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June 20, 1986

Mir M. Yosuf, Plaintiff
United States of America, Defendant

Muir, District Judge.

The opinion of the court was delivered by: MUIR

MUIR, District Judge

I. Introduction.

 On June 9, 1983, Yosuf M. Mir filed the complaint in this action pursuant to the Federal Tort Claims Act, 28 U.S.C. ยง 2671 et seq. in the United States District Court for the District of Columbia. By order of December 2, 1983, the Honorable Thomas Penfield Jackson transferred this action to this Court. Mir's complaint arose from an incident in which Mir fell at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania. As a result of the fall, Mir injured his left arm, wrist, and hand. Mir alleges that the Bureau of Prisons refused him adequate and proper treatment for the injuries sustained by him. The liability phase of the case was tried to the Court from January 16 through January 29, 1986. By opinion of March 7, 1986, 642 F. Supp. 415, we concluded that the Bureau of Prisons was a proximate cause of the injury to Mir and liable for damages flowing from that injury.

 The damages stage of this case was tried to the Court from May 20, 1986 through May 27, 1986. Our findings of fact, conclusions of law, and discussion as to damages follow. Our Findings of Fact beginning with No. 138 are sequential to the 137 facts found in the liability stage of this matter. Those facts which are undisputed will be followed by "U."

 II. Findings of Fact.

 138. Mir's severely decreased use of his left hand has continued up to the present despite the prescription of isometric exercises and an arm immobilizer.

 139. Mir suffers from numbness in the fingers of his left hand, painful limitation of motion of the fingers and wrist of the left hand, and occasional headaches.

 140. Mir keeps his left wrist and fingers in a flexed position and is unable readily to open the fingers or bend the wrist. The fingers can be opened passively and the wrist moved passively but such movements are painful. For all practical purposes, Mir is currently suffering from a 100 percent disability of the left hand and wrist and a substantial disability of the arm.

 141. Mir's inability to use his left hand is at least partially psychogenic.

 142. Mir has a chronic pain type syndrome and a complex problem with the left upper extremity.

 143. The objective medical evidence does not account fully for the stiffness and lack of motion in the wrist and fingers.

 144. Mir's treating physician, Orthopedic Surgeon Dr. Douglas Sanderson, recommends that Mir receive repeat EMG studies, followed by surgery to release the left median and ulnar nerves which, if successful, will reduce by approximately 50 percent the pain and numbness which Mir presently has in his left hand and wrist. (Undisputed, hereafter "U").

 145. The decreased discomfort resulting from successful surgery may better enable Mir to perform exercises designed to strengthen the muscles in the left wrist and hand and otherwise to carry out a course of rehabilitation.

 146. Although Mir testified that he has exercised his hand and wrist since release from prison, he has made no ascertainable progress, and indeed appears to have regressed, which is due in large part to his psychogenic difficulties and low threshold for pain.

 147. Even with the recommended course of treatment, there is little chance that Mir will regain 100% function of his left hand and wrist.

 148. With the recommended course of medical treatment, the chances are fair that Mir will regain substantial function in his left hand and wrist such that he may be able to use that hand and wrist for short periods of time in vocational and avocational pursuits.

 149. If, promptly upon his release from custody, Mir had obtained proper medical treatment, he should have regained substantial use of his left hand and wrist.

  150. Mir's explanation of why he did not seek a more rigorous course of treatment was not credible.

 151. Mir's treating physician feels that, at best, Mir will be able to perform only light or sedentary duties, and in a position where extended use of the left upper extremity is not required. (U)

 152. In addition to the medical treatment recommended, both the treating physician and a vocational psychologist who examined Mir recommend that he undergo psychological counselling for a period from six months to one year. (U)

 153. For several months following his wrist injury on or about August 31, 1980, and while incarcerated in the segregation unit at the Lewisburg Penitentiary, Mir suffered from pain in his left wrist, as well as numbness in the fingers of the left hand and in the left hand itself. The pain was exacerbated by the refusal of the medical personnel to give Mir pain medication.

 154. During these initial months, the pain and numbness caused frustration in Mir and affected his ability to sleep.

 155. After several months, the pain decreased, but Mir continued, and continues through the present, to have pain upon movement of the left fingers and wrist.

 156. Changes in the weather aggravate somewhat the pain in Mir's left fingers and wrist.

 157. Mir suffers from the numbness in the fingers of the left hand which is a constant source of irritation and which adversely affects his sleep.

 158. Mir's attempts to minimize the pain by keeping his left hand flexed and without movement has also resulted in general decreased use of the entire left arm.

 159. Presently, Mir suffers from occasional severe headaches as a result of his injury.

 160. From the time of his accident through his release from custody in January, 1983, and from his release through the present, Mir has not used his left hand for anything except the bracing of objects.

 161. In August, 1985, Mir's treating physician prescribed an arm immobilizer which is a sling-type device. Mir wears the arm immobilizer most of the time, including while sleeping, which is more often than prescribed by his physician.

 162. The pain and loss of use of the left hand and wrist have had various psychological effects upon Mir such as anger, frustration, and occasional depression.

 163. Prior to his disability, Mir actively engaged in various athletic pursuits such as weight lifting, swimming, basketball, tennis, and soccer.

 164. Prior to his disability, Mir actively engaged in various woodworking and home remodeling projects.

 165. As a result of his disability and pain, Mir is no longer vigorously able to pursue any of these activities.

 166. As a result of the inability to use his dominant hand, Mir has difficulty in performing such simple tasks as dressing himself, using eating utensils, writing, performing routine household chores and household maintenance.

 167. Mir's disability has also interfered with his religious activities and customs. As a "Said" (direct descendant of Mohammed) in the Islamic faith, Mir is particularly affected by the inability to use his left hand. In the Islamic culture, the left hand is used for toilet purposes while the right hand is used for eating out of common bowls or plates. Thus, an individual without the use of his left hand is not necessarily welcome in the higher circles of Islamic society. Additionally, followers of Islam pray five times per day with head and both hands on the floor. Mir's inability to place his hands on the floor while in the praying position has caused him to withdraw from engaging in group religious activities in which he formerly engaged.

 168. Mir's pain, suffering and loss of enjoyment of life will continue indefinitely.

 169. Even if the medical treatment recommended by his physician achieves the maximum expectations, Mir will have some numbness in his fingers and will have discomfort upon using his left hand for long periods of time.

 170. Mir has been taking pain medication since he began treating with Dr. Sanderson, and will continue on that medication at least through the recommended surgery and recovery therefrom. (U)

 171. During the time that Mir's left hand has been in the flexed position, from a few weeks after the August 31, 1980 accident through the present, said position of the hand constitutes a disfigurement.

 172. Mir's disfigurement may be eliminated or reduced if the recommended medical treatment achieves its maximum benefits.

 173. In a letter submitted to the court which sentenced Mir in September, 1979, the individual who supervised Mir as an engineering aide described him as an outstanding employee who was honest, open, hard working, and quite reliable, and one the supervisor would not hesitate to rehire.

 174. Because of the disability of his left hand and wrist, Mir has been unable to engage in any of the above occupations, from the time of his release from custody in January 1983 through the present.

 175. Mir is currently working as a telephone answering clerk for the woman he intends to marry at the minimum wage rate of $3.35 per hour.

 176. Mir has applied to some universities and embassies for a job utilizing Mir's ability to speak foreign languages. He has been refused employment.

 177. Even with the maximum improvement which could be expected from the suggested medical treatment, Mir's earning capacity will continue to be low because of his physical disability, educational disadvantage, cultural differences, prison record and communication deficiency.

 178. While Mir was in the United States during the years 1971 and until his incarceration in August, 1979, he was supported primarily by contributions or an allowance from his father, a wealthy man in Afghanistan.

 179. As an immigrant to the United States, he has not been able to integrate himself well into his adopted culture.

 180. Mir has had difficulty with vocational adjustments as well as personal adjustment.

 181. In late 1979, the Soviet Union invaded Afghanistan, and from that time through the present, Mir has had no contact with his immediate family and has not received the monetary support which his father had provided to him prior to the invasion.

 182. Because of the loss of contact with his family and the loss of the financial support, while incarcerated at Allenwood Federal Prison Camp in 1980 and prior to the injury to his wrist, Mir was forced to consider how he would support himself upon his release from incarceration.

 183. While incarcerated at Allenwood Prison Camp in 1980, Mir became good friends with a fellow inmate by the name Carlo Castoro, who had an interest in a machine shop named Minutemen Precision Machining, Inc., located on Long Island, New York. (U)

 184. During 1980, Mir and Castoro discussed their futures, and Castoro urged Mir to come to Long Island to learn the machinist trade, and offered Mir a job with Minutemen as a machinist trainee. (U)

 185. In February, 1982, Castoro formalized the above noted discussions by writing Mir and indicating upon Mir's release from incarceration, he would be hired as a machinist trainee at Minutemen if he were physically fit. (U)

 186. Upon Castoro's release from incarceration in approximately August, 1980, Castoro was the Vice-president and 30 percent shareholder of Minutemen. The remainder of the shares were owned primarily by Castoro's brother.

 187. In August 1985, Castoro left Minutemen to pursue other business opportunities in a Long Island, New York company performing similar work. He remains a 30 percent shareholder in Minutemen.

  188. Part of Castoro's duties while Vice-president of Minutemen was to hire all personnel, including machinist trainees.

 189. A machinist trainee was expected to learn to use milling machines and other types of machines used in a machine shop. (U)

 190. Machinist trainees and machinists have to have full use of both arms and hands, and Mir's disability has rendered him unable to accept the opportunity offered by Mr. Castoro. (U)

 191. Prior to his incarceration in 1979, Mir held a variety of jobs including the following: (1) hotel desk clerk and bellhop with wage rate of approximately $11,400.00 annually which would have paid approximately $14,400.00 as of 1984; (2) laborer loading and unloading trucks at an annual rate of approximately $16,800.00, which would have paid approximately $19,800.00 as of 1984; (3) an engineering aide with a surveying company with a wage rate of approximately $10,300.00 which would have paid approximately $12,000.00 as of 1984. (U)

 192. Mir's prior work history establishes that Mir has not retained any form of employment for a sustained period of time. It is unlikely that Mir would remain employed in any one place for a long time.

 193. Mir never completed a full degree program at any of the several schools in which he enrolled while in the United States.

 194. Mir lived in several states since he came to the United States.

 195. If Mir had been able to accept the machinist trainee position offered by Castoro, he would have started off in January, 1983 at $6.00, with annual increases of $2.00 per hour until he achieved the maximum rate of $18.00 per hour. (U)

 196. In addition to these hourly rates for a 40 hour week, machinists at Minutemen were expected to work approximately 10 hours overtime per week at "time and one-half" the hourly wage.

 197. Mir's prior work history makes it highly unlikely that he would have worked 10 hours a week overtime. 198. Using the above undisputed rates, had Mir not suffered from the disability, he could have expected the following annual salaries for the six years it is stipulated by counsel that he might reasonably work at this job, for 52 weeks each year at 40 hours per week for the years ending in the months set forth below, which figures do not reflect fringe benefits: (a) January 1984 at $6.00 per hour $ 12,480.00 (b) January 1985 at $8.00 per hour 16,640.00 (c) January 1986 at $10.00 per hour 20,800.00 (d) January 1987 at $12.00 per hour 24,960.00 (e) January 1988 at $14.00 per hour 29,120.00 (f) January 1989 at $16.00 per hour 33,280.00 (g) January 1990 at $18.00 per hour 37,440.00 Total $174,720.00


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