Elise Figueroa v. Paul Thompson (2011)

MEMORANDUM OF DECISION

This action was commenced on July 8, 2008, by the plaintiff, Elise Figueroa, as against the defendant, Paul Thompson.   The plaintiff alleged in this action that she was caused to trip and fall on a defective, broken, depressed and/or uneven portion of the stair at or near the third floor hallway in an apartment building located at 36 Brewster Street, Waterbury, Connecticut (the premises) on July 2, 2006.   The plaintiff alleged the apartment building was owned by the defendant.

The plaintiff alleged that as a proximate result of the defendant's negligent actions she sustained the following injuries:  1) contusion of the leg right area;  2) contusion of the wrist area with swelling and tenderness;  3) right ankle area sprain with swelling and tenderness;  4) wrist area sprain;  5) injury to neck and shoulder areas;  6) surgery to her right shoulder on March 13, 2007;  7) abdominal pain with tenderness;  8) pain in the lumbar spine area with spinal tenderness;  9) mental and physical pain and suffering;  and 10) general shock to the nervous system and emotional upset.   The plaintiff further alleged that as a result of her injuries she may in the future incur medical expenses, including for medical treatments, therapy, medications, x-rays, and hospital care and medicines.   The plaintiff finally alleged that as a further result of her injuries, she experienced considerable difficulty in sleeping, moving, bending, and walking and that she missed considerable time from her normal activities, including a significant impact on her mood and ability to enjoy life's pleasures, which may have been permanently diminished.

The defendant was defaulted for failure to file an appearance on January 5, 2009.   On March 22, 2010, a hearing in damages was held in this matter.   The plaintiff testified that on July 2, 2006, she was walking down a dark stairwell at the premises when she fell down the stairs.   She testified she was taken by ambulance to Waterbury Hospital where she was treated and released.   The plaintiff testified that she was complaining of pain in her neck, right arm, waist, right ankle, back, and head.   The Waterbury Hospital records show that the plaintiff was complaining of right sided body pain of her foot, leg, abdomen, wrist and neck and shoulder.   The plaintiff was released with instructions for an ankle sprain and a wrist sprain.

The plaintiff testified that after the accident she was referred to Dr. Beauvais by her doctor Dr. Garcia.   Beauvais' August 18, 2006, medical notes state that the plaintiff was complaining of right ankle pain arising from her fall on July 2, 2006.   The plaintiff was put in an air cast splint and referred to physical therapy.   On September 13, 2006, the plaintiff went back to Beauvais for a follow-up exam on her ankle.   On October 13, 2006, the plaintiff was once again seen by Beauvais for her ankle.   Beauvais' records do not record any complaints regarding the plaintiff's shoulder up to this point in time.   The plaintiff's next visit to Beauvais was on December 11, 2006, and the records reflect that the plaintiff was being seen for a “new problem” of right shoulder pain.   The plaintiff received a cortosteroid injection for the shoulder pain.

At the hearing, the plaintiff testified that she suffers from arthritis and was treated for this condition.   The plaintiff offered into evidence her medical records concerning her arthritic condition and treatment.   The plaintiff went to the Rheumatology Division of the Arthritis Center, where Richard Pope, who was supervised by Dr. Brian Peck, evaluated the plaintiff in April 2006, approximately three months before the fall.   In his April 4, 2006, initial evaluation of the plaintiff, Pope found that the plaintiff had 1) symptoms in her right hand approximately two years before her January 10, 2006, carpal tunnel surgery and her symptoms increased post-operatively in terms of swelling, stiffness and pain;  2) the plaintiff had a history of psychiatric disorder with some type of depressive disorder for which she was on Seroquel, Piroxicam, and Clonazepam for anxiety;  3) the plaintiff was in moderate distress with her right hand with active swelling in the thumb, fingers and wrist.   Pope also found that the plaintiff had inflammatory rheumatoid-like arthritis, a subchondral cyst formation in the wrist, intercompartmental compaction of the wrist, and a mousebite erosion of the right long finger.   On April 12, 2006, the plaintiff went to the Arthritis Center for treatment and saw Pope. He found that she had some restricted range of motion in her hands and that she did not have good range of motion.   On June 12, 2006, the plaintiff saw Pope again and he found that 1) her right shoulder was very symptomatic and she had a restricted range of motion;  2) that the right shoulder was becoming adhesed;  and 3) that the plaintiff was holding her right hand in a claw-like position.   At that visit, the plaintiff was given a right shoulder intra-articular injection and aggressive physical therapy for six to twelve months was prescribed.   At that time the plaintiff was prescribed vicodin tablets for the pain.   This treatment occurred three weeks prior to the fall at the premises.

On July 11, 2006, the plaintiff once again went to the Arthritis Center.   The records from that visit make no mention of issues with the plaintiff's right shoulder, but rather the focus was on the plaintiff's right wrist.   Pope noted that the plaintiff had evidence of rheumatoid arthritis on x- ray and the plaintiff still had decreased range of motion of her hand and often uses it in a claw-like manner.   Pope attributed the issues in her hand to rheumatoid arthritis and carpal tunnel.   On September 11, 2006, the plaintiff saw Pope again and her chief complaint was right shoulder pain and advised Pope that her hand was better with physical therapy.   On October 16, 2006, the plaintiff saw Pope, and he noted in his medical records that the plaintiff continued to have radicular pain down her right arm including the shoulder, elbow, forearm and hand.   Pope ordered an MRI of the area to determine the cause of the pain.   As of this time, Pope did not state in any report that the plaintiff's pain was caused by the fall she took on July 2, 2006.   On November 21, 2006, the plaintiff saw Pope again, and her chief complaint was right shoulder pain.   On December 5, 2006, the plaintiff saw Pope, and he stated that the MRI of the right shoulder showed mild spurring at the inferior clavicle with mild impingement on the supraspinatus tendon junction.   He then noted the plaintiff's history of rheumatoid arthritis.   He did not state in his report that the spurring was caused by the fall that the plaintiff took on July 2, 2006.   On March 29, 2007, Pope noted in his report that the plaintiff underwent right shoulder arthroplasty performed by Beauvais for AC joint arthritis.   At no time did Pope find a causal connection between the shoulder pain the plaintiff was suffering from and the fall on July 2, 2006.

Beauvais also noted in his medical notes of February 7, 2007, that the plaintiff's MRI showed she had mild spurring at the right inferior clavicle and his impression of the MRI was that it showed a right shoulder impingement and osteoarthritis right acromiclavicular joint.   While the medical records of Alliance Medical Group set forth that Beauvais performed surgery on the plaintiff on March 16, 2007, no records of Beauvais from that date were produced.   Moreover, while the other medical records suggest that the plaintiff continued to treat with Beauvais after the surgery into 2009, only two records after February 2007 were produced.   One record was from March 28, 2007, and the other from May 17, 2007.  (Hearing Ex. 1, July 23, 2009 Arthritis Center Report.)

The plaintiff did, however, produce extensive records from the Arthritis Center into 2010 that consistently show that the plaintiff suffers from chronic pain to her lower back, knees, hands and shoulder from osteoarthritis and rheumatoid arthritis.   The medical records of the Arthritis Center also state that the plaintiff as of July 17, 2009, was suffering from early signs and symptoms of deformities in both of her hands.   The July 23, 2009, report states that the plaintiff was suffering from osteoarthritis in her knees.   The plaintiff also fell again in June 2010 when her right knee collapsed.   Pope attributed this to osteoarthritis of the knees.  (Hearing Ex. 1, 6/29/10 Arthritis Center Report.)

On September 20, 2010, the plaintiff saw Pope and reported to him that she had increased back pain and was unable to sleep at night.   Pope noted in his report muscle spasms throughout the entire thoracic and lumbosacral paravertebral spinal muscles.   He did not attribute this pain or condition to the fall the plaintiff sustained in July 2006 and in fact never attributes any of her conditions to that fall.

The court does not doubt that the plaintiff suffers from severe pain and that her condition is dehabilitating.   The plaintiff was credible in her testimony as to her pain.   The question for the court, however, is whether the fall that occurred on July 2, 2006, is the cause of her pain, suffering and medical bills.   The medical reports offered as evidence in this case do not support her contention that her July 2, 2006, fall caused her depression, her chronic pain and her inability to do her normal life's activities.   The medical reports provided clearly show that the plaintiff is suffering from serious rheumatoid arthritis and osteoarthritis which impact her hands, joints, back and shoulder.   The medical records show that plaintiff underwent right shoulder arthroplasty, performed by Beauvais, for AC joint arthritis, not because of any injury she suffered from the fall of July 2, 2006.

Prior to the July 2, 2006, fall the plaintiff had right shoulder pain and serious problems with her hands, both which were caused by her arthritis.   There are no medical reports from any doctor setting forth that the plaintiff sustained any permanent injuries as a result of the fall, and no medical records after 2006 that reference any injury relating to the fall.   Beauvais' medical reports show a causal relationship between the fall and the injury to plaintiff's ankle, but in his reports he does not attribute the shoulder problems to the fall.   While the plaintiff testified at the hearing that she still has pain in that ankle, no medical reports attribute that pain to the fall that took place in 2006.

While the plaintiff testified that prior to the fall she had a normal life and was able to clean, chop, take care of her grandchildren and take care of herself, the medical reports cast doubt on that testimony.   Pope's June 12, 2006, report states that on examination the plaintiff is holding her right hand in a claw-like position and that she received an injection to her right shoulder that day because of her restricted range of motion.   This was approximately three weeks before the fall.   Pope's April 4, 2006, report stated that the plaintiff was in moderate distress with her right hand;  swelling in the thumb and fingers with some swelling in the wrist on the wrist joint itself.   In that report, Pope states that the plaintiff underwent carpal tunnel surgery on January 10, 2006, and her symptoms actually increased post-operatively in terms of swelling, stiffness and pain.   There is no medical opinion in the reports that the fall the plaintiff suffered on July 2, 2006, aggravated her serious arthritic conditions or that the injuries she suffered on July 2, 2006, were permanent.   There are no medical reports or records that find any causal connection between the injuries suffered on July 2, 2006, and the plaintiff's lingering medical problems.

The plaintiff also testified that her depression worsened because of the accident.   The plaintiff has offered no psychiatric reports or other medical reports as to her psychiatric condition after the accident.   Pope's April 4, 2006, Arthritis Center report states that the plaintiff has a history of psychiatric disorder with some type of depressive disorder for which she's on Seroquel, Piroxicam and Clonazepam for anxiety.   The plaintiff offered no evidence as to what medication she was on after the accident and if the medication changed.   The plaintiff did testify she saw a Dr. Jacob at Catholic Charities, but did not offer any evidence as to his reports or notes on her diagnosis or treatment and if it was different or worse than what pre-existed the fall.   Thus, the court cannot find that the plaintiff's depressive disorder worsened after the accident or because of the accident.

The court finds that the plaintiff incurred certain medical expenses because of her fall in July 2006.   The following is awarded to the plaintiff in economic damages:  $5,668.23, which includes the medical expenses she incurred at Waterbury Hospital, the American Medical Response ambulance, Diagnostic Radiological Services, and the medical bills for Dr. Beauvais through December 2006.   The court also awards the plaintiff $5,000 in non-economic damages for pain and suffering as a result of the her fall in July 2006 at the premises.   The total damages awarded to the plaintiff for economic and non-economic damages is $10,668.23.

BY THE COURT

Ozalis, J.

Ozalis, Sheila A., J.