Suffolk County

Published on: February 24, 2013

In this case, plaintiffs filed an action to recover damages

by Stephen Bilkis

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

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

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

Published on: February 19, 2013

A fifty-three year old medical secretary had been working at a hospital for a number of years

by Stephen Bilkis

A fifty-three year old Nassau medical secretary had been working at a hospital for a number of years when on December 29, 1967 she slipped on a door sill. The medical secretary fractured her left hip. A nail and a pin were used to repair the medical secretary’s hip. She was confined to bed at a nursing home for six months. The medical secretary filed a claim for permanent total disability benefits. After her surgery, a neurologist examined the medical secretary and found that she was also suffering from a spinal degenerative process and that around thirty to fifty per cent of her condition was related to the degenerative disease instead of to the accident.

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

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

Published on: January 22, 2013

Claimant was employed as a housekeeper at a Mental Health Center

by Stephen Bilkis

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.

Published on: December 30, 2012

This action was commenced to recover for personal injuries

by Stephen Bilkis

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.

Published on: December 19, 2012

The Department of Children and Family Services (DCF) appeals the trial court’s final

by Stephen Bilkis

The Department of Children and Family Services (DCF) appeals the trial court’s final judgment against DCF finding DCF negligent and awarding the complainants as guardians and adoptive parents of a child, the sum of $26,849,849.06. DCF raises several issues on appeal that the Appellate Court affirms without comment. The Court of Appeals addresses only DCF’s argument that the complainants failed to prove a legitimate case of negligence. It affirmed the final judgment because the complainants presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the spinal injuries sustained by two-year-old child.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case when representatives at the Miami Children’s Hospital (MCH) called the DCF hotline because the child’s biological mother failed to come to the hospital on December 8, 2000, the date of the child’s discharge. A Suffolk woman, who is the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. She testified that she was concerned that the mother did not show up to the hospital on the date of the child’s discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while the child was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed the investigator that the child did not appear very bonded to the mother. In her testimony, the investigator expressed concern because the child’s x-ray results showed a fractured clavicle, for which the mother had no explanation. The investigator also testified that the mother’s boyfriend was living with the mother and the child, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, the investigator, the mother, and the head of the child advocacy team (CAT) at the hospital met at the hospital on December 11, 2000. The head of CAT testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although the CAT head testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that the child is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing. The Westchester investigator admitted in her testimony that the CAT head advised her that a home study should be completed first before the child was returned to her home. The investigator also testified that after meeting with the CAT head, she suspected physical abuse.

Published on: December 17, 2012

A man was born with a chromosomal condition

by Stephen Bilkis

A man was born with a chromosomal condition and began receiving medical assistance from the State’s social services. He subsequently suffered an injury during his corrective spinal injury surgery, which resulted in his partial paralysis. A medical malpractice action was commenced by the man’s sister on his behalf against the hospital and several doctors where the surgery was performed. The man continued to receive medical assistance from the State’s social services and they filed a lien for recovery from any award made in the medical malpractice action, for such assistance for which the third-party offender was found to be liable.

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

The settlement of the medical malpractice action was approved by the Supreme Court with the direction that payment made to the state’s social service in the amount of $102,423.56, in full satisfaction of the lien to the date of the order.

Published on: December 15, 2012

This is an action to recover damages for serious personal injuries

by Stephen Bilkis

This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Suffolk Personal Injury Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A Lawyer said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Long Island doctor said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Published on: December 2, 2012

On 2003, a complainant man obtained a back injury while he was employed

by Stephen Bilkis

On 2003, a complainant man obtained a back injurywhile he was employed. Shortly thereafter, his employer accepted his injury’s compensability and commenced the payments of both medical and indemnity benefits. An Nassau authorized orthopedist initially diagnosed the complainant man with disc herniation with chronic low back pain. After that, a surgical procedure was performed and the orthopedist’s explained that the surgery revealed spinal stenosis with no evidence of disc herniation. The orthopedist also informed the attorney of the man’s employer that one hundred percent of the complainant’s need for medical treatment was caused by pre-existing degenerative changes due to his personal condition. The complainant then filed an appeal for benefits requesting authorization of a neurologist and compensability of the claim, which the carrier timely controverted because of the opinion of the complainant’s treating orthopedist.

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

The Suffolk judges of compensation claim further concluded that there was nothing in the record that would have reasonably placed the employer on notice of the complainant’s personal condition being the major contributing cause of the injury until the conference between its attorney and the orthopedist was done. As a result, the employer denied the medical treatment within 120 days from the notification it had then received and the compensability of the injury was considered timely denied. With that, the judges of compensation claim refused both the claims for compensability of the complainant’s back condition and authorization of a neurologist.

Published on: November 17, 2012

A man was working as a construction worker on June 24, 1983.

by Stephen Bilkis

A man was working as a construction worker on June 24, 1983. He was on the tenth floor of a building. He lost his balance while at that height. He fell and hit a concrete floor below. He injured his head and he lost all sensation in both his arms. His Nassau-Suffolk employer paid him temporary total disability until March 15, 1984. After this, his employer paid him temporary partial disability benefits. The construction worker filed a claim for catastrophic loss benefits. When he recovered from the head injury, the construction worker still had no feeling in both his arms. He could not move his arms or do his customary work as a construction worker.

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

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

Published on: October 2, 2012

The above entitled action stems from personal injuries allegedly sustained by plaintiff

by Stephen Bilkis

The above entitled action stems from personal injuries allegedly sustained by plaintiff as a result of an automobile accident with defendant occurred on May 16, 2008, when plaintiffs’ vehicle was exiting Northern State Parkway to Route 110 in Melville, County of Suffolk, State of New York. Plaintiff was operating a 2003 Lincoln Town Car which was owned by his employer Executive Limo. Defendant was the owner and operator of a 2001 Chevrolet. It is alleged that the automobile that was being driven by plaintiff was struck in the rear by the automobile being driven by defendant. Defendant claims that the impact was heavy and caused his glasses to fly off and his body to move back and forth inside the vehicle despite the fact that he was seat belted.

A Suffolk man said that, as a result of the accident plaintiff claims that he sustained the following injuries: Sprain of the anterior cruciate ligament/left knee; Tear in the posterior horn of the medial meniscus of the left knee and may require future surgery; Acromion impingement on the supraspinatous muscle of the left shoulder which may require future surgery; Increased signal in the supraspinatous tendon consistent with tendonopathy/left shoulder; Subligamentous posterior disc herniations at C3-4, C4-5, C5-6 impinging on the anterior aspect of the spinal canal at C3-4 and C4-5 and on the anterior aspect of the spinal cord at C5-6; Subligamentous posterior disc herniations of the lumbosacral spine at L4-5 and L5-S1 impinging on the anterior aspect of the spinal canal, the neural foramina bilaterally and left nerve root at L4-5; Moderate to sever stenosis from L3-L5; Cervical, thoracic and lumbar myofascitis; Lumbar and cervical radiculitis/radiculopathy; Left bicepital tendonitis; Left shoulder derangement; Left knee derangement; Left ankle sprain/strain; Left foot contusion and left plantar fascitis; Cervical sprain/strain; Thoracic sprain/strain; Lumbar sprain/strain; Cervical acceleration/deceleration injury; Myofascitis; Bilateral ulnar motor neuropathy at elbows; Borderline left median motor neuropathy; Right, distal medial sensory neuropathy; Bilateral ulnar sensory neuropathy; Left rotator cuff sprain; Decreased range of motion of the cervical spine; Decreased range of motion of the left shoulder; Myofascitis of the cervical, thoracic and lumbar spine; Left supraspinatus tendinopathy and impingement.

Plaintiff commenced the action with service of a Summons and Verified Complaint. Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting her summary judgment on the ground that plaintiff did not sustain a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes defendant’s motion.