A man was involved in a car accident in 2002 and he sustained injury in his shoulders, neck and back. According to an MRI report his spinal injury involved bulging discs that impinged his spinal canal. He received treatment and therapy for his injury and he also received compensation for the spinal injury he sustained when he missed work for the days of his confinement until he recovered from his injury.
In 2008, the man figured in another motor vehicle accident in The Bronx. He filed a suit for damages from a personal injury he sustained when he injured his back, shoulders and neck. He claims that he is in constant pain; he has lost strength in his arms; he has lost the full range of motion in his back and neck; and cannot perform his regular daily tasks and perform his regular work.
The man sued the defendants who were owners of the motor vehicle that figured in the accident as well as their insurer. He claims that he sustained serious injury for which he demands compensation under the Insurance Law.
The defendants filed a motion for summary judgment asking for the dismissal of the complaint. The defendants claim that the injuries complained of by the man in 2008 were the exact same injuries he claimed and received compensation for way back in 2002. They presented evidence to prove that after the accident in 2008, the man was brought to the emergency room where x-rays were taken. The physician who interpreted the x-ray plates reported that there were no fractures, no dislocation or abnormalities in the bones. The report also stated that his spinal discs were normal.
The defendants also gave proof that the man went for treatment and therapy for three days after the 2008 accident but after three days, he stopped going to therapy for seven months. On top of that, in 2010, a physician conducted a range of motion test on the man and found that all the strain on the muscles of the neck, back and shoulder have all been resolved.
The defendants claim that there is no objective medical evidence that the man sustained a serious injury that would render him unfit to work or perform his customary daily tasks for eight months.
The only issue before the Brooklyn Court is whether or not the motion for summary judgment should be granted.
The Court held that the defendants have sufficiently proved that they are entitled to a summary judgment but that this merely serves to shift the burden to the man to prove that there still remains a material issue of fact that needs to be resolved by a jury.
The Court then turned to look at the evidence provided by the man. He submitted an affidavit where he alleged that he is in constant pain and that he moves with difficulty and can no longer perform his regular work or even do household chores. The Court then held that it is not sufficient for the man to merely make a subjective complaint of pain. There must be objective medical proof of a serious injury. There must be an examination by a physician who can report the existence of a serious injury. The Court also held that even if there exists proof of serious injury, if there is also proof that there are factors or events that interrupt the chain of causes between the accident and the injury he sustained, the motion for summary judgment may still be granted.
The man submitted an affidavit of his chiropractor. The affidavit states that the injury sustained by the man was related to the 2008 accident. The Court rejected this affidavit as insufficient because it makes conclusions without presenting the objective facts on which the conclusions were based.
The expert presented by the man failed to rebut or even address the findings of the attending physicians of the man in 2008 that showed that the injury he complains of in 2008 were already present as early as 2002.
The Court also rejected the chiropractor’s affidavit because it totally contradicted a similar affidavit she executed in 2002 stating that the same spinal injury complained of by the man had also rendered him unfit for his customary employment and unable to perform his normal daily activities.
The Court granted the motion for summary judgment.
Are you thinking of filing a suit in damages for a spinal injury you sustained? You need the assistance of a New York City Spinal Injury lawyer. A New York Spinal Injury attorney will advice you that you need to have documented medical proof of a serious injury. At Stephen Bilkis and Associates, their NYC Spinal Injury Lawyers can represent you. Come and visit any of the offices of Stephen Bilkis and Associates in the New York area and speak with any of their NY Spinal Injury attorneys today.