidence deposition of Dr. Jeffrey Cozzens, a neurosurgeon, confirms that the Claimant had limited range of motion in his neck due to pain as a result of the accident. Also, Dr. Cozzens testified that a MRI showed that he had a herniated disc in his back. This was a result of significant pressure to the spinal cord. As a result, the Claimant underwent a laminectomy surgery on October 30, 2013, by Dr. Cozzens and Dr. Amin. At that time, Dr. Cozzens said that a second surgery may be necessary. Dr. Cozzens further stated that the surgery would provide a little bit of restriction in movement of the neck, but not so much that people could not do their normal activities. As a result of the successful results of the surgery, it was determined that a second surgery for the Claimant was unnecessary.

Dr. Cozzens admitted that the injury caused by the motor vehicle accident might or could produce disability to the Claimant, but he could not state that the disability would be permanent. Dr. Cozzens further testified that any disability of the Claimant depends on the occupation. The witness stated that “a professional football player or an astronomer would be disabled, but not if the Claimant was sitting in a chair working at a desk”. In addition, Dr. Cozzens admitted that numbness and tingling or weakness in the Claimant’s legs would be an element of disability.

Dr. Brian Bamberger testified that he examined the Claimant on October 23, 2014. On that date the Claimant complained of back pain, which radiated to his leg, weakness in his left foot, and decreased sensation. Dr. Bamberger performed a physical examination and found limited range of motion in his neck. This finding was consistent with his spinal fusion. With respect to the levels of pain, physicians commonly employ a scale where zero equals no pain and ten equals the worst pain a patient has ever experienced. Dr. Bamberger testified that the Claimant indicated that his lower back pain level was 10 out of a possible 10. As a result, Dr. Bamberger prescribed pain medication. During this same time period, the Claimant saw Dr. Rhett Miller in October 2014 and then regularly saw Dr. Miller after this first appointment. Dr. Miller is associated with Dr. Bamberger at the clinic. The Claimant subsequently described right knee pain during a 2015 office visit. This was the first time that the Claimant complained of right knee pain according to the physician’s records. Dr. Miller stated that he has not evaluated the Claimant for a disability. However, there would be a limit on the range of motion in his neck. Further, Dr. Bamberger [*114] diagnosed the Claimant with chronic neck and back pain since the pain has lasted more than two or three months. Dr. Bamberger subsequently referred the Claimant to pain specialists, namely Dr. Kevin Henry and Dr. David Hall. Further, the records show that the Claimant was referred to Dr. Mulconrey for his right knee. The Claimant’s medical records show that the Claimant reported chronic bilateral knee pain prior to the July 22, 2013, accident. Also, the record shows that the Claimant was seen by Dr. Bamberger during this same timeframe for a pulmonary embolism, pneumonia, a hospital admission, and bipolar disorder. On or about August 7, 2015, Dr. Bamberger subsequently referred the Claimant to pain specialists because his medications were not effective and there was concern about the patient’s abuse of the pain medications. Specifically, it was learned that the Claimant had recently been admitted to a hospital ICU that treated him for respiratory failure due to the apparent smoking of prescribed Fentanyl patches by the Claimant.

Dr. Miller and Dr. Bamberger continued to see the Claimant for his ongoing problems during 2014 and 2015. It seems that the Claimant attributes the right knee pain, headaches, and imbalance to the accident on July 22, 2013, but the records do not necessarily support this allegation.

Finally, Dr. Kevin Henry, an anesthesiologist and pain management physician, testified that he performed an examination on the Claimant on October 9, 2015, and found lower back pain, decreased range of motion in his neck and an affected gait (walk). Dr. Henry stated that there was diminished sensation in the Claimant’s left lower extremity. Dr. Henry added that these subjective complaints cannot be objective findings because only the person (patient) can inform you if there is sensation or not. Dr. Henry continued to prescribe Fentanyl patches for the pain. Dr. Henry also confirmed that the Claimant’s medical records showed that surgery had been performed on the Claimant’s left knee and not the right knee. With respect to the Claimant’s disability, Dr. Henry stated that the collision on July 22, 2013, might or could produce permanent disability, but he could not state whether the Claimant is fully disabled.

LEGAL ANALYSIS

In summary, the record shows that the Claimant regularly saw and was subsequently referred to a long list of physicians, including physicians in the same practice as the referring physician, for a variety of reasons over a period of several years. The record also shows that the Claimant attributes all of these ailments to the July 22, 2013, accident. One reason stated by a treating physician for referring the Claimant was due to the fact that he (the physician) did not appear to be assisting the Claimant. Another reason offered by a treating physician was due to a concern that the primary purpose of the treatment was to acquire prescriptions. It also appears that notwithstanding these physician visits, treatments and prescriptions, the Claimant continued to assert pain, discomfort, and need for additional treatment. This inability to address the Claimant’s assertions of pain and suffering must raise a question of the Claimant’s credibility as to the extent of his pain, suffering and loss of life.

As in all cases, the trier of fact is called upon to judge the credibility of witnesses. Impeachment can consist of many factors including observations of the demeanor and sincerity of witnesses, contradictions in testimony and the believability of the witness’ testimony as a whole, taking into account the witness’ past experiences, ability to recollect and many other factors. In [*115] the case at bar, there are substantial indications that Claimant is not believable. For example, the Claimant’s assertion of the level of pain in October 2014 - thirteen months after the accident was stated as “10 out of 10” (level 10 is the most extreme pain level). This self-diagnosis is fairly consistent through the years. In other words, notwithstanding the treatment and surgery, the Claimant continues to feel pain and suffering at the maximum level. These allegations by the Claimant are incredulous.

Prior to the discussion of damages and burden of proof, it is noted that a medical witness may testify as to those matters, which the Claimant revealed to him/her in furthering the course of the diagnosis or treatment. However, the truth of those matters is not established by the physician’s testimony. Vol. 3 Proof of Facts Am. Jur. 743; 65 ALR 1217; ALR 2d 1051; 136 ALR 965; 66 ACR 2d 1082 (1959).

Due to the Respondent’s stipulation, the only issue before the Court is the Claimant’s damages. The Claimant seeks sums for medical expenses, loss of wages/earnings, pain and suffering, loss of a normal life, disability, and disfigurement in a total amount of $1,025,000.00. The Court will address each of these categories.

DAMAGES

In our consideration of damages, “this Court must consider the following categories of damages: medical expenses, lost income, pain and suffering and disability”. Giovanetto v. State, 42 Ill. Ct. Cl. 106 (1990).

The burden of proving damages in the Court of Claims, by a preponderance of the evidence, is on the Claimant. Williams-El v. State, 52 Ill. Ct. Cl. 11, 16 (1999). When damages are demanded, the Plaintiff carries the burden of showing the correct measure of damages and the computation of damages sustained resulting from a Defendant's actions. Damages should not be based on guess, speculation or conjecture. See 1472 N. Milwaukee, Ltd. v. Feinerman, 2013 IL App (1st) 121191.

MEDICAL EXPENSES

With respect to medical expenses, the Claimant seeks the sum of $240,720.78 as compensation. Yet, the Claimant has not established in the record that the Claimant personally paid these medical expenses. In fact, the record shows the Respondent paid all of these medical expenses. Pursuant to 705 ILCS Section 505/25, any recovery awarded by the Court is subject to set-off. Therefore, no medical expenses can be awarded. As a result, the Claimant did not meet his burden of proof.

PRESENT AND FUTURE LOSS OF EARNINGS (INCOME)

The Claimant seeks the sum of $35,360.00 (to date) for loss of earnings. The Claimant bears the burden of proof in establishing his lost wages. Bryan v. State, 59 Ill. Ct. Cl. 256 (2007). The recovery of lost wages must be limited to such loss as is reasonably certain to occur and cannot be based on or proven by testimony, which is merely speculative, conjecture, remote or uncertain. Cerveny v. Amer. Family Ins. Co., 255 Ill.App.3d 399 (1st Dist. 1993); Turner v. Chicago Transit [*116] Authority, 122 Ill.App.3d 419, 428-429 (1st Dist. 1984). This Court has previously awarded lost profits or income on the basis of income tax returns. Guffey v. State, 40 Ill. Ct. Cl. 179 (1987).

The Respondent argues that the Claimant failed to establish that he is entitled to the loss of earnings for several reasons. It appears that the Claimant has not worked or sought employment since his release from prison in September 2014. The Claimant failed to provide tax returns from a former or current employer. The Claimant’s only evidence is his testimony as to what other higher paid employees at a prior employer company are paid and the requirements for other employees’ jobs. The Claimant failed to provide any evidence beyond his own testimony that he could perform higher-level job duties at his prior employer without the injury to his arm. The Claimant failed to provide any medical expert’s testimony that he continues to suffer from a permanent disability, or has a restriction, to support his own testimony. Rather, the testimony has been it could be a permanent disability. Further, the Claimant admitted that his medical doctor has placed no restrictions on use of alleged injured arm. The Claimant failed to provide any financial expert’s opinion as to what loss of income, if any, the Claimant has due to his injury. The Respondent also asserts that the Claimant has not shown this Court that he could apply for and become employed at any employer, but that the new job and potential pay would be limited and precluded due to his arm.

In Owens v. State, 41 Ct. Cl. 109 (1989), the Court reviewed a claim for lost income, but denied the claim since there was no evidence as to the Claimant’s past wages or evidence that he could not do heavy lifting in his current job. In the case at bar, the Claimant testified that but for the accident, he would work and earn an income, but his testimony is unsupported by any evidence.

For the reasons espoused above, the Court finds that the Claimant did not meet the burden of proof for present and future loss of earnings (income). As a result, there is no award for this category of damages.

PRESENT AND FUTURE PAIN AND SUFFERING (INCOME)

The Claimant seeks the sum of $250,000.00 for the pain and suffering experienced to date and another $250,000.00 for pain and suffering reasonably expected to be experienced in the future. Accordingly, the Claimant seeks a total of $500,000.00 for pain and suffering.

For purposes of elements of proof for pain and suffering, complaints of pain, tenderness, and soreness may generally be divided into four (4) categories, namely, severe (prevents indulgence in an activity), moderate (marked handicap in performance), slight (pain can be tolerated), and minimal (annoyance factor).

Generally, the Claimant can only be awarded damages from the disability and pain and suffering that the Claimant endured from the date of the incident, July 22, 2013, until the final day of treatment. However, the Claimant in this case continues to seek treatment because of the accident for an indefinite period so the Court must as a practical matter apply some parameters to the period of pain and suffering. In this regard, the determination by Dr. Cozzens and Dr. Amin on or about November 15, 2013, that the first surgery was successful and a second surgery was unnecessary appears to be a reasonable period of time for pain and suffering purposes.

[*117] “Evidence of future pain and suffering requires a showing that it is reasonably certain to occur in the future”. Maddox v. Rozek, 265 Ill.App.3d 1007, 639 N.E. 2d 164 (1st dist. 1994).

In terms of pain and suffering, the Court should compensate Claimant for pain and suffering that was proven by the evidence present at hearing. In this case, other than the Claimant’s testimony, and the Claimant’s description of the pain and suffering to his physicians, there was no specific showing or proof of claim amount solely attributable to pain and suffering. Bryan v. State, 59 Ill. Ct. Cl. 256, 262 (2007).

Concerning knee pain, the record shows the Claimant seeks damages for injuries related to his right knee, but not his left knee. There is some ambiguity in the record as to which knee was injured in the accident. There is some indication in the record that his left knee was injured. However, the record shows that the Claimant previously had surgery on his right knee. In any event, the Claimant did not meet his burden of proof for claiming damages due to an injured knee.

Further, for the reasons shown above, the Claimant’s testimony was not entirely credible. Nonetheless, it appears the Claimant would have been in some pain after the incident, prior to the surgery, and during recovery. It is also certain that the Claimant suffered as a result of the Respondent’s negligence. It is not challenged that the Claimant injured his neck in the accident and went through an operation to repair it to the extent possible. Also, there is evidence in the record that the Claimant can expect some loss of range of flexibility in his neck, pain, preliminary arthritis, etc. Although the Claimant testified that he suffers from recurring pain, the Claimant presented no independent medical witness testimony that such pain is permanent, or what, if any, level of pain can be verified by the Claimant’s testimony. As a result, the Claimant’s level of pain, tolerance to pain, and damages associated with this pain and future pain and suffering are somewhat speculative. Finally, the Claimant has not shown that his/her life has significantly changed for the worse as a result of the injuries. Giovanetto v. State, 42 Ill. Ct. Cl. 106, 110 (1990).

On this issue, due to the accident, surgical operation and undisputable pain and suffering, the Court finds that the Claimant is entitled to the sum of $45,000.00 for pain and suffering.

PRESENT AND FUTURE LOSS OF A NORMAL LIFE

The Claimant seeks the sum of $250,000.00 for loss of a normal life. Loss of a normal life is a type of damages that is determined by the jury, and the jury must use common sense drawn from their life experiences when making that type of award. Poliszczuk v. Winkler, 387 Ill.App.3d 474, 492 (2008). The Respondent asserts that the Claimant should only receive a fair and reasonable sum for the injury he suffered as a result of the accident, in light of the evidence presented at the hearing. Specifically, aside from the Claimant’s statements to his medical providers, which were repeated by the medical providers, the Claimant presented no medical evidence establishing he is under any medical restrictions imposed by a medical provider. Without any medical testimony, the Claimant’s loss of a normal life should be considered minimal by this Court. Further, the Claimant did not show or have restrictions on present activities other than a reference to attendant pain and suffering. The Court find the Claimant did not adequately meet his burden of proof on this issue. Nonetheless, the Court awards a sum of $4,000.00 due to some [*118] obvious restrictions on the Claimant’s flexibility, tingling in his legs, and attendant restrictions on his life.

PRESENT AND FUTURE DISFIGUREMENT

The Claimant seeks the sum of $10,000.00 for disfigurement. The Claimant has a scar on the back of his neck due to his surgery. The Respondent asserts that the Claimant should only receive a fair and reasonable sum for the minor, visible scarring as a result of the accident in light of the evidence presented at the hearing. Based on the Claimant’s job or potential jobs available to him, minimal scar and other factors such as his prior employment and future potential employment careers, the Court awards the Claimant the sum of $1,000.00.

In sum, the Court finds the Claimant has shown damages of $45,000.00 for pain and suffering, $4,000.00 for loss of normal life, and $1,000.00 for present and future disfigurement for a total of $50,000.00.

CONCLUSION

IT IS HEREBY ORDERED the Claimant’s claim is granted and the Claimant is awarded $50,000.00.

ORDER

This cause coming on to be heard upon Claimant’s Motion for Reconsideration of Damages, the Court being fully advised in the premises.

The Court has reviewed the Claimant’s motion and finds that nothing in the Claimant’s motion raises facts or issues not already taken into consideration by the Court or misapprehended or overlooked by the Court.

IT IS HEREBY ORDERED that Claimant’s Motion is DENIED. The damages award of $50,000.00 previously entered by this Court stands.