Austin v. United States

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

          Kristen L. Mix, United States Magistrate Judge

         This matter came before the Court for trial on June 18-20, 2018.^[1] 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 and Order.

         I. Case Background

         Plaintiff 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.

         Plaintiff 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 treatment.

         After 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 symptoms.

         After 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. 13.4, 13.5.

         Plaintiff 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.

         In 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 activities.

         Plaintiff 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.

         Defendant's 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.

         Plaintiff's 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.

         II. Findings of Fact and Conclusions of Law

         A. Damages

         As 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 separately below.

         Plaintiff 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)).

         1. Economic Losses, Including Medical Expenses

         (a) Property Damage

         Plaintiff 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.

         (b) Damages for Lost Wages and Benefits

         Plaintiff 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 1287-88.

         (c) Damages for Medical Expenses

         The 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.

         However, 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.

         (d) TRICARE Payments

         Finally, 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 ...