Kyeremeh v. USA
FINDINGS, CONCLUSIONS, AND ORDER FOR JUDGMENT: the Court finds and concludes that Plaintiff Levette Kyeremeh shall have and recover damages from Defendant United States of America in the amount of $396,351.27, by Judge Richard P. Matsch on 6/5/2014. (jsmit)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 11-cv-03341-RPM
UNITED STATES OF AMERICA,
FINDINGS, CONCLUSIONS, AND ORDER FOR JUDGMENT
Early in the morning on May 14, 2010, Plaintiff Levette Kyeremeh (formerly Levette
Clemons) was driving to work in her 2003 Ford Taurus. She was stopped at a traffic signal
in the northbound lane of Quebec Street at I-70 in Denver, Colorado when a United States
Postal Service (“USPS”) truck slammed into the rear of her Taurus at a speed of 25 miles per
hour. The impact pushed Kyeremeh’s car forward into the middle of the intersection.
Kyeremeh steered sharply to her right to avoid another vehicle. She was wearing a seat belt
at the time.
Kyeremeh filed this civil action under the Federal Tort Claims Act (“FTCA”) on
December 21, 2011, seeking damages caused by the accident. Defendant has admitted that
the USPS truck driver was negligent. The nature and extent of Kyeremeh’s injuries caused
by the collision and her present medical condition were the subject of a trial held on April 710, 2014.
Two particular aspects of this case warrant mention initially, as they inform the Court’s
findings in significant part. The first is Kyeremeh’s personal history. She is a former
cocaine addict and was convicted of felony drug possession in 2002. She worked as an
independent contractor for a cleaning service company for low hourly pay and no benefits.
With three children and a mother with Alzheimer’s to support, Kyeremeh could not pay for
auto insurance and had no health insurance until she received Medicaid sometime in late
2013 or early 2014. Because of Kyeremeh’s inability to pay for health care, her course of
treatment has been problematic.
The second is the manner in which the USPS dealt with Kyeremeh’s administrative
claim. The FTCA authorizes every federal agency to use arbitration or other alternative
means of resolution to settle any tort claim against the United States. 28 U.S.C. § 2672.
According to Department of Justice (“DOJ”) guidance on how federal agencies should
handle FTCA claims, the administrative claim review process is “intended to serve as an
efficient[,] effective forum for rapidly resolving tort claims with low costs to all
participants.” 28 C.F.R. § 14.6(a). The DOJ guidance seeks to “maximize the benefit
achieved through the application of prompt, fair, and efficient techniques that achieve an
informal resolution of administrative tort claims without burdening claimants or the agency.”
Id. “Whenever feasible,” the guidance states, “administrative claims should be resolved
through informal discussions, negotiations, and settlements rather than through the use of any
formal or structured process.” Id. § 14.6(a)(1). While the guidance does not require the
USPS or any other government agency to pursue a particular process, it unambiguously
instructs federal agencies to make a genuine effort to resolve an FTCA claim informally and
efficiently, thereby avoiding protracted and expensive litigation.
The USPS’ approach to handling Kyeremeh’s administrative claim was contrary to that
guidance. Kyeremeh, through her then-attorney, Ms. Collins, filed a notice of claim on
August 16, 2010, describing the circumstances surrounding the accident and stating that she
(Kyeremeh) had “incurred medical expenses as a result of her injuries and . . . sustained other
economic and non-economic damages . . . .” [Doc. 30, Ex. A.] Kyeremeh requested
“payment of no less than $150,000.00” in money damages. [Id.] The USPS acknowledged
receipt of Kyeremeh’s claim on September 13, 2010 and said it would be given “careful
[Doc. 30, Ex. D.]
Kimberly Herbst, a USPS tort claims
examiner/adjudicator, sent Collins a letter dated October 4, 2010 requesting medical records
and bills for the treatment Kyeremeh received to substantiate her claim. [Doc. 30, Ex. E.]
Collins notified the USPS by letter the next day that she was withdrawing as Kyeremeh’s
counsel. [Doc. 30, Ex. F.] It is unclear whether Kyeremeh received the USPS’ October 4
letter to Collins, and what, if anything, the USPS did between October 5 and January 2011
regarding Kyeremeh’s claim.
Herbst sent Kyeremeh a letter dated January 13, 2011 stating that the USPS had
previously asked Collins to provide medical records, which Collins failed to do. [Doc. 30,
Because it was Herbst’s “understanding that Attorney Collins was no longer
representing [Kyeremeh],” Herbst asked Kyeremeh directly to provide the records herself.
On February 11, 2011, Herbst sent a letter to Keith Frankl, Kyeremeh’s new attorney. In
the letter, Herbst noted that she and Frankl had “a recent telephone conversation” in which
Frankl indicated to Herbst that Kyeremeh “was continuing to receive medical treatment and
estimated that [he] will not be providing medical documentation in order to support her claim
until at least May of this year.” [Doc. 29, Ex. 2.] In spite of Frankl’s assurances that
documentation would be forthcoming and that the delay was attributable in part to
Kyeremeh’s ongoing treatment, Herbst flatly stated that the USPS “cannot keep this claim
open for an extended amount of time without documentation in support thereof[,]” and
denied Kyeremeh’s claim for failure to “submit competent evidence of injury.” [Id.] Herbst
said that Kyeremeh could either file suit in federal court or submit a request for
reconsideration of its decision.
On July 1, 2011, Frankl filed a new claim with the USPS on Kyeremeh’s behalf seeking
$1.3 million in damages and attaching supporting medical records and bills. [Doc. 29, Ex.
3.] The USPS responded on July 7, 2011, stating that it would deem the new claim as a
“request for reconsideration” of its February 14, 2011 decision and it would “review the
additional information you provided in order to make the determination as to any legal
liability on the part of the Postal Service for the injuries sustained by your client.” [Doc. 29,
Ex. 5.] The USPS denied Kyeremeh’s request for reconsideration on November 16, 2011 in
a letter from USPS attorney Stanford Bjurstrom, who said that, based upon a review of the
information set forth in Kyeremeh’s claim file, “we feel that this claim involves issues best
resolved in court.” [Doc. 29, Ex. 6.] In the one year and three months that had passed since
Kyeremeh initiated the USPS’ FTCA administrative process, that was the only statement the
USPS made regarding the actual substance of Kyeremeh’s claim.
The USPS did not appear to consider Kyeremeh’s physical condition or her financial
circumstances when it evaluated her claim. The USPS’s obdurate refusal to attempt to
resolve the matter forced Kyeremeh to initiate this action, and, in the meantime, seek medical
treatment without access to high-quality care. One may wonder what her present condition
would be if the USPS had given attention to her needs at the time it became aware of her
At the scene of the accident on May 14, 2010, Kyeremeh told Officer Curtis Franklin of
Denver Police she was not injured. When she was examined at the Emergency Department
of Denver Health Medical Center, she was diagnosed with cervical strain1 and low back pain.
An x-ray of Kyeremeh’s lumbar spine2 was unremarkable. Her emergency room physician
recommended that she take over-the-counter medication. Kyeremeh returned to Denver
Health two days later, complaining of extreme pain. She was given a cervical collar to wear
and prescriptions for Percocet and Valium to treat the pain.
Kyeremeh’s first therapy provider was Dr. Tracy Holmes, a chiropractor. Kyeremeh saw
Dr. Holmes on a lien basis3 beginning on May 17, 2010. Kyeremeh initially reported
functional limitations, pain in many areas, numbness and tingling, and weakness.
Holmes observed that Kyeremeh had a decreased range of motion, muscle strain in the
lumbar region, and severe muscle spasms throughout her spine and in her arms. Holmes
performed muscle stimulation and adjusted Kyeremeh’s back. Thereafter, Kyeremeh visited
Holmes approximately three times per week for almost a year.
Following the accident, Kyeremeh’s Taurus was deemed a total loss. Kyeremeh rented a
replacement vehicle for roughly three weeks. She then purchased another car.
“Cervical” refers to a person’s neck area.
“Lumbar” refers to a person’s lower back region.
Health-care providers who see a personal-injury claimant on a lien basis provide the claimant up-front care free of
charge in exchange for an interest in the claimant’s ultimate recovery from the party at fault.
On or about May 21, 2010, Kyeremeh returned to work as a janitor for ProSource, a
cleaning company, on ProSource’s contract with a medical device company called the Sorin
Group. Kyeremeh worked light duty and reduced hours because of her physical limitations.
Following a May 28 chiropractic visit, Dr. Holmes noted inflammation and swelling in
the soft tissue of Kyeremeh’s back.
On June 1 and 15, 2010, Kyeremeh went to the emergency room at St. Joseph’s Hospital
reporting pain all over her body and difficulty moving. On her second visit, she was given a
prescription for Percocet and Flexeril. Dr. Holmes noted on June 23 that Kyeremeh was
“feeling like she did after the accident” and recommended that Kyeremeh see a primary care
Based on Dr. Holmes’ referral, Kyeremeh began receiving medical treatment at
PremierCare on a lien basis. She first saw Dr. Joseph Ramos, who owned PremierCare,
practiced medicine there, and owned MedLaw Funding, LLC, a medical lien provider
through which parts of Kyeremeh’s care were financed. Dr. Ramos is also a practicing
lawyer. Kyeremeh received an initial intake exam from Dr. Ramos and physician’s assistant
Jim Peterson on July 6, 2010. She reported significant pain in her head, neck, back, and
shoulders. Diagnostic tests indicated a lumbar disc issue. Peterson referred Kyeremeh for
physical therapy and prescribed her painkillers and muscle relaxants.
At a July 12, 2010 visit with Dr. Holmes, Kyeremeh reported severe pain; Dr. Holmes
noted that it reminded her of Kyeremeh’s first week of treatment. When Kyeremeh received
the medications prescribed by Peterson, she reported a 30%-40% improvement to Dr.
On July 23, 2010, Dr. Holmes observed that Kyeremeh was limping, which Holmes
believed was caused by a disc injury.
An MRI was performed on Kyeremeh’s lumbar spine on August 13, 2010. The results
were read as normal except for a small central disc bulge at the L4-5 and L5-S1 levels.4
Kyeremeh began receiving physical therapy on August 31, 2010. Kyeremeh reported
pain and was noted as having significant range of motion deficits, hypertonicity throughout
her spine5, and spasms throughout her back and shoulders. A compression test indicated
injury to Kyeremeh’s cervical disc. Kyeremeh received heat, electrical stimulation, massage,
and performed various exercises during her physical therapy sessions, which totaled roughly
40 overall from late August 2010 until late January 2011.
Following a September 17, 2010 chiropractic visit, Kyeremeh reported significant pain.
Dr. Holmes began to believe that the adjustments she had been performing were not working.
Five days later, upon reviewing Kyeremeh’s MRIs, Dr. Holmes concluded that Kyeremeh
had herniated discs.
Dr. Holmes decided to suspend adjustments and instead perform
decompressions on Kyeremeh’s spine over the course of twelve, twenty-minute sessions.6
An MRI was performed on Kyeremeh’s cervical spine on September 28, 2010. The
results were read as normal except for a small disc protrusion at the C5-6 level.
During an October 4, 2010 visit with Dr. Holmes, Kyeremeh said she “[hurt]
everywhere” and that her mental status was deteriorating. Dr. Holmes referred Kyeremeh to
Intervertebral discs act as cushions between the vertebrae.
Hypertonicity is an excess of muscular or arterial tone or intraocular pressure that can cause nerve impingement
and joint compression.
Decompression is a chiropractic treatment in which a machine pulls spinal vertebrae apart to relieve pressure on
Kyeremeh visited PremierCare on October 25 and reported tenderness in the muscles
over and around her facet joints.7 Jim Peterson noted Kyeremeh had an extremely limited
range of motion and an increase in lower back pain when he applied pressure, which
indicated facet dysfunction.
Kyeremeh began receiving acupuncture treatment on November 2, 2010. She attended
10 acupuncture sessions over the course of a year and three months, until February 15, 2011.
On November 4, 2010, Dr. Holmes spoke with Jim Peterson, who recommended that
Kyeremeh receive injections into her facet joints.8
The two decided that Dr. Holmes’
continued decompressions, as well as adjustments of Kyeremeh’s thoracic spine9, would
work in tandem with the injections. Holmes decided on twelve more decompression sessions
around this time.
Dr. Paul Leo, a PremierCare-affiliated pain management specialist, examined Kyeremeh
on November 18, 2010, a little over six months following the accident. He concluded that
she had a facet injury or dysfunction. He concurred in the recommendation that she be given
Following a decompression session with Dr. Holmes on November 24, 2010, Kyeremeh
reported pain and difficulty sitting up. That same day, Dr. Holmes decided that six more
decompression sessions were warranted.
Dr. Leo performed bilateral injections to Kyeremeh’s lumbar facets on December 3,
2010. Kyeremeh reported significant improvement and was able to stand and move around
Facets are joints that connect spinal vertebrae to one another.
Injections involve injecting a small amount of local anesthetic and/or a steroid medication into the facet to numb
the pain and reduce inflammation.
“Thoracic” refers to the chest or thorax.
Two weeks later, Dr. Leo found minimal tenderness and spasm in
Kyeremeh’s lumbar area. He noted, however, that Kyeremeh had gluteal spasms; tenderness
over her sacroiliac joints10; and pain, tenderness and spasms in her cervical spine area.
Following a decompression session with Dr. Holmes on January 12, 2011, Kyeremeh
reported pain and difficulty sitting up.
Eight days later, and upon Dr. Holmes’ referral, Kyeremeh began seeing Dr. Trina
Seefeldt for psychological treatment on a lien basis. Following Kyeremeh’s first visit, Dr.
Seefeldt noted that Kyeremeh was experiencing anxiety, depression, and symptoms of
posttraumatic stress, particularly while driving.
Dr. Leo performed injections to Kyeremeh’s sacroiliac joints and to trigger points in the
lumbar and gluteal areas on January 14, 2011.11 Kyeremeh reported initial relief after the
injections but soon began feeling pain, spasm and tenderness; her complaints were consistent
with a cervical facet problem. Dr. Leo recommended cervical facet injections “as soon as
possible” and that Kyeremeh continue with physical therapy and massage until her lumbar
spasms remained improved.
In February 2011, Dr. Ramos sold PremierCare to HealthPoint, which took over the
management and operation of PremierCare’s medical practice.
Contrary to Dr. Leo’s
recommendation, Kyeremeh did not receive physical therapy for the next nine months due to
concerns with the financial status of her case.
Jim Peterson, who stayed at HealthPoint following the sale, saw Kyeremeh on February
22, 2011. Kyeremeh reported ongoing pain in her head, neck, back, shoulders and elbows.
The sacroiliac joints lie next to the spine and connect the sacrum with the hip on both sides. The sacrum is a
triangular bone at the base of the spine that is situated between the two hip bones.
Trigger points are knots of muscles that form when muscles do not relax.
Peterson noted that Kyeremeh was scheduled for repeat injections with Dr. Leo, but
expressed skepticism about that approach, as Kyeremeh “did not receive significant relief”
from the injections in the past. Peterson recommended that Kyeremeh be re-evaluated.
Dr. Holmes released Kyeremeh from chiropractic treatment on April 6, 2011, noting:
“She is not well. Her condition remains the same. She improves some but then seems to
regress. I believe there is some disability and I will recommend to her attorney a disability
rating.” By the Court’s count, Kyeremeh visited Dr. Holmes on 85 separate occasions from
May 2010 until April 2011.
On April 11, Kyeremeh saw Dr. Christine Connolly, a family physician at HealthPoint.
Kyeremeh reported daily headaches and pain in her neck and lower back. Connolly noted
Dr. Leo’s recommendation for more injections, but said “there is some concern about the
financial status of the case.”
Dr. Connolly drafted a narrative report of Kyeremeh’s case on April 25, 2011. Connolly
stated that Kyeremeh’s MRIs showed slight disc bulging in her lumbar spine area and a disc
bulge in her cervical spine area. Connolly noted that Kyeremeh was not at maximum
medical improvement and that she (Connolly) anticipated Kyeremeh having permanent
Two days later, Kyeremeh saw Dr. James Gibson, a neurologist affiliated with
HealthPoint. Kyeremeh described constant neck pain and low back pain. Upon examining
her and reviewing her medical records, Gibson believed that chronic muscle spasms were
causing pain in her neck and upper back, headaches, numbness, and tingling; he also
believed there was a facet joint component to her neck, upper back, and lower back pain. He
noted that she was not a surgical candidate.
Dr. Connolly reported on May 2 that more injections were approved by Kyeremeh’s
medical finance provider.
In early and mid-May, around the one-year anniversary of Kyeremeh’s accident, Dr.
Gibson performed EMG tests12 of Kyeremeh’s neck, upper back, and lower back; the tests
came back normal, which suggested Kyeremeh did not have nerve damage, leaving her
facets as the likely source of her problems. Gibson also became concerned that myogenic
thoracic outlet syndrome, which involves the compression of spasming muscles on nerves,
was causing numbness and pain in Kyeremeh’s extremities. He also noted that Kyeremeh
had a moderately severe, chronic case of myofascial pain syndrome in her cervical and upper
Dr. Leo performed an injection to facets in Kyeremeh’s cervical spine area on June 22,
2011. She did not report much relief.
Kyeremeh’s attorney, Mr. Frankl, filed a new notice of claim on her behalf with the
USPS on July 1, 2011.
Kyeremeh’s psychological care with Dr. Seefeldt ended on August 15, 2011, after
approximately 23 visits over the course of seven months. Dr. Seefeldt’s closing summary
noted lingering symptoms of depression, anxiety, and posttraumatic stress disorder, though
her PTSD was in partial remission.
Those findings were based in significant part on
Kyeremeh’s own self-assessments.
On October 13, 2011, Dr. Gibson saw Kyeremeh and recommended that she undergo
physical therapy. Gibson did not see Kyeremeh again until October 2012.
An EMG test evaluates and records electrical activity produced by skeletal muscles to determine nerve and muscle
Myofascial pain syndrome is a chronic pain disorder caused by trigger points in muscles.
Dr. Connolly saw Kyeremeh on November 14, 2011. Kyeremeh reported that physical
therapy and acupuncture were helping. Two days later, the USPS denied Kyeremeh’s claim.
Kyeremeh was involved in a physical altercation with her daughter at their home on
November 28. Kyeremeh’s hair weave was pulled out, she threw punches and brandished an
iron, and she was punched and shoved.
During two visits in early December 2011, Kyeremeh reported to Connolly that she
(Kyeremeh) was having spasms throughout her back, more-frequent headaches, significant
increase in lower back pain, and substantial tenderness on her left side.
Kyeremeh filed this action on December 21, 2011.
Kyeremeh reported to Dr. Connolly on January 9, 2012 that her symptoms from early
December had since improved.
Dr. Connolly performed trigger point injections on Kyeremeh’s left side on February 2,
Kyeremeh reported immediate improvement in pain.
physical therapy following the injection to help Kyeremeh’s recovery. Kyeremeh did not
receive that therapy.
In February of 2012, Kyeremeh went on vacation to Las Vegas with her then-husband.
She did not report to work for two days and did not give her supervisors advance notice that
she would be absent. Her employment with ProSource was terminated.
During a visit on March 7, 2012, Kyeremeh told Dr. Connolly that she lost her job
because she took time off for “pain problems.” In the seven months following that visit,
Kyeremeh did not receive health care of any kind.
Kyeremeh saw Dr. Gibson on October 4, 2012. Gibson assessed her condition as about
the same as it had been when he saw her a year before. Kyeremeh reported being in pain at a
level of 5 out of 10. Following that visit, Kyeremeh did not receive primary care or see a
specialist for fifteen months; she visited emergency rooms at various times, as described
In February 2013, Kyeremeh began working as a telephone researcher at the Discovery
Research Group. Her employment was terminated a month later due to absenteeism.
On March 8, 2013, Kyeremeh was stopped by a police officer who saw her using a cell
phone while riding a moped in traffic. After the stop, she assisted the officer in pushing a
stalled automobile out of traffic and into a parking lot. A videotape of this activity is in
evidence and Kyeremeh appears to have no difficulty with her physical movements.
Kyeremeh went to the University of Colorado Hospital on August 13, 2013 reporting
substantial back pain, difficulty walking, and difficulty changing position.
Kyeremeh returned to the Discovery Research Group in September 2013. She did not
encounter meaningful limitations on her work there, nor did she require special
accommodations. Kyeremeh’s employment was terminated two months into her tenure
because she improperly accessed a client’s confidential account.
On February 1, 2014, Kyeremeh was evicted from her home. Postal Service inspectors
who had been conducting periodic surveillance on Kyeremeh since August 2013 filmed her
carrying furniture and boxes and otherwise ambulating without meaningful limitation while
she moved out of her house. Two days later, Kyeremeh went to St. Joseph’s Hospital and
reported lower back pain but subsequently left without receiving treatment or medication.
On February 5, Kyeremeh went to University of Colorado Hospital complaining of stabbing
pain in her lumbar spine and sacroiliac joint.
When Kyeremeh became eligible for Medicaid, either in late 2013 or early 2014 (it is
unclear when, exactly), she began receiving primary care through Kaiser Permanente.
Doctors at Kaiser examined her in March 2014. Kyeremeh informed the doctors that she
might have pulled a muscle while moving out of her house the month before. The doctors
noted that Kyeremeh has chronic back pain. They ordered physical therapy and prescribed
her anti-inflammatories, muscle relaxants and anti-depressants.
Kyeremeh was prescribed medication in different amounts and combinations throughout
the course of her treatment.
None of her doctors reported that she was abusing her
prescriptions. Kyeremeh went without medication for extended periods during that time.
Kyeremeh seeks the following damages from the government caused by the May 14,
the value of her car and the reasonable rental rate of her temporary
replacement vehicle; past medical expenses; future medical expenses; loss of income; loss of
earning capacity and vocational retraining; and pain and suffering.
1. Value of Kyeremeh’s car and rental car
The parties have stipulated that the value of Kyeremeh’s car was $12,000.
Kyeremeh seeks the reasonable rental value of a replacement car at a rate of $210 per
week. The evidence shows she rented a car for three weeks, which entitles her to $630.
2. Past medical expenses
Kyeremeh has submitted medical bills totaling $104,987.21, which includes interest on
the medical liens against her. The government claims that Kyeremeh is a malingerer who
has not been truthful in describing her symptoms and has consistently exaggerated her pain
complaints far beyond the objective evidence of her injuries, resulting in excessive,
inappropriate, and unnecessary treatment.
The government relies on the testimony of Dr. Neil Pitzer, who conducted an
independent medical examination (“IME”) of Kyeremeh in August 2013 and reviewed her
medical records. In his opinion, the expected result of the trauma from the type of collision
Kyeremeh was involved in is pain that is resolved within twelve to sixteen weeks. Dr. Pitzer
opined that none of Kyeremeh’s diagnostic tests show objective evidence that she has any
bodily injury that would cause the continuing pain she complains of, or require the care and
treatment that has been provided to her.
The Court is skeptical about the testimony of Dr. Holmes, Dr. Ramos, and the physicians
who saw her as independent contractors working with PremierCare and HealthPoint, since
payment for their services largely depends upon her recovery in this case. The fact that their
records consistently include comments on causation heightens that skepticism.
nonetheless improbable that all of the medical professionals who have seen and treated Ms.
Kyeremeh have been misled by her or are complicit in her pursuit of a large damages award.
Those physicians noted their belief that there were objective signs of injury during the course
of Kyeremeh’s treatment. Muscle spasms were noted by Drs. Leo and Gibson. Positive
facet loading tests were reported by Jim Peterson. Multiple providers viewing Kyeremeh’s
MRIs concluded that she had disc problems. There is also testimony from Pastor James
Royston, Bill Dalesio, Jim McLennan, Reina Cardoza, and Kyeremeh’s two children that
Kyeremeh has shown the limiting effects of pain, both physical and emotional, since the
The preponderance of the evidence in this case supports a finding that the injuries
Kyeremeh sustained when she was hit by the USPS truck resulted in pain in her neck and
back and in emotional distress that required treatment. That treatment has been problematic.
Kyeremeh’s financial circumstances and USPS’ irresponsible denial of her claim required
that she seek medical care on a lien basis; concerns over finances interrupted her treatment;
and, in hindsight, some of the treatments she received were likely counterproductive or
misdirected, the continuation of chiropractic care for 85 visits in spite of ongoing pain being
the prime example. Colorado law does not permit the government to escape liability by
contending that her treatment was substandard. See Redden v. SCI Colo. Funeral Servs.,
Inc., 38 P.3d 75, 81 n.2 (Colo. 2001) (“Colorado case law does not absolve tortfeasors of
liability when the plaintiff's injuries result from medical treatment reasonably sought and
directly related to the actions of the original tortfeasor.”)
Kyeremeh’s post-accident conduct must still be considered.
There are significant
discrepancies between her activities and what she told her care providers. For example,
during Kyeremeh’s physical altercation with her daughter in November 2011, Kyeremeh
made movements, including raising her arms above her head, which went beyond the range
of motion she claimed to be capable of. There is also the March 2013 traffic stop, where
Kyeremeh was observed speaking on a cell phone while riding a moped, and helped the
stopping officer push a car from traffic; and her February 1, 2014 move, where Postal
Inspectors saw her lifting heavy furniture and moving without apparent difficulty. These
events indicate that she exaggerated her condition to her treatment providers, which in turn
led to exaggerated amounts of care. It is also apparent that Kyeremeh failed to make a
genuine effort to demonstrate her full physical capacity during her IME with Dr. Pitzer.
In addition, Kyeremeh was not a patient who conducted herself according to the medical
advice she received.
Kyeremeh’s November 2011 altercation with her daughter likely
caused stress on Kyeremeh’s neck (her hair weave was pulled off) and her body in general,
which is reflected in the discrepancies between Kyeremeh’s reports to Dr. Connolly
concerning her condition before and after the incident. She aggravated her back while
moving heavy furniture in February of this year, as shown by her visits to the emergency
room on February 3 and 5 and her admission to the Kaiser doctors that she may have pulled a
muscle. She smokes and does not exercise regularly, which has led to substantial weight
gain. Although the eggshell rule does not excuse a tortfeasor from paying for injuries that
differ from what would normally be expected from an accident because of the unique
vulnerabilities of the injured person, it does not excuse the injured person from carelessly
engaging in conduct that exacerbates the conditions causing pain.
Because the preponderance of the evidence shows that Kyeremeh exaggerated and
exacerbated her condition, she shares some responsibility with the government for her past
medical expenses. The complexity and volume of Kyeremeh’s medical records does not
permit the Court to precisely apportion responsibility between the parties. Using its best
approximation of relative causation, the Court will reduce Kyeremeh’s claimed damages for
past medical expenses by twenty percent, leaving $83,989.77 as the amount of the award.
3. Future medical care
At Mr. Frankl’s request, Dr. Pamela Knight performed an IME of Kyeremeh in June
2013, a little over three years after the collision. Dr. Knight physically examined Kyeremeh,
spoke to Kyeremeh, and reviewed her medical records. Dr. Knight concluded that Kyeremeh
had a central disc bulging at L4-5 and L5-S1, causing inflammation that was causing her
numbness, pain, and weakness in her extremities; and a disc protrusion in her cervical spine,
causing inflammation and pain in her neck. Dr. Knight’s opinion is that Kyeremeh needs
pain management care well into the future, which will include: 6 to 8 physician visits per
year for 20 years at a cost of $1,800 – $3,600; 2 x-rays per year for 20 years ($12,000); 6 to 8
sets of cervical and lumbar x-rays over her lifetime ($12,000 – $16,000); 5-6 series of lumbar
steroid epidural injections over her lifetime ($30,000 – $42,000); 4-5 series of cervical
steroid epidural injections over her lifetime ($24,000 – $35,000); 50 physical therapy visits
over her lifetime ($3,750 – $7,500); a health club membership for three years ($1,800); and
additional lumbar and cervical facet injections ($6,000 - $8,000). That adds up to a range of
$91,350 – $125,900 in costs for Kyeremeh’s medical follow through. Dr. Knight puts the
cost of Kyeremeh’s pain and anti-inflammatory medication at $10,044 – $16,632 per year
and states that Kyeremeh will need that medication for the remainder of her life. Dr. Knight
also seeks 20 to 30 Medrol Dosepaks to cover the remainder of Kyeremeh’s life ($560 $840). There has been no evidence of Kyeremeh’s life expectancy.
The preponderance of the evidence, giving particular weight to Dr. Knight’s testimony,
shows that Kyeremeh will probably need pain management well into the future as a result of
The extent and duration of Kyeremeh’s required care is not clear.
predictions of a patient’s future care needs are necessarily somewhat speculative.
Accounting for that uncertainty, the Court will limit Kyeremeh’s possible recovery to
$250,000, which is roughly the 20-year cost of Kyeremeh’s future medical monitoring,
treatment, and medication based on the conservative end of Dr. Knight’s estimates.
Kyeremeh’s future medical expenses are subject to the exaggeration and exacerbation
considerations discussed in the section above. In forming her opinion, Dr. Knight relied on
Kyeremeh’s self-assessment in June 2013 and accepted Kyeremeh’s self-reports in her
medical records as valid. As discussed, Kyeremeh’s descriptions of her pain and physical
limitations are problematic. Kyeremeh’s future medical needs are also the partial result of
her own conduct exacerbating her condition. The same apportionment of causation made for
Kyeremeh’s past medical expenses is therefore appropriate to apply to her future expenses.
Dr. Knight noted that some of Kyeremeh’s future needs will result from the normal aging
process, as well, which warrants a further reduction.
Accordingly, the Court will reduce its award of Kyeremeh’s future medical expenses by
thirty percent. Kyeremeh is entitled to $175,000 in future medical expenses.
4. Lost income
The parties have stipulated that Kyeremeh is entitled to $715 in lost earnings for the work
days she missed following the accident.
Kyeremeh testified that, before the accident, she worked at ProSource for 55 hours per
week on an hourly wage and earned approximately $3,000 in monthly income. Following
the accident in May 2010, she worked reduced hours and earned only $2,100 per month.
That continued through February 2012; Kyeremeh’s employment was terminated one month
later. For the $900 per month income differential over the course of 21 months, Kyeremeh
The testimony of Dan Pace with Sorin Group and Jim McLennan of ProSource shows
that Kyeremeh’s ability to perform full-duty custodial work was limited by her physical
condition following the accident, which required her to go on light duty and reduce her
hours. Accordingly, the evidence shows a causal link between Kyeremeh’s accident and a
reduction in her income during the remainder of her employment with ProSource.
Kyeremeh’s claim of pre-accident monthly income is contradicted by her tax returns in the
report of her vocational expert, Patrick Orbino. In 2008, Kyeremeh reported gross earnings
of $29,913, and in 2009, the year before the accident, Kyeremeh reported gross earnings of
$30,765, or $852 more than in 2008. She earned $29,913 in gross income in 2010, $26,755
in 2011, and $3,955 in the first two months of 2012, before she was fired. The following
calculation is warranted:
EARNINGS IF NO
($852 more than in 2009)
($852 more than in 2010)
($33,321 annual income
($852 more than in 2011),
divided by 12, multiplied
Accordingly, Kyeremeh is entitled to $9,016.50 in lost earnings for the 21 months she
worked light duty at ProSource following the accident.
5. Vocational retraining and lost earning capacity
Kyeremeh seeks $420,000 in damages for lost earning capacity and $12,000 for
Dan Pace and Jim McLennan each testified that Kyeremeh was physically limited when
she returned to work, and McLennan noted that he was not getting the same value from her
when she came back. Nonetheless, the Court is not persuaded that Kyeremeh was fired
because of those limitations, or that, as Kyeremeh seems to insinuate, McLennan’s
justification for firing her was a pretext for his dissatisfaction with her post-accident work
performance; indeed, Mr. McLennan retained Kyeremeh and accommodated her
circumstances for nearly two years following the accident. The fact is that Kyeremeh was
fired in March 2012 because she decided to skip work and go to Las Vegas without notice.
The government should not be made to pay for the consequences of that poor decision.
According to Patrick Orbino, Kyeremeh is no longer physically capable of janitorial-style
work, and should be limited to sedentary work which does not require extended periods of
standing, walking, bending, twisting, lifting, pushing or pulling. This will likely limit her
employment opportunities, which were already limited by her criminal record, limited
education, and spotty employment history. Thus, Orbino recommends that Kyeremeh pursue
vocational retraining that will give her the skills she needs to maintain sedentary
There is no connection between the accident and Kyeremeh’s ability to obtain and
maintain a sedentary job.
Kyeremeh was able to maintain light-duty employment at
ProSource until she was fired for going to Las Vegas without notice. Kyeremeh was able to
twice obtain a sedentary position with the Discovery Research Group. Although she told Mr.
Orbino she was unable to sustain the position because it required prolonged sitting and
because she was in pain, the fact is that she was fired because of absenteeism on one
occasion, and because she violated client confidentiality on another. That has nothing to do
with her physical limitations and everything to do with her inability to follow the rules of her
employer. In that regard, the Court notes that Kyeremeh was regularly late for her own trial.
Kyeremeh’s other problem in proving loss of earning capacity is the methodology
underlying Orbino’s report. For example, Orbino assumes Kyeremeh will not be able to
work for two years, even on a limited and part-time basis, and thus adds $60,000 in lost
earning potential to the equation ($30,000 per year in lost income).
Orbino does not
adequately explain why he makes that assumption. It took Kyeremeh one year of unknown
diligence in searching to find work at Discovery Research Group. Orbino also assumes
Kyeremeh will only be able to find work that pays her between $12,000 and $20,000 a year
on average, but again, he does not persuasively justify his position. In the Court’s view,
Orbino’s report is too speculative, even for a loss-of-earnings assessment.
The Court declines to award Kyeremeh damages for vocational retraining and loss of
6. Pain and suffering
Kyeremeh seeks $230,000 in pain and suffering—$180,000 for past pain and suffering
and $50,000 for future pain and suffering.
The government’s position throughout the case has been, essentially, that Kyeremeh is
faking it, citing Kyeremeh’s “dancing” in the Sorin Group break room post-accident, her
March 2012 moped ride, and her February 2014 move. There are good and bad days when it
comes to pain. The Court does not doubt that the accident and its resulting fallout have put
significant strain on Kyeremeh personally and on her relationship with her family.
While Kyeremeh has proven by a preponderance of the evidence that she has endured
pain and suffering, and will have pain in the future, an appropriate pain-and-suffering award
For the foregoing reasons, the Court finds and concludes that Plaintiff Levette Kyeremeh
shall have and recover damages from Defendant United States of America in the amount of
Dated: June 5, 2014.
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch
Senior District Judge
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