A Brooklyn bagel shop clerk met an accident while driving near the corner of West Merrick and Rockaway Avenue: her car collided with another car on August 21, 2007. As a result of the accident, the bagel shop clerk missed two weeks of work. The pain she felt prevented her from lifting baskets of bagels as she had been doing previous to the accident. She was unable to stand behind the counter for long periods of time as she had been doing before the accident. She held down another part-time job at a clam bar and was also enrolled as a full time college student. She missed two weeks of classes after the accident and she had to stop working at the clam bar.
The owner of the bagel shop allowed the clerk to reduce the number of hours she had to work. She also allowed her more frequent breaks and excused her from having to lift heavy objects while on duty. Still, the woman was unable to continue working full time: she began working part-time and clocked only eighteen hours of work every week. The pain in her neck and back intensified and she resigned from her employment.
She received treatment consistently since the accident and stopped treatment and therapy only when her “no-fault” insurance ran out and she could no longer afford the treatments and therapy. She filed a case in damages seeking compensation for her spinal injury under the Insurance Law. She claims that the use of her cervical spine and lumbar spine has been significantly limited; she also claimed that the spinal injury she sustained resulted in non-permanent impairment which prevented her from performing all the activities of daily living within ninety days from the accident.
The defendant filed a motion for summary judgment asking that the cause of action for damages be dismissed for failure of the plaintiff to present initial proof that the spinal injury she sustained was a serious injury.
The defendant asked that the bagel shop clerk be examined by an orthopedic surgeon. The orthopedic surgeon found that there was no evidence of any spinal injury: there was no fracture, no atrophy of the discs; no bulging or swollen discs and no derangement of the discs in her spine. The orthopedic surgeon also used a hammer, sensory pins and measuring tape to objectively determine the presence of pain or paralysis. He also measured the bagel shop clerk’s range of motion and found these within normal limits. He concluded that there is no evidence of disability resulting from the accident.
For her part, the bagel shop clerk presented the medical findings of the Westchester orthopedic surgeon who treated her within two weeks after the accident. She also presented the report of findings of the neurologist/pain expert who examined her. The orthopedic surgeon noted tenderness in the cervical spine and lumbar spine. He also noted spasms in the cervical and lumbar spine. He found that the bagel shop clerk’s range of motion was restricted and he traces the cause of her loss of use of her neck and lower back to the accident. He also noted that he recommended that she be examined by a pain specialist. He recommended steroid injections directly into the areas of the spine that experienced the pain. In the two years that she had been receiving treatment since the accident, the pain persists and the doctor has opined that if her pain persists, she will be a candidate of surgical repair on her spine.
The court denied the motion for summary judgment, ruling that the bagel shop clerk has succeeded in proving that there are issues of material fact that have to be determined by a jury at trial on the nature and extent of her spinal injury and of the disability she has suffered.
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