Jeffrey Vander Zanden v. State of Illinois

OPINION

SPRAGUE, J. Claimant, Jeffrey Vander Zanden, brings this claim in negligence for personal injuries suffered in an automobile accident involving an automobile he was driving and an Illinois Department of Transportation ("IDOT") snowplow on the morning of December 15, 2008. Claimant filed a claim seeking damages in an amount over $750,000 for medical bills, pain and suffering, disability and lost earnings.

FACTUAL BACKGROUND

A hearing on the merits of the claim was held over two days. Testimony was heard from the following individuals: Claimant; Tim Raven, the driver of the IDOT snowplow; Joseph Glorioso, a passenger in Claimant's vehicle; both of Claimant's sons; Dr. Dennis Gates, Claimant's medical expert; Jeffrey Opp, Claimant's economic expert; and Gary Skoog, Ph.D., Respondent's economic expert. Testimony was heard via evidence depositions from Dr. George Miz, the treating physician, and Dr. Christopher Bergin, Respondent's medical expert.

On December 15, 2008, Claimant was stopped at a red light on Larkin Avenue at the intersection of Moen Avenue in Rockdale, Illinois. An IDOT snowplow driven by IDOT employee Tim Raven rear-ended the vehicle Claimant was driving. The impact pushed Claimant's Buick Regal through the intersection, causing damage to the rear of the vehicle and injury to Claimant.

Claimant drove to Metro South Hospital in Blue Island where he was treated for injuries, including neck and back pain. Claimant continued treating, eventually seeing Dr. Miz in March 2009. Dr. Miz recommended epidural steroid injections into Claimant's neck and surgery to fuse two cervical discs at C6-7. Claimant underwent both of these recommended procedures, as well as other less intrusive treatments such as physical therapy and pain medication. Dr. Miz subsequently examined Claimant on April 15, 2010, and determined the fusion had healed and Claimant had only mild residual neck symptoms and some remaining loss of strength in his fourth and fifth fingers on his left hand. Dr. Miz determined that Claimant had likely reached maximum medical improvement at that time. Dr. Miz did evaluate Claimant again on November 11, 2010, and instructed Claimant to have a Functional Capacity Evaluation ("FCE") to determine what work he was capable of doing. Claimant had an FCE on August 9, 2012, and it was determined he should limit his work to a medium physical demand level. [*95]

At the time of the accident, Claimant was employed by Iowa Interstate Railroad ("IIR") as a trainmaster at their Blue Island train yard. Claimant did not return to work while undergoing treatment for his injuries. Claimant testified that after his cervical fusion, IIR instructed Claimant to see a doctor they designated. Claimant did not do so. On April 7, 2009, IIR informed Claimant they were eliminating the Trainmaster position at the Blue Island yard and had no other employment to offer Claimant at that time. Claimant has not worked at a railroad-related job since then other than a few months of union-related work.

Prior to the 2008 accident, Claimant had injured his back and neck in a 1991 accident that occurred during the course of his employment at Norfolk Southern Railroad while working as a locomotive engineer. Following the 1991 accident, Claimant was diagnosed with a herniated lumbar disc in his lower back, bulging discs in his cervical spine at C5-6 and C6-7, and both lumbar radiculopathy and cervical radiculopathy. Claimant had epidural steroid injections and underwent back surgery on the herniated lumbar disc at L3-4 in 1995. Due to Claimant's injuries, he was awarded an occupational disability from the Railroad Retirement Board ("RRB"). The occupational disability recognized that Claimant could not do the physically demanding job of engineer but was able to perform less physically strenuous work. Claimant had an FCE in July 1997 that limited him to working at a light physical demand level. Claimant continued treating for his back injuries with various medical providers, including the VA and chiropractors, through early 2008. Medical records reflect Claimant suffered chronic back pain from disc pain and nerve impingement as late as March 2008.

In May 2008, Claimant began working as a Trainmaster for IIR. Unlike most railroad companies, IIR had their trainmasters perform dual duty: the administrative work of a typical trainmaster, and also the physical work typical for an assistant conductor. Claimant testified that the physical work was intense. It involved walking on uneven surfaces for up to a mile, mounting moving trains, working overhead, and lifting 80-pound hand knuckles - heavier weight than his 1997 FCE indicated he should do. Claimant testified that he was able to perform this intense physical work for the eight months that he worked as a Trainmaster for IIR because the physical work was not constant. Claimant was able to alternate the physical work with the sedentary administrative work.

Claimant had an FCE completed on August 9, 2012, that limited him to work at a medium physical demand level. Claimant continues to collect his RRB occupational disability benefits from the 1991 accident, totaling approximately $28,800 annually. The RRB benefits allow Claimant to earn a limited additional amount each month without losing his disability benefits. Claimant has done so via part-time jobs at employers such as Barnes & Noble, Sleepy's mattress store, and a school bus company.

In this action, Claimant seeks damages for medical costs ($111,309), pain and suffering ($200,000 - $400,000), disability ($200,000 - $400,000), and lost wages ($623,800 - $719,459).

[*96] ANALYSIS

Claimant has stated a claim for negligence. In order to prevail, Claimant must establish by a preponderance of the evidence: 1.) the existence of a duty owed to him by the Respondent; 2.) a breach of that duty by the Respondent; and 3.) that the breach proximately caused Claimant’s damages. See Johnson v. State, 50 Ill. Ct. Cl. 153, 158 (1997) (citing Kraemer v.

State, 42 Ill. Ct. Cl. 236, 245 (1990)).

It is undisputed that Respondent, through its employee, owed a duty of ordinary care to all other drivers of vehicles on the roadway, including Claimant. This includes safely operating a motor vehicle while complying with the rules of the road. Acuity Insurance Co. as Subrogee of MB Transport, Inc., and Robert Biederer v. State, 59 Ill. Ct. Cl. 312, 314 (2007). However, the State is not an insurer of all people traveling on its highways. See Scroggins v. State, 43 Ill. Ct.

Cl. 225, 226 (1991).

In this case, liability is stipulated. The parties disagree as to whether the accident is a proximate cause of Claimant’s injuries, whether any of the medical costs beyond the December 15, 2008, Emergency Room charge are due to the accident, and regarding the amount of lost wages, if any.

Proximate cause has two separate and distinct elements: cause-in-fact and legal cause.

Collins v. State, 66 Ill. Ct. Cl. 145, 149 (2014) (additional cites omitted). Cause-in-fact exists when the injury would not have occurred but for the Respondent’s conduct. Id. Legal cause relates to foreseeability of the injury. Lopez v. State, 61 Ill. Ct. Cl. 138, 144 (2013).

Claimant has the burden of proving both cause-in-fact and legal cause. As to cause-infact, the Claimant must specifically prove “the nature and extent of his injury attributable to the claimed negligence” and must do so by a preponderance of the evidence. Enyart v. State, 57 Ill.

Ct. Cl. 202, 208 (2004). Even if the injury the Claimant proves is only the aggravation of a preexisting condition, Respondent is liable for that aggravation. Balestri v. Terminal Freight Coop Assn. 76 Ill.2d 451, 455 (1979) (additional cite omitted). However, it is only the aggravation for which the tortfeasor is liable - the worsening of the condition or increase in pain - not the preexisting injury. See Sakellariadis v. Campbell, 391 Ill.App.3d 795, 803 (1st Dist. 2009). As to legal cause, the question is whether the type of injury was foreseeable. Lopez, supra at 144.

Here, the question is whether a driver’s neck and back injuries are foreseeable in the context of a rear-ending automobile accident.

It is undisputed that Claimant suffered from serious preexisting conditions. Claimant began suffering chronic neck and back pain following his 1991 accident. His 1997 FCE restricted him to work at a light physical demand level. The parties disagree as to whether Claimant suffered neck and back pain between 1998 - 2008.

Claimant testified that he had more or less recovered from the 1991 accident by the time he began working for IIR in 2008. Claimant argues he had no neck or back problems for the ten years prior to the 2008 accident. Claimant’s expert, Dr. Gates, opined that Claimant had effectively fully recovered from the 1991 accident by the late 1990s. However, Claimant’s [*97] medical records show that his neck and back were symptomatic between 2002 - 2006, and chronic back pain complaints were indicated as late as March 2008. This was only two months before Claimant began working for IIR. Claimant was also treated by a chiropractor in the mid2000s, but these medical records are unavailable, as they have been destroyed. Claimant’s 1997 FCE limitations were never lifted.

Given the totality of the evidence presented, Claimant has met the elements of proximate cause as to at least some of the damages he is claiming. Analysis of each specific type of damages follows.

MEDICAL EXPENSES

Claimant claims $111,309 in medical expenses.

Claimant must establish both that medical services provided were causally connected to the accident and that the medical services were reasonable and customary charges for the type of services provided. Bradley v. State, 64 Ill. Ct. Cl. 207, 218 (2012). Claimant’s medical expert, Dr. Gates, testified that all medical services provided were causally connected to the accident.

Respondent disputes that any charges beyond the Emergency Room charge on December 15, 2008, was causally connected to the accident. The parties stipulated that all costs of the medical services were reasonable and customary charges for the type of services provided.

The parties disagree as to whether Claimant’s cervical spinal fusion and cervical epidural injections were necessitated by the injury from the 2008 accident. Claimant’s medical expert, Dr.

Gates, holds that both treatments were causally connected to the 2008 accident. Respondent’s medical expert, Dr. Bergin, testified that Dr. Miz’s 2009 surgery was unrelated to injuries from the 2008 car accident. Dr. Bergin testified that Claimant’s medical records do not show an acute injury to the lumbar or cervical spine, but rather that they continued to naturally degenerate from their earlier injuries, and that any tingling or numbness in Claimant’s left hand is due to cubital tunnel syndrome. Claimant’s treating doctor, Dr. Miz, opined that the 2008 accident caused Claimant’s cervical radiculopathy for which Dr. Miz recommended the injections and the surgery. Specifically, Dr. Miz testified that it is possible that a preexisting cervical degenerative disc disease - including cervical radiculopathy - can be asymptomatic and that a trauma can cause it to become symptomatic, and that is what he believes happened with Claimant. Notably, Claimant had not disclosed his prior neck and back injuries or medical records to Dr. Miz prior to seeking treatment for the 2008 accident. On cross-examination, Dr. Miz testified that it is possible that Claimant’s prior injuries could be the sources for Claimant’s chronic pain and the need for his post-2008 treatment.

Claimant’s failure to disclose his prior neck and back treatment or provide any past medical records to Dr. Miz at the time of his treatment reduces the persuasiveness of Dr. Miz’s opinion. Claimant’s MRI in the 1990s showed a disc bulge in the same location (C6-7) where Dr.

Miz performed surgery. Claimant’s pain drawings from before and after the 2008 accident appear nearly identical. However, there is no evidence that any doctor in the 1990s recommended either cervical spine surgery or epidural injections to Claimant’s cervical spine.

[*2] This Court finds that aggravation of Claimant’s existing cervical radiculopathy that necessitated epidural injections to the cervical spine and surgery of the cervical spine was caused by the 2008 car accident and that a neck injury from the type of car accident that occurred here is reasonably foreseeable. Corresponding medical costs should be awarded. However, this Court does not find that Claimant has met his burden of proving that his preexisting back injury was aggravated by the 2008 accident. Additionally, Claimant seeks medical cost of $130 for treatment at Absolute Vision Care II Ltd. It is Claimant’s burden to prove all damages by a preponderance of the evidence. Claimant offered no evidence in support of this medical charge, and it is therefore denied. Claimant is entitled to $111,179 in damages for medical costs.

PAIN AND SUFFERING

Claimant claims $200,000 - $400,000 in damages for pain and suffering.

Claimant testified that his pain has changed and increased since the 2008 accident.

However, Claimant’s testimony, including regarding prior injuries, has been inconsistent and contradicted by his own medical records. This Court places greater weight on the pain drawings, which are almost identical before and after the 2008 accident. Dr. Miz testified that Claimant would have some mild residual neck pain and some residual numbness in the fourth and fifth fingers of his left hand. Regarding Claimant’s fingers, the Court notes this appears to be an improvement from before the accident, as Claimant’s 1997 FCE indicated numbness in the third, fourth, and fifth fingers of his left hand. Claimant should be compensated for pain and suffering immediately following the accident through his treatment, and for the mild residual neck pain he will suffer. Claimant is entitled to receive damage of $50,000 for pain and suffering.

DISABILITY

Claimant claims $200,000 - $400,000 in damages for disability.

Claimant’s medical expert, Dr. Gates, testified that Claimant will have great future disability and restrictions on physical movement. However, Claimant’s treating physician testified that future restrictions would be much less. Dr. Miz testified that Claimant’s disc fusion had healed by April 15, 2010. Claimant would have some degree of permanent functional impairment due to the residual cervical pain. Dr. Miz opined that activities that would tend to exacerbate Claimant’s remaining symptoms would be: repetitive overhead work, repetitive overhead use of his arms and activities involving repetitive cervical range of motion. Dr. Miz testified that patients undergoing Claimant’s treatment generally heal as much as they are going to within about a year and are stable thereafter. Dr. Miz saw Claimant for the final time on November 11, 2010 at which time Claimant’s x-rays showed excellent cervical alignment, complete healing of the disc fusion, and no radicular symptoms.

Dr. Miz opined that if Claimant could perform the Trainmaster job following his 1997 FCE that restricted him to work at a light physical demand level, then Claimant is able to work following his 2012 FCE that was less restrictive. Claimant is entitled to damages of $50,000 for disability.

[*99] LOST WAGES:

Claimant claims $623,800 - $719,459 in damages for lost wages.

At the time of the car accident, Claimant was employed as a Trainmaster for IIR at the Blue Island train yard earning $67,000 annually. Respondent argues that Claimant had never been released to work after his 1991 accident. Claimant admits this, but testified that he simply felt he was getting better and that he could do the Trainmaster job. This Court finds that Claimant was performing the work of Trainmaster in 2008 despite his never being released back to work after the 1991 accident, and the Trainmaster position is relevant for determining lost wages.

IIR abolished the Trainmaster position at the Blue Island yard and communicated this to Claimant via an April 7, 2009 letter. Respondent argues that the $67,000 annual salary ceases to be relevant as of this date. Claimant argues that IIR’s abolishment of the Trainmaster position at Blue Island was effectively a ruse and that the new positions they created were functionally the same job as Trainmaster. Upon abolishing the position of Trainmaster, IIR instituted two new positions at the Blue Island yard: Terminal Manager and Assistant Terminal Manager. At the time of the accident, there were two Trainmasters at the IIR Blue Island yard, Claimant and one other. Claimant testified that the other Trainmaster at the Blue Island yard retired when the position was eliminated. Claimant also argued that, had he not been injured, either the IIR would not have eliminated the Trainmaster position or, in the alternative, he would have been hired as either the Terminal Manager or Assistant Terminal Manager. Claimant argues that the job descriptions for Trainmaster and Terminal Manager or Assistant Terminal Manager are nearly identical. However, Claimant did not provide these job descriptions or their salaries, or offer any other supporting evidence. Regardless, had Claimant not been injured, Claimant could have continued working until the Trainmaster position was abolished in Spring 2009 and could have sought Trainmaster positions at any of the numerous railroad yards in the Chicago area, or sought other positions at IIR. Indeed, according to Claimant’s own testimony, IIR’s Trainmaster position was unique in that it included a heavily physical component; presumably, Claimant would have had a much easier time performing the work of a Trainmaster for other railroad companies.

In the alternative, Respondent argues that as of April 15, 2010, when Dr. Miz determined that Claimant had reached maximum medical improvement, Claimant had the capacity to rejoin the full-time workforce. Claimant argues that Dr. Miz did not release him back to work.

When Dr. Miz determined that Claimant had reached maximum medical improvement, he also recommended Claimant complete his epidural injection schedule with Dr. Charuk and get an FCE to determine what work he could do. Claimant waited quite some time to get the FCE, but he did get the FCE in August 2012. The FCE placed him as able to work at a medium physical demand level, an improvement from the greater restriction placed on Claimant from the FCE in 1997.

Dr. Miz testified that if Claimant could return to work after his 1997 FCE, then if he was reevaluated and classified the same, he should also be able to return to work. In fact, Claimant’s [*100] 2012 FCE was less restrictive than his 1997 FCE. This Court finds that Claimant had the capacity to return to work following his 2012 FCE.

Claimant testified regarding the numerous railroad companies located in the Chicago area and the various types of railroad-related jobs available, as well as the railroad companies' willingness to hire individuals of Claimant's age, given his railroad knowledge. Claimant further testified both about how unusual the IIR was in including a physical component to the Trainmaster job, as well as about numerous other railroad-related jobs that were not physically demanding. Yet Claimant offers no evidence of having applied for any of these many jobs he described. Claimant meets his burden of proving lost wages by a preponderance of the evidence only through the date of his August 2012 FCE.

This Court finds that Claimant should be awarded lost wages from December 15, 2008 through the date of his August 2012 FCE. This amount should be reduced by the amount Claimant received in disability benefits from the RRB during that time, as Claimant would not have received the RRB benefits had he been working full-time as a Trainmaster during that time.

Claimant is entitled to receive damages of $144,974 for lost wages.

IT IS HEREBY ORDERED that Respondent compensate Claimant $356,153 for his medical costs, pain and suffering, disability, and lost wages.