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Green v. United States Postal Service

December 17, 2008

DESIREE GREEN, PLAINTIFF,
v.
UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman, United States District Judge

OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came before the Court for a bench trial on June 15, 2005. The Court heard the testimony of the plaintiff, Desiree Green, and her husband, Timothy Reif. The Court also viewed the videotaped deposition of Dr. John Klimkiewicz, plaintiff's treating physician (see Exhibit 19), and has considered the 18 other joint exhibits proffered by the parties. The Court has reviewed the proposed findings of fact and conclusions of law filed separately by the parties and has read the cases on which they rely.

The following shall constitute the Court's Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

1. This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., resulting from a collision between a United States Postal Service ("USPS") truck, then being driven by a USPS employee, and a bicycle that the plaintiff, Desiree Green, was riding.

2. Plaintiff Desiree Green was born on July 4, 1964. (See Trial Tr. at 37). On January 11, 2001, the day of the collision, she was 36 years old. Plaintiff and defendant agree that plaintiff's life expectancy is 79 years.

3. Plaintiff has a bachelor's degree and a master's degree. (See Trial Tr. at 37). She received her master's degree in public administration from the John F. Kennedy School of Government at Harvard University. (See id.).

4. On January 11, 2001, around noon, plaintiff Desiree Green was riding her bicycle in the 1800 block of H Street, N.W., Washington, D.C. (See Trial Tr. at 22-23). She was an employee of the World Bank, and was going from one World Bank building to another World Bank building. She was riding her bicycle in the crosswalk while crossing the street. (See id.).

5. While in the crosswalk on her bicycle, plaintiff was struck by a large USPS delivery truck. (See Trial Tr. at 22-24). The USPS truck was traveling the wrong way down H Street, N.W., which is a one-way street. (See id. at 22).

6. Defendant concedes that at the time of the collision the USPS employee, Earl Thomas Somerville, was acting within the scope of his employment.

7. When the USPS truck hit plaintiff's bicycle, plaintiff fell from her bicycle onto her wrist and right knee. (See Trial Tr. at 24); Police Report, dated January 11, 2001 (Exhibit 13). Plaintiff did not strike her head or lose consciousness. (See Trial Tr. at 24); Plaintiff's Depo. at 8 (Exhibit 18). She was bleeding from cuts and suffered from significant bruising. (See Trial Tr. at 26-27). Her clothes were torn. (See id. at 26). She was unable to apply any pressure to her right leg and was unable to walk. (See id.).

8. Plaintiff was taken by ambulance to the emergency room of Georgetown University Hospital, where she was treated for her injuries. (See Trial Tr. at 26-27); Plaintiff's Depo. at 9 (Exhibit 18). She was seen by Dr. Stadnyk and Dr. Foley. Plaintiff felt a lot of pain in her knee (see Trial Tr. at 26-27), but she did not break any bones and her wrist soon healed. See Plaintiff's Depo. at 10, 13 (Exhibit 18). Her right knee was placed in a brace to immobilize it, and she was given crutches. (See Trial Tr. at 26-27). Plaintiff was discharged from the emergency room that same day. It was recommended that plaintiff follow up with Dr. John Klimkiewicz, an orthopedic surgeon and knee specialist at Georgetown University Hospital. See Plaintiff's Depo. at 9 (Exhibit 18).

9. Upon her discharge from the hospital, plaintiff was given prescription medication to alleviate pain from muscle spasms, which she took in the immediate aftermath of the accident. Plaintiff's muscle spasms went away within a month. (See Trial Tr. at 28, 64).

10. Plaintiff returned to work on the day after the accident. She suffered no lost wages. (See Trial Tr. at 52, 68).

11. Plaintiff saw Dr. Klimkiewicz one week after the accident, on January 18, 2001. She presented to him with pain, inability to walk without a significant limp, and swelling to her right knee. See Klimkiewicz Depo. at 8 (Exhibit 19). On that visit, plaintiff "rate[d] her pain on a scale of 1 to 10 as a 5." Id. Plaintiff described it as a "constant low grade pain." (Trial Tr. at 66). Upon initial examination, Dr. Klimkiewicz noted that plaintiff had limited motion in her right knee and that she lacked approximately 30 degrees of full extension. Dr. Klimkiewicz told plaintiff to obtain an MRI scan. See Klimkiewicz Report, dated January 18, 2001 (Exhibit 4).

12. Plaintiff returned to Dr. Klimkiewicz with the results of her MRI scan on January 20, 2001. Those results showed that plaintiff sustained a posterior cruciate ligament ("PCL") injury to her right knee, which Dr. Klimkiewicz considered a Grade II or partial tear. See Klimkiewicz Report, dated January 20, 2001 (Exhibit 4). There was no evidence of specific meniscal pathology and no evidence of an anterior cruciate ligament injury. Plaintiff told Dr. Klimkiewicz that her knee was "feeling much better" than it was a few days earlier.

13. Dr. Klimkiewicz gave plaintiff two options: surgery to replace the posterior cruciate ligament or an aggressive regimen of physical therapy. (See Trial Tr. at 27-28). Plaintiff chose aggressive physical therapy in the hope that she could overcome her injury without surgery. (See id.). Dr. Klimkiewicz also gave plaintiff a prescription for an ergonomic chair to help alleviate pain related to the injury. (See id. at 35); Klimkiewicz Report, dated January 20, 2001 (Exhibit 4).

14. Plaintiff's physical therapy began with an initial evaluation on January 23, 2001. At that time, she reported that her pain was a 4 or 5 on a scale of 1 to 10, see Sports Therapy and Rehabilitation, Inc. ("STAR") Notes (Exhibit 2), and that she was feeling better than she was a few days earlier. (See Trial Tr. at 82-83). After her first physical therapy session, plaintiff was able to gain full extension, with less pain. (See id.). On January 25, 2001, plaintiff told her physical therapist that she was satisfied with her progress. (See id.).

15. As a part of plaintiff's employment responsibilities at the World Bank, she was scheduled to travel to East Timor. Dr. Klimkiewicz advised plaintiff that if she could perform physical therapy while in East Timor, she could go. (See Trial Tr. at 28).

16. Prior to leaving for East Timor, plaintiff told Dr. Klimkiewicz that her knee felt good, that she had no swelling, and that she was experiencing no instability. (See Trial Tr. at 89). She left for East Timor in February of 2001, while still on crutches. See Plaintiff's Depo. at 17 (Exhibit 18). She remained in East Timor for three to five weeks. See id. at 22. She went to physical therapy each morning while in East Timor. (See Trial Tr. at 28-30).

17. On April 25, 2001, after completing her trip to East Timor, plaintiff returned to Dr. Klimkiewicz for reevaluation. Upon physical examination she showed no signs of effusion and her range of motion was excellent. There was no evidence of joint line tenderness and no evidence of any posterolateral corner significant laxity at 80 or 90 degrees and no varus/valgus laxity at 0 or 30 degrees. See Klimkiewicz Report, dated April 25, 2001 (Exhibit 4). She was able to flex her knee, was walking without crutches, had no spasms, and reported pain at less than 5 on a scale of 1 to 10. (See Trial Tr. at 88). Dr. Klimkiewicz ordered her to continue physical therapy and return in six weeks. See Klimkiewicz Report, dated April 25, 2001 (Exhibit 4).

18. On May 10, 2001, plaintiff told her physical therapist that her "knee feels great." She reported only occasional soreness in the back of the knee when sleeping on her stomach. See STAR Notes (Exhibit 2).

19. On June 4, 2001, plaintiff "went through a sports specific program without any complaints." STAR Notes (Exhibit 2). Plaintiff was discharged from physical therapy by STAR because: (1) "Patient had achieved recovery of pain-free functional mobility"; (2) "Patient had progressed to an independent strength training program for continued strengthening"; and (3) "Patient returned to pain (sic) athletic activities." The STAR physical therapist reported: "[Plaintiff]'s progression had been excellent. During rehabilitation, [Plaintiff] performed high-level agility and athletic drills without discomfort or pain." Discharge Summary from STAR to Dr. Klimkiewicz, dated June 11, 2001 (Exhibit 2).

20. After her discharge from physical therapy, plaintiff was able to do the prescribed exercises on her own at home. (See Trial Tr. at 31-34). Plaintiff purchased a stationary bike and exercise bands in order to exercise at home. (See id.). As of the date of the trial, June 15, 2005, plaintiff was continuing to do components of the prescribed physical therapy at home. (See id.). Plaintiff testified that she does 20 to 40 minutes of stretching as well as 20 minutes on the stationary bike four to five times a week. (See id. at 39). This is the same regimen she did while in physical therapy. (See id. at 40). Plaintiff acknowledged at trial that her recovery had "progressed significantly." (Id. at 80).

21. Plaintiff saw Dr. Klimkiewicz on June 5, 2001, the day after her discharge from physical therapy. Plaintiff told Dr. Klimkiewicz that her knee was feeling "fairly good," but said that there was some pain at times. Klimkiewicz Report, dated June 5, 2001 (Exhibit 4). There was no evidence of swelling or instability. See id.; (Trial Tr. at 89). On physical examination, Dr. Klimkiewicz found that: (1) there were no signs of effusion; (2) plaintiff's range of motion was systematic to the opposite side; and (3) there was no evidence of joint line tenderness. Dr. Klimkiewicz's notes indicate that plaintiff showed a Grade I to Grade II PCL injury ...


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