Howard v. United States
| Decision Date | 14 June 2022 |
| Docket Number | 17-CV-1295JLS(Sr) |
| Parties | MICHAEL HOWARD, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Western District of New York |
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. John L Sinatra, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. See Dkt. #8, 32.
Pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., the plaintiff commenced this action on December 12, 2017, alleging that on August 10, 2016, a United States Postal Service (“USPS”) employee, acting within the scope of his employment and operating a USPS vehicle, collided with the plaintiff's vehicle, and that as a result, the plaintiff sustained serious injuries. Dkt. #1.
Currently before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. #17. For the following reasons, it is recommended that the motion be granted in part and denied in part.
FACTS[[1]]
The plaintiff brings this action claiming injuries from an automobile accident that occurred on August 10, 2016, in the City of Niagara Falls, New York, between his vehicle and a vehicle driven by a USPS employee. Dkt. #19, ¶1; Dkt #24, ¶1.
At the time of the accident, the plaintiff was not employed. Dkt. #19, ¶5; Dkt. #24, ¶5. He spent his days taking care of his girlfriend's three-year-old child. Dkt. #19, ¶6; Dkt. #24, ¶6. He spent his weekends with his two daughters. Dkt. #19, ¶6; Dkt. #24, ¶6. The plaintiff played basketball about once a month and rode dirt bikes, weather permitting, a couple times a week. Dkt. #19, ¶6; Dkt. #24, ¶6.
On the day of the accident, the plaintiff initially indicated that he did not need medical attention, but he changed his mind and sought attention for his left arm and side. Dkt. #19 ¶7; Dkt. #24, ¶7. He told ambulance personnel that he had back pain and that his arms were burning from the deployed airbags. Dkt. #19, ¶7; Dkt. #24, ¶7. Ambulance personnel reported that the plaintiff's head and neck were atraumatic and symmetrical. Dkt. #19, ¶7; Dkt. #24, ¶7. His pain scale was 3/10. Dkt. #19, ¶7; Dkt. #24, ¶7. He was transported to the Niagara Falls Memorial Medical Center and had complaints related to his left arm, left neck, left chest, and back. Dkt. #19, ¶8; Dkt. #24, ¶8.
The defendant asserts that the plaintiff's back was not tender and that he had normal range of motion in all extremities. Dkt. #19, ¶9. The plaintiff denies that he had normal range of motion in all extremities and notes that the ER chart states “intact” rather than “normal.” Dkt. #24, ¶9. The discharge diagnosis was chest wall contusion. Dkt. #19, ¶9; Dkt. #24, ¶9.
The day after the accident, on August 11, 2016, the plaintiff was seen at Cardamone Chiropractic.[2] Dkt. #19, ¶10; Dkt. #24, ¶10. The plaintiff reported neck, back and left shoulder pain, headache, dizziness, sleep difficulty, and fatigue. Dkt. #19, ¶10; Dkt. #24, ¶10. He also claimed that he was impaired in bending, lifting, sexual relations, standing, sleeping, cooking, car washing, house maintenance, and playing basketball. Dkt. #19, ¶11; Dkt. #24, ¶11. The plaintiff notes that Dr. Cardamone performed several orthopedic tests positive for cervical and/or lumbar local or referred symptomology. Dkt. #24, ¶114; Dkt. #29, ¶114. Cervical and lumbar range of motion measurements were taken with a digital inclinometer that indicated lumbar range of motion limitations between 54% to 67%, and cervical range of limitations between 45% and 68%. Dkt. #24, ¶115; Dkt. #29, ¶115. Dr. Cardamone's initial diagnoses included: cervical, thoracic, and lumbar disc displacements, muscle spasms and sprains/strains, cervicocranial syndrome, sacroiliac sprain/strain and subluxation, cervical and lumbar subluxations, muscle weakness, and sleep disturbance. Dkt. #24, ¶116; Dkt. #29, ¶116.
The plaintiff notes that he returned to Dr. Cardamone on August 12, 2016, and reported severe pain with: drying his hair, tying his shoes, reaching, squatting, preparing food, doing the laundry, and taking out the trash. Dkt. #24, ¶112; Dkt. #29, ¶112. He also reported moderate pain with bathing, standing, walking, dressing, prolonged sitting, and driving. Dkt. #24, ¶112; Dkt. #29, ¶112.
On August 31, 2016, the plaintiff consulted with A. Marc Tetro, M.D. regarding left shoulder pain. Dkt. #19, ¶18; Dkt. #24, ¶18. The plaintiff told Dr. Tetro that after the accident, he experienced loss of consciousness and immediate pain in his left shoulder as well as pain in his chest, neck, mid- and low back, left elbow, and right leg. Dkt. #19, ¶18; Dkt. #24, ¶18. On examination, Dr. Tetro found mild limitation of motion in the cervical spine. Dkt. #19, ¶18; Dkt. #24, ¶18. Examination of the left shoulder revealed no significant deformity or muscle atrophy but maximum tenderness at the rotator cuff insertion and diffuse tenderness over the acromioclavicular joint and anterior glenohumeral joint. Dkt. #19, ¶18; Dkt. #24, ¶18. He had limited range of motion of the left shoulder. Dkt. #19, ¶18; Dkt. #24, ¶18. This included a limitation or reduction in range of motion ranging from 33 1/3% to 67%. Dkt. #24, ¶126; Dkt. #29, ¶126 (admitting but noting that the manner in which the ranges of motion were ascertained was not noted, and percentage of reduction was not noted in the contemporaneous medical records). The Neer's test and Hawkins test were positive for rotator cuff impingement. Dkt. #19, ¶18; Dkt. #24, ¶18. The O'Brien's test was positive for labral symptoms. Dkt. #24, ¶125; Dkt. #29, ¶125. The plaintiff also had a positive cross-body abduction test and AC joint tenderness. Dkt. #24, ¶125; Dkt. #29, ¶125. Dr. Tetro diagnosed the plaintiff with a left shoulder rotator cuff sprain/possible tear, left shoulder possible glenoid labral tear, left shoulder AC joint sprain, and cervical origin of pain. Dkt. #24, ¶127; Dkt. #29, ¶127. Dr. Tetro did not impose any limitations on the plaintiff's activities, and as to “Disability,” Dr. Tetro noted that the plaintiff was not working prior to the accident. Dkt. #19, ¶18; Dkt. #24, ¶18. An x-ray of the plaintiff's left shoulder was normal. Dkt. #19, ¶19; Dkt. #24, ¶19.
On September 1, 2016, the plaintiff saw Pratibha Bansal, M.D. Dkt. #19, ¶13; Dkt. #24, ¶13. The plaintiff complained of pain in his neck, left shoulder, lower back, and into the right leg in the back of the calf. Dkt. #19, ¶13; Dkt. #24, ¶13. On examination, the plaintiff had muscle spasms in his neck, shoulder, and upper back. Dkt. #19, ¶14; Dkt. #24, ¶14. The plaintiff's active and passive flexion of the lumbosacral spine was 50, but he had full active and passive lumbosacral spine lateral flexion to the left and right. Dkt. #19, ¶14; Dkt. #24, ¶14. He had limited range of motion of the cervical spine. Dkt. #19, ¶14; Dkt. #24, ¶14.
As to the plaintiff's shoulder, Dr. Bansal found no evidence of a rotator cuff tear but noted an abnormal signal along the length of the superior labral inferior to posterior (SLAP) tear, as well as mild to moderate osteoarthritis of the AC joint encroaching on the rotator cuff outlet. Dkt. #19, ¶16; Dkt. #24, ¶16.
A September 9, 2016 MRI showed no evidence of a rotator cuff tear, but confirmed Dr. Bansal's finding of an abnormal signal along the length of the SLAP tear, and mild to moderate osteoarthrosis of the AC joint. Dkt. #19, ¶20; Dkt. #24, ¶20.
On September 15, 2016, the plaintiff returned to Dr. Tetro and complained of significant pain and grinding sensations in the left shoulder and continued reduced abduction range of motion. Dkt. #24, ¶130; Dkt. #29, ¶130. Dr. Tetro's diagnosis included rotator cuff impingement syndrome/tendinitis, glenoid labral tear, and post-traumatic AC joint arthrosis along with cervical pain. Dkt. #24, ¶130; Dkt. #29, ¶130. He was prescribed out-patient physical therapy. Dkt. #24, ¶130; Dkt. #29, ¶130.
On September 20, 2016, the plaintiff began receiving physical therapy to his left shoulder at Advanced Care, PT. Dkt. #19, ¶22; Dkt. #24, ¶22. There, he complained of left shoulder pain, numbness, and tingling. Dkt. #19, ¶22; Dkt. #24, ¶22. On September 28, 2016, the plaintiff reported to his physical therapist that his shoulder felt better after his initial treatment, but the plaintiff did not return to physical therapy until January 2017. Dkt. #19, ¶23; Dkt. #24, ¶23.
On September 28, 2016, the plaintiff underwent an MRI of his cervical and lumbar spines. Dkt. #19, ¶24; Dkt. #24, ¶24. A left-sided disc herniation was identified which indented the thecal sac. Dkt. #19, ¶24; Dkt. #24, ¶24. The lumbar MRI showed right paracentral disc herniations. Dkt. #19, ¶24; Dkt. #24, ¶24.
Dr. Bansal saw the plaintiff again on October 11, 2016, and his left shoulder was evaluated. Dkt. #19, ¶17; Dkt. #24, ¶17. He was diagnosed with traumatic arthropathy in his left shoulder. Dkt. #19, ¶17; Dkt. #24, ¶17. Dr. Bansal did not impose any limitations on the plaintiff's activities. Dkt. #19, ¶17; Dkt. #24, ¶17.
Between October 11, 2016, and December 31, 2016, the plaintiff was incarcerated in the Niagara County Jail and did not receive medical treatment during this period. Dkt. #19, ¶25; Dkt. #24, ¶25.
On December 31, 2016, Dr. Cardamone reevaluated the plaintiff's spinal range of motion measurements and found limitations in his lumbar range of motion ranging from 44% to 55%, and cervical range of motion limitations ranging from 31% to 62%. Dkt. #24, ¶120; Dkt. #29, ¶120 (admitting but noting that the percentages were not noted in contemporaneous records). He continued to receive chiropractic...
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