Articles Posted in Nassau

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In this case, plaintiffs filed an action to recover damages against the defendants for the injuries allegedly sustained by the plaintiff in a car accident on February 16, 2009, on Motor Parkway at or near its intersection with Express Drive North, County of Suffolk, State of New York, when Plaintiff was operating his vehicle and it was struck by the vehicle owned by defendants.

Plaintiff alleged that he sustained injuries consisting of, inter alia, lumbar disc herniation at L4-5 impinging on the anterior aspect of the spinal canal and the nerve roots bilaterally; lumbar sprain and strain with muscle spasms, severe pain, tenderness, swelling, and permanent and significant restriction and limitation of motion; posterior disc herniation at C5-6 and C6-7 abutting the anterior aspect of the spinal cord; possible cervical radiculopathy; cervical sprain, strain, with muscle spasms, severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion; right knee sprain, strain, contusion; peripatellar bursitis; severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion.

The defendants sought summary judgment dismissing the complaint on the basis that the injuries claimed failed to meet the threshold imposed by Insurance Law § 5102 (d).

Jurisprudence dictates that It is for the court to determine in the first instance whether a prima facie showing of “serious injury” has been made out. The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action.”

Defendants submitted, inter alia, the sworn report their orthopedist; the sworn report of their neurologist; and the sworn report of Plaintiff’s orthopedist.

Plaintiff’s orthopedist reported, inter alia, that the range of motion examination is a subjective test under the voluntary control of the individual being tested, thus raising credibility issues which are to be determined by the trier of fact. The court’s function is not to resolve issues of fact or to determine matters of credibility but rather to determine whether issues of fact exist precluding summary judgment.

Plaintiff’s orthopedist also submitted admissible evidence to demonstrate findings of a herniated lumbar disc and a deficit in the lumbar flexion range of motion. While such injuries may constitute evidence of serious injury based upon objective findings, the defendants’ expert does not comment on the cause of the cervical disc herniations and does not rule out that the cervical herniated discs were not caused by the subject accident.

Defendant’s orthopedist reported, inter alia, that the plaintiff did not show clinical findings consistent with radiculopathy on the date of the examination, thus raising factual issue with the EMG findings and determinations made relative to that test. He also does not believe that further intervention is needed and that the plaintiff has sustained full and maximal recovery.
Defendant’s orthopedist does not address the issue of proximate cause of the injuries and does not rule out that the herniated discs were not caused by the subject accident, nor does he dispute that the plaintiff sustained such injuries. Thus, Defendant’s orthopedist has not established prima facie that the plaintiff did not sustain a serious injury based upon the diagnosis of both cervical and lumbar herniated discs. The two opposing orthopedist have set forth differing normal range of motion values for lumbar extension and lateral rotation, and for cervical flexion and rotation. Defendant’s orthopedist did not state a measurement for cervical rotation. Thus, this Court is left to speculate as to what the normal ranges of motion are, and what the range of motion for cervical rotation finding was upon Defendant’s orthopedist examination. Defendant’s orthopedist has also failed to set forth the objective method employed to obtain the range of motion measurements he reported for the plaintiff’s cervical and lumbar spine, such as the goniometer, inclinometer or arthroidal protractor, leaving it to the court to speculate as to how he determined such ranges of motions when examining the plaintiff.

Defendant’s neurologist reported, inter alia, that Nassau Plaintiff presents with ongoing subjective post-traumatic symptoms of intermittent pain in his posterior neck and low back regions.

Additionally, the defendants’ examining physicians did not examine the plaintiff during the statutory period of 180 days following the accident, thus rendering defendants physician’s affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintiff was unable to substantially perform all of the material acts which constituted his usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident, and defendants’ experts do not comment on the same.

Based upon the foregoing, the defendants have not established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance law § 5102 (d) or 5104. The court had no other recourse but to deny the motion.
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A fifty-three year old Nassau medical secretary had been working at a hospital for a number of years when on December 29, 1967 she slipped on a door sill. The medical secretary fractured her left hip. A nail and a pin were used to repair the medical secretary’s hip. She was confined to bed at a nursing home for six months. The medical secretary filed a claim for permanent total disability benefits. After her surgery, a neurologist examined the medical secretary and found that she was also suffering from a spinal degenerative process and that around thirty to fifty per cent of her condition was related to the degenerative disease instead of to the accident.

For this cause, the employer refused to pay the permanent total disability benefits after six months. The employer claims to have paid for her medical care until maximum medical improvement had been reached. After the sixth month, the total disability of the medical secretary was no longer due to the accident at work but it was due to the pr-existing spinal disease.

At the trial, the Suffolk doctor to whom the medical secretary was assigned testified that the medical secretary had worked for him for years. And he had been largely satisfied with the medical secretary’s work performance. However, he had noticed that the medical secretary’s health has been consistently and continuously deteriorating. She had lost a lot of weight and appeared severely malnourished. She had difficulty walking and often, she had to brace herself because she was unsteady on her feet. The doctor testified that had the medical secretary not injured herself, he would have asked her to resign. Her work has deteriorated just before the accident. If the medical secretary applied for a job on the day of his accident, he would not have hired her. He thought that the woman’s severe malnutrition could also be the reason why a slip resulted in a severe fracture.

The judge of Industrial Claims was sympathetic with the medical secretary but he denied her claim. He did not think that the accident aggravated the medical secretary’s underlying psychological and neurological disease. He also found that the medical secretary’s disabilities were not aggravated by the injury she sustained at the workplace. Despite this, the judge found that the woman was now completely unemployable.

The only question on appeal is whether or not the accident and the resulting disability to the medical secretary are compensable.

The Court finds that her immediate supervisor knew that the medical secretary was already disabled even before her accident and while she was working on the job. The immediate supervisor was a medical doctor and he observed that the medical secretary’s health was already failing. She could barely move and walked very slowly; he noted that her behavior was becoming more and more eccentric and if he even testified that if she had not been injured, she would have been terminated because of her disability. Her disability was obvious for a long time. After the accident the medical secretary was no longer able to work. It is clear that her disability was aggravated by the injury she sustained at the workplace. The mental and emotional collapse which accompanied the injury is also a disability. At the time of her injury her work was passable-it was a downgrade from the good and excellent work she used to be capable of but at the time of her spinal injury, her work was still acceptable. The Court found that the Judge of Industrial Claims erred when he did not find her disability compensable under the Special Disability Fund.

The order of the Judge of Industrial Claims is reversed and remanded.
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This is an action to recover damages for personal injuries allegedly sustained by plaintiff wife as a result of a motor vehicle accident that occurred on the westbound Long Island Expressway, approximately 500 feet west of South Oyster Bay Road, in the County of Nassau. New York on May 13. 2008. The accident allegedly occurred when the vehicle operated by defendant and owned by the other defendant struck the rear of the vehicle operated by plaintiff husband while it was stopped in traffic. Plaintiff at the time of the accident was a front seat passenger in the vehicle operated by her husband,. By her bill of particulars, plaintiff alleges that she sustained various personal injuries as a result of the subject accident, including straightening of the cervical and lumbar curvature; disc bulges at levels C3 through C6 and level L4-L5; vertebral subluxation complex; and derangement of the left shoulder. Plaintiff alleges that she was confined to her bed and home for approximately two days immediately after the accident. Plaintiff further alleges that she was totally incapacitated from her employment as a registered nurse at the Hospital for approximately three days following the accident and continues to be partially incapacitated from her employment to date.

A Westchester doctor said that, defendants now move for summary judgment on the basis that plaintiffs alleged spinal injuries do not meet the “serious injury” threshold requirement of Insurance Law § 5102(d). In support of the motion, defendants submit a copy of the pleadings, plaintiffs’ deposition transcript, and the sworn medical reports of the doctors. At defendants’ request, a neurologist, a chiropractor, and a physiatrist licensed in medical acupuncture, conducted independent examinations of plaintiff on September 23, 2008. A Lawyer said that, plaintiff opposes the instant motion on the ground that defendants failed to meet their burden of establishing that her injuries do not come within the meaning of the serious injury threshold requirement of Insurance Law § 5102(d). Alternatively, plaintiff asserts that she sustained spinal injuries within the “limitation of use” and the “90/180 days” categories of serious injury as a result of the accident. In opposition to the motion, plaintiff submits her own affidavit, the affidavit of her treating chiropractor, , and the sworn medical reports of her doctors.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Court said that it has long been established that the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”. Therefore, the determination of whether or not a plaintiff has sustained a “serious injury” is to be made by the court in the first instance.

Insurance Law § 5102 (d) defines a “serious injury” as “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 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 injury or impairment.”
A defendant seeking summary judgment on the ground that a plaintiffs’ negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury”. When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant’s own witnesses, “those findings must be in admissible form, such as, affidavits and affirmations, and not unsworn reports” to demonstrate entitlement to judgment as a matter of law. A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians.

Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for “serious injury” under New York’s No-Fault Insurance Law. However, if a defendant does not establish a prima facie case that the plaintiff’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers.

Initially, the Court notes that the report submitted by defendants’ chiropractor, is inadmissible, inasmuch as it was not sworn to before a notary or other authorized official does not allow for a chiropractor to affirm the truth of his statement with the same force as an affidavit. Thus, defendants’ failure to submit the chiropractor’s report in admissible form requires that it be excluded from consideration.

However, defendants have established their prima facie burden that plaintiff did not sustain a serious spinal injury within the meaning of Insurance Law § 5102(d). The reports of defendants’ various experts state that plaintiff has full ranges of motion in her cervical and lumbar regions when compared with the normal ranges of motion for those areas. The reports also state that although plaintiff complains of minimal tenderness upon palpation over the cervical and lumbar spines, no muscle spasm is elicited when the cervical or lumbosacral musculature is palpated and that there is no tenderness upon palpation of the thoracic spine. The reports further state that the cervical and lumbar spines sprains that plaintiff sustained as a result of the subject accident have resolved and that plaintiff is capable of performing all of her daily living activities without restriction. Furthermore, reference to plaintiffs own deposition testimony sufficiently refuted the “limitation of use” categories of serious spinal injury and the “90/180 days” category under Insurance Law § 5102(d).

Therefore, the burden shifted to plaintiff to come forward with competent admissible medical evidence based on objective findings, sufficient to raise a triable issue of fact that she sustained a “serious injury”. A plaintiff alleging an injury within the limitation of use categories must present either objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration in order to prove the extent or degree of physical limitation he or she sustained. A sufficient description of the “qualitative nature” of plaintiffs limitations, with an objective basis, correlating plaintiff’s limitations to the normal function, purpose and use of the body part may also suffice. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

In opposition, plaintiff raised a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Plaintiff relies upon the affidavit of her treating chiropractor, which states that he initially began treating plaintiff on May 2, 2008 and continued to treat her until February 2010. Dr. Wright’s affidavit reveals that plaintiff had significant range of motion limitations in her cervical and thoracolumbosacral regions contemporaneous with the subject accident, and that those limitations still were present when he re-examined plaintiff on September 25, 2010. He opines that plaintiff’s range of motion limitations are permanent and are the direct result of the subject accident. The report further states that the spinal injuries plaintiff’s sustained as a result of the accident will “inhibit her ability to carry out her normal living activities of daily living, which involve prolonged sitting, standing, bending, walking, lifting or extreme physical exertion.”

Contrary to defendants’ contention, plaintiff adequately explained her gap in treatment. The doctor’s explanation for the gap in treatment essentially is that plaintiff reached her maximum medical improvement and any further treatment would have merely been palliative in nature. Furthermore, inasmuch as plaintiff established that at least some of her injuries meet the “No Fault” threshold, it is unnecessary to address whether her proof with respect to other injuries she allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment. Accordingly, defendants’ motion for summary judgment is denied.
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A man was born with a chromosomal condition and began receiving medical assistance from the State’s social services. He subsequently suffered an injury during his corrective spinal injury surgery, which resulted in his partial paralysis. A medical malpractice action was commenced by the man’s sister on his behalf against the hospital and several doctors where the surgery was performed. The man continued to receive medical assistance from the State’s social services and they filed a lien for recovery from any award made in the medical malpractice action, for such assistance for which the third-party offender was found to be liable.

Consequently, the parties to the medical malpractice action reached a settlement. Based upon the proposed settlement, the state’s social service agreed to accept the sum of $102,423.56 to settle the lien. The amount necessary to settle the medical claim was premised on a letter from the social services stating that it would accept that amount on the lien against the proceeds of the personal injury lawsuit, based on the proposed settlement of the lawsuit for the sum of $1,600,000. The letter further provided that the state’s social services reserved the right to collect any unpaid balance of the lien if the man reached a further settlement that provided additional proceeds or if he should receive funds from another source such as the lottery.
The settlement of the medical malpractice action was approved by the Supreme Court with the direction that payment made to the state’s social service in the amount of $102,423.56, in full satisfaction of the lien to the date of the order.

In accordance with a further direction of the Supreme Court, the man’s sister petitioned for appointment as guardian of the person and property of her brother and for approval of the creation of a supplemental needs trust. The man was declared to be an incapacitated person by order and decision and his Suffolk sister was appointed as his guardian and a supplemental needs trust was created, with the sister as trustee.

Until the Supreme Court approved the settlement of the medical malpractice action, the Nassau man possessed a claim against a third party, but he did not have any present properties or resources to meet his needs.

The medical assistance provided to the man during his lifetime may be viewed in three different parts. Those are the period, when the man received medical assistance as a result of his chromosomal condition, the period when he received medical assistance as a consequence of the failed medical procedure that left him partially paralyzed, in addition to the continued receipt of assistance attributable to his chromosomal condition and the period when he continued to receive medical assistance in spite of his receipt of assets from the settlement of the medical malpractice action.

Upon the settlement of the negligence action, the man was in possession of the properties and resources that would have rendered him ineligible for continuing medical assistance but for the special treatment accorded the assets placed in a supplemental needs trust. Based on records, there was no interruption of receipt of assistance by the man while the petition for guardianship and creation of the supplemental needs trust was pending judicial consideration. The state’s social service department is entitled for a reimbursement for all the medical assistance provided to the man.

Consequently, the court ordered to modify the decision by deleting the provision in denying the branch of motion of the state’s social services which was for reimbursement of the amount of medical assistance provided by the health program of the state to the man and substituting therefore a provision granting the branch of the motion. The order is further affirmed by the court.
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On 2003, a complainant man obtained a back injurywhile he was employed. Shortly thereafter, his employer accepted his injury’s compensability and commenced the payments of both medical and indemnity benefits. An Nassau authorized orthopedist initially diagnosed the complainant man with disc herniation with chronic low back pain. After that, a surgical procedure was performed and the orthopedist’s explained that the surgery revealed spinal stenosis with no evidence of disc herniation. The orthopedist also informed the attorney of the man’s employer that one hundred percent of the complainant’s need for medical treatment was caused by pre-existing degenerative changes due to his personal condition. The complainant then filed an appeal for benefits requesting authorization of a neurologist and compensability of the claim, which the carrier timely controverted because of the opinion of the complainant’s treating orthopedist.

After the trial, the judges of compensation claim accepted the opinion of the treating orthopedist that the complainant’s injury was wholly attributable to his preexisting condition and therefore found that his current condition is not compensable as it did not arise out of the course and scope of his employment and no further treatment is awarded.

The Suffolk judges of compensation claim further concluded that there was nothing in the record that would have reasonably placed the employer on notice of the complainant’s personal condition being the major contributing cause of the injury until the conference between its attorney and the orthopedist was done. As a result, the employer denied the medical treatment within 120 days from the notification it had then received and the compensability of the injury was considered timely denied. With that, the judges of compensation claim refused both the claims for compensability of the complainant’s back condition and authorization of a neurologist.
Based on records, the carrier had such information through the condition of the orthopedist’s notes. In fact, the court’s case law interprets the ruling language pertaining to the commencement of the running of the 120-day period from the initial condition of benefits to mean the date the employee’s first visits to the authorized physician, which could produce the first available information useful to the employer and carrier to determine whether the injury is compensable.

Consequently, the court considered that the issue of the complainant’s entitlement to the authorization of a neurologist is controlled by the rule and the court’s earlier decision with other previous court case. In the case cited by the court, the carrier authorized medical treatment for the worsening of the employee’s disc condition during the complainant’s employment, and treatment for same continued for more than 120 days. Thereafter, the authorized physician recommended a laminectomy for the back condition, for which the complainant sought approval, and the carrier timely denied.

In affirming the judges of compensation claim’s denial of the claim, the court noted that the recommended surgery was not intended to address the exacerbation, but to resolve the entire disc herniation, which medical evidence revealed had occurred before the work-related accident happened. The court also concluded that the provisions applied only to the compensability of the exacerbation of the condition and not to a major surgical procedure which involved a condition that had pre-existed the work-related accident.

As a result, the court decided that under such circumstances, the provisions relating to the carrier’s obligations in responding to an appeal for benefits and on its timely denial on the specifically requested surgery just after it had been claimed, it could not be considered to have waived its right to contest. The court finds that the employer timely denied the appeal seeking the authorization of a neurologist within 14 days after the receipt of the appeal.
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A man was working as a construction worker on June 24, 1983. He was on the tenth floor of a building. He lost his balance while at that height. He fell and hit a concrete floor below. He injured his head and he lost all sensation in both his arms. His Nassau-Suffolk employer paid him temporary total disability until March 15, 1984. After this, his employer paid him temporary partial disability benefits. The construction worker filed a claim for catastrophic loss benefits. When he recovered from the head injury, the construction worker still had no feeling in both his arms. He could not move his arms or do his customary work as a construction worker.

Two months after the accident the construction worker consulted a neurosurgeon. The neurosurgeon found that the reason for the numbness in his arms is that he had a spinal cord injury. The bones of his spine were compressing on his nerves causing the loss of sensation to his two arms. The neurosurgeon performed two surgeries in September and October 1983 to correct the compression. He removed the bone which was causing the compression on his spinal cord. He did not touch or repair the nerves, just the bone. After the surgeries, the man gained strength in his arms but three fingers on each hand still did not have any feeling. He was able to do simple and light chores at home but he was unable to continue with his work as a construction worker.

Four months after the surgery, the man was still experiencing pain, tingling, numbness and weakness in his fingers and hands. The neurosurgeon determined that these were not due to damage or compression to the nerves but were now only orthopedic in nature. He certified that the construction worker can go back to work but with limits. He cannot do any lifting, or do heavy construction work or work at elevations.

During the neurosurgeon’s testimony he said that the construction worker did not have any lesion in the nerves of his spine. Instead, he said that the construction worker suffered from an unstable neck due to the injury he sustained from his fall at the job site. When he moved his neck a certain way, he would experience tingling and loss of sensation in some part of his arms and hands. This meant that his neck bone was compressing on his nerves in the neck area of his spine. For this reason, the neurosurgeon relieved the pressure in his neck by removing the bone that was compressing on the nerves. He also rendered an opinion that because of the unstable neck of the construction worker, he would no longer be able to do any construction work whatsoever.

Because of the neurosurgeon’s testimony, the deputy commissioner awarded catastrophic benefits amounting to $400 weekly beginning June 24, continuing for 26 weeks. The commissioner based his ruling on the fact that the man suffered from an unstable neck and would be unable to use his arms to do any kind of activity. He then ruled that because the man was unable to use both his arms until the surgical intervention, he finds that the construction worker must have suffered nerve damage and trauma to his nervous system. He ruled that the construction worker was entitled to catastrophic benefits.

The employer appealed this finding. The only question is whether or not he is entitled to catastrophic benefits for the loss of the use of both his arms.

The Court reversed the commissioner’s order. The Court ruled that catastrophic benefits can be awarded only if there is organic damage to the nerves; if there are any lesions or injury or trauma to the nerves off the spine. There being no trauma to the nerves in this case as testified to by the neurosurgeon, the construction worker is not entitled to catastrophic benefits.
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On July 23, 2007, a man was sitting at the traffic control light located at Greenwich Street and Jerusalem Avenue in Nassau County, New York when another vehicle hit his. The other vehicle made contact with his vehicle in a same direction side swipe manner. As the vehicle was driving past his in the same direction, it swerved and the offending vehicle swept up the passenger side of the man’s car from the rear passenger side area to the front. The man filed a personal injury and 90/180 case against the driver of the other vehicle.

In order for a person to claim a serious person injury under the auspices of the New York Insurance Law, they must be able to prove that they suffered an injury that was invasive enough to alter their normal everyday lifestyle. In order to make that statement, the injured person must be able to demonstrate through medical records that they have sustained either a permanent loss of use, or partial percentage loss of use of a member of their body.

Alternatively, they can show a brain injury or spinal injury that is severe enough to have altered their lives and receives treatment. They may also file a 90/180 claim that contends that although they recovered from their injuries, they were incapacitated by them for 90 out of the 180 days that immediately followed the accident. It is important that the injured person is able to demonstrate that they have been continually under the care of a doctor from the time of the accident until the time that they filed their suit. The court has been known to dismiss a gap in treatment for legitimate reasons if it can be properly documented.

In this case, the driver of the other car filed a motion for summary judgment asking the court to dismiss the case. The other driver contends that the man did not demonstrate proper documentation showing that he had sustained a serious spinal injury under the guidelines of the New York Insurance Law § 5102(d). While he submitted several test results, they were missing original signatures and failed to have sworn doctor testimony upholding them. Further, the driver of the other car demonstrated that the man claims to have been disabled by the accident, however, there is evidence that he took a job at UPS four months following the accident date. Since that time, the man has not been seen by a medical professional for any of his injuries. Because, the other driver contends that the man has not proven his case under the statute as either permanent, or as a 90/180, the man asks the court to free him from liability and dismiss this case as frivolous.

The court reviewed the case and examined all records associated with it. The court is reluctant to grant summary judgment dismissing a case because New York Law considers that a person has a right to argue their case in court. When there is even the slightest chance that there may be arguable points of fact, then the case will not issue a summary judgment and will forward the case to court for trial. In this case, although the man had provided doctor’s letters, they were not sworn documents. The primary test result that he was depending on to make his case, was not signed or properly admitted. Further, the fact that the man had obtained employment within four months of suffering his injury and stopped all medical treatment for a period of two years before filing this claim is suspect. The man provided no explanation for his failure to obtain treatment for two years following the accident. With these facts in mind, the court approved the other driver’s request for summary judgment and dismissed the case against him.
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When a person decides that they want to file a personal injury lawsuit in New York, they are required to submit proof to the courts that their injury is a severe injury as defined by the requirements of Insurance Law § 5102. That means that they must also show that they meet the requirements of Insurance Law § 5104 as it regards non-economic loss. When the elements of the injury are not in compliance with these codes, then the person will not be allowed to file the suit. A lawsuit in New York, alleging a personal injury may not be filed if the injury is merely an inconvenience. In order for an injury to be determined severe it must render that person unable to work for a substantial amount of time and/or prevent that person from continuing to work in their chosen career field.

The injuries that are defined as serious injuries are spelled out in the law. They are defined as injuries that deprive a person of the use of a limb, or actually results in the amputation of a limb. Some spinal injuries and brain injuries may also qualify as severe. In order for the spine injuryor brain injury to be categorized as serious, it must be so pervasive of an injury as to render the person unable to function on a daily basis as they were accustomed to performing. The ability to continue participating in daily activities that they were able to participate in prior to the injury would mean that the injury will not be considered a severe injury under the law.

In October of 2009, a woman was involved in a traffic accident at the intersection of Bellmore Avenue and Sunrise Highway. The accident occurred in Nassau County in the State of New York. At the time of the accident, the police determined that the vehicle that hit hers was at fault in the accident. At the accident scene, the woman left her car, walked around the scene, and was able to drive her vehicle to work after the accident. She later went home and stayed out of work for one day. She started to see a chiropractor following the accident because she claimed that she was having headaches and pain from personal injury that she incurred as a result of the accident. She was x-rayed by the chiropractor and went to see him two to three times a week for several months into the winter of 2010.

In the winter of 2010, she started physical therapy. She attended physical therapy sessions two to three times a week until she stopped in the summer of 2010. At this point, she saw an orthopedic doctor several times in an attempt to get relief from her symptoms. Following 2010, she stopped receiving treatment for her injuries and continued on with her daily routines. In accordance with the laws of New York, although her x-ray report and follow-up doctor reports indicated that she had sustained a spinal injury that involved compression of her spinal column and several dislocations of vertebrae, she testified in court that she was only in bed from the injury for one day. She also testified that overall, she has only missed less than a week of work obtaining treatment for her injury. Because the statute requires that the injury be severe and pervasive enough to prevent the patient from performing daily activities that she did before the injury, the woman has effectively ended her own lawsuit by stating that she was only inconvenienced one week because of her spinal injuries. The court in review of this testimony determined that the woman did not suffer a severe injury as defined by the law. Her case was dismissed.
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Spinal injuries can cause problems that increase over the years from the date of injury. An injury that may not seem too severe at the time of injury can actually become much worse as the years go by. An injured spine is more likely to show signs of degenerative disc disease than one that has not been damaged. When a spinal injury occurs at work, it is especially important to document that injury and have it treated immediately to reduce the effects that the personal injury of the spine will have on ones later years. If a person delays too long in filing an application to receive disability benefits on the basis of a spinal injury, they may be denied. The reason for the inability to file a late claim on a spinal injury can be related to the inability to show a direct correlation to the original injury.

When a spine is injured, arthritis and other degeneration of the bone and cartilage of the spine may concentrate in the area of a prior injury. However, it is not possible to determine if the additional degeneration of the spine is associated with normal aging, or has been made worse by the previous injury. One case of this nature was when a Nassau County Police Officer filed a petition on May 5, 1972 with the New York State Policemen’s and Firemen’s Retirement System.

He claimed that six years previous to the application, he had been injured while attempting to carry an injured man on a stretcher from an apartment building. He claimed that his back struck an elevator door where he was compressed between the door and the stretcher. He stated that he sustained an injury to his spine that included a possible injury to the discs. Six years later, he filed his request for total disability associated with the injury from the accident. He claimed that the result of the accident was that he was not able to perform the duties related to being a patrolman on the police force.

The court required that medical evidence be presented that would demonstrate that the officer has sustained a severe and permanent injury that had resulted in his total disability or partial disability. The Retirement System required that the officer be examined by a neurologist and a psychiatrist provided by the state. The doctor filed his results of the examination. He claimed that the tests that he performed on the officer demonstrated that the officer was not severely injured at all. In fact, the doctor pronounces that he did not sustain a herniation injury to the disc and that he would be able to return to his normal police duties with no disability at all.

The officer brought in his own experts. He brought forward the police surgeon who was responsible for the health of all of the members of the police department. He examined the officer immediately following his injury which he had records of happening on April 4, 1966. He stated at the time that he thought that the officer had sustained a herniation injury to a spinal disc. He stated that he had referred the officer to an orthopedic specialist for continued treatment. He stated that he did not believe that the officer was fit to continue work as a frontline police officer in New York. He also testified that the officer’s current disc problems were causally related to the original accident in 1966. However, the other medical experts who the officer brought forward to support his claim stated that they thought that the officer was injured and that it was a spinal injury, however, none of them were willing to state that the officer was permanently disabled. His claim was denied.
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Determining whether an injury is considered serious under the Insurance Law § 5102, is an issue that is common in the courts of New York State. In order for an injury to be considered serious by law in New York, it must be so serious that for the first 90 days out of the 180 days immediately following the accident, the person must be prohibited from maintaining his normal daily activities. A board certified physician who has conducted tests that demonstrate a diminished capacity in one or more limbs, the spine, or the brain must also document the injury. A person who has sustained a spinal injury, must be able to show through documented tests performed by a board certified doctor that they have a limited range of motion that is permanent in order to recover punitive damages. In the case of a traffic accident injury, where the person is a passenger in one of the cars, that person must attach the driver of the car that they were in and their insurance company as well as the driver of the second car and their insurance companies. Ultimately, the insurance companies will each do their best to place the burden of compensation on the other company.

In one case that involved a traffic accident from March 17, 2008, a man was injured in the accident while he was a passenger in one of the cars. The accident occurred at the intersection of Front Street and Main Street which are in the Township of Hempstead. Hempstead is located in Nassau County. In this case, the car that the complainant who was injured was in, was owned by a person other than the driver of the car. Because of that, he had to attach the driver of the car, the owner of the car, and the insurance company. There is little question about the facts of the accident itself. The insured person was wearing his seatbelt at the time of the accident even though the airbags in the car did not deploy. At the time of the accident, none of the people involved in the accident requested an ambulance so none came to the scene of the accident.

The injured complainant did not go to a hospital for treatment until later, after the date of the accident. He ultimately sought treatment by an orthopedist and a neurologist for injuries that he claims he incurred during the accident. His doctors claim that he sustained several neck and back injuries, as well as an injury to his right shoulder that has resulted in permanent partial disability of those limbs. The defendant insurance companies filed a request to have the man examined by a doctor of their choosing. That doctor claimed that the man had no injuries that could be termed serious under the New York State Insurance Law. He maintained that his examination revealed that the man did not have any significant reduction in his range of motion. The defendant insurance companies filed a motion to have the court grant summary judgment dismissing the case as filed because they contend that the case does not meet the qualifications for a serious injury.

The complainant and his doctor disagreed. They demonstrated a measured loss of movement and range of motion studies that were less than the normal range. The tests were well documented and provided both the results that the complainant showed as well as what a normal test would show. These tests and their results were submitted along with the diagnoses of the board certified physician who ran the tests and issued the diagnoses. The court was satisfied that there was enough of an issue of fact that they denied the motion for summary judgment and agreed to move the case forward to trial.
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