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A report was also submitted into evidence by an orthopedic surgeon


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.

If you have a claim for damages due to the personal injuries that you have sustained in a motor vehicle accident, you need to prove that you have sustained serious injury therefrom. To do this, you will need the representation of a Nassau Spinal Injury Attorney and/or Nassau Personal Injury Attorney in order to handle your case properly. At Stephen Bilkis and Associates, we have competent Nassau Injury Attorneys that can make sure that you will be well compensated.

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