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Benitez v. Macintyre

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

May 1, 2017



          KAMP, J.

         The plaintiff, Kevin Benitez, commenced this litigation by service of process on September 26, 2014. [1] In the operative complaint, the plaintiff alleges that, on October 24, 2012, he was operating his motor vehicle in a southerly direction on Stuart Avenue in Norwalk, CT. As the plaintiff was passing through the intersection of Stuart Avenue and Connecticut Avenue, his vehicle was struck by a motorist driving east on Connecticut Avenue. The plaintiff seeks uninsured/underinsured motorist coverage from the defendant, Nationwide Mutual Insurance Company, who insured the plaintiff under an automobile liability insurance policy.

         At the commencement of trial, the parties stipulated that the plaintiff satisfied all the policy requirements to maintain a claim for uninsured/underinsured motorist coverage. The parties further requested the court make only a determination of what damages, if any, the plaintiff sustained as a result of the accident, without consideration of whether the at-fault driver was uninsured or underinsured.


         The Norwalk Police Department responded to the accident scene. The force of the collision resulted in the plaintiff's vehicle rolling over and landing on its roof. Photographs taken at the scene and admitted into evidence depict substantial property damage to both vehicles, consistent with a violent accident. The plaintiff was able to extricate himself from the vehicle despite it being upside down. At that time, he denied loss of consciousness and " complained of several minor injuries." He was transported by ambulance to Norwalk Hospital.

         The medical records from Norwalk Hospital reflect that the plaintiff complained of right hand pain as well as left knee and low back pain. Because of the significant nature of the accident, numerous diagnostic studies were undertaken. Those tests included X rays of his pelvis, left knee, lumbar and cervical spine, and right hand and wrist. All of those tests were read as essentially normal with no radiological findings of acute injury or fracture. The plaintiff was ultimately discharged from the emergency room with instructions to follow up with his primary care physician.

         Two days following discharge from the emergency department, the plaintiff returned to the Norwalk Hospital emergency room complaining of right sided neck pain, right upper arm pain, and bilateral hip pain. Additional testing was performed, including a CT scan of the cervical spine, X rays of the cervical spine, and X rays of the right humerus. No fracture or other acute injury was identified and he was again discharged.

         The plaintiff later consulted with his primary care physicians at Soundview Medical Associates. In addition to orthopedic complaints, the plaintiff reported symptoms consistent with post-traumatic stress disorder (PTSD). A brain MRI was undertaken at Norwalk Radiology on November 21, 2012. The MRI was read as normal. He was referred for a neurology and psychiatric consultation.

         The plaintiff next treated with Paul Protomastro, an orthopedic surgeon at Coastal Orthopaedics. Dr. Protomastro diagnosed cervical and lumbar strains and a right hand/wrist sprain. Dr. Protomastro noted no obvious fractures, dislocations, or neurologic deficits. Physical therapy was recommended. The plaintiff also treated with Alice Chen, a physiatrist at Hospital for Special Surgery. Dr. Chen also recommended physical therapy. Therapy was undertaken at Innovative Health and Rehabilitation, where the plaintiff attended approximately 154 sessions between December 2012 and January 2016. He also attended ten therapy sessions at Performance Physical Therapy.

         The plaintiff also consulted with Irina Taraban, a neurologist at Neurology Associates of Norwalk. Dr. Taraban diagnosed both post-concussion syndrome and acute post-traumatic stress syndrome. Dr. Taraban performed an electromyography (EMG), which was interpreted as showing no electrical evidence of a neuromuscular disease. The plaintiff was also prescribed appropriate medication in effort to mitigate his PTSD symptoms.

         The plaintiff received treatment at Neuropsychology Consultants for the PTSD symptoms he experienced following the subject accident. He had thirty-eight psychotherapy sessions, during which he revealed he had some prior symptoms following the September 11 World Trade Center attack. The plaintiff had a prior work history that included being a volunteer fireman and emergency first responder. He also submitted to neurophysiological testing performed by Robert Tepley, a neuropsychologist. In a report dated April 18, 2013, Dr. Tepley made the following observations. " [The plaintiff] does not meet the full criteria for post traumatic stress disorder but he certainly reports persistent symptoms of worry, tension and nightmares. The above profile does not suggest persistent or permanent deficits in cognitive functioning consistent with brain injury. In other words, it is not likely that [the plaintiff] has structural brain damage from the accident/injury." In a more recent report dated January 10, 2017, Dr. Tepley opined that the plaintiff's symptoms appeared to be causally related to the subject accident.

         The plaintiff developed more persistent complaints of low back and right hip pain. Dr. Chen ordered both a lumbar MRI and a right hip MRI. The lumbar MRI revealed a " tiny L5-S1 central disc protrusion without nerve root impingement or spinal stenosis." The right hip MRI revealed a nondisplaced tear of the anteriosuperior labium with cartilage loss. Dr. Chen administered approximately six separate trigger point injections, which provided the plaintiff temporary relief of his symptoms. She also administered a lower extremity EMG, which she reported was normal with no evidence of nerve injury. She also administered limited acupuncture treatment.

         In a report dated March 6, 2017, Dr. Chen assessed an 8% impairment of the plaintiff's lumbar spine. She also discussed surgical options. With regard to possible lumbar surgery, she indicated that the plaintiff may be a surgical candidate, but that it was not definitive that any such surgery would fully alleviate his back condition. With regard to the right hip, she did not feel that he had yet reached maximum medical improvement and suggested that the plaintiff " may benefit from arthroscopic labral repair.' She recommended a surgical consultation with regard to any possible right hip surgery.

         The plaintiff is thirty-five years old. He is married and has two children who were born after the date of the subject accident. He is employed in the financial services industry and, although he missed a limited amount of time ...

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