Articles Posted in Staten Island

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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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This is an action to recover damages for personal injuries allegedly sustained by the plaintiff when her vehicle was struck by a vehicle owned and leased by the defendant Enterprise, and operated by the defendant Driver. The accident occurred on South Edgemere at or near its intersection with South Elmwood in the Town of East Hampton, Suffolk County, New York. By her bill of particulars, a rep said that the plaintiff alleges that as a result of said accident she sustained serious injuries including central posterior protruded disc herniation at C2-3, C3-4, C4-5; left paramedian posterior protruded disc herniation at C5-6 and C6-7; acute cervical sprain and strain with radiculitis; bilateral C5-6 cervical radiculopathy; aggravation of pre-existing spine injury to the lumbar spine; disc bulge at L3-4; disc bulge at L4-5 contacting left L4 nerve roots within the neural foramen; supraspinatus tendinosis in right shoulder; brachial neuritis; and tinitus in right and left ears. In addition, the plaintiff alleges that she was confined to bed from July 4, 2009 until August 4, 2009, except to attend medical appointments, and was confined to home from July 4, 2009 until September 29, 2009 and intermittently thereafter except to attend medical appointments. The plaintiff also claims that following said accident she was incapacitated from her employment as a director of resident relations in a company, as an assisted living facility, in Massapequa, New York from July 4, 2009 until September 29, 2009, from December 5, 2009 until December 9, 2009, and from December 30, 2009 until January 6, 2010.

A source said that, the NYC defendant Enterprise now moves for dismissal of the claims against it for failure to state a cause of action as well as for summary judgment based on 49 USC § 30106 (the Graves Amendment). Defendant Enterprise submits a faxed copy of an affidavit of its employee, that lacks an original signature. The Court considers said affidavit despite its defect. The said employee indicates in his affidavit that he is a regional risk supervisor for defendant Enterprise, and that the day before the subject accident, defendant Enterprise rented its vehicle, a Chevy vehicle, to defendant Driver who signed a rental agreement. He also indicates that a search of records related to said vehicle revealed no pre-accident complaints or evidence of any performance or maintenance problems, and that defendant Driver was not employed by defendant Enterprise on the date of the accident.

On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), a comprehensive transportation bill that included the Graves Amendment, was signed into law. The Act is now codified at 49 USC § 30106. The section is entitled “Rented or leased motor vehicle safety and responsibility”. “The section applies to all actions commenced on or after August 10, 2005, and has been enforced as preempting the vicarious liability imposed on commercial lessors by Vehicle and Traffic Law § 388”.

A rep said that defendant Enterprise established that it is an “owner (or an affiliate of the owner) engaged in the trade or business of renting or leasing motor vehicles. In addition, the employee demonstrated through his affidavit that the plaintiff’s allegations of failing to maintain the vehicle in a proper state of repair and respondent superior are unfounded such that there is no negligence or wrongdoing on the part of defendant Enterprise. Moreover, the plaintiff’s vicarious liability claims pursuant to Vehicle and Traffic Law § 388 as against ELRAC are barred by 49 USC § 30106. The plaintiff failed to raise any opposition warranting the denial of defendant Enterprise’s request. Therefore, defendant Enterprise’s is entitled to dismissal of the complaint as against it.

A Lawyer said that, the defendant Driver seeks summary judgment in his favor dismissing the complaint as against him on the ground that the plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.

The issue n this case is whether plaintiff failed to establish serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.

The Court said that, on a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102 (d). The defendant may satisfy this burden by submitting the plaintiff’s own deposition testimony and the affirmed medical report of the defendant’s own examining physician. The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers.

Insurance Law § 5102 (d) defines “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.”
“It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified, compared to the norms, and based upon identified objective tests”. “These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment”. The defendants must submit admissible medical evidence demonstrating that the plaintiff’s range of motion was not significantly limited in comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height.

For a Queens plaintiff to recover under the “permanent loss of use” category, he or she must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories, the plaintiff must provide either objective evidence of the limitation or loss of range of motion and its duration based on findings from an examination contemporaneous to the accident and a recent examination or the plaintiff must provide a sufficient description of the “qualitative nature” of his or her limitations, with an objective basis, correlating the plaintiff’s limitations to the normal function, purpose and use of the body part.

The defendant Driver relies on the affirmed medical reports of the defendants’ examining orthopedic surgeon, and examining neurologist. The report dated November 9, 2010 indicates that he examined the plaintiff on said date and performed range of motion testing of her cervical spine, right and left shoulders, right and left elbows, right and left wrist and hand, lumbosacral spine, and right and left ankle and foot using a goniometer. The doctor’s findings with respect to the cervical spine injury revealed decreased bilateral rotation of 30 degrees (normal 80 degrees), flexion of 10 degrees (normal 50 degrees), and extension of 10 degrees (normal 60 degrees), with no evidence of paracervical muscle spasm or atrophy. His findings regarding range of motion of the plaintiff’s lumbosacral spine injury revealed decreased flexion of 30 degrees (normal 60 degrees) limited by pain, and normal extension, bilateral lateral bending and bilateral rotation but with complaints of pain at the extremes of motion. The doctor stated that the plaintiff has evidence of symptom magnification based on her complaints of pain in her lumbar spine when he lightly touched the skin overlying her paralumbar muscles, her complaints of pain in her lumbar spine when he rotated her body at the hips while maintaining her lumbar spine completely stable, and her complaints of pain radiating from her head to her lower back when he tapped the top of her head. The doctor noted that there was no paralumbar muscle spasm or loss of normal lumbar lordosis and that straight leg raising was bilaterally full and pain free. In conclusion, the doctor opined that the plaintiff showed evidence of a resolved cervical hyperextension injury, resolved left foot contusion, resolved right shoulder strain, and resolved low back strain. He also opined that she had evidence of symptom magnification and noted that the range of motion examination is a subjective test under the voluntary control of the individual being tested. The doctor concluded that the spinal injuries appeared to be causally related to the subject accident, that the plaintiff had no pre-existing conditions affecting her recovery, and that she was presently able to perform the duties of her occupation.

The doctor indicated in his report that he examined the plaintiff on November 8, 2010 and found a normal neurological examination. However, he reported that the plaintiff’s spinal range of motion testing with a goniometer revealed lumbar flexion to 20 degrees (60 to 90 degrees normal), cervical flexion to 20 degrees (50 to 60 degrees normal), cervical extension to 20 degrees (40 to 60 degrees normal), and cervical lateral flexion to the left was 20 degrees (45 degrees normal) and cervical lateral flexion to the right was 25 degrees (45 degrees normal). The doctor also reported that the plaintiff needed effort to rotate to the left and rotated to the right 20 out of the maximum 80 degrees. He concluded his report by diagnosing cervical sprain injury superimposed upon cervical degenerative disc disease, ossified ligaments and congenitally narrowed spinal canal, and subjective headaches, “cervically mediated from spondylosis and sprain/strain.” He opined that there was no evidence of cervical radiculopathy, lumbosacral radiculopathy, or central or peripheral nervous system dysfunction and that the plaintiff’s reduced range of motion was secondary to spondylitic disease and diminished effort. He further opined that there was no causally related neurologic injury or impairment but that the cervical sprain appeared to be causally related to the subject accident, superimposed upon pre-existing degenerative changes, and that her lumbar condition appeared to be an entirely pre-existing condition.

Here, the Court held that the defendant Driver failed to meet his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The doctor reported the existence of significant limitations in the plaintiff’s cervical and lumbosacral spine range of motion more than a year after the subject. Although he stated that the plaintiff had evidence of symptom magnification and that range of motion testing is subjective, he failed to substantiate those conclusions with objective medical evidence. In addition, it appears that the doctor also found significant limitations in range of motion of the plaintiff’s cervical and lumbar spine, the extent of which is difficult to determine. He reported ranges of motion for the plaintiff’s lumbar flexion, cervical flexion, and cervical extension that were expressed in certain or definitive numerical degrees but he failed to provide the corresponding certain or definitive normal values and instead gave ranges or spectrums of degrees spanning 10 to 30 degrees for his normal standards of comparison. When a normal reading for range of motion testing is provided in terms of a spectrum or range of numbers rather than one definitive number, the actual extent of the limitation is unknown, and the Court is left to speculate. Furthermore, both physicians failed to address the plaintiff’s claim, as set forth in her bill of particulars, that she sustained a medically-determined personal injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary activities for not less than 90 of the 180 days immediately following the accident. Neither physician related his findings to this category of serious injury for the period of time immediately following the subject accident. Inasmuch as the defendant Driver failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiff’s papers submitted in opposition to his motion for summary judgment were sufficient to raise a triable issue of fact.
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A woman took the bus. As she was about to go down from the bus, while walking down the aisle toward the exit, she slipped on something slippery on the floor. She had a slip and fallwhich landed her on her bottom. She sustained spinal injury, specifically in her lumbar spine and cervical spine.

The Staten Island woman sued the transit authority which operated the bus along with the city government which owned the bus. After the depositions were taken and discovery was closed, the transit authority filed a motion for summary procedure asking that the woman’s complaint be dismissed for failure to show that she sustained a serious injury.

The woman opposed the motion for summary judgment arguing that this is not the usual motor vehicle accident and that she was not suing merely under a “no fault” law. She claims to have raised issues of negligence. She claims that the transit authority and the city government did not exercise reasonable care in keeping the buses safe for passengers and clean enough so that passengers would avoid a slip and fall while riding on the bus.

The only question is whether or not the motion for summary judgment should be granted.
The Court held that a summary judgment is a drastic remedy that cannot be lightly used.

Once a motion for summary judgment has filed, there is a requirement that the person seeking the summary judgment of dismissal has discharged his burden of proving the grounds for his motion. When this happens then the opposing party must be given an equal opportunity to provide evidence showing that there are material issues of fact that needs to be tried before a jury.

The Court held that the issue of whether or not the transit authority exercised reasonable care is a material question of fact that has a direct bearing on whether or not the transit authority is liable in damages. There is also the issue of whether or not the plaintiff’s slip and fall accident and the resulting spinal injury could have been caused by contributory negligence on her part. Because these two material issues of fact have yet to be determined, the motion for summary judgment cannot be granted.

However, the Court decided to rule on the branch of the motion for summary judgment that alleged that the woman did not suffer a serious injury that allows the payment of damages under the Insurance Law. The Court noted that the transit authority submitted a medical report prepared by an orthopedic surgeon who examined that the woman. In this medical report, the orthopedist reported that the woman suffered a sprain in her cervical spine, in her lumbar spine and in her left knee. However, the Westchester orthopedist noted a pre-existing degenerative disc disease in her spinal cord and pre-existing arthritis in her left knee joint.
The transit authority also submitted the medical report of a neurologist who examined the woman just before trial. He found that there was no permanent neurological impairment, disability or abnormality. He concluded that he only found sprain and contusions in her cervical spine and lumbar spine.

A psychiatrist also examined the woman before trial and he reported that the woman was capable of performing the usual activities of her daily life without restrictions. The psychiatrist noted that the woman suffered from depression and anxiety after the accident but these issues have already been resolved.

A radiologist took and MRI of the woman’s left knee and left shoulder and found that there was mild impingement in the joint that is consistent with the usual wear and tear associated with age and with chronic degenerative spinal disease.

The Court concluded that the woman failed to raise an issue of material fact as to the seriousness of her spinal injury. The case is dismissed except as to the claim for negligence and as to the claim of injury which resulted in temporary disability for 90 days after the accident.
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A forty-seven year old Staten Island warehouseman for a closet manufacturing company was operating a forklift at the workplace. This was his regular duty for the past three and a half years of employment there. Also as part of his regular job, he lifted boxes to and from the stocks. On May 16, 1996, the warehouseman was unloading a pallet of boxes. A box fell from the pile and hit him on the back of the head. He experienced pain and the weight and sudden impact of the box caused him to fall on his knee. After that incident at work, he began to experience backand neck pain.

He went to see a Westchester neurosurgeon to determine the injury he suffered and to get a diagnosis of what caused his pain. The employer and the servicing agent agreed to compensate the warehouseman and to pay him temporary disability benefits. Medical tests were conducted and the neurosurgeon discovered that the warehouseman had a preexisting medical condition called spinal stenosis. It is a kind of arthritis of the spine. It is congenital and degenerative. A traumatic injury is sometimes the first sign that a person suffers from spinal stenosis. Here, when the box fell on the warehouseman’s head, his back was twisted and the nerves in his lower spine bruised against his bone causing pain.

The neurosurgeon recommended treatment through physical therapy and restricted his lifting of heavy objects at work and in daily activities. The warehouseman’s back and neck pain was not resolved so the neurosurgeon recommended that he go on a diet to lose excess weight to relieve the weight carried by his spine but still the pain was not alleviated. In 1997, a year after the accident, the neurosurgeon recommended surgery to repair the damage to his spine.
The employer refused to pay for the surgery and stopped paying temporary disability to the warehouseman. This prompted the warehouseman to file a claim for compensation and for authorization for the surgery as well as temporary disability benefits until his maximum medical improvement.

At the trial, the neurosurgeon testified that the pain and impairment experienced by the warehouseman was attributable by seventy-five per cent to the preexisting spinal stenosis and only twenty-five per cent to the accident. The neurosurgeon concluded that the pre-existing medical condition of spinal stenosis was the major contributing cause of the warehouseman’s disability and he even opined that sooner or later, even if the warehouseman did not have the accident, he would have needed surgery on his spine.

The judge of compensation claims found that the accident in the workplace was the major contributing cause to the warehouse man’s need for a surgery on his spine. The judge took into consideration that the warehouseman has been doing manual labor for the past twenty years or so and he has not experienced back pain or disability. At his present employment, he has been working for three and a half years and he has never missed a day of work due to pain or disability until after the accident. The judge then concluded that it was the accident and not the stenosis that was the major contributing cause of the warehouseman’s pain.

The only question is whether or not the warehouseman’s disability should be compensated.
The Court found that the judge of compensation claims did not err in ruling that the warehouseman’s disability is due to the accident at the workplace and not due to the preexisting medical condition.

The Court takes note of the fact that the warehouseman was unaware of the preexisting medical condition and he has not experienced any pain because of it. The pain he suffered and which debilitated him began only after the accident at the workplace. The preexisting medical condition of spinal stenosis was aggravated or made worse by the accident. The accident was compensable.
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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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In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant’s negligence were a substantial factor, it is considered to be a “proximate cause” even though other substantial factors may also have contributed to plaintiffs. In order to establish the third element, proximate cause, the plaintiff must show that defendant’s negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. Summary judgment is rarely appropriate in a negligence action because the issue of whether a plaintiff or defendant acted reasonably under the circumstance could rarely be resolved as a matter of law.

If it cannot be determined who the parties are who owed a duty to the plaintiff and what the defendants’ respective roles and responsibilities were, no determination as to negligence can be made based upon the evidentiary submissions and adduced testimonies.

Labor Law §200 provides in pertinent part that “All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places…. (Trbaci v AJS Construction Project Management, Inc, et al, 2009 NY Slip Op 50153U; 22 Misc3d 1116A [Supreme Court of New York, Kings County 2009). “New York State Labor Law §200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 880 NYS2d 227 [2000]). In order to prevail on a claim under Labor law §200, a plaintiff is required to establish that a defendant exercised some supervisory control over the operation (Mendoza v Cornwall Hill Estates, Inc., 199 AD2d 368, 605 NYS2d 308 [2nd Dept 1993]). Labor Law §200 governs general safety in the workplace, imposes upon employers, owners, and contractors the affirmative duty to exercise reasonable care to provide and maintain a safe place to work and is a reiteration of common-law negligence standards. Therefore, a Staten Island party charged with liability must be shown to have notice, actual or constructive, of the unsafe condition and to exercise sufficient control over the work being performed to correct or avoid the unsafe condition (Leon v J&M Pepe Realty Corp. et al, 190 Ad2d 400, 596 NYS2d 380 [1st Dept 1993]).

New York State Labor Law §240. Scaffolding and other devices for use of employees at section (1) provides “[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

“New York State Labor Law §240 (1) is applicable to work performed at heights or where work itself involves risks related to differentials in elevation”. Labor Law §240 (1) was enacted to “prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person, Labor Law §240 is intended to protect workers from gravity-related occurrences stemming from the inadequacy or absence of enumerated safety devices. The duties articulated in §240 are nondelegable, and liability is absolute as to the general contractor or owner when its breach of the statute proximately causes spinal injury.

The injury claimed to have been sustained by the plaintiff did not arise out of the effects of gravity within the meaning of Labor Law §240 and it is not alleged that something fell or that the plaintiff was working on an elevated work height when he fell (see, Auchampaugh v Syracuse University et al, 57 AD3d 1291 [3 rd Dept 2008]. In Masullo etal v City of New York, 253 AD2d 541, 677 NYS2d 162 [2nd Dept 1998], it was determined that falling into a manhole is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor law 240(1); to the contrary, it is the type of ordinary and usual peril a worker is commonly exposed to at a construction site. Section 240(1) is applicable to work performed at heights or where the work itself involves risks related to differentials in elevation. It is determined as a matter of law that the cause of action premised upon the violation of Labor Law §240 is not contemplated within the meaning of the statute as although this incident occurred while the plaintiff was walking on the ground at the worksite, there was no gravity related event wherein the plaintiff was working at an elevated height giving rise to application of Labor Law §240 to the facts in this action. It is determined that this is an usual and ordinary danger of a construction site rather than a special elevation-related hazard within the meaning of Labor Law §240.

Accordingly, the cause of action premised upon the defendants’ alleged violation of Labor Law §240(1) is dismissed as a matter of law as asserted against all the defendants.
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Claimant was employed as a housekeeper at a Mental Health Center. She held the job for approximately three years until she was injured on 27 January 1993. While at work and engaged in the duties of her job on the premises of her employer, claimant suffered a knee injury. She squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. It turns out that she sustained a tear of the lateral meniscus in that knee. Thereafter, the Judge of Compensation Claims ruled that the injury was idiopathic and not compensable because the claimant failed to prove that her employment involved an exertion greater than that performed during her daily life. The Suffolk Judge issued a worker’s compensation order denying compensation. According to the order, the claimant did not fall, twist, lose her balance or experience any other unusual movement, and the claimant’s injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed. The claimant then filed an appeal from the said order.
Under the law, for an injury to be compensable it must arise out of one’s employment and must occur in the course and scope of that employment. Here, the employer and carrier have conceded that the spinal injury to the claimant occurred in the course and scope of her employment, while performing her job duties on the employer’s premises. The question now is whether the injury arose out of the claimant’s employment.

As a rule, an unexpected injury sustained during the ordinary performance of one’s duties in the usual manner is a compensable accident and it is not necessary for the claimant to demonstrate that there was a slip and fall accident or other mishap. The term “accident” includes an internal failure such as a ruptured disc or a snapped knee cap. Here, the court finds that it was sufficient for the claimant to prove that her spinal injury occurred in the period of her employment and at a place where she would reasonably be, while fulfilling her duties, to establish that her accident arose out of, and occurred in the course and scope of her employment,. The “arising out of” prong of this test is satisfied by evidence that the injury originated in some work connected with the employment, that is, the claimant must show that his injury can be attributed to some event or circumstances connected with his work. Based on the facts and evidence presented, the claimant has done this. Staten Island Claimant produced evidence that she was squatting to pick up a bag of laundry which is one of her job duties.

On another note, when the employer and carrier assert that an injury is the result of a personal risk such as an idiopathic preexisting condition, they must carry the burden of proving the existence of such a condition. Only if the employer and carrier have satisfied that burden of proof is it appropriate for the JCC to hold the claimant to the more stringent standard for compensability which was erroneously applied by the JCC, to establish that the employment exposed the claimant to a risk of injury greater than that the employee would normally encounter in non-employment life. However, if the employee has no prior weakness or disease, any exertion connected with employment and causally connected with the injury as a medical fact is adequate to satisfy the legal test of causation. Here, there was no evidence to support the conclusion that the claimant’s injury was the result of a preexisting condition. There was only one medical expert, presented before the court, who offered evidence relevant to this issue. According to the expert, some older women, over 45 or 50, in express and direct contrast to the 28 year old claimant, may experience meniscal tears simply upon squatting, however, he specifically refuted any suggestion of an abnormality in the claimant’s knee or any knowledge of a preexisting injury. Thus, in the absence of any evidence which could support a finding that there was a preexisting abnormality, the court concludes that the Judge of Compensation Claims erred in ruling that this injury was not compensable.

In view of the foregoing, the court finds that the order must be reversed and remanded for further proceedings. The Judge of Compensation Claims applied the wrong test for determining compensability.
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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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This action was commenced to recover for personal injuries allegedly sustained by a man as a result of a motor vehicle accident that occurred on or about October 20, 2004. On that date, the complainant man was riding his bicycle when a taxi cab owned and operated by the accused allegedly hit the rear tire of the complainant man’s bicycle.

The Suffolk driver and the taxi company have moved for summary judgment, arguing that the accused man has not met the serious injury threshold as set forth in Insurance Law. In support thereof, the accused driver and taxi company have submitted, among other things, an affirmation of the counsel, the complainant man’s verified bill of particulars, the complainant’s deposition testimony, a report from a radiologist who reviewed an MRI examination of the man, and a report from a neurologist who conducted an independent medical examination of the complainant man.

The complainant man served a verified bill of particulars which alleged that he suffered numerous personal injuries as a result of the. The spine injury claimed by the man was to be of a permanent nature.

The complainant man was physically examined by a neurologist designated by the accused parties. The neurologist found, as indicated in his sworn report of event date, that the woman exhibited no signs of any lateralizing neurological deficits. Further, the Staten island neurologist found no neurologic residual or permanency based upon his examination. He concluded that any head trauma and spinal injury had resolved, and that the man was capable of performing normal activities of daily living, including gainful employment activities, without restrictions.

In addition, on or about August 31, 2006, another doctor reviewed the MRI film of the man’s cervical spine performed on December 8, 2004, approximately eight weeks after the accident, and found evidence of spine injury. However, she opined that such degeneration could not have occurred in less than six months time. She also found bulging at the spine, but stated that the bulging was related to loose ligaments and was temporary in origin. Based upon the foregoing findings, as well as the assertion that the complainant man missed only two days of work as a result of the accident, the driver and the taxi company argue that the man has not satisfied the serious injury threshold set forth in Insurance Law. The accused parties contend that the complainant’s alleged soft tissue injuries do not constitute a serious injury.

In opposition to the application, the man has provided recent medical evidence of his limitations. Since the accident, he has been regularly treated by a doctor who performed a complete re-examination of him on August 7, 2007, and that he has also received chiropractic care, physical therapy, and pain management. He submitted an affirmation of a doctor, dated October 9, 2007, wherein he opines that he sustained ruptured disc, and that based upon the examination of August 7, 2007, the complainant man has severely restricted cervical range of motion of a permanent nature. The doctor attributes the foregoing trauma to the injuries that the man suffered in the accident.

In addition, the complainant man has submitted an MRI report of a radiologist dated December 9, 2004, who interpreted a December 8, 2004 MRI of the man’s cervical spine. He found that the complainant man suffered spinal injury with flattening of the left, ventral margin of the cod and left spine. By affirmation dated September 21, 2007, the radiologist indicates that if called as a witness, he would testify in conformance with his report. The complainant man argues that the foregoing submissions establish that he has suffered a serious injury, in that the medical records and reports, which are based upon objective tests and diagnostic studies, show that the man has sustained a significant limitation to his cervical spine as a direct result of the injuries suffered in the subject accident.

New York’s No-Fault Insurance Law precludes recovery for any noneconomic loss, except in the case of serious injury, or for basic economic loss arising out of the negligent use or operation of a motor vehicle. As recognized by the Court of Appeals, the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries. The Legislature also intended that the issue of whether a complainant sustained a serious injury could be determined by the courts as a matter of law on a motion for summary judgment.

Insurance Law defines 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 clays during the one hundred eighty days immediately following the occurrence of the injury or impairment.
To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a complainant must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the complainant’s present limitations to the normal function, purpose and use of the affected body, organ, member or function. Whether a limitation of use or function is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute. Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the complainant man.

An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. Once an accused meets this burden, the complainant must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form.

The Court finds that the driver and the taxi company’s submission were sufficient to establish that the complainant man did not sustain a serious injury as a result of the accident. The burden, therefore, shifted to the complainant to raise a triable issue of fact. In opposition, the complainant presented competent evidence, including the affirmation of another doctor dated October 9, 2007, substantiating his claim that his injuries caused a significant limitation in the use of his cervical spine. The Court finds that such submission was sufficient to rebut the driver and the taxi company’s legitimate showing of no serious injury. Accordingly, the motion by the accused parties for summary judgment dismissing the man’s complaint on the grounds that as a complainant, he failed to sustain a serious injury as that term is defined by Insurance Law is denied.
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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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