Dominique Kinnard v. HNS (2010)

MEMORANDUM OF DECISION

This case is by a passenger on a bus against the company managing the bus service.   There is no dispute as to liability which is based on a claim of negligence.

The plaintiff Dominique Kinnard is a young woman in her twenties who at the time of the accident was a student at Stone Academy where she was training to be a patient care associate.   At the time of trial in April 2010 she worked in an assisted living facility.   The accident happened on March 26, 2008.

The plaintiff testified that she was sitting toward the back of the bus.   The accident happened when the bus which had been in a stopped position rolled into the back of a van.   At trial the plaintiff said that when the bus made contact with the van “(she) had a little jerk movement”;  her body moved “forward-back.”   She also testified that her body did not come into contact with anything at the time of the collision and when asked if she was thrown forward she said “no, not that far.”   She contacted a chiropractor, Dr. Steven Morrow on April 8, 2008 who was recommended to her by her lawyer.   She told her doctor that “her neck and body were sharply jolted forward and backward” and that “her head was turned to the right at the time of impact.”   Ms. Kinnard testified the bus driver did not ask if anyone was injured.   The bus driver stated after the impact he asked if anyone was injured and no one responded.   The driver, Charles Eckard, filled out a form accident report the day the accident happened and indicated at two points no one was injured on the bus.   The court concludes the driver made this inquiry.   At trial Ms. Kinnard herself said at the time of the accident there “wasn't that much pain” and she “didn't think nothing of it because (she) was never in an automobile accident.”   She went to classes she had on her schedule for that day.   At trial she testified she did not feel pain until the next day.   Upon being asked about that pain Kinnard testified “It was a sharp pain coming down the right side of my back and a little stiffness in the neck.”

As indicated she contacted a lawyer upon her mother's advice, he referred her to Dr. Morrow whom she first saw on April 1, 2008.   On that date she filled out a “Health Questionnaire” at his office.   On that form she indicated her symptoms began on March 26, 2008, the date of the accident and stated later in the questionnaire in response to the question “where did you immediately develop pain?,” that she felt pain immediately in the neck, upper/mid back, and lower back, which seems to differ from her trial testimony.   In the Health Questionnaire responses she indicated upon impact her body was thrown sideways and her body rotated to the right-there is nothing to indicate the force of impact.

A video camera was installed in the bus which visually recorded the interior of the bus upon impact.   The court has reviewed the video numerous times.   It was not played in court and the court could not identify the plaintiff or her location.   But the impact appeared very minor and none of the passengers were thrown sharply forward followed by a sharp rearward movement.

Although some states persuasively differ by requiring supporting expert testimony, see Davis v. Mante, 770 A.2d 36, (Del, 2001), our state allows a trier of fact to consider such things as speed and the severity of impact as something that may have an inferential bearing on the nature, if any, of injury claimed to have been sustained, Bernston v. Anneie, 177 Conn. 41, 42-43 (1979), see “Damages,” 22 Am.Jur.2d § 928.   Also in this regard, photos of the bus and the van were introduced into evidence and it is difficult to see any damage was done to any part of the bus.   The officer when referring to the van in response to the query on the police form as “part of vehicle damaged” noted “rear bumper very minor.”   The bus driver Eckard in the report to his company stated there were scratches on the bike rack which is located in the front of the bus.   He does not indicate any “damage to other vehicle.”   But no expert testimony was introduced indicating that what might be considered a minor impact could not produce injuries of the type claimed.   The injury claim in fact was not exorbitant-the only remaining problem is a certain stiffness of the lumbar spine upon bending activities.   As will be discussed Dr. Morrow's conclusions as to existence of the injury was in large part based on objective testing and as will be further discussed there is no credible evidence or information that the physical ailments claimed pre-existed this 2008 accident.

(2)

This has been a difficult case to decide.   As noted liability has been admitted so the court trial was basically a hearing on damages.   The court will try to review in more detail Ms. Kinnard's testimony, Dr. Morrow's reports, and the points brought out by two obviously experienced lawyers in the examination of Ms. Kinnard and the doctor.   Material from the doctor included an “Initial report” dated April 29, 2008, notes on some treatment visits and a Final Report dated November 13, 2008.

The initial report states in a section entitled “Prognosis”-”Prognosis is withheld until response to the prescribed treatment regime can be further evaluated, additional testing is completed, and/or such time as the patient's condition is static and stabilized.”   The initial report Ms. Kinnard indicated the following symptoms-neck pain and stiffness, back pain and stiffness, and low back pain and stiffness.

Her first treatment session was on April 2, 2008.   She had eleven sessions between that date and May 6, 2008.   There was then a gap in treatment until June 13, 2008;  there were three treatment sessions in June with the last one being on June 30th.   Ms. Kinnard went for another session on July 21, 2008 and then on August 12, 2008.   The last time she saw the doctor was for a final examination on November 3, 2008 and the doctor issued a final report on November 10, 2008.

The initial report and final report along with the other reports from the doctor which the court will discuss were introduced into evidence.   In the final report the doctor indicated there was a direct casual relation between his “diagnostic impressions,” which he laid out in detail, and the March 26, 2008 accident.   As to impairment he gave her a permanent impairment of the lumbar spine of 6%.

(a)

Dr. Morrow's reports were extremely thorough and his testimony was instructive and helpful.   In his initial and final reports and in treatments reports for various if not all treatment sessions he discussed the subjective complaints of the plaintiff and objective testing he performed to confirm the existence of tissue and muscular injury.   Objective testing is a means of ascertaining such injury and avoiding the reliance on possible patient exaggeration or even malingering.   His reports are replete with objective testing modalities used to confirm the claimed injuries in all the allegedly affected areas.   He used passive testing to determine range of motion.   He explained that passive range of motion testing involves the doctor him or herself moving the body part until it stops, there is no voluntary control over this by the patient.

The existence of muscle spasms were also noted which also are objective and do not rely on subjective involvement or causation by the patient.   The doctor also took x-rays and noted a so-called loss of the normal lordotic curve which would not happen if a person did not suffer an injury.

There was a thorough defense examination of the doctor but the conclusions it sought to arrive at were largely based on speculative assumptions.   For example, curvature of the lordotic spine could have been based on injuries distinct from and earlier than the one under consideration than the ones claimed to be caused by the accident involved in this case.   Muscle spasms could become chronic.   Lifting activity could cause such physical phenomena.   But at the time of the accident the plaintiff was still a student and there was no indication she engaged in the type of lifting activity involved in her current job of working in an assisted living setting.   In this regard reference was made to an automobile accident the plaintiff was involved in, in December 2005.   She brought suit for neck and back injury.   But that incident occurred when she was pregnant and emergency care concentrated on problems associated with whether the accident presented medical issues for her pregnancy.   Dr. Morrow reviewed the hospital reports and said not much attention was paid to her musculoskeletal symptoms and “from what I read and see her neck and back symptoms were cleared.”   What does the court do with that?   Could it be evidence that the suit for the 2005 accident was not well though out-could the neck and back problems be more due to the pregnancy-more due to the pregnancy coupled with the accident.   No examination of the plaintiff was done to further explore the nature and duration of any neck and back inquiry as a result of the December 2005 accident.   Copies of the complaint associated with this accident or treatment records were not introduced into evidence nor were medical reports and treatment records produced regarding any such injuries, if in fact they existed?   The defense did not conduct its own medical examination of the patient delving into her past medical history.

Perhaps more to the point what part of the back and even neck were injured in this 2005 accident?   What type of injury is the court to speculate on as involved in this accident-effects on range of motion, palpitation, was there tenderness with swelling, intermittent pain or constant pain?   All of this nor any part was explored by the defense.

In her health questionnaire Ms. Kinnard indicated she had not suffered a “serious” accident in the five years prior to filling out the questionnaire for Dr. Morrow in April 2008.   The whole point of her contracting a lawyer and later seeing Dr. Morrow was the pain and stiffness to various areas of the body resulting from this accident.

The point of referring to the 2005 accident was to suggest any neck or back problems, which would be hard to deny given the objective examinations and results thereof by Dr. Morrow, were caused by the 2005 incident.   But Kinnard was not asked about her physical activity or limitations in the six months or year or two before the current accident.   Also any notion of exaggeration or malingering is somewhat deflected by the fact that within seven months of the accident in November, she told her doctor her mid-back and neck did not present a problem anymore and earlier treatment sessions confirmed these areas of her body were presenting less of a problem.   The plaintiff was in agreement with this at trial saying only her lower back now bothered her and that only in the form of stiffness which was alleviated when she sat down.   This is hardly the evidence or testimony one would expect from a party inventing injuries for the purpose of litigation surrounding the 2008 accident.

The court concludes there was injury to her neck, mid-back, and lower back as a result of the accident that caused the pain and physical manifestations claimed.   But some time before November 2008 only stiffness of the lower back was present upon certain physical activity.

The court will next discuss the issue of permanency.

(b)

The court has difficulty with the 6% permanency rating for impairment of the lower back.   Dr. Morrow's testimony cited his reliance of the 5th edition of the AMA guidelines to arrive at this figure but did not actually go into the mechanics of how he arrived at that precise percentage.   Perhaps of more concerns is the predicate for making any of these percentage estimates-has the patient reached maximum medical improvement.   In a claim for money damages fairness would seem to require that the permanency percentage only be arrived at when maximum improvement is achieved.   Otherwise a defendant will be saddled with a claim based on a person's life expectancy which does not truly reflect the percentage disability over ensuing years.   It is also interesting to note that no life expectancy tables were introduced in this case.

In any event, this plaintiff missed numerous appointments and there were gaps in treatment after the first weeks.   Presumably a doctor would not prescribe a treatment schedule unless he or she hoped to achieve improvement in the patient's condition as a result of the treatment.   As noted in his initial report under “prognosis” the prognosis was withheld until response to the prescribed treatment was evaluated “and/or such time as the patient's condition is static and stabilized.” ¹

Whatever effect the foregoing might have on percentage rating under the AMA guidelines, does not mean a claim for permanency cannot be made.   As stated in Royston v. Factor, 1 Conn.App. 576, 577 (1984):  “A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency.”   There it was said the court trying the case “could properly conclude that if the disability still existed two years after the accident, it would in all probability continue.”   Thus, even if they court were to not accept the doctor's 6% rating, Ms. Kinnard testified to stiffness in her lower back brought about by bending activities in her patient care employment some two years after the accident.   Her testimony as noted was supported by the doctor's objective tests and findings which corroborated her claim of lower back injury and its lasting consequences.

But the foregoing does not mean failure to comply with the treatment schedule has no bearing on this damage claim for non economic damages.   In the first several months after the accident the plaintiff complained of pain in the affected areas and stiffness.   If one were in fact experiencing severe pain and had a condition seriously interfering with life and home activities as Ms. Kinnard indicated in her response to questions in Dr. Morrow's Health questionnaire, one would think treatment sessions would not be missed.   Pain and the degree of stiffness, which Kinnard at one point described as her lower back seeming to be on the verge of locking, do have a subjective component.

One more matter must be discussed.   Theoretically at least it is also true that if there is a failure to follow a doctor's instructions and recommended course of treatment, then any damage award that might have gone to a plaintiff would be reduced by that sum that a trier of fact concludes measures the amount by which a plaintiff's damages have been increased by reason of her failure to mitigate damages.   But the burden of proof on failure to mitigate is on the defendant and any calculation reducing a damage award cannot be based on conjecture or surmise but must be based on reasonable inferences from evidence, Keans v. Bocciarelli, 35 Conn.App. 239, 243 (1994).   Any mitigation here, based on the evidence or lack thereof, especially any expert testimony by the defendant would be purely conjectural.

(c)

In any event based on the foregoing the court awarded economic damages in the amount of $1,980.   The court as indicated concludes the plaintiff suffered the injuries indicated and the treatment expenses were reasonable and necessary to address them.

As to non-economic damages the court notes the neck and mid-back consequences of this accident terminated at least by November 2008-between five and seven months after the accident.   As to the lower back problem the remaining consequence of the accident is stiffness in the back which is alleviated by sitting.   However, it is the case that the nature of her job at the assisted living center where she works does require her to do a lot of bending to assist the resident.   But this appears to be the only remaining symptom and as noted that only involves the lower back.

The court awards non-economic damages for the first seven months in the amount of $3,000.   She is a young woman and for her remaining neck problems the court makes a further award of $15,000.   The damage award is (1) $1,980 economic damages and $18,000 noneconomic damages for a total award of $19,980.

Corradino, J.T.R.

FOOTNOTES

FN1. The fact that several appointments were missed does not mean, necessarily, that maximum medical improvement was not reached.   The doctor testified that most improvement is achieved in the first two months of treatment.   Ms. Kinnard only went consistently for five weeks and no testimony was elicited as to why there was reason to believe medically speaking, that maximum medical improvement was achieved despite absence of compliance with treatment requirements..  FN1. The fact that several appointments were missed does not mean, necessarily, that maximum medical improvement was not reached.   The doctor testified that most improvement is achieved in the first two months of treatment.   Ms. Kinnard only went consistently for five weeks and no testimony was elicited as to why there was reason to believe medically speaking, that maximum medical improvement was achieved despite absence of compliance with treatment requirements.

Corradino, Thomas J., J.