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Daniel Delano v. United States of America

March 12, 2012

DANIEL DELANO, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge

In this action against the United States, brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, plaintiff Daniel Delano seeks money damages for injuries sustained on October 26, 2005, while unloading mail at the Post Office in Dunkirk, New York, in the course of his employment with Wayman Trucking under contract with the United States Postal Service ("USPS"). The parties consented to have the undersigned conduct all proceedings in this case, including trial, the entry of final judgment, and all post-trial proceedings, in accordance with 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, and a non-jury trial on the issues of liability and damages was held before this Court on October 5, 6, 7, and 11, 2011. The parties submitted post-trial memoranda, and the Court heard final arguments on January 24, 2012.

The following constitutes the Court's findings of fact and conclusions of law, in accordance with Fed. R. Civ. P. 52.*fn1

FINDINGS OF FACT

The facts relating to plaintiff's claim were developed at trial through the presentation of testimony and related exhibits received into evidence, summarized herein below. Plaintiff testified, and offered the testimony of Douglas Moreland, M.D., his treating neurosurgeon; former USPS employee Bohdan Panas; Dunkirk Postmaster Jami Sorrento; and economist Ronald Reiber, Ph.D. Defendant offered the testimony of John J. Leddy, M.D., Associate Professor of Clinical Orthopedics, as its expert medical witness.

1. Plaintiff Daniel Delano

Plaintiff was born on September 10, 1961, and was 50 years old at the time of trial. He and his wife Margaret have been married for 25 years, and have two sons, aged 26 and 17. Plaintiff has a high school education. He obtained his commercial driver's license in 1991, and began working as a truck driver and mail delivery man for Wayman Trucking in 1993. Wayman Trucking contracts with the USPS to transport mail from the main Buffalo Processing and Distribution Center on William Street ("Buffalo P&DC") to several post offices in the region, including the post office in Dunkirk, New York. Plaintiff worked for Wayman until mid- 2006, when Dr. Moreland advised him to seek less physically demanding work. Tr. 11-15.*fn2

On October 26, 2005, plaintiff arrived at the Buffalo P&DC at approximately 2:00 a.m. to begin his regular twice-a-day run between the Buffalo, Dunkirk, and Fredonia Post Offices. According to standard procedure, he backed his truck up to an assigned door at the loading dock where a mail handler would help him load the mail brought from inside the facility. At the Buffalo P&DC, the loading dock and truck line up "perfectly level," and a "flip plate" is manually positioned to allow for the load to be pushed from the dock on to the truck. Tr. 17. The load that day consisted of 3-5 all purpose containers ("APCs") for Fredonia, and one wire container (or "wiretainer") for Dunkirk. The wire container was filled to the top with bundled magazines and catalogs, which plaintiff referred to as "five digit mail." Id. The mail handler used a forklift to bring the loaded wire container from inside the facility to the loading dock and drop it at plaintiff's truck door. Plaintiff then pushed the three APCs and the wire container on to his truck. He could not recall if the mail handler helped him push the load on to the truck that morning, although it was "most likely." Tr. 18. The load was secured inside the truck by 6-foot aluminum shoring bars attached to tracks along the interior side walls. After loading his truck, plaintiff left the Buffalo P&DC and proceeded to the Dunkirk facility. Tr. 15-19.

According to his regular schedule, plaintiff would arrive at Dunkirk at approximately 3:15 a.m., unload the Dunkirk mail, and proceed to the Fredonia facility, where he would arrive at approximately 3:30 a.m. After unloading the Fredonia mail, he would return to Buffalo for the second, "hot mail" run (priority mail, express mail, letters, Social Security checks, etc.), scheduled to begin at 5:00 a.m. On the day of the incident at issue, plaintiff arrived at the Dunkirk facility at approximately 3:00 or 3:10 a.m. and backed his truck up to the loading dock. There is never anyone present at the Dunkirk Post Office at that early hour, but plaintiff had a key to the facility which he signed for at the Buffalo P&DC. Because the loading dock is approximately three feet lower than the floor of the truck bed, there is a "scissor jack" located on the loading dock to assist with unloading the truck. Plaintiff obtained the power cord for the scissor jack from inside the facility and raised the scissor jack to be flush with the truck bed floor. He then unsecured the wire container and pushed it on to the scissor jack. He lowered the jack and tried to push the wire container down a short inclined ramp and on to the dock, but the container became stuck on the concrete. He testified that when the wire container is fully-loaded, it weighs about 3,000 pounds, and the protruding metal corners of the container often become stuck on the concrete floor as the wire container comes off the scissor jack on an incline. He identified Exhibit 45 as a photograph of an empty wire container positioned on the inclined ramp between the scissor jack and the concrete floor of the loading dock at the Dunkirk facility, similar to the positioning of the fully-loaded wire container when it became stuck on October 26, 2005. Tr. 19-24.

Plaintiff testified that he spent 20-25 minutes trying "everything in [his] power" to free the stuck wire container, but it would not budge. He tried "juggling" the scissor jack apparatus up and down, and manually pushing and pulling the wire container, all to no avail. He testified that he considered unloading the wire container one piece at a time, but there were no other empty containers to put the mail in, and he was already behind schedule. He noticed an extra shoring bar on the loading dock, and used it as a lever to lift the wire container enough to roll under its own weight down the incline and on to the loading dock. Tr. 24-27.

Immediately after lifting up on the shoring bar, he stood up and felt a burning sensation in his back. Although in pain, he pushed the wire container into the facility, locked the doors, and proceeded to Fredonia. He was able to unload the APCs himself, since the loading dock at Fredonia is flush with the level of the truck. He then returned to Buffalo for his second run, which he completed with help from mail handlers at all three facilities. Upon returning to the Buffalo P&DC after his second run, he parked his truck and went to the emergency room at St. Joseph's Hospital. Tr. 24-29.

Plaintiff testified that he also received emergency room treatment in 1996 following a motor vehicle accident. In 2002, he felt tightness in his back when he picked up a mail bag, and went to the emergency room as a precaution. He was involved in another motor vehicle accident in March 2005, approximately six months before the incident at issue, and reported to the emergency room with tightness in his upper chest. On each of these occasions, he returned to work the next day and received no follow-up medical treatment. Tr. 82-85.

Exhibit 47 is a series of two photographs depicting an empty wire container positioned on the scissor jack apparatus at the Dunkirk Post Office loading dock. Plaintiff identified a "drop down rod" on the front of the wire container. According to plaintiff, this rod also becomes stuck on the concrete, along with the protruding metal corners of the wire containers. Exhibit 43 is a photograph depicting the gouges in the concrete loading dock floor. Plaintiff testified that these gouges are caused by the wire containers coming off the ramp from the scissor jack. Exhibit 46 is a photograph depicting a closer view of the apparatus. Also visible is a Wayman's truck backed up to the loading dock in the vicinity of the scissor jack, showing the truck bed positioned well above the dock. Exhibit 50 is a photograph depicting a "hand jack" positioned in front of the wire container. According to plaintiff, this photograph demonstrates that the hand jack would not work under these circumstances because it does not fit under the wire container, and was designed for a different purpose. Tr. 85-91.

Plaintiff testified that the same problem had existed at the Dunkirk facility since the introduction of this particular wire container in July-August 2005, just a few months prior to the incident at issue. Every time these containers were used they would get stuck, whether they were fully loaded or completely empty. Within the first week of their implementation, plaintiff complained about the problem to Jami Sorrento, the Dunkirk Postmaster, and to Bill Brown, the Supervisor. He reiterated his complaints on a weekly basis. Tr. 29-32. In his view, the problem was caused by a combination of factors: overloading of the wire containers, and the design and construction of the loading dock at the Dunkirk facility. Tr. 153-54.

Plaintiff testified that immediately after he finished his second run at 7:00 a.m. on October 26, 2005, he went right to St. Joseph's Hospital emergency room. He was examined, given 800 mg. Motrin, and referred to Health Works physical therapy. He returned to work on his next scheduled day. He attended weekly physical therapy sessions for approximately a month, and was referred to Dr. Collard, an orthopedic specialist. Dr. Collard examined plaintiff, ordered an MRI, ordered plaintiff not to return to work, and referred him to Dr. Moreland. According to plaintiff, physical therapy was not helping, and he was in significant pain, so he accepted Dr. Moreland's recommendation of surgery, which was performed on February 1, 2006. Tr. 91-94.

Plaintiff was released to his home the same day of the surgery, but it was over a month before he was able engage in any physical activity. He returned to physical therapy, which increased his strength, and followed with Dr. Moreland. He went back to work in May 2006. He still had some numbness in his left leg and foot, but the pain had decreased. He moderated his work activity with respect to delivery of heavy, bulky mail, and refused to deliver heavily loaded wire containers. Tr. 94-99.

On July 6, 2006, plaintiff was on his way to Dunkirk on his afternoon run. He stopped for fuel, and stepped out of his truck. When he reached the ground, he buckled over in pain and could not move. He managed to call his boss in Binghamton, and an alternate driver was sent to finish the delivery run. Plaintiff drove the alternate's car back to Buffalo. He stayed out of work until he was able to see Dr. Moreland, approximately three weeks later. Dr. Moreland ordered an MRI, and upon further evaluation recommended physical therapy three times per week. He also recommended that plaintiff not return to his job delivering heavy loads of mail, and suggested occupational retraining. Tr. 99-103.

Plaintiff contacted Mueller Security, and was eventually offered a job in October 2006, at a rate of $7.50 an hour. He had been earning $22 an hour at Wayman Trucking. He worked for Mueller until August 2007, when he was hired by J.C. Penney as a Loss Prevention Officer, starting at $9.50 an hour. He makes $16.50 an hour in his current position as Loss Prevention Supervisor. His job duties include internal and external investigations of retail theft and fraud, monitoring closed circuit TV systems, safety audits, and other loss prevention activities. He recently received an award from J.C. Penney recognizing his efforts in reducing losses from theft or misappropriation at the store from 2.47% of total inventory in 2008 to .96% in 2010, realizing a savings to the company of over $250,000.00. He also currently works two nights per week for Independent Security. He has never collected unemployment, and does not anticipate doing so in the future. He plans to work full-time for one or two more years, then part-time for a while. He testified that his back problems continue to cause certain functional limitations, both at work and at home. He takes pain medications, and uses a TENS unit. He has received workers' compensation as a result of his injury, and took a lump sum buyout which resulted in a net payment of $70,200. He had to sell his boat and his classic car in order to pay his bills. Tr. 103-14; 157-60.

Plaintiff testified on cross-examination that he worked for Wayman Trucking for approximately 14 years. During that time he lifted and carried heavy items such as canvas mail bags and USPS tubs, and had to push heavy APCs, canvas hampers, and wire containers filled with mail, all on a daily basis. His back would occasionally get sore, but not to the point where he would need medical attention. In fact his whole body would get sore from the physical demands of the job. At the time of the incident at issue, plaintiff was 5' 11" tall and weighed 275 pounds. Tr. 161-70.

Plaintiff testified that he suffered a bruised hip as a result of the motor vehicle accident in 1996. In 2002 he suffered a muscle strain in his back while lifting a canvas mail bag. In the March 2005 motor vehicle accident he hurt his upper chest. Tr. 173-76.

Following his surgery, which was performed on February 1, 2006, plaintiff returned to work in May 2006 without restriction. He still had some numbness in his leg, but his back problems had improved with therapy. He worked without incident for eight weeks prior to July 6, 2006, when he felt sharp pain in his back as he stepped out of his truck. He went back to Dr. Moreland, who compared the results of a new MRI with previous studies. Dr. Moreland advised plaintiff that there was no new herniation, and no need for further surgery. Tr. 176-80.

Plaintiff testified that the majority of his working day as a Loss Prevention Supervisor at J.C. Penney involved sitting inside a camera room watching closed-circuit television, and sitting at his desk doing safety audits. He would occasionally walk the floor to supervise his subordinates and keep an eye on the store. He did not do any lifting. Tr. 180-81.

Plaintiff testified that, prior to his accident, he had never refused an overloaded wire container at the Buffalo P&DC. If he saw that the container was overloaded he would ask the mail handlers to break the load down into two containers. When he arrived at the Buffalo P&DC on October 26, 2005 and saw the overloaded wire container, he could have found a mail handler to break the load down. He could have called his boss in Binghamton to let him know about the overloaded container, and about the problem he had unloading it at the Dunkirk facility. He could have called the transportation desk or the expediter's desk at the P&DC for directions, and he could have partially unloaded the stuck wire container. Tr. 182-90.

On redirect, plaintiff testified that he had no recollection of ever refusing a load of mail prior to the incident on October 26, 2005. He could have called his boss in Binghamton that morning and awakened him at 3:00 a.m. He could have called the P&DC, but his experience is that no one answers the phone at that early hour. He testified that maintaining the delivery schedule is very important because the mail effects the lives of so many people. It crossed his mind to partially unload the wire container, but there were no other containers on the loading dock to put the mail in. He did try to get the container loose by maneuvering the scissor jack, but it would not move. Tr. 190-93.

2. Douglas Moreland, M.D.

Dr. Moreland testified that he is a board certified practicing neurosurgeon focusing on treatment of diseases involving the cervical, thoracic and lumbar spine. He is also on the teaching faculty at the University of Buffalo Medical School and the Daemen College physicians assistant program. He has published several articles and lectured on surgical procedures for treatment of herniated discs, including microdiscectomy of the type he performed on the plaintiff, Daniel Delano. Tr. 35-36.

Dr. Moreland first saw plaintiff on January 10, 2006. Plaintiff reported that he was attempting to dislodge a 2,000 pound container of mail at work on October 26, 2005, when he began to have severe pain in his back and left leg. Plaintiff had tried physical therapy without improvement, and was taking strong pain medications. Upon examination, Dr. Moreland noted significant loss in range of motion of the lower back, with pain down the left leg. Straight leg raising on the left side was positive to 30 degrees, indicating significant irritation to the nerve root as a sign of disc herniation. Review of plaintiff's recent MRI (Exhs. 34, 52 and 53) revealed a large free fragment disc herniation on the left side at the L4-L5 level. Based on the demonstrated level of pain, indication of neurological deficit, and the results of physical therapy, Dr. Moreland recommended surgery. Tr. 36-41.

Dr. Moreland requested and received workers' compensation authorization for microdiscectomy, which he performed on February 1, 2006. He described the surgical procedure in detail, as reflected in his office records (Exh. 6). The ultimate goal of the procedure was to remove the disc fragments causing pressure on the nerve. This procedure is typically performed as outpatient surgery. Dr. Moreland's notes reveal that he saw plaintiff on regular follow-up visits during his post-operative period of disability. On February 16, 2006, plaintiff had less pain, but still had numbness, tingling, and weakness in his left leg. On April 6, plaintiff reported continuing improvement overall. He still had some foot drop as a result of damage to the L4-L5 nerve root caused by the disc rupture. On May 4, plaintiff indicated that he had gone back to work. He still had some numbness and foot drop on the left side, but stated that it did not bother him. He was motivated to return to his job at Wayman Trucking, and Dr. Moreland gave him permission to do so. Tr. 41-46.

Dr. Moreland saw plaintiff again on July 25, 2006. Plaintiff reported that he had been off from work for about three weeks from severe back pain after feeling a sudden grabbing in his back as he was stepping out of his truck. Physical examination revealed 75% loss of range of motion in his back, and slow and deliberate gait, with a fair amount of pain. Dr. Moreland ordered an MRI, which he reviewed with plaintiff at a visit on August 24, 2006. At that time, plaintiff was having intermittent stabbing back pains on his lower left side, radiating into his buttocks. Review of the MRI showed normal post-operative changes at L4-5, with some scar tissue. Dr. Moreland did not feel that further surgery was necessary. He recommended physical therapy and vocational retraining, finding plaintiff to be disabled from his job driving a truck and pushing around heavy wire mail containers. Dr. Moreland made the assessment that the pain plaintiff experienced as a result of the July 2006 occurrence was related to the original injury in October 2005. This was based on the character and location of the pain reported by plaintiff at the L4-5 location, as well as the large size of the herniation as indicated by the images on the MRI. According to Dr. Moreland, plaintiff had significant nerve damage, which made him vulnerable to subsequent aggravation. Tr. 46-55.

Dr. Moreland saw plaintiff for the last time in October 2006. Plaintiff reported continuing significant back pain. He was given a transelectrical nerve stimulation ("TENS") unit, which sends a subtle electrical charge to the nerve to override the pain stimulation. Dr. Moreland assigned 40% permanent partial disability relative to the original injury in October 2005, and released plaintiff for work under that limitation.

Tr. 55-57.

Dr. Moreland testified that plaintiff's ability to perform his security job under his current medications and with the freedom to rest, stretch, and otherwise take measures to alleviate his pain, is within the standard deviation of what could reasonably be expected as the employment status for a person with this type of injury following this type of surgery. Dr. Moreland also stated his opinion that, statistically, it was more likely that plaintiff will not be able to work to the age of 65, and that he has already worked beyond what the statistics show a 50-year old male with plaintiff's injury would ordinarily be able to work. Tr. 57-60.

On cross-examination, Dr. Moreland testified that when he first saw plaintiff in January 2006 he did not report any pre-existing back injuries, and there is no mention in Dr. Moreland's records of plaintiff's pre-existing injuries as the result of lifting a large canvas mail bag on April 21, 2002, or motor vehicle accidents in 1996 and March 2005. He testified that he was aware that plaintiff had performed the physically demanding job at Wayman Trucking for 14 years, and that plaintiff was clearly overweight at the time of the injury at issue. The MRI taken in October 2005 showed not only disc herniation at L4-5, but also degeneration at L4-L5 and L5-S1. Based on these circumstances, and in the absence of a pre-accident MRI, it was possible that th L4-L5 herniation existed prior to the October 26, 2005 accident. Tr. 62-73.

Three months after surgery, plaintiff had complete resolution of his back and leg pain. He still had numbness and foot drop, which had improved but was not completely resolved. Dr. Moreland cleared plaintiff to return to work without restriction in May 2006. Following plaintiff's injury in July 2006, Dr. Moreland ordered and reviewed new MRI images. There was no new herniation or injury at the L4-L5 level, and further surgery was not recommended. Dr. Moreland's opinion that the July 2006 injury was causally connected to the October 2005 injury is based on plaintiff's self-reporting of symptoms. Tr. 73-76

On redirect, Dr. Moreland testified that given plaintiff's medical and work history following his three prior emergency room visits, it was still his opinion to a reasonable degree of medical certainty that plaintiff's L4-L5 herniation was the result of the October 26, 2005 incident at issue. In reaching his conclusions when he testifies in personal injury cases, whether as the plaintiff's treating physician or as an independent medical examiner for insurance companies, Dr. Moreland bases his conclusions on the physical examination; how well the medical history reported by the patient correlates with the ...


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