United States District Court, D. Colorado
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
Kristen L. Mix, United States Magistrate Judge
matter came before the Court for trial on June 18-20,
2018. At the conclusion of trial, the Court took
the matter under advisement. Having fully reviewed the
evidence presented, applicable law and arguments of counsel,
the Court now enters its Findings of Fact, Conclusions of Law
was injured on January 11, 2014 in Lakewood, Colorado, when a
United States Postal Service delivery vehicle collided with
the car he was driving. Plaintiff brought suit for damages
under the Federal Tort Claims Act, 28 U.S.C. §§
1346(b), 2671, and 2680. Compl. [#1] ¶ 3.
Defendant does not contest liability for the accident, but
does contest damages.
was 56 years old at the time of the accident, and sustained
injuries to his cervical spine as a result of it.
Plaintiff's injuries manifested primarily in swelling of
his C3-C4 facet joint and pain on both sides of his neck and
in his left shoulder. He underwent five months of physical
therapy treatment for his injuries and was discharged from
physical therapy because he met his functional goals, which
included improving his ability to manage pain that interfered
with his daily living activities, managing his headaches,
performing personal care activities, increasing the range of
motion in his neck and improving his strength in the cervical
region. Exh. 19 at 110. Nevertheless, Plaintiff continued to
experience pain and problems with neck rotation and felt he
had exhausted the benefits of physical therapy. He believed
that he had not reached his “real goal, ” which
was to “get rid of the pain altogether.”
Plaintiff's treating physician, Jason Friedrich, M.D.,
concurred that additional physical therapy visits would not
significantly change Plaintiff's outcome, because
Plaintiff had “plateaued” with respect to that
an MRI examination of Plaintiff's neck and spine in
September of 2014, Dr. Friedrich recommended that Plaintiff
undergo a procedure known as a rhizotomy, which involves
steroid injections into the spinal column. As of the time of
trial, Plaintiff had undergone three rhizotomies, which
resulted in substantial alleviation of the pain in the left
side of his neck as well as other symptoms. Dr. Friedrich
testified that after a rhizotomy, Plaintiff is happy with how
his neck feels over the next six months, then tolerates the
pain for as long as he can before undergoing the procedure
again. Dr. Friedrich opined that Plaintiff will need to
undergo periodic rhizotomies indefinitely in order to
continue to manage his left-sided neck pain and other
his first rhizotomy, Plaintiff also began to receive epidural
steroid injections for pain in the right side of his neck.
The injections afford him some relief. Dr. Friedrich
testified that there is more than a 50% chance that
Plaintiff's right-sided neck pain was also caused by the
accident. Dr. Friedrich further stated that Plaintiff will
experience pain from swelling in his C3-C4 facet joint as a
result of the accident indefinitely, and expects Plaintiff to
require rhizotomies and epidural steroid injections once or
twice each year. Plaintiff is prescribed three medications
for pain relief as well as an anti-inflammatory drug. As of
the date of trial, the billed cost of Plaintiff's
rhizotomies and injections was approximately $28, 000. Exhs.
served in the United States Air Force from June 15, 1975
until his retirement from service in May of 1998. He worked
as the Manager of Safety at Denver Water at the time of the
accident. He had intended to work to age 62, but instead
retired at age 59 because he believed the pain medications he
was taking affected his ability to do his work. He testified
that it was more difficult for him to concentrate with
headaches and pain and he did not want to make a mistake, so
he retired. He admitted that the opportunity to spend more
time with his family was also a reason why he decided to
retire. He lost wages in the amount of $100, 000 per year for
three years as a result of his early retirement, as well as
an annual employer 401(k) matching payment in the amount of
$3, 000. He has not sought other employment since he retired.
addition, Plaintiff's medical expenses related to the
accident to the date of trial totaled $59, 418.64. Exh. 13.2.
He continues to experience some pain and soreness and has
limited ability to turn his head and to reach overhead and
outward with his left arm. He believes that he cannot
undertake activities he once enjoyed, like golf and biking,
because he may re-injure his neck. He testified that he put
restrictions on himself because of his fear of suffering more
injury, and admitted that no medical provider has told him
that he must stop playing golf or engaging in other
had been experiencing chronic shoulder pain for approximately
ten years prior to the accident. Dr. Friedrich admitted that
not all of Plaintiff's left shoulder pain resulted from
the accident, and that Plaintiff also had substantial disc
degeneration in his spine prior to the accident. There is no
evidence that the accident caused Plaintiff's disc
degeneration, which preceded the date of the accident. In
addition, according to Plaintiff's medical records, he
reported to medical personnel that he fell sometime between
June and August of 2014 due to low blood pressure, but he
does not recall reporting the fall to his physician. Exh. C
at 193, 208. He testified that the only “falling”
incident he can recall relates to trying to get up from the
floor of his family room, feeling dizzy, and sitting back
down. At Dr. Friedrich's trial testimony preservation
deposition taken about five weeks before trial, he stated
that he was unaware of Plaintiff's fall history and did
not consider it in formulating his opinions about the cause
of Plaintiff's injuries and pain.
expert witness, L. Barton Goldman, M.D., reviewed
Plaintiff's medical records and conducted an independent
medical examination of Plaintiff. According to Dr. Goldman,
the injuries suffered by Plaintiff as a result of the
accident were most likely to soft tissue and from bruising.
Dr. Goldman noted that Plaintiff had several pre-existing
conditions, including left rotator cuff strain with atypical
impingement of his shoulder, low back and neck pain,
degenerative disc disease and high blood pressure. In Dr.
Goldman's opinion, the fluid apparent in Plaintiff's
facet joints in the September 2014 MRI exam was consistent
with degenerative disc disease, not trauma. Dr. Goldman
further noted that based on Plaintiff's medical records,
he was doing “very well” by the summer of 2014.
Exhs. D-2, D-3. At that time Plaintiff reported that he was
feeling between 85% and 95% better, reflecting considerable
improvement within five months of the accident. However,
Plaintiff regressed after the date when the falling episode
was noted in his medical records. Dr. Goldman believes that
Plaintiff's regression in improvement coincided with the
fall, and that it played “an aggravating role” in
terms of Plaintiff's chronic pain. Dr. Goldman further
opined that with continued physical therapy, Plaintiff could
“return to baseline” in terms of his physical
condition within 3 to 6 months. He stated that less-expensive
treatments are available to treat Plaintiff's injuries,
like targeted physical therapy, myofacial interventions,
massage therapy, acupuncture and trigger-point injections.
Dr. Goldman estimated the cost of his recommended treatment
regimen at $7, 500 to $8, 500 annually. He also opined that
Plaintiff “will never be back to 100%, ” but will
experience some chronic pain for the rest of his life,
further explaining that Plaintiff will experience
“waxing and waning pain” with overhead reaching
and stretching. Dr. Goldman projected, however, that
Plaintiff would have minimal permanent physical impairment
with adequate treatment.
medical expenses were paid through TRICARE, a managed health
care program that provides health benefits to military
personnel. Plaintiff is seeking damages for economic losses,
past and future non-economic losses (emotional pain, physical
pain and inconvenience) and physical impairment.
Findings of Fact and Conclusions of Law
noted above, Plaintiff seeks three categories of damages:
economic losses, including medical expenses, non-economic
losses, and damages for physical impairment. See
generally Pringle v. Valdez, 171 P.3d 624, 629 (Colo.
2007). The Court addresses each category of damages
must prove his entitlement to damages by a preponderance of
the evidence. Colo. Rev. Stat. § 13-25-127 (West);
Nelson v. United States, No. 11-cv-02953-WYD-MEH,
2014 WL 1929585, at *13-14 (D. Colo. May 14, 2014); see
also Perkins v. Fed. Fruit & Produce Co., Inc., No.
11-cv-00542-JAP-KLM, 2013 WL 5981719, at *2 (D. Colo. Nov.
12, 2013) (explaining proof of lost wages by a preponderance
of evidence). Plaintiff must also show that his damages were
caused by the collision which occurred on January 11, 2014.
McLaughlin v. BNSF Ry. Co., 300 P.3d 925, 935
(Colo.App. 2012). Finally, he “may not recover damages
for injuries that might reasonably have been avoided, ”
because he has the duty to take reasonable steps under the
circumstances to mitigate the damages he sustained.
Banning v. Prester, 317 P.3d 1284, 1287-88
(Colo.App. 2012) (citing Harsh v. Cure Feeders, LLC,
116 P.3d 1286, 1288 (Colo.App. 2005)).
Economic Losses, Including Medical Expenses
presented evidence that the cost of repairing the damage to
his vehicle from the accident was estimated at $4, 795.80 to
$9, 324.15. Exhs. 8, 9. The average of those figures is $7,
059.98, which the Court finds is a reasonable amount to
compensate Plaintiff for his property loss.
Damages for Lost Wages and Benefits
also seeks damages for lost wages and lost 401(k)
contributions in the amount of $206, 000, based on his
contention that the medications he was taking for pain made
him fearful of making a mistake, so he retired early from his
employment with Denver Water. However, there is no evidence
that Plaintiff attempted to identify and try other
medications that would not have interfered - or would have
interfered less - with his ability to work. As a result, the
Court cannot find that these alleged damages are recoverable
under Colorado law. First, Plaintiff's subjective belief
that he could no longer work is unsubstantiated by testimony
of a physician or other qualified person. Simply stated,
there is a complete lack of any expert testimony that
Plaintiff was unable to work because of the accident. Second,
even assuming arguendo Plaintiff's inability to
work in his position of Manager of Safety at Denver Water,
Plaintiff had a duty to minimize his damages by seeking other
work, which he failed to do. Banning, 317 P.3d at
Damages for Medical Expenses
Court next considers Plaintiff's request for damages for
medical care. Although Plaintiff may recover damages for
medical treatment that is reasonable and necessary,
Banning, 317 P.3d at 1289 (citing Lawson v.
Safeway, Inc., 878 P.2d 127, 130-131 (Colo.App. 1994)),
the evidence does not establish that rhizotomies are
“reasonable and necessary” medical treatment
here. Although the Court finds that Plaintiff's desire
for a relatively pain-free life is understandable, the Court
nevertheless cannot conclude that such a desire is reasonable
for a 56-year-old person with degenerative disc disease who
was t-boned by a Postal truck. Despite Plaintiff's
credible fear of rhizotomies, he chose to undergo multiple
procedures in an effort to eliminate continuing pain in his
neck after completing a physical therapy regimen that
resulted in considerable improvement in his symptoms.
Plaintiff's apparent expectation that his post-accident
pain could - and should - be entirely eliminated is simply
not reasonable, under these circumstances. Nor can the Court
find that rhizotomies are necessary medical treatment in
light of the evidence presented. Although Plaintiff testified
that he is pain-free for several months after each procedure,
even after three rhizotomies he has not returned to his
pre-accident lifestyle of golfing, socializing and taking
trips with friends. Importantly, there is no evidence that
Plaintiff's self-restrictions on activities, like his
decision to stop working, have been mandated by a physician.
In light of Plaintiff's self-reported improvement from
his physical therapy regimen, the Court finds credible
Defendant's expert's opinion that Plaintiff could
effectively manage his pain through the less expensive
treatment Dr. Goldman outlined.
despite Defendant's arguments to the contrary, the Court
cannot find that Plaintiff's on-going need for medical
treatment is at least equally the result of his apparent fall
as of the accident. In light of the lack of any meaningful
evidence other than Plaintiff's own testimony regarding
the nature or severity of the fall, the Court finds Dr.
Goldman's testimony in this regard speculative, at best.
The Court instead credits Dr. Friedrich's testimony that
he was unable to provide a medical opinion about the impact
of the fall on Plaintiff's condition without more
thorough knowledge of the facts surrounding that incident.
the Court addresses the impact of Plaintiff's TRICARE
payments on his claim for medical expenses. Plaintiff
contends that these insurance payments are a collateral
source which should not be offset against any recovery he
receives. Plaintiff's Trial Brief [#52] at 3-5.
Defendant contends that evidence of Defendant's TRICARE
payments is not only admissible, but must also be offset
against any award to ...