Articles Posted in Queens

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Two Queens male drivers were involved in an automobile accident on July 5, 2007. One of the drivers filed a complaint for damages under the “no fault” Insurance Law. Under this law, in order to maintain a personal injury action, the injured party must prove that he sustained a serious injury.

One of the male drivers sued under the Insurance Law, a spinalinjury or a knee injury may be compensable if it is proved that the injured party has experienced a significant loss of use of the spine or knee that was injured.

In this action, the injured male driver presented the medical report prepared by his attending physician. His own Staten Island physician stated in his report that he suffered sprains and/or strains in his spine and in his right knee. He also opined that the prognosis for recovery of the injured male driver was excellent. That is, the injured male driver can look forward to full healing and full use without impairment of his spine and his right knee.

The neurologist consulted by the injured male driver also found that there he found no neurological impairment or difficulty that could medically explain the subjective complaints of pain that the injured driver was making. The neurologist observed no spasms or difficulty in moving. He also performed objective range of motion tests on the injured male driver and found no significant loss of use or loss of range of motion.

Both the injured male driver and the driver who was sued relied upon the MRI reports which were made at or around the time of the accident. These MRI reports on the right knee of the injured male driver showed that there were signs of degeneration in the meniscus or horn of the knee. The orthopedists of both the injured driver and the driver who was sued were in agreement that the degeneration in the knee of the injured driver was common to people of his age. They were also in agreement that the presence of the degeneration in the knee of the injured driver could not have been caused by the accident. Thus, it may be inferred that while there may be loss of use in the right knee, the loss of use in the right knee cannot be attributed to the accident. Instead, it is attributable to the normal process of ageing and of the normal wear and tear of the knee.

The injured driver presented an affidavit of his chiropractor who reported the course of his treatment of the injured driver’s spine. The court ruled that this was admissible but it cannot be given value to determine the nature and extent of the injured driver’s knee and spinal injury. The court also noted that the chiropractor reported that the injured driver stopped treatment only after a few months.

The driver who was sued asked that the injured driver be examined by his own orthopedist, neurologist and radiologist. All these doctors found that the MRI reports of the knee and spine of the injured driver had normal MRI of the knee; they also found that there is minimal multilevel age-related degeneration in his cervical spine. The radiologist found that there was no evidence of disc swellings or herniation or any abnormality that can be traced as proximately caused by the accident.

The driver who was sued filed a motion for summary procedure asking that the cause of action be dismissed for failure of the plaintiff to allege and to show at first blush that he suffered any serious injury that is compensable under the Insurance Law. The driver who was sued also pointed out that the injured driver did not even miss work for more than ninety days of the first one hundred eighty days immediately following the accident. The driver who was sued pointed out the complaint of the injured driver where he said that he missed only six to eight weeks or work.

The court granted the motion for summary judgment for failure of the injured driver to prove that he suffered a serious injury. He also failed to raise any material issue of fact that needs to be tried before a jury.
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First Case:

On 7 March 1991 and on 14 June 1991, the Family Court of New York County made a finding of neglect against the subject parents and ordered a year of minimal supervision by the Child Welfare Administration, respectively. An appeal from the order followed.

The court finds that the orders must be are affirmed, without costs.

As the Family Court Act provides, a prima facie case of abuse or neglect is established by proof of injuries sustained by a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child. Once a prima facie case is established, the burden of coming forward with the proof shifts from the petitioner to the parents to offer a satisfactory explanation to rebut the evidence of abuse.

Here, the court finds that the ruling of the Family Court that the subject child was neglected was supported by evidence and that he sustained a spiral fracture of his upper right arm while in the sole care of his parents. This injury, according to the expert testimony of two witnesses, would not have been caused by the child’s spina bifida. Further, while there was some testimony by the mother that the injury could have been caused by the infant’s two and one-half year old brother, other testimony demonstrated that it was unlikely that a two and one-half year old child would have the strength or dexterity necessary to inflict such an injury. Moreover, despite the overwhelming medical evidence that the child would have experienced extreme pain immediately after the injury, and the pain would have continued for several days, the mother testified that prior to the morning of 10 October 1989, when she brought the subject child to the Institute for an evaluation as to his spina bifida, she observed no swelling or discoloration of the right arm and no indication the child was suffering pain or discomfort. The uncontroverted medical testimony was that multiple signs of injury, including swelling, discoloration, lack of movement of the arm and pain whenever the arm was touched, would have been clearly apparent to the parents and they should have sought medical treatment sooner than October 10. Thus, the record establishes that the parents failed to take prompt and appropriate action to obtain medical treatment for the child after the injury to his arm was readily discernible. In addition, the Queens Family Court did not abuse its discretion in concluding the parents required the continued services of the agency and ordering a twelve month period of supervision. In any event, since the dispositional order has expired, the issue of the length of the supervision is now moot.

Second Case:

On 7 August 1991, the Supreme Court of Ulster County granted certain defendants’ motions for summary judgment dismissing the complaint against them. An appeal from the said judgment followed.

There are two actions involved which allege medical malpractice arising out of the labor and delivery of plaintiff at a Hospital in Ulster County on 16 January 1980. The first action seeks to recover damages for the pain and suffering plaintiff experienced during a prolonged and difficult labor, during the birth of her son, however, permanent injury is not alleged; she also seeks damages for the emotional distress allegedly incurred by her due to the condition of her infant; and includes a derivative cause of action on behalf of plaintiff’s husband. The second action was commenced on behalf of the infant seeking damages for injuries he sustained at the time of his birth. Nonetheless, the herein appeal is limited to the dismissal of the complaint in the first action.

Here, the court finds that plaintiff did not sustain any physical injury and by reason of the fact that her pain and suffering was not alleged to be permanent, but that the pain was associated with the childbirth process resulting from the prolonged labor and delivery of her son, it is not actionable. In view thereof, in the absence of an independent physical injury to plaintiff, her cause of action seeking recovery for emotional or psychic harm occasioned by the birth of her child in an alleged impaired state must also fail. Thus, with the plaintiff having failed to set forth a cognizable claim, the derivative action of plaintiff’s husband must also fail. On plaintiff’s claim that defendants have failed to support their motion for summary judgment with an affidavit of merit, the court finds this untenable. The evidence in the record clearly establishes as a matter of law that plaintiffs have no cognizable claim. Therefore, the Supreme Court correctly granted summary judgment to defendants dismissing the complaint in the first action. In sum, the judgment appealed is affirmed, with one bill of costs.
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Petitioner, a sergeant with the Suffolk County Police Department, injured his back at the scene of a motor vehicle accident in February 2004 when he slipped while moving the door of the vehicle-which had been removed by the fire department-so that rescue personnel would have better access to the accident victim. Petitioner’s application for performance of duty disability retirement benefits was denied by respondent New York State and Local Police and Fire Retirement System on the ground that petitioner was not permanently incapacitated from the performance of his duties. A Hearing Officer affirmed the denial of benefits following a hearing, and respondent Comptroller upheld this determination upon administrative review.

A board-certified orthopedic surgeon, testified that petitioner’s MRI showed “significant damage to the spinal column with multiple level herniations.” An EMG study revealed damage and irritation not only to the spinal cord, but to the nerves of the spinal cord. The orthopedic surgeon, who started treating petitioner eight months after his injury and continues to see petitioner every six weeks, concluded that the findings on these two objective tests were compatible with petitioner’s subjective complaints. The Queens orthopedic surgeon diagnosed petitioner with lumbosacral herniated discs, sciatica and back pain, and he testified that petitioner’s injury was permanent. Reports were also put into evidence on petitioner’s behalf by an osteopath who treats petitioner three times a week, by an orthopedist who conducted an independent medical exam on behalf of petitioner’s employer, by another orthopedic surgeon who performed an independent medical exam on behalf of the Workers’ Compensation Board, and by a neurologist. Each physician concurred with the orthopedic’s finding of disc herniation and they also noted various levels of muscle spasm, and the degree of permanency noted in their reports ranged from “[p]artial moderate permanent” to total disability.

A report was also submitted into evidence by an orthopedic surgeon who examined petitioner on behalf of the Retirement System. The orthopedic surgeon diagnosed petitioner, after an exceedingly brief examination, with “resolved low back strain,” finding no muscle spasm and no evidence of disability. The surgeon testified, however, that if petitioner merely had a low back strain, the EMG and MRI would not have shown the nerve damage and disc herniation. Testimony further revealed that as a result of the herniation and radiculopathy, petitioner’s ability to sit, stand and lift are limited such that he cannot go into the field as he did prior to this incident, he continues to experience severe pain requiring continued Medication and, even though on light duty, he has missed over 130 days of work as a result of this incident compared to only 14 days missed due to injury in the 19 years prior thereto.

As the Retirement System concedes that Staten Island petitioner’s injury occurred while he was on duty, the only issue with respect to petitioner’s application for benefits is whether he is permanently incapacitated from performing his duties, and petitioner has the burden to demonstrate such incapacity. The Comptroller “possesses the authority to resolve conflicting medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert articulates a rational and fact-based opinion premised upon a physical examination and consideration of the relevant medical records” (Matter of Clorofilla v Hevesi, 38 AD3d 1126, 1126 [2007]; see Matter of Freund v Hevesi, 34 AD3d 950, 951 [2006]). Given the testimony at the hearing, as well as the medical evidence submitted, the court find that the Comptroller’s determination that petitioner was not totally incapacitated from performing his duties as a field sergeant is not supported by substantial evidence and must therefore be annulled.
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Claimant, 49 years of age, worked in various positions at the employer’s saw mill, most recently as a millwright. Every position he held during his 24-year career involved arduous physical labor, including heavy lifting on a daily basis. Sometime in March 1998, claimant began experiencing pain in his hip and leg. He did not identify any specific incident that caused the pain, but pointed to a number of his job duties that involved heavy physical labor. According to the Queens claimant, the pain developed gradually. After learning from his family physician that the pain related to a back condition or back injury, claimant sought compensation benefits. The employer and carrier or E/C completely denied the claim, including the request for a medical treatment. On 29 April 1998, claimant came under the care of doctor-A, who is an orthopedic surgeon, who placed him on a no-work status. After testing, physical therapy, and consultation with another doctor, doctor-B who is a neurosurgeon, doctor-A diagnosed lateral recess stenosis with degenerative disk disease and L3-4 herniated disk. Thus, claimant filed a claim under the worker’s compensation for compensation benefits. Thereafter, the judge of compensation claims or the JCC, in resolving the claim for compensation benefits, found the stenosis compensable under a repetitive trauma theory based on claimant’s and doctor-A’s testimony, and concluded that claimant’s heavy lifting and repetitive bending while working for the employer over the course of more than 20 years ca
There are two issues raised by the E/C on appeal, viz: first, that the judge of compensation claims (JCC) erred in deciding that claimant provided timely notice of his work injury; and, second, that claimant suffered a compensable accident under a repeated trauma theory. On the second issue, E/C contends that the only competent, substantial evidence (CSE) established that claimant’s non-compensable herniated disk combined with his preexisting lateral recess stenosis to cause his disability and need for treatment, and no evidence was presented that the employment was the major contributing cause of same.

The court finds that CSE supports the JCC’s determination of the first issue. And, on the second issue, after applying the limited standard of review of CSE, the court finds it proper but not for all of the reasons mentioned. First, there was no burden on claimant to prove that the stenosis was the major contributing cause of the disability. The stenosis is not a preexisting condition and there was only one cause, rather than multiple causes, of claimant’s disability and need for treatment. Second, a combination of the evidence, both lay and medical, supports the JCC’s determination that the employment caused claimant’s disability and need for treatment.

The instant case is not a case in which a compensable injury is combined with a preexisting condition to cause or prolong a disability. It is true that claimant’s spinal stenosis or spinal injury preexisted claimant’s disability. However, this does not mean that it was actually a preexisting condition. Historically, this expression has been defined to mean something that is personal to the employee, an idiopathic condition which the worker brings to the workplace, that is, a condition or disease which exists independently of any employment contribution, although it may be later aggravated or accelerated by the employment. Here, it cannot be simply concluded from the evidence that the stenosis, which is itself the compensable injury, combined with a preexisting condition to cause or prolong disability or need for treatment. Moreover, the evidence shows that there was only one cause, rather than multiple causes, for claimant’s disability. The record before the court discloses, and the JCC implicitly found by granting benefits, that the employment-related injury was the only cause of claimant’s disability. Because there was only one cause, the burden imposed by the elevated major-contributing-cause standard is inapplicable. Although it is true that the JCC found that the major contributing cause of claimant’s stenosis was the repetitive work activity, this finding was unnecessary, because it implies that more than one cause combined to bring about the disability. As to the herniated disk, which the E/C claims joined with the preexisting spinal stenosis or spinal injury to cause the disability, the JCC essentially rejected doctor-A’s testimony that it was a contributing cause, finding instead that the hypothetical facts on which the Manhattan physician based his opinion were not supported by the trial testimony. Nonetheless, this finding has not been challenged on appeal. Thus, the court cannot review the soundness of its ruling. Additionally, it is unclear from the record when the herniated disk occurred. It could have taken place in September or October 1997, when claimant first sought medical care for back pain or back injury. The absence of proof as to its occurrence may have motivated the JCC to conclude that the disk herniation was not a cause of the disability arising in March 1998.

The question now is whether CSE supports the JCC’s causation determination. In answering this question, it is necessary to identify the appropriate causation test. As the law provides, to establish compensability, a claimant must demonstrate that he or she suffered an accidental injury arising out of work performed in the course and the scope of employment. To show that an injury arises out of work in a repetitive trauma case, the claimant is required to prove a prolonged exposure to a condition or activity, the cumulative effect of which is injury or aggravation of a preexisting condition, and that claimant has thereby been subjected to a hazard greater than that to which the general public is exposed. Alternatively, the claimant must show a series of occurrences, the cumulative effect of which is injury. Causation can be established through lay and medical testimony.

Here, claimant’s injury, specifically, spinal stenosis or spinal injury, is a classic example of a repeated trauma injury, one which is an exception to the ordinary situation involving injury by accident, where both the cause and the result are sudden. In the typical repetitive trauma model, the disabling condition is one that gradually arises over a protracted period of time, often years, as in the present case. Under this theory, each bump, scratch, strain, jar, irritation, noise, etc., is regarded as an accidental occurrence. Compensation is awarded due to the cumulative effect of a long series of such occurrences leading to the disability or need for treatment. It is clear in the case at bar that the lay and medical evidence supports the JCC’s finding that repetitive trauma arising from claimant’s work activity caused his disability. It must be noted that claimant first went to work at the employer’s saw mill during his early twenties when he was symptom-free; that he consistently performed heavy, manual labor over the course of his 24-year employment at the mill; and that he repeatedly pulled chains weighing 40 pounds, moved logs that were 12 inches in diameter and 20 feet long, stacked lumber in piles and moved them, lifted 50-gallon drums of oil, carried oxygen and acetone bottles weighing up to 60 pounds, pulled levers and cables that were the equivalent of 40 pounds, replaced saws, collars, chipper knives, and edging knives, all of which were heavy, and shoved heavy 200-horsepower motors across metal floors. There was no evidence presented that claimant had ever suffered any disabling condition before the compensable injury in question. Thus, basing on the activities which claimant was required to perform during his employment, the repetitive trauma elements of prolonged exposure and a greater hazard than that to which the general public is exposed has been complied with, along with the alternative test regarding the cumulative effect of the repetitive activities.

The rule has long been established that the resolution of causation issues is within the exclusive province of the judiciary and not the medical profession, and may be reached using a combination of medical and lay evidence. Lay testimony is of probative value in establishing the sequence of events, actual inability or ability to perform work, pain, and similar factors within the actual knowledge and sensory experience of the claimant. The requirement of presentation of medical evidence in situations involving non-observable injuries has not been overruled. The court has not read the ruling in the case of Closet Maid as overruling such requirement. In that case, the back injury which claimant suffered could be only recognized by a medical diagnosis. The court does find any basis for a reference to the medical testimony presented in Closet Maid, which seems to imply that spinal stenosis is invariably a preexisting, non-work-related condition. However, the facts in Closet Maid show that it was tried under a different theory from that of repetitive trauma. There, the claimant’s disabling condition and need for treatment followed a specific industrial accident, and the medical evidence identified claimant’s spinal stenosis as a personal, preexisting condition, and thus requiring an application of the major-contributing-cause-standard; also, a professor addressed the comparable problem of proving the compensability of heart-related conditions in the absence of evidence that there was a prior history of heart disease saying, that although there is no evidence in the record of a heart disease, that fact will be supplied by judicial notice, because the preponderance of medical theory holds that the worker must have had a preexisting heart disease, but, that this may actually contradict the record, which may contain undisputed testimony that the man was healthy and had no previous history of a heart disease. The legal answer is that the determination of preexisting heart disease is one of medical fact in the particular case. In addition, if another cause unrelated to the workplace existed in the record, this would warrant a reversal of the order but such is not the case. The somewhat unique nature of repetitive trauma injuries, in which, as stated, the disabling condition does not immediately arise following a single incident, but gradually occurs following a cumulative series of incidents over an extended time frame cannot be disregarded.

In sum, the court has a limited standard of review. The court’s function is only to review whether the record contains competent and substantial evidence to support the JCC’s decision, pursuant to the rules and the law. The court does not have the power and authority to assess whether it is possible to recite contradictory record evidence which supports an argument rejected in a lower forum; neither will the court retry the case and substitute its judgment for that of the JCC on factual matters supported by CSE. As a rule, a judge’s findings will be sustained if any view of the evidence and its permissible inferences will permit it. Although one might, in contravention of the court’s long-established review standards, refer to contradictory evidence in isolated portions of the record, a JCC’s determination of causation depends on the substance of all of the evidence, rather than on whether a medical witness’s testimony explicitly tracks the particular statutory language. Thus, since there is actually a competent and substantial evidence to support the JCC’s finding that repetitive trauma from claimant’s work activity caused his stenosis, and that the stenosis in turn resulted in the disability and/or need for treatment arising in March 1998, the court finds that the worker’s compensation order appealed from must be affirmed.
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This appeal from the lower tribunal’s order stemmed from a vehicular collision case. The complainant man stated that he was stopped at a traffic light when a car crash into his vehicle and pushed it into a third vehicle ahead. On impact, he went forward in the seat but was restrained by the seatbelt. He felt his neck snap and had a shooting pain down his arm. The man received medical attention at the emergency room for neck and back discomfort with weakness on his knees. The man was restricted from strenuous physical activity such as lifting. At the time of the incident, the man was only 25 years old.

A chiropractor treated the man six days after the car accident and received complaints of neck pain, headaches, discomfort of the shoulder and upper and lower back, dizziness, fatigue, and nausea. The Queens chiropractor subsequently explained that the man had suffered a permanent injury to the supportive structures of his spine. He also made an initial determination that the impairment was 5 percent, but after reviewing a subsequent myelogram and noting the presence of a lumbar fracture, he explained that the permanency would be significantly greater, 15 percent. While continuing the treatment, the chiropractor referred the man to a neurologist.

The complainant man worked as a technician in aircraft electronics. At about five weeks after the automobile collision, he and a co-worker lifted a 100-pound test station drawer from the floor to a workbench while performing a normal task at work, after which the man noticed back pain and stiffness. After three days of prescribed bed rest and heat packs, he returned to work, but the lifting restrictions were reinstated. Before and after the lifting incident, the man already received treatment from the chiropractor for his low back problems.

The Staten Island neurologist treated the man for only about a month. The medical evidence indicates that the neurologist felt that the man probably would require ongoing physical or chiropractic therapy and medications. Although the neurologist did not anticipate then that any surgery was foreseeable or would be necessary in the near future, his medical records did not mention the presence of a spinal injury specifically, an avulging compression lumbar fracture of the L5 vertebra body. Furthermore, he was unaware that the man had undergone a cervical fusion at the C6-C7, low neck level.

Another neurologist saw the man for an independent medical examination. The neurologist reviewed the x-rays and several CAT scans indicated a preexisting congenital small canal where the spinal cord and roots are located. The condition can make one person more susceptible to an injury. A whole body myelogram showed a central herniated disk at C6-7 consistent with a traumatic episode like the automobile accident.

Upon the neurologist’s referral for possible surgical management of a low back problem, a neurosurgeon treated the man once. His findings after reviewing the myelogram and CAT scan are consistent with the neurologist’s, and the neurosurgeon noted some impression in his medical report.

In his deposition, the neurosurgeon concluded that the possibility of future low back surgery will depend on the man’s symptoms and progress over time. He discovered an avulsion compression fracture on the films previously ordered by the first neurologist. Based on records, an avulsion fracture is a condition where a ligament that is attached to the bone is under sufficient stress that it pulls off a piece of the bone, whereas a compression fracture indicates that the bone is crashed. He also explained that the man’s injuries are more consistent with a traumatic event than with a bending and lifting injury. None of the physicians testified that the man’s avulsion fracture is attributable to the lifting incident. The neurosurgeon’s review of the medical studies indicated that the man will undergo surgery with continued complaints. Specifically, he also testified that the man will need separate procedures that can be performed at the same time. He then stated that such procedures could cost around $25,000.00.

The aircraft electronics neurosurgeon also saw the man. He testified that the CAT scan of the lower back was definitely not normal and that the MRI report indicated multiple disc bulges that could have been caused or aggravated by trauma. He also found a herniation in the lower part of the neck and discerned evidence of a fracture at the L5 vertebra.

At the final visit with the neurologist, the man underwent another independent medical examination. The doctor found that two and one-half months after the surgery, the man had no significant relief from low back pain, especially as his activity level increased. The neurosurgeon also indicated that if the man had no further recovery from his neck problems, he would have a 7 percent impairment of the whole person regarding the cervical and lumbar regions. That figure approximates about a 14 percent total body impairment, which she characterized as probably fairly significant.

The opponent cited a portion of the record indicating that subsequent to the man’s automobile and lifting accidents, a military review board initially found him to have a 10 percent psychological impairment but no physical impairment. But, a complete picture of the history of the military’s findings indicates that the man appealed that initial rating and received a 20 percent disability rating from the reviewing of the physical evaluation board, based on the diagnosis of degenerative disc disease at multiple levels of the lumbar spine with foraminal stenosis at C5-C6.

The opponent also relies in large measure on the first neurosurgeon’s medical records suggesting that the man was not a surgical candidate and that the bulging discs were not the cause of his pain.

The neurosurgeon predicted eventual surgery to decompress the L-5 roots at L5-S1, and the first neurosurgeon subsequently deferred to the opinion that the man will require an extensive back surgery. Additionally, the first neurosurgeon initially was unaware that the man had undergone a cervical fusion at C6-C7 level.

The first neurologist deferred to his partner neurologist, whose treatment continued for nearly two years beyond. There are two key matters on it which includes the man’s condition or limitations in relation to the car accident and the seven percent permanent impairment ratings to the neck and low back. In his deposition, the first neurologist stated that he had no opinion of his own as to whether the man has a permanent injury, and he defended his prior diagnoses as reflections of how he had felt at the time. He acknowledged that additional information was received after his last treatment of the man, and he qualified his initial findings by observing that his feelings may be somewhat different over the long-run case.

Consequently, the court carefully considered the extensive medical testimony and accompanying medical records demonstrating a permanent injury. It indicates the probability of expensive future surgery for the man, the court considered that the jury’s award of zero for future medical expenses is contrary to the manifest weight of the evidence and is grossly inadequate.

As a result, the court decided to affirm in part, reverse in part, and remand for a new trial on the issue of future medical expenses and on future damages, if any, relating to the need for future surgery.
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As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Staten Island Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Queens employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

But the order under review also made the Paint Company responsible for half of the expense of treating the woman’s lower back or lumbar spine injury. While competent, substantial evidence supports the finding that she did not sustain a lumbar spinal injury in the first accident the record lacks competent, substantial evidence supporting the decision to allocate responsibility for treatment of that injury is fifty-fifty. Such an allocation is not justified simply because the need for treatment was causally related both to the second and to the third accidents. None of the doctors whose opinions the judge of compensation claims cites in support of a fifty-fifty split stated that the second and third accidents were equally responsible for the condition of the woman’s lumbar spine.

The woman also contends that the judge of compensation claims erred in denying her claims for treatment with a neuropsychologist and with a separate, pain management specialist. The order provides that the authorization of a pain management physician is deferred until the claimant resumes treatment with authorized neurosurgeon, and the suggested treatment is deemed to be reasonable and medically necessary. It further provides that the authorization for care and treatment of the claimant’s neuropsychological condition is deferred until the claimant resumes treatment with the authorized psychiatrist and suggested neuropsychological treatment, is deemed to be reasonable and medically necessary.
A judge of compensation claims has no authority to delegate the decision of claims pending before him to medical providers, to delay decision indefinitely, or, in a final order, to defer to opinions not yet offered.

The judge of compensation claims found that the woman was entitled to temporary partial disability benefits from the April 30, 1996 accident until she reached statutory maximum medical improvement on May 1, 1998, and to permanent total disability benefits thereafter. He then ruled that she was entitled to only two-thirds of the normal indemnity benefits, holding that entitlement to a third of the benefits otherwise due was carved out by the non-compensable accident. This analysis was erroneous.

If a subsequent non-compensable accident superimposes an injury on a compensable condition, the disability resulting solely from the subsequent accident is not compensable. As to temporary indemnity benefits, the question that should have been addressed on remand-and must now be addressed on a second remand-is whether the woman’s disability attributable to the industrial accidents would have rendered her (partially or totally) unemployable, without regard to the effects of the third accident.

An employer is not entitled to receive a windfall when some misfortune unrelated to work befalls an industrially injured employee and prevents his working, if a prior industrial accident would otherwise have entitled the employee to workers’ compensation benefits.
Similarly, as to permanent indemnity benefits, the judge of compensation claims must decide on remand whether the woman’s disability attributable to the industrial accidents would have rendered her totally and permanently disabled even if the third accident had never occurred. An evidentiary issue is presented as to what portion of the disability is caused by the compensable accident, even where the non-compensable condition is independently a sufficient producing cause of claimant’s total disability. The question is whether she was or would have become totally disabled in the absence of the non-work-related accident.

Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claims. The order is otherwise affirmed.
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On 1994, a Queens man was admitted to a hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.

Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.

In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.

Consequently, the
Staten Island trial judge ruled that the man’s injury was of such a nature that a reasonable person would question why it had happened during that type of procedure. The court additionally found that the hospital and the nurse would be within the zone of anticipated targets for a lawsuit. As a result the trial court opined that the man was on notice of his injuries and of the identity of the potential opponents.

The evidence shows that the man did not discover that the hospital and the nurse potentially shared fault in the injuries until when the physician answered the complaint and raised the negligence of other hospital employees as an affirmative defense.

Based on records, the legislative policy underlying the medical malpractice area supports the first decision of the case. In an effort to foster full investigation on the claims, promote pre-suit settlement of claims and prevent the filing of baseless litigation, the legislature enacted the law, which requires a potential complainant to conduct a thorough pre-suit investigation of the medical viability of a malpractice claim.

In the case, the man did begin an immediate investigation. However, the hospital’s and the nurse’s potential responsibility did not come to reveal until the physician answer the complaint and state his deposition. The man brought his claim a little more than a year following receipt of the initial indication of the hospital’s wrongdoing and a mere three months after the information was confirmed in the physician’s deposition. The court believes that the timing complies with the applicable law of limitations. The suit was brought within two years of the time the man first learned of the possible negligence of the hospital and the nurse, and within four years after the incident.

Consequently, the court finds out that trial court erred in granting the decision of dismissal based on the law of limitations and the decision is hereby reversed.
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Claimant is a young woman who studied dancing most of her life. She was employed as a dancer at a famous theme park owned by the appellant Company, for several years. She first injured her back during a dance routine on January 11, 1981. After a spinal injury operation, she went home to recuperate and eventually returned to work. She neither requested nor received any attendant care benefits while recuperating at home on this occasion.

An source said that, claimant sustained a second back spine injury when she was dropped by a fellow dancer. As a result of this spine injury, claimant underwent a low back spinal fusion operation, by an

Queens orthopedic surgeon approved by the appellant Company to provide medical treatment to claimant. Thereafter, claimant was discharged from the hospital to return home and recuperate. She was instructed to wear a full body cast, which greatly restricted her body movement, for one and one-half months following her discharge from the hospital. The cast, although described as “removable,” was to be worn at all times except while bathing and taking care of personal hygiene. Claimant was not advised that her worker’s compensation benefits would cover necessary attendant care during this period. Claimant normally lived alone in her own home, but she had made arrangements to temporarily reside with a friend who agreed to provide her care and assistance with such things as going to the bathroom, bathing, dressing, eating, cooking, changing her bed, and other necessary daily functions that claimant was unable to perform for herself while in the cast.

Unfortunately, several days after claimant’s arrival at this temporary residence, her friend was injured in an automobile accident and rendered incapable of providing any assistance to claimant. Because of her lack of financial ability, claimant did not hire anyone to provide her with needed care. Instead, claimant did what she could to care for herself. Claimant’s mother, who lived in the Orlando area and held a full-time job, and another friend of the claimant, came over as frequently as they could to provide assistance to claimant. Before claimant fully recovered, however, her mother became seriously ill and died. Claimant’s emotional and psychological status deteriorated substantially during this period.

In a letter dated January 13, 1982, the orthopedic surgeon advised the appellant Company that the claimant would be undergoing a back fusion operation. Appellant Company, however, contends that it had no knowledge of claimant’s need for attendant care until it received the orthopedic surgeon letter dated March 1, 1982, wherein he explicitly advised appellant Company of claimant’s need for such care during the period from February 12 through at least March 11, 1982. A Lawyer said that, claimant’s attorney filed a claim for attendant care benefits for that entire four-week period, plus costs, interest, penalties, and attorney’s fees. Appellant Company declined to pay, and a hearing was held. The deputy commissioner entered an order directing appellant Company to pay attendant care benefits to claimant for the described four-week period, calculated on the basis of four dollars per hour for sixteen hours each day (these being the estimated hours claimant was awake each day).

The Attorney said that appellant Company appeals a worker’s compensation order awarding appellee attendant care benefits for the month immediately following her release from the hospital after a spinal fusion operation. Appellant Company contends that (1) no attendant care benefits were due because claimant actually took care of herself; (2) the amount of benefits awarded was not supported by competent, substantial evidence; and (3) in any event, no remedial care benefits should be payable prior to March 1, 1982, the date of a letter to the company from claimant’s attending physician indicating the need for such care.

The issue in this case is whether appellant Company is entitled to give appellee attendant and remedial care benefits for the injuries she sustained.

The Court said that, claimant argues, and the deputy agreed, that the award of attendant care benefits should be made on the basis of demonstrated need, without regard to whether such services were actually received and paid for by claimant. Appellant Company counters that the deputy erred as a matter of law in awarding any benefits because “the claimant cared for herself and actually never used the services.” Therefore, appellant Company argues, the award to claimant is a prohibited windfall because the act only reimburses a claimant for the economic loss suffered.

The Court finds appellant Company’s “windfall” argument to be absolutely frivolous. There is more than sufficient competent substantial medical and lay evidence in the record to support the deputy’s finding that claimant’s immobility, because of her spinal injuries and the body cast, required that she have non-skilled attendant care during this period. Although claimant was unfortunately left on her own much of the time, the evidence also establishes that some attendant care and services were provided by claimant’s friends and mother. Claimant, therefore, was entitled to recover attendant care benefits under section 440.13(1), Florida Statutes (1981).

On the other hand, we are unable to agree with the deputy’s method for estimating the value of attendant care benefits that should be allowed. Section 440.13(1) does not permit recovery of compensation for nursing or attendant care services claimant performed for herself, no matter how great the need for assistance from others may have been. The burden is on the claimant to prove by competent, substantial evidence the quantity, quality, and duration of the attendant services claimed. It was improper for the deputy to allow compensation for attendant care services for every hour he estimated the claimant to have been awake without regard to the actual performance of services by persons other than claimant. Since there was no competent, substantial evidence to support the award on the basis of sixteen hours per day, the amount of that award must be vacated.

Claimant is, however, entitled to receive compensation for attendant care services provided by the friend with whom she temporarily lived and by her mother and other friend who came by from time to time to care for her needs. In the usual case, time spent for shopping, cooking, and performing other ordinary household services by a spouse or other family member is considered gratuitous and cannot form the basis for an award for attendant care services. But when a spouse or family member provides services that go beyond those which would normally be provided on a gratuitous basis, compensation for nursing or attendant care services may be awarded. The gratuitous services contemplated by this general rule are those which would normally be provided by family members who live with the claimant and usually perform like services for the benefit of the household. It is not the purpose of section 440.13 to burden family members with medically required nursing services and unskilled attendant care when claimant leaves the hospital and returns home.

The Staten Island Court does not believe that the care and services provided by claimant’s mother and friends fall within the above rule excluding gratuitous family services, even though such services involved shopping for food, cooking, doing laundry, and similar household services. Claimant ordinarily lived alone in her own home, and both her mother and friends substantially departed from their usual daily routine to visit her and provide special care and services required during claimant’s post-operation recovery. On remand, the deputy commissioner should determine the quantity, quality, and duration of the care and services provided by these individuals, determine the appropriate value thereof, and make a commensurate award for attendant care benefits. The deputy may take additional evidence on this issue if deemed necessary.

Finally, appellant’s contention that benefits should not be allowed prior to the orthopedic surgeon March 1 letter formally requesting attendant care is without merit. Claimant argues that appellant Company was informed by the orthopedic surgeon January 13 letter that she was to have a spinal fusion operation; thus appellant Company either knew of her need for attendant care or knew of the nature of her injury and treatment so that knowledge of her need for attendant care should be imputed to them. Appellant Company replies that the January 13 letter was not adequate notice of the prospective need for attendant care services because it did not advise them that claimant would be discharged in a body cast. They also points to the fact that claimant had previously undergone back surgery and did not request or receive such care on that occasion.

Ordinarily, a claimant should know whether she needs attendant care, and section 440.13(1) explicitly requires that the employer pay the employee for such services, if actually needed, when requested by the employee. Here, claimant made no such request. No section of the act explicitly directs an employer to inform a claimant of the employee’s rights, benefits, and obligations under the workers’ compensation act in the manner section 440.185(4) requires the Division to so inform an employee when notice of a claim is received. Nevertheless, an employer must offer or furnish benefits when the employer knows, or should know from facts properly and diligently investigated, that such benefits are due. An employer is under a continuing obligation, once it has knowledge of an employee’s injury, to place needed benefits in the hands of the injured worker. This obligation cannot be met unless the employer informs the injured worker of the benefits to which he or she is entitled. Section 440.13(1) requires the employer to pay the claimant for attendant care services obtained by her, even though not first requested, if the nature of the injury requires such nursing services and if the employer, having knowledge of the injury, failed to provide such services. The nature of the claimant’s injury and necessary treatment may be such as to impute knowledge of claimant’s need for attendant care services to the employer. There was no error in the deputy’s finding that benefits were due from February 12, 1982.

There is also another and equally important ground for sustaining the award of benefits from February 12, 1982. The record does not show that appellant Company’s alleged failure to receive notice before the March 1 letter actually prejudiced its ability to investigate and determine the validity of claimant’s need for attendant care services. Nor has appellant Company asserted that it has been so prejudiced by claimant’s understandable failure to request care immediately upon her discharge from the hospital. Appellant Company was notified by the March 1 letter of claimant’s need for care before that need had ended, and prompt investigation by them would have readily revealed the sufficiency of the claim. In the absence of demonstrated prejudice to appellant Company, claimant’s attendant care benefits should be paid from February 12, 1982, even though not formally requested until March 1.
In view of the foregoing, the Court vacates the amount of benefits and remand for redetermination of the proper amount due consistent with this opinion. Appellee concedes, and the Court agrees, that no penalties should be assessed on this re-determined amount. In all other respects, the order is affirmed.
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Judgment of the Supreme Court convicting the accused, following a jury trial, of manslaughter and sentencing him to an indeterminate term of imprisonment of from six to eighteen years, is reversed on the law and the matter remanded for a new trial.

The accused was indicted for murder in the second degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree as the result of a fatal shooting. The deceased was a physician who had purchased real property located in Bronx County. The accused was the seller of the parcel of land in question, and, following the transaction, the deceased and the accused became good friends. However, the relationship between the two men deteriorated rapidly after the accused first agreed to sell the deceased man’s one-half of a building but subsequently refused to go through with the deal. The deceased man thereupon instituted a lawsuit to compel specific performance, and, when the parties were unable to settle their differences, the matter proceeded to trial and judgment, the outcome of which was that the accused was directed to sell the property to the deceased. The accused filed a notice of appeal and moved for a stay, which was granted on condition that he files a bond and perfect his appeal by a specified date. All additional settlement discussions were unsuccessful, and, finally, on the day before the bond was due, the dispute erupted into violence. The accused and the deceased became embroiled in a heated altercation during which the accused was apparently punched by the deceased and then threatened by him with further physical injury. In response, the accused removed a loaded gun from the desk in his office and followed the accused downstairs to ascertain whether he had left the premises in which the accused man’s printing business was located. The two men exchanged some more words, and the accused fired three shots at the deceased, one of which struck the latter, fracturing his spine resulting to spinal injury and perforating the spinal cord. All efforts to revive the deceased failed.

At the ensuing trial, the arresting officers described the accused as being dazed and incoherent after the shooting, and, indeed, the accused man’s defense was that he lacked criminal responsibility by reason of mental disease or defect. The psychiatric expert who testified on the accused man’s behalf, stated that at the time of the incident, the accused was suffering from a severe adjustment disorder with anxiety and that this condition significantly impaired his ability to comprehend the consequences of his act or to distinguish the real from the unreal. In the opinion of the accused man’s psychiatric expert, because of a childhood eye injury and the attendant loss of his left eye, the accused lived in constant fear of losing the other eye and becoming totally blind. Therefore, when the deceased had beaten him so severely on the day of the shooting that his glass eye had fallen out and also promised to return and blind him, the accused became so petrified that he ceased to function in a rational manner. In rebuttal, the court called the psychiatrist who agreed that the accused had suffered from an adjustment disorder but, nonetheless, concluded that the accused had possessed the capacity to appreciate the nature and consequences of his act, as well as its wrongfulness. Both psychiatrists concurred that the accused was not psychotic.

In convicting the accused man of manslaughter in the first degree, the jury rejected his claim of lack of criminal responsibility on the ground of mental disease or defect. On appeal, the accused man argues, in part, that the trial court committed reversible error in failing to deliver an instruction to the jury, despite being requested to do so, which is required by the Criminal Procedure Law. According to the provision any statement made by the accused man to a Queens psychiatrist or licensed psychologist during his examination of the accused man shall be inadmissible in evidence on any issue other than that of the affirmative defense of lack of criminal responsibility, by reason of mental disease or defect. The statement shall, however, be admissible upon the issue of the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, whether or not it would otherwise be deemed a privileged communication. Upon receiving the statement in evidence, the court must instruct the jury that the statement is to be considered only on the issue of such affirmative defense and may not be considered by it in its determination of whether the accused man committed the act constituting the crime charged.

The court contend that the court did not improperly decline to give a mandated charge since defense counsel did not ask for the statutory instruction but, rather, one contained in a textbook indicating that such an instruction might be appropriate in some circumstances. In that regard, the court urge that the failure of defense counsel to refer specifically to the statutory provision is fatal to the accused man’s position. The prosecution asserts that when the accused man’s attorney requested the charge he did so, on the basis of the inculpatory nature of the accused man’s statements to the psychiatrists and not because of the requirement of the Criminal Procedure Law and the constitutional protection against self-incrimination. When a litigant on appeal claims that a trial error has occurred, the court argue, he must advance a theory that was raised at trial. Consequently, the accused has not preserved for appellate review his objection to the court’s failure to give the instruction in question. The court, moreover, point to the slight variation between the statutory language and that of the charge demanded by the defense counsel which provides that the psychiatric testimony may not be considered by the jury in its determination of whether the accused committed the act constituting the crime charged while the textbook charge employs the phrase whether the accused committed the crime charged. Finally, the prosecution contends that even should the court decide that the accused properly preserved the issue for appeal and that the trial court should have charged the jury in the proposed manner, the error was harmless. In the view of the prosecution, the evidence of the accused man’s guilt was overwhelming; the accused conceded that he had shot the deceased man; he had not met his burden of demonstrating his mental incapacity; and there is no likelihood that, but for the alleged error, the jury’s verdict would have been other than what it was.

However, an examination of the wording of the Criminal Procedure Law clearly shows that the provision contains a mandatory directive that the court must instruct the jury. The direction, further, is not conditional upon the accused man’s request that it be delivered; the statute obligates the trial court to charge the jury that the statement made by an accused to a psychiatrist during his examination is to be considered only on the issue of the affirmative defense and not with respect to whether the accused committed the act constituting the crime charged. Failure by the court to comply with a statutory mandate presents an issue of law for appellate review even where counsel may have consented to the procedure. In the instant situation, the accused man’s lawyer did not, of course, agree. The accused man’s counsel specifically asked for the charge, and it is irrelevant that he did not cite the statutory provision or that the language in the requested instruction varied slightly from the words used in Criminal Procedure Law. Further, since the trial court was required to follow the statutory directive, the court’s refusal to give the charge herein cannot be deemed harmless error.
Compounding the error which occurred is that in the absence of the limiting instruction, the jury very likely did, in fact, consider the psychiatric testimony as proof of the underlying offenses charged against the accused. The reason is that the accused man’s account at trial was at variance in certain significant respects from the accused man’s psychiatric expert’s testimony concerning his conversations with the former. Thus, at the trial, the accused exhibited lapses in memory. He could not, for example, recall removing the weapon from his desk and loading it; he saw faces which he did not recognize the faces that belonged to two of the accused man’s employees and didn’t remember much of anything until he stood on the porch with the gun in his hand, calling the deceased not to return. Indeed, his recollection of the circumstances surrounding the shooting was rather hazy although he did admit to firing his weapon three times in quick succession and observing the deceased stumble and fall down into his car. The accused man’s psychiatric expert, on the contrary, indicated that the accused might have been more aware of what was happening at the time of the incident than he acknowledged at trial. According to the accused man’s psychiatric expert, the accused had stated that after he was beaten by the deceased, his implant was half out, he could feel blood, he thought he was hemorrhaging. He kept thinking that his assailant was coming back and he can’t take another beating. He then went for his gun because he had a gun in a holster in his desk, in his office, in his building in the Bronx; that he had bought three or four years earlier for his own protection. He took the gun and he went downstairs to stop the deceased from coming back.

It is evident that to the extent that the accused man’s memory was clearer during his private interviews with his psychiatric expert than it was when he was on the stand (at the psychiatric interviews, he did recall getting his gun); the statements made by the accused were certainly inculpatory. A limiting charge to the jury that the statements were not admissible for purposes of determining whether he had committed the crimes of which he was accused was, therefore, imperative. Finally, it is noted that it was also error to permit the prosecutor to interrogate the accused regarding an alleged prior incident. Not only was information concerning the matter obtained as a direct result of the accused man’s examination by the court’s psychiatrist and then used by the district attorney to attack the accused man’s credibility, which was improper in itself, but the prosecution was allowed to question the accused without first ascertaining whether there was a factual basis for the prior purported misconduct and without the court delivering any instruction to the jury as to how this testimony could be viewed. At any rate, the incident was simply too remote in time to be probative of the accused man’s credibility, and the possibility of prejudice to the accused was so high as to outweigh any evidentiary value.

Death due to misunderstanding is one of the worst things that could happen between friends. The law has grave punishment for this crime if proven.
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On July 9, 2009 around noon, a traffic accident took place at the intersection of West Sunrise Highway and North Bayview Avenue in Freeport, New York in the County of Nassau.

Complicating this accident was the fact that it involved three vehicles actively and one vehicle in a more passive aspect. A 2005 Nissan which was involved in the accident was owned and operated by the person who was injured and who filed a personal injury lawsuit as a result of the accident. The injured party contends that a BMW which was owned and operated by the defendant in the personal injury suit did not stop at the traffic signal located at that location. Rather, they went through the red light and struck a U-Haul rental truck that was in the intersection. The U-Haul truck was pushed by the force of the impact into the complainants Nissan. The Nissan was then shoved backward into a fourth vehicle. As a result of the accident, the complainant who was the driver of the Nissan claims that he suffered from a serious bodily injury as defined in the New York State Insurance Law guidelines.

In order for an injury to be categorized as serious under the New York State Insurance Law guidelines, the person who is claiming the injury must be able to prove that they suffered from an injury that caused them to lose the use of a part of their body, a serious spinal injury, or a brain injury that was debilitating. Alternatively, they can show that as a result of the accident, they were unable to perform their usual daily activities or go to work for at least 90 days out of the 180 days that immediately followed the accident. That type of claim is referred to as a 90/180 claim. In order for a claimant to be able to prove that they suffered from a serious injury, they must have corroborating evidence in the form of court certified documentation from a licensed medical professional in the state of New York.

That Queens medical professional must be able to show that he or she used quantitative medical tests to demonstrate that the injured person has lost a percentage of their use of a body part, or that they qualified for the 90/180 claim as prescribed by the Insurance law. These laws were put in place to prevent people who have minor claims of injury from overloading the court system with minor complaints. The doctors who are involved in the treatment of the patient, must be able to demonstrate through sworn testimony why they determined that the person received a serious injury. An opinion of a doctor that is not backed up with legitimate diagnostic test results will not win a personal injury monetary award. Further, the doctor is required to articulate the percentage of injury. That means that the doctor has to state to the court under oath or enter a document to the court that has been sworn as truthful about what the normal range is for an uninjured person. The doctor or chiropractor must be able to identify a measurable difference in the range of motion of the injured person as compared to the range of motion of an uninjured person. If they cannot determine that there is a difference, or that there was a difference under the 90/180 rule, then the person will not be able to recover damages.

In this case, the doctors presented MRI reports and testified clearly about the injury that the plaintiff sustained in the accident. Because of the doctor’s testimony, the Staten Island complainant passed the test of incurring a serious injury in the course of the accident. The motion that was pressed by the defendant driver in this case to dismiss the entire case on the grounds that the injury was not serious, was denied.
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