Published on:

The complainant also submits the affidavit of a chiropractor. The chiropractor conducted a computerized spinal range of motion exam and a computerized muscle strength test. The results of the tests indicated deviations from normal. The chiropractor states that in his opinion the complainant sustained spinal injuries and limitations to cervical range of motion. In addition, he opined that the herniated discs in complainant’s cervical spine, together with the resulting cervical radiculopathy and limitations to the cervical range of motion, are directly causally related to the automobile accident. He further states that it is possible that a pre-existing conditions, such as a degenerative conditions of the complainant’s spine related to his age, could be a factors which might have increased his vulnerable to the injury. However the factors by themselves would not be enough to explain the symptoms and limitations encountered during my examination and treatment of the complainant. Furthermore, it is his opinion that the injuries sustained by the complainant were such that they definitely and significantly reduced his functional capacity to perform his customary personal activities. The disabilities resulting from the complainant’s injuries manifested themselves following the accident and continued throughout the treatment of the complainant, and are likely to continue indefinitely.

The complainants also submitted the certified medical reports of another physician in support of their opposition to the opponent’s motion.

In reply to the complainants’ opposition, the opponent argue that in opposition, the complainant did not submit an affirmation from a treating physician, but rather came forward with the affirmation of the complainant’s treating chiropractor, which is insufficient to defeat the motion because he does not adequately address the complainant’s termination of treatment a year and half prior to chiropractor recent examination of the complainant, subsequent to the filing of the motion. The complainant’s chiropractor also does not address the two year gap in his treatment of the complainant which is less than two months after the spinal cord accident.

Published on:

This action arises from a motor vehicle accident occurred at approximately 5:30 p.m. The complainant asserts that the accident happened when his vehicle, moving slowly in stop, was struck in the rear by the opponent’s vehicle. The complainant claimed that the opponent admitted at his testimony that he did not see the complainant’s vehicle until the moment of collision and offered no explanation for the said incident other than his failure to pay attention to the road. The complainant asserts that the opponent was the negligent party and with that, he failed his duty to exercise reasonable care under the circumstances to avoid an accident. The complainant additionally argues that the opponent cannot come up with a non-negligent explanation for striking his vehicle.

In opposition to the complainant’s motion, the opponent argues that there were no brake lights illuminated on the complainant’s vehicle just before the accident.

Based on records, when the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle to exercise reasonable care to avoid colliding with the other vehicle. In addition, a rear-end collision with a stopped or stopping vehicle creates a case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to deny the inference of negligence by providing a non-negligent explanation for the collision. The vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. Lastly, the drivers must maintain safe distances between their cars and the cars in front of them and the rule imposes on them a duty to be aware of traffic conditions including stopped vehicles
As a result of the accident, the complainant claims that he sustained injury as defined in the insurance law and which fall within the following legal categories of injuries which includes a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system and a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the impairment. However, the opponent seeks dismissal on personal injury complaint on the ground that the complainant did not sustain a serious spinal injury.

The opponents assert that the complainant admitted in his testimony that he received minimal treatment after the accident in which it showed that he failed to sustain serious injury from the accident.

A board certified orthopedic surgeon conducted an examination to the complainant. He diagnosed the complainant with cervical strain. He also states that the complainant is capable of his full duty work as a real estate broker without restrictions and he is capable of his activities of daily living.

A board certified radiologist also conducted an independent film review of the MRI results of the complainant’s cervical spine. He states that there is no evidence of post traumatic etiology that can be determined on the evaluation and the bilateral thyroid masses are unrelated to trauma.

Subsequently, the complainant testified that, at the time of the accident, he was employed as a real estate broker and he was confined to his bed for two days and at his home for a couple of weeks after the accident. Furthermore, the complainant is not claiming he was disabled for doing his normal activities for three months out of the first six months after the accident. He also argues that the health insurance claims forms submitted by his treating providers are further evidence that he did not sustain an injury which prevented him from working after the accident.

To Be Cont…
Continue reading

Published on:

Well established is the rule that a jury may reject any testimony, including testimony of experts, even if not contradicted. Here, the Standard Jury Instruction which was appropriately read to the jury provides that the jury may accept expert witness opinion testimony, reject it, or give it the weight it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. In other words, the jury was free to weigh and reject the testimony of the medical experts who opined that A’s injuries were caused, at least in part, by the automobile accident.

First, the court finds that the expert testimony conflicted with much of the lay testimony presented to the jury. In such cases, where expert testimony conflicts with lay testimony, the trial judge should defer to the jury to weigh the evidence.

Second, in addition to the medical experts, the jury heard testimony from several witnesses, including the plaintiffs, A and his wife. Evidence and testimony introduced at trial portrayed the accident as a mere fender-bender. The jury examined photographs depicting the damage to A’s vehicle, which was described by A as a crack or scrape on the back bumper. According to A, the total damage to his vehicle was estimated to be approximately $800, and at the time of trial or about 2 1/2 years after the accident, the damage to the bumper had not been repaired, and the vehicle was still being driven by A’s wife. Other testimony offered at trial demonstrated that A had an extensive medical history, which included a prior surgery, another automobile accident, and several significant medical diagnoses, and this was also testified to by A. A stated that he had undergone a prior cervical spinal fusion surgery in 1991, he had been in an automobile accident in 1998, in which he was ejected from the vehicle, and he had a back sprain shortly before the 2007 accident. In addition, medical records were introduced at trial revealing that A had visited a hospital in 2006, complaining of severe lower back pain, that A had visited the hospital less than a month before the 2007 accident, complaining of the same symptoms, and that he was taking the pain medication, Lortab, at the time of the 2007 accident. Through the testimony of the medical experts, the jury heard that A had a pre-existing degeneration of his cervical spine. On cross-examination, A revealed a number of other medical conditions affecting his overall health. A testified that he had been diagnosed with emphysema in the early 1970’s, and that he had been hospitalized four times in the year leading up to trial for breathing problems, clogged lungs, pneumonia, and cardiac surgery. Testimony introduced at trial also demonstrated inconsistencies in A’s story on material issues, placing his credibility into question. Regardless of A’s testimony regarding his extensive medical history and pre-existing medical conditions, and that he had not been employed since the 1970’s, he nonetheless testified that before the 2007 automobile accident he was able to work around the house, do carpentry work or mechanic work, and swim, run, and play with his grandkids; that after the 2007 accident, he was unable to engage in these activities. However, when A sought medical treatment following the 2007 accident, he failed to disclose to the treating physician that he had undergone a prior cervical spinal fusion surgery or that he had been involved in an earlier automobile accident. A disclosed the prior cervical spinal fusion surgery only upon inquiry by his neurosurgeon, who discovered indicia of an earlier surgery after reading the results of an MRI scan he had ordered of A’s spine. During trial, the jury observed A wearing a neck brace, but during the cross-examination of A’s neurosurgeon, the physician testified that there was no medical necessity for A to be wearing the neck brace. Thus, under the circumstances, the jury was entitled to judge A’s credibility, whether to accept or reject his testimony on all issues.

Published on:

The Facts of the Case:

Sometime in October 2007, an automobile accident occurred involving A and B, A being the injured victim. As a result of the accident, A suffered from a spinal injury. Consequently, A had to undergo a cervical spinal fusion surgery in September 2009. Thereafter, A filed a personal injury action against B and seeks recovery for the personal injuries he sustained. B did not contest his liability for causing the automobile accident, but argued that the accident was not the cause of A’s injury or need for medical treatment; that the nature of the automobile accident was only minor; that A’s medical history which included a prior cervical spinal fusion surgery in 1991, a 1998 automobile accident in which A was ejected from the vehicle, and diagnoses of emphysema and spinal degenerative disease were the main causes of A’s spinal injury. After a three-day trial, the jury returned a verdict in favor of B, finding that A had not suffered an injury as a result of the 2007 accident. A then filed a motion for a new trial and the trial court granted the motion. The trial court concluded that the jury’s verdict finding no causation was contrary to the manifest weight of the evidence in light of the testimony of the three expert medical witnesses, one of whom was a defense witness, who each opined that A’s personal injury and resulting surgery was caused at least in part by the 2007 accident; that while acknowledging B’s arguments and the evidence offered in support thereof, the trial court disregarded all lay testimony bearing on causation of A’s injuries; that the court expressly concluded that in the absence of expert testimony regarding accident reconstruction or other technical matters affecting causation for the injury, no reasonable juror would conclude no causation in light of the opinions of the three doctors; that with regard to A’s credibility, the court found, his credibility had little, if any, weight on the issue of causation in light of the uncontroverted opinions of the three informed and credible doctors; that with regard to A’s pre-existing spinal degeneration, the court again found the expert testimony to outweigh other evidence where no reasonable juror would conclude that degeneration, to the exclusion of the collision, was the cause of A’s injury in light of the testimony of the three doctors.

The Ruling of the Court:

Under the rules, a trial court’s decision to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence may be reviewed for abuse of discretion. When reviewing the order, an appellate court must recognize the broad discretionary authority of the trial judge and apply a reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. However, a reviewing court may find that the trial court abused its discretion in determining that the manifest weight of the evidence was contrary to the verdict and granting a new trial in two circumstances: where the evidence in the record does not support the trial court’s determination; or where the trial court’s determination rests on an incorrect conclusion of law.

To Be Cont…
Continue reading

Published on:

In support of his motion, the man have submitted an attorney’s affirmation; copies of the pleadings and the woman’s bill of particulars; an uncertified copy of the police car accident report; an unsigned copy of the transcript of the woman’s examination before trial; and the sworn report of an orthopedic doctor concerning his independent orthopedic examination of the woman. Initially, the Court notes that the unsworn police accident report constitutes hearsay and is inadmissible. The unsigned deposition transcript of the woman is not in admissible form and is not considered on the man’s motion nor is the unsigned transcript accompanied by an affidavit pursuant to Civil Practice Law Rules.

Based upon a review of the admissible evidence, the man has failed to establish a legitimate entitlement to summary judgment dismissing the complaint.

The orthopedic doctor reviewed an MRI of the thoracic spine which indicated that there is a minimal posterior disc herniations causing minimal spinal injury. He also reviewed an MRI of the cervical spine performed on September 5, 2008 which states that the woman experience reversal of the cervical lordosis with multilevel disc bulges and uncovertebral joint hypertrophy, causing spinal and left foraminal stenosis at multiple levels, as well as mild cord compression at several levels as described. While disc herniation and limited range of motion based on objective findings may constitute evidence of serious injury, the orthopedic doctor does not comment on the findings and does not rule out whether the injuries were causally related to the accident.

Published on:

This is a personal injury action allegedly sustained by a woman when she was involved in a motor vehicle accident in New York. A man was the operator of the vehicle when it came into contact with the vehicle operated by the woman.

The woman claims in her bill of particulars that as a result of the within accident she sustained injury and pain in her muscles and her left shoulder; headaches; tightness in the left shoulder to the neck area; limited motion and burning sensation in the left shoulder blade; mid back and neck pain; spine injury; aggravation of reversal of spinal injury with multilevel disc bulges. The accused seeks summary judgment to dismiss the complaint because the woman’s claimed serious injuries fail to meet the threshold imposed by the Insurance Law.

The advocate of a summary judgment motion (judgment without trial) must make a legitimate showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. The opponent has the initial burden of proving entitlement to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Once such proof has been produced, the burden then shifts to the opposing party who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form sufficient to require a trial of any issue of fact and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the Court to direct a judgment in favor of the opponent as a matter of law.
Pursuant to Insurance Law, serious injury means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medical determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

The initial burden is on the man to present evidence in competent form, showing that the woman has no cause of action. Once the man has met the burden, the woman must then, by competent proof, establish a legitimate case that such serious injury exists. Such proof, in order to be in competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the woman.

In order to recover under the permanent loss of use category, the complainant must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the qualitative nature of the woman’s limitations, with an objective basis, correlating the woman’s limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

To Be Cont….
Continue reading

Published on:

The Ruling of the Court:

On the Standard of Review:

As the rules provide, the standard of review of an ALJ’s interpretation of the NICA statutory scheme is de novo. The ALJ’s determination with regard to the qualification of the claim for compensability purposes under the statute is conclusive and binding as to all questions of fact. However, an ALJ’s final order is reversible on appeal where its findings of fact are not supported by competent, substantial evidence.

Published on:

The Facts of the Case:

On 26 September 2001, an automobile accident occurred involving a woman who was pregnant. As a result of the injuries sustained, the mother was transported to a nearby hospital where fetal testing was performed. She was then transported to another hospital via helicopter. That same day, after declining into kidney failure, the mother underwent a caesarean section. The condition of the infant at the time of her delivery was a matter of controversy. Although the infant required manual resuscitation, her Apgar scores at birth and within minutes of birth were in the normal range. However, it is undisputed that the infant experienced renal distress as well as spinaldamage. She was placed in the special care nursery.

On 3 October 2001, while still in the special care nursery, the infant experienced pulmonary bleeding and then pulmonary arrest leading to multi-organ failure and seizure activity. She was later diagnosed with a neurological injury, cerebral palsy, although the time the neurological injury or brain injury was sustained remains a matter of controversy. It was only after the October 3 episode that the infant was examined by a pediatric neurologist.

Sometime in 2006, the mother and her husband (plaintiffs) filed a personal injury action for medical malpractice in circuit court against their obstetrician, his professional association, and fourteen other defendants. The circuit court proceedings were abated for a determination by DOAH as to whether the infant’s injuries were covered by the State’s Birth-Related Neurological Injury Compensation Plan (hereafter, the NICA Plan). The plaintiffs had already filed a petition with DOAH to determine compensation under the Plan. In their petition, the plaintiffs described the child’s condition at birth as follows: By the time of her birth by cesarean section, the infant had suffered a hypoxic ischemic event that caused permanent brain damage or brain injury; the infant then suffered further injury to her brain during the first several days of life, well after the immediate post-delivery resuscitative period.

Thereafter, the Division of Administrative Hearings (DOAH) in which the administrative law judge (ALJ) found that the subject infant did not qualify for coverage by the State’s Birth-Related Neurological Injury Compensation Association (NICA Plan). Thus, appeals followed. Before the court are consolidated appeals.

The Issue of the Case:

The primordial issue before the court for determination is whether or not the injuries suffered by the subject infant was covered by the State’s Birth-Related Neurological Injury Compensation Association or the NICA Plan.

To Be Cont…
Continue reading

Published on:

This action arises from a motor vehicle accident that occurred on April 20, 2008. The complainant man’s vehicle was impacted from the rear by the accused man’s vehicle, while both vehicles were moving in the same lane of travel. The accused man’s vehicle was operated by his son at the time of the accident. As a result of the accident, the Long Island complainant claims to have suffered serious and permanent spinal injuries, including restricted range of motion in the areas of his lumbar and cervical spine.

Based upon his bill of particulars, the complainant is asserting claims of permanent consequential and significant limitation of use of a body function or system, and a medically determined injury or impairment of a non-permanent nature, which prevented him from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident claim.

It is well recognized that summary judgment or judgment without trial is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. The Court’s analysis of the evidence must be viewed in the light most favorable to the complainant.

A party moving for summary judgment must make a legitimate showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. The accused parties must demonstrate that the complainant did not sustain a serious injury within the meaning of Insurance Law as a result of the accident. The accused parties have met their burden.

In support of their motion, the accused have submitted the complainant’s bill of particulars, the complainant’s deposition testimony, and the affirmed reports of the accused parties’ examining Manhattan orthopedic surgeon and radiologist.

On January 6, 2011, the accused parties’ examining radiologist reviewed the cervical and lumbar spine MRI studies taken on April 28, 2008 and May 20, 2008, respectively. Upon review, the radiologist set forth his impressions that the complainant suffers from multi-level spine injury, and that the findings on the MRI are not causally related to the reported accident of April 20, 2008. In addition, the radiologist did not find any disc herniations or bulges in the cervical spine, and only mild bulging in the lumbar spine that he attributes to the degenerative disease.

The MRI report of the cervical spine dated April 28, 2008 notes two bulging discs, which cause a slight spinal injury. The MRI report of the lumbar spine dated May 20, 2008 notes a herniated disc in the lumbar spine, also contributing to a slight spinal injury. Those MRI reports do not mention any degenerative disc disease, nor do they relate the findings to the subject accident.

Although the MRI reports and the radiologist’s review of same differ in various respects, the Court notes that, a tear in tendons, as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from injury and its duration. Thus, whether or not the radiologists agree on the interpretation of the MRI studies, the complainant must still exhibit physical limitations in order to sustain a claim of serious injury within the meaning of the Insurance Law.

The complainant was examined by the accused parties’ examining orthopedic surgeon, on January 21, 2011. The orthopedic surgeon reviewed a number of the complainant’s medical records, including the bill of particulars, MRI and nerve study reports, physical therapy and acupuncture notes, and the reports of the complainant’s doctors and chiropractor. He measured range of motion in the complainant’s cervical and lumbar spine areas with a goniometer. He also conducted various, other tests, including reflex, which were negative. He set forth his specific findings, comparing those findings to normal range of motion, and he concluded that the complainant’s cervical and lumbosacral strains are resolved. According to the orthopedic surgeon, the complainant does not exhibit any objective evidence of a disability, is capable of full time, full duty work, and is capable of carrying on his activities of daily living.

Examining the reports of the accused parties’ physician, there are sufficient tests conducted set forth therein to provide an objective basis so that his respective qualitative assessments of the complainant could readily be challenged by any of his expert(s) during cross examination at trial, and be weighed by the trier of fact. Thus, the accused parties have met their burden with respect to the permanent consequential and significant limitation of use categories of injury. As to whether or not the accused parties have sustained their burden on the 90/180 days injury claim, the Court considers the complainant’s deposition testimony submitted with the instant motion.

An accused may establish through presentation of a complainant’s own deposition testimony that a complainant did not sustain an injury of a non-permanent nature which prevented him from performing substantially all of the material acts, which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. Moreover, a complainant’s allegation of curtailment of recreation and household activities and an inability to lift heavy packages is generally insufficient to demonstrate that he or she was prevented from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident.

The complainant’s deposition testimony establishes that he was working as a deliveryman at a deli prior to the accident, and that he missed only one week of work following the accident. He further admitted that he was not told by any medical professional that he could not work following the accident. Upon his return to work, he apparently suffered no change in his duties, and continued to work at the deli for almost three more years. He only ceased working at the deli because he moved to a different county. He further testified that he is currently unemployed and is not actively seeking employment.

As to his specific injuries, the complainant testified that he refused to go to the hospital on the date of the accident despite feeling pain in his neck, in addition to a headache. According to him, he received physical and chiropractic treatment through November or December 2008, at which time he ceased treatment. He did not offer a reason for his cessation of treatment. He admitted to taking only an over-the-counter pain reliever since the accident.

Aside from missing one week from work, the complainant testified that he can no longer play soccer because his lower back hurts, and that he can no longer go dancing because it hurts his back to do so. According to him, he used to play soccer with friends and go dancing once or twice a month before the accident. He also testified that he cannot carry his children, whose ages as of the deposition date in December 2010 were nine, six and four years old, or clean the bathtub. He was not forced to hire help for household chores, and he testified that he can lift grocery bags up to thirty (30) pounds. He had no future medical appointments at the time of his deposition.

Thus, the accused parties’ submission of the complainant’s deposition testimony, and affirmation of the accused parties’ physician are sufficient herein to make a legitimate showing that the complainant did not sustain a serious injury within the meaning of Insurance Law, under permanent consequential limitation and significant limitation categories of the applicable law, nor under the 90/180 category of the law.

The complainant is required to come forward with viable, valid objective evidence to verify his complaints of pain, permanent injury and incapacity. The complainant has failed to meet his burden. In opposition to the accused parties’ motion, the complainant has submitted the MRI reports previously referred to above, physical therapy and acupuncture notes, chiropractic evaluations, a pain management consultation report, and an affirmed report from his treating osteopath.

The osteopath doctor’s affirmed report fails to set forth by what means, or with what instrument, the complainant’s range of motion in the cervical and lumbar spine areas was measured. Thus, the accused has failed to establish an objective basis so that the respective qualitative assessments of complainant could readily be challenged by any of the complainant’s expert(s) during cross examination at trial, and be weighed by the trier of fact. In addition, the osteopath doctor’s report does not indicate with specificity when the examination results were obtained. Contrary to the complainant’s deposition testimony wherein he stated that he was not working because he had moved, the osteopath doctor noted that the patient was not working because of the accident. He was totally disabled. The osteopath doctor notes that the complainant’s gait was not counteracting. Thus, his report appears to be inconsistent with the complainant’s testimony and internally inconsistent as to the level of the complainant’s alleged disability.

Moreover, the osteopath doctor stated in his opinion and prognosis section that, in such type of injury there are nerves and disc pathologies as well as tearing of soft tissue components without addressing the degenerative disc disease findings of the radiologist, or the complainant’s previous accident. He also opines in general terms that there can be permanent limitations of motion to the cervical and lumbar spine due to the injuries sustained. He states in vague terms that, the patient remains impaired with regard to some functional capabilities thus his opinion that the complainant has sustained traumatic injuries as a direct causal result of the accident is rendered speculative and insufficient to raise a triable issue of fact.

The pain management physician also examined the complainant on November 25, 2008. Although he wrote that the complainant’s level of activity is severely limited, he did not report the basis for that conclusion. Instead, he noted that the complainant’s pain, at its worst, is 3 out of 10, and that the complainant continues to work as a driver. The pain management physician further states that the complainant is not limited in activities of daily living and that the complainant’s pain does not interfere with the quantity and quality of his sleep, which the complainant reported as being six hours of restorative sleep. The pain management doctor concluded that the complainant has done well with therapy and his pain is minimal he has a mild partial disability from the motor vehicle accident dated 4/20/2008. The conclusion in November 2008 is markedly at odds with his initial statement that the complainant’s level of activity is severely limited, and also at odds with the osteopath doctor’s October 2011 report that the complainant has sustained traumatic injuries.

For all the foregoing reasons, the Court has determined that the complainant has failed to raise a triable issue of fact with respect to the issue of serious injury within the meaning of Insurance Law. Accordingly, the accused parties’ summary judgment motion is granted in its entirety, and the complaint is dismissed.
Continue reading

Published on:

This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident on January 19, 2008 within a private parking lot on route 107, near its intersection with Lewis Street, in the town of Oyster Bay, Nassau County, New York.

A said that, in his bill of particulars, plaintiff alleges that he sustained the following injuries which are alleged to be permanent: Cervical muscle spasm, cervical radiculopathy, neck painwith upper extremity weakness, lumbar radiculopathy, right and left shoulder pains with numbness and tingling, decreased range of motion of the cervical spine, low back pain with lower extremity weakness, subluxation of the cervical spine and lumbar spine, headaches, muscle spasm of the lumbar spine, decreased range of motion of the cervical and lumbar spine injury, mid back pain, dizziness, inability to sit or stand for prolonged periods of time, difficulty performing everyday activities such as bending, lifting, and sitting necessity for prescribed pain medications, necessity for physical therapy, sleep disturbances, cervical spine tenderness with restricted range of motion, lumbrosacral spine tenderness with restricted range of motion, necessity for extended physical therapy, unable to perform household chores and loss of enjoyment of life.

Plaintiff was involved in a prior motor vehicle accident in 2002 whereby he injured his neck, lower back, and shoulders. A Manhattan doctor said that, defendant claims that the injuries plaintiff complains of in this accident of 2008 are not causally related to the 2008 motor vehicle accident, but rather are permanent injuries resulting from the 2002 accident. Defendant has presented objective medical testing from 2002 in order to establish the preexisting injuries at the time of the 2008 accident. The MRI report dated February 25, 2002 indicated posterior disc bulge at L3-L4 and at L5-S1 impinging on the spinal injury canal. The report of August 29, 2002 indicated posterior disc bulges at C-5-6 and at C6-7 impinging on the anterior aspect of the spinal canal.. Therefore, plaintiff had bulging discs with impingement six years prior to the subject accident. Further, the nerve conduction examination performed on November 4, 2002 revealed abnormal results. The examining doctor states that “any scores falling in the abnormal range recognize a possible entrapment of the nerves and indicate that a problem exists.” The electromygram exam performed by plaintiff’s physician on November 20, 2002 after the prior accident was abnormal showing a mild right acute C6 radiculopathy. More recently, plaintiff’s treating Westchester chiropractor, issued a report dated March 16, 2010 in which she opined that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the accident on August 24, 2002. Defendant claims that the evidence demonstrates that any permanent and consequential injuries and plaintiff’s inability to perform activities of daily living were a result of the prior accident in August 2002 and not the subject accident on January 18, 2008.

As a result of the motor vehicle accident on January 19, 2008, plaintiff was taken to NUMC where x-rays were taken at the emergency room. The physician who interpreted the x-rays of his lumbar and thoracic spine reported no fractures, dislocation, or other significant bony abnormalities and reported that the intervertebral disc were normal in height. Defendants also submit plaintiff’s deposition whereby plaintiff admitted that after the accident of 2008, plaintiff first sought treatment 2-3 days after the accident for physical therapy, and then received treatment for six to seven months thereafter. There is a gap in treatment by plaintiff’s own admission. Finally, defendant submits an affirmed report from an orthopedic surgeon, who examined plaintiff and performed a range of motion tests using a goniometer a well as other clinical tests, and found that plaintiff’s cervical strain with radiculitis, thoracolumbosacral strain, and bilateral shoulder contusion were all resolved. Defendants conclude by stating that there is no medical evidence to support plaintiff’s claim that he was unable to work for 8 months and was prevented from performing substantially all of his customary daily activities for at least 90 days of the last 180 days.

A Lawyer said that, defendant filed a motion for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d).

The issue in this case is whether plaintiff sustained serious injury as the result of the motor vehicle accident.

The Court said that, as a proponent of the summary judgment motion, defendants have the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The Court held that the defendants established their entitlement to judgment as a matter of law by submitting, the affirmed medical report of the doctor who examined the plaintiff in 2009 and found no significant limitations in the ranges of motion with respect to any of his claimed injuries, and no other new serious injuries within the meaning of Insurance Law § 5102(d) causally related to the collision in 2008. Defendant has shown the pre-existence of spinal injuries claimed by plaintiff relating to the 2002 motor vehicle accident. Moreover, a defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he sustained a serious spinal injury caused by the motor vehicle accident of 2008.

In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law § 5102(d). Plaintiff must come forth with objective evidence of extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Where, as here, plaintiff sustained spine injury as a result of a prior accident, the plaintiff’s expert must adequately address how plaintiff’s current medical problems, in light of his past history, are causally related to the subject accident. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate.

In opposition, plaintiff submitted an affidavit dated January 26, 2011 from her treating chiropractor, which is deficient. The statements made by the chiropractor that the injuries are causally related to the 2008 accident are conclusory and purely speculative. In the absence of an explanation by the plaintiff’s expert as to the significance of the degenerative findings and the prior accident, it would be sheer speculation to conclude that the accident of January 19, 2008 was the cause of plaintiff’s injuries. She does not address the findings on the MRI’s of plaintiff’s cervical and lumbar spine, positive nerve conduction and EMG testing that were present six years before the 2008 accident. Further, the affidavit is not based upon a recent examination of plaintiff. There is also no explanation provided by the chiropractor as to why her affidavit of January 26, 2011 contradicts the statement made in her report of March 16, 2010 that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the accident on August 24, 2002.

Finally, there is also no explanation provided as to plaintiff’s gap in treatment after the 2008 accident. In order to survive summary judgment “a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so “. Plaintiff’s submissions are insufficient to rebut the prima facie case established by defendants entitling them to summary judgment as a matter of law. Accordingly, the Court held that defendants motion for summary judgment is granted.
Continue reading