Second Department Finds That Workers' Compensation Board Determination Could Not Be Used As Collateral Estoppel And Also Reinstates Jury's Award of Total Disability Despite Testimony From Plaintiff's Physicians That Plaintiff Was Employable

In separate decisions in Kowalsky v. County of Suffolk, the Second Department affirmed a judgment against the defendants in the principal sum of $5,387,591.36, which included $200,000 for past pain and suffering, $850,000 in future pain and suffering for 41 years and $4,038,000 in economic damages, and modified the partial granting of defendants' post trial motion regarding plaintiff's claims for economic damages, by reinstating the jury's awards.

Plaintiff was injured in an accident when he was struck by a vehicle owned by the County of Suffolk and Suffolk County Department of Parks, Recreation & Conservation.  At trial, the defendants moved to preclude plaintiff from offering evidence regarding surgery to his lumbar spine.  The defendants argued that plaintiff was collaterally estopped from offering such evidence on the basis that the Workers' Compensation Board had denied plaintiff's request for surgery on the basis of its examining physician who recommended that the plaintiff be evaluated by an independent spine surgeon or neurosurgeon before he rendered a determination as to whether the surgery was necessary.

The Supreme Court denied the motion and during trial plaintiff offered evidence that he underwent a laminectomy and spinal fusion surgery at L4-5. The plaintiff further offered evidence that he required a pain management regimen involving methadone and Flexeril. The side effects of these medications included sedation, cognitive impairment, and difficulty handling power tools. His physicians further testified that plaintiff could not return to his job as a Verizon technician and the side effects of his pain medication made it difficult for him to maintain any employment. 

By contrast, the defendants presented the testimony of a vocational expert who testified that there were jobs that the plaintiff could do with his disability, which would pay in the range of $30,000 to $40,000 per year. 

On the defendants' appeal from the judgment, the Second Department affirmed the denial the defendants' motion to preclude the plaintiff from submitting evidence regarding the surgery to his lumbar spine.  The Court observed that "[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal" (Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255, citing Jeffreys v Griffin, 1 NY3d 34, 39). Here, the defendants failed to establish an identity of issue. The Second Department also found that the defendants were properly precluded from introducing, at trial, the determination of the Workers' Compensation Board.

In the related decision on the separate appeals from the defendants' post-trial motion, the Second Department also found that the Supreme Court should not have reduced the jury's awards for economic damages. The Court found that the assumption by plaintiff's economist that plaintiff could no longer work in any capacity was supported by the testimony of the plaintiffs' physicians that the side effects of his pain medication limited his employment possibilities. The Court also found that although the defendants' vocational expert testified that there were jobs that the plaintiff could perform, this created an issue of fact for the jury to decide.