Articles Posted in Cervical Spinal Injury

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The complainant also submits the affidavit of a chiropractor. The chiropractor conducted a computerized spinal range of motion exam and a computerized muscle strength test. The results of the tests indicated deviations from normal. The chiropractor states that in his opinion the complainant sustained spinal injuries and limitations to cervical range of motion. In addition, he opined that the herniated discs in complainant’s cervical spine, together with the resulting cervical radiculopathy and limitations to the cervical range of motion, are directly causally related to the automobile accident. He further states that it is possible that a pre-existing conditions, such as a degenerative conditions of the complainant’s spine related to his age, could be a factors which might have increased his vulnerable to the injury. However the factors by themselves would not be enough to explain the symptoms and limitations encountered during my examination and treatment of the complainant. Furthermore, it is his opinion that the injuries sustained by the complainant were such that they definitely and significantly reduced his functional capacity to perform his customary personal activities. The disabilities resulting from the complainant’s injuries manifested themselves following the accident and continued throughout the treatment of the complainant, and are likely to continue indefinitely.

The complainants also submitted the certified medical reports of another physician in support of their opposition to the opponent’s motion.

In reply to the complainants’ opposition, the opponent argue that in opposition, the complainant did not submit an affirmation from a treating physician, but rather came forward with the affirmation of the complainant’s treating chiropractor, which is insufficient to defeat the motion because he does not adequately address the complainant’s termination of treatment a year and half prior to chiropractor recent examination of the complainant, subsequent to the filing of the motion. The complainant’s chiropractor also does not address the two year gap in his treatment of the complainant which is less than two months after the spinal cord accident.

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This action arises from a motor vehicle accident occurred at approximately 5:30 p.m. The complainant asserts that the accident happened when his vehicle, moving slowly in stop, was struck in the rear by the opponent’s vehicle. The complainant claimed that the opponent admitted at his testimony that he did not see the complainant’s vehicle until the moment of collision and offered no explanation for the said incident other than his failure to pay attention to the road. The complainant asserts that the opponent was the negligent party and with that, he failed his duty to exercise reasonable care under the circumstances to avoid an accident. The complainant additionally argues that the opponent cannot come up with a non-negligent explanation for striking his vehicle.

In opposition to the complainant’s motion, the opponent argues that there were no brake lights illuminated on the complainant’s vehicle just before the accident.

Based on records, when the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle to exercise reasonable care to avoid colliding with the other vehicle. In addition, a rear-end collision with a stopped or stopping vehicle creates a case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to deny the inference of negligence by providing a non-negligent explanation for the collision. The vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. Lastly, the drivers must maintain safe distances between their cars and the cars in front of them and the rule imposes on them a duty to be aware of traffic conditions including stopped vehicles
As a result of the accident, the complainant claims that he sustained injury as defined in the insurance law and which fall within the following legal categories of injuries which includes a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system and 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 impairment. However, the opponent seeks dismissal on personal injury complaint on the ground that the complainant did not sustain a serious spinal injury.

The opponents assert that the complainant admitted in his testimony that he received minimal treatment after the accident in which it showed that he failed to sustain serious injury from the accident.

A board certified orthopedic surgeon conducted an examination to the complainant. He diagnosed the complainant with cervical strain. He also states that the complainant is capable of his full duty work as a real estate broker without restrictions and he is capable of his activities of daily living.

A board certified radiologist also conducted an independent film review of the MRI results of the complainant’s cervical spine. He states that there is no evidence of post traumatic etiology that can be determined on the evaluation and the bilateral thyroid masses are unrelated to trauma.

Subsequently, the complainant testified that, at the time of the accident, he was employed as a real estate broker and he was confined to his bed for two days and at his home for a couple of weeks after the accident. Furthermore, the complainant is not claiming he was disabled for doing his normal activities for three months out of the first six months after the accident. He also argues that the health insurance claims forms submitted by his treating providers are further evidence that he did not sustain an injury which prevented him from working after the accident.

To Be Cont…
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Well established is the rule that a jury may reject any testimony, including testimony of experts, even if not contradicted. Here, the Standard Jury Instruction which was appropriately read to the jury provides that the jury may accept expert witness opinion testimony, reject it, or give it the weight it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. In other words, the jury was free to weigh and reject the testimony of the medical experts who opined that A’s injuries were caused, at least in part, by the automobile accident.

First, the court finds that the expert testimony conflicted with much of the lay testimony presented to the jury. In such cases, where expert testimony conflicts with lay testimony, the trial judge should defer to the jury to weigh the evidence.

Second, in addition to the medical experts, the jury heard testimony from several witnesses, including the plaintiffs, A and his wife. Evidence and testimony introduced at trial portrayed the accident as a mere fender-bender. The jury examined photographs depicting the damage to A’s vehicle, which was described by A as a crack or scrape on the back bumper. According to A, the total damage to his vehicle was estimated to be approximately $800, and at the time of trial or about 2 1/2 years after the accident, the damage to the bumper had not been repaired, and the vehicle was still being driven by A’s wife. Other testimony offered at trial demonstrated that A had an extensive medical history, which included a prior surgery, another automobile accident, and several significant medical diagnoses, and this was also testified to by A. A stated that he had undergone a prior cervical spinal fusion surgery in 1991, he had been in an automobile accident in 1998, in which he was ejected from the vehicle, and he had a back sprain shortly before the 2007 accident. In addition, medical records were introduced at trial revealing that A had visited a hospital in 2006, complaining of severe lower back pain, that A had visited the hospital less than a month before the 2007 accident, complaining of the same symptoms, and that he was taking the pain medication, Lortab, at the time of the 2007 accident. Through the testimony of the medical experts, the jury heard that A had a pre-existing degeneration of his cervical spine. On cross-examination, A revealed a number of other medical conditions affecting his overall health. A testified that he had been diagnosed with emphysema in the early 1970’s, and that he had been hospitalized four times in the year leading up to trial for breathing problems, clogged lungs, pneumonia, and cardiac surgery. Testimony introduced at trial also demonstrated inconsistencies in A’s story on material issues, placing his credibility into question. Regardless of A’s testimony regarding his extensive medical history and pre-existing medical conditions, and that he had not been employed since the 1970’s, he nonetheless testified that before the 2007 automobile accident he was able to work around the house, do carpentry work or mechanic work, and swim, run, and play with his grandkids; that after the 2007 accident, he was unable to engage in these activities. However, when A sought medical treatment following the 2007 accident, he failed to disclose to the treating physician that he had undergone a prior cervical spinal fusion surgery or that he had been involved in an earlier automobile accident. A disclosed the prior cervical spinal fusion surgery only upon inquiry by his neurosurgeon, who discovered indicia of an earlier surgery after reading the results of an MRI scan he had ordered of A’s spine. During trial, the jury observed A wearing a neck brace, but during the cross-examination of A’s neurosurgeon, the physician testified that there was no medical necessity for A to be wearing the neck brace. Thus, under the circumstances, the jury was entitled to judge A’s credibility, whether to accept or reject his testimony on all issues.

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The Facts of the Case:

Sometime in October 2007, an automobile accident occurred involving A and B, A being the injured victim. As a result of the accident, A suffered from a spinal injury. Consequently, A had to undergo a cervical spinal fusion surgery in September 2009. Thereafter, A filed a personal injury action against B and seeks recovery for the personal injuries he sustained. B did not contest his liability for causing the automobile accident, but argued that the accident was not the cause of A’s injury or need for medical treatment; that the nature of the automobile accident was only minor; that A’s medical history which included a prior cervical spinal fusion surgery in 1991, a 1998 automobile accident in which A was ejected from the vehicle, and diagnoses of emphysema and spinal degenerative disease were the main causes of A’s spinal injury. After a three-day trial, the jury returned a verdict in favor of B, finding that A had not suffered an injury as a result of the 2007 accident. A then filed a motion for a new trial and the trial court granted the motion. The trial court concluded that the jury’s verdict finding no causation was contrary to the manifest weight of the evidence in light of the testimony of the three expert medical witnesses, one of whom was a defense witness, who each opined that A’s personal injury and resulting surgery was caused at least in part by the 2007 accident; that while acknowledging B’s arguments and the evidence offered in support thereof, the trial court disregarded all lay testimony bearing on causation of A’s injuries; that the court expressly concluded that in the absence of expert testimony regarding accident reconstruction or other technical matters affecting causation for the injury, no reasonable juror would conclude no causation in light of the opinions of the three doctors; that with regard to A’s credibility, the court found, his credibility had little, if any, weight on the issue of causation in light of the uncontroverted opinions of the three informed and credible doctors; that with regard to A’s pre-existing spinal degeneration, the court again found the expert testimony to outweigh other evidence where no reasonable juror would conclude that degeneration, to the exclusion of the collision, was the cause of A’s injury in light of the testimony of the three doctors.

The Ruling of the Court:

Under the rules, a trial court’s decision to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence may be reviewed for abuse of discretion. When reviewing the order, an appellate court must recognize the broad discretionary authority of the trial judge and apply a reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. However, a reviewing court may find that the trial court abused its discretion in determining that the manifest weight of the evidence was contrary to the verdict and granting a new trial in two circumstances: where the evidence in the record does not support the trial court’s determination; or where the trial court’s determination rests on an incorrect conclusion of law.

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This action arises from a motor vehicle accident that occurred on April 20, 2008. The complainant man’s vehicle was impacted from the rear by the accused man’s vehicle, while both vehicles were moving in the same lane of travel. The accused man’s vehicle was operated by his son at the time of the accident. As a result of the accident, the Long Island complainant claims to have suffered serious and permanent spinal injuries, including restricted range of motion in the areas of his lumbar and cervical spine.

Based upon his bill of particulars, the complainant is asserting claims of permanent consequential and significant limitation of use of a body function or system, and a medically determined injury or impairment of a non-permanent nature, which prevented him from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident claim.

It is well recognized that summary judgment or judgment without trial is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. The Court’s analysis of the evidence must be viewed in the light most favorable to the complainant.

A party moving for summary judgment must make a legitimate showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. The accused parties must demonstrate that the complainant did not sustain a serious injury within the meaning of Insurance Law as a result of the accident. The accused parties have met their burden.

In support of their motion, the accused have submitted the complainant’s bill of particulars, the complainant’s deposition testimony, and the affirmed reports of the accused parties’ examining Manhattan orthopedic surgeon and radiologist.

On January 6, 2011, the accused parties’ examining radiologist reviewed the cervical and lumbar spine MRI studies taken on April 28, 2008 and May 20, 2008, respectively. Upon review, the radiologist set forth his impressions that the complainant suffers from multi-level spine injury, and that the findings on the MRI are not causally related to the reported accident of April 20, 2008. In addition, the radiologist did not find any disc herniations or bulges in the cervical spine, and only mild bulging in the lumbar spine that he attributes to the degenerative disease.

The MRI report of the cervical spine dated April 28, 2008 notes two bulging discs, which cause a slight spinal injury. The MRI report of the lumbar spine dated May 20, 2008 notes a herniated disc in the lumbar spine, also contributing to a slight spinal injury. Those MRI reports do not mention any degenerative disc disease, nor do they relate the findings to the subject accident.

Although the MRI reports and the radiologist’s review of same differ in various respects, the Court notes that, a tear in tendons, as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from injury and its duration. Thus, whether or not the radiologists agree on the interpretation of the MRI studies, the complainant must still exhibit physical limitations in order to sustain a claim of serious injury within the meaning of the Insurance Law.

The complainant was examined by the accused parties’ examining orthopedic surgeon, on January 21, 2011. The orthopedic surgeon reviewed a number of the complainant’s medical records, including the bill of particulars, MRI and nerve study reports, physical therapy and acupuncture notes, and the reports of the complainant’s doctors and chiropractor. He measured range of motion in the complainant’s cervical and lumbar spine areas with a goniometer. He also conducted various, other tests, including reflex, which were negative. He set forth his specific findings, comparing those findings to normal range of motion, and he concluded that the complainant’s cervical and lumbosacral strains are resolved. According to the orthopedic surgeon, the complainant does not exhibit any objective evidence of a disability, is capable of full time, full duty work, and is capable of carrying on his activities of daily living.

Examining the reports of the accused parties’ physician, there are sufficient tests conducted set forth therein to provide an objective basis so that his respective qualitative assessments of the complainant could readily be challenged by any of his expert(s) during cross examination at trial, and be weighed by the trier of fact. Thus, the accused parties have met their burden with respect to the permanent consequential and significant limitation of use categories of injury. As to whether or not the accused parties have sustained their burden on the 90/180 days injury claim, the Court considers the complainant’s deposition testimony submitted with the instant motion.

An accused may establish through presentation of a complainant’s own deposition testimony that a complainant did not sustain an injury of a non-permanent nature which prevented him from performing substantially all of the material acts, which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. Moreover, a complainant’s allegation of curtailment of recreation and household activities and an inability to lift heavy packages is generally insufficient to demonstrate that he or she was prevented from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident.

The complainant’s deposition testimony establishes that he was working as a deliveryman at a deli prior to the accident, and that he missed only one week of work following the accident. He further admitted that he was not told by any medical professional that he could not work following the accident. Upon his return to work, he apparently suffered no change in his duties, and continued to work at the deli for almost three more years. He only ceased working at the deli because he moved to a different county. He further testified that he is currently unemployed and is not actively seeking employment.

As to his specific injuries, the complainant testified that he refused to go to the hospital on the date of the accident despite feeling pain in his neck, in addition to a headache. According to him, he received physical and chiropractic treatment through November or December 2008, at which time he ceased treatment. He did not offer a reason for his cessation of treatment. He admitted to taking only an over-the-counter pain reliever since the accident.

Aside from missing one week from work, the complainant testified that he can no longer play soccer because his lower back hurts, and that he can no longer go dancing because it hurts his back to do so. According to him, he used to play soccer with friends and go dancing once or twice a month before the accident. He also testified that he cannot carry his children, whose ages as of the deposition date in December 2010 were nine, six and four years old, or clean the bathtub. He was not forced to hire help for household chores, and he testified that he can lift grocery bags up to thirty (30) pounds. He had no future medical appointments at the time of his deposition.

Thus, the accused parties’ submission of the complainant’s deposition testimony, and affirmation of the accused parties’ physician are sufficient herein to make a legitimate showing that the complainant did not sustain a serious injury within the meaning of Insurance Law, under permanent consequential limitation and significant limitation categories of the applicable law, nor under the 90/180 category of the law.

The complainant is required to come forward with viable, valid objective evidence to verify his complaints of pain, permanent injury and incapacity. The complainant has failed to meet his burden. In opposition to the accused parties’ motion, the complainant has submitted the MRI reports previously referred to above, physical therapy and acupuncture notes, chiropractic evaluations, a pain management consultation report, and an affirmed report from his treating osteopath.

The osteopath doctor’s affirmed report fails to set forth by what means, or with what instrument, the complainant’s range of motion in the cervical and lumbar spine areas was measured. Thus, the accused has failed to establish an objective basis so that the respective qualitative assessments of complainant could readily be challenged by any of the complainant’s expert(s) during cross examination at trial, and be weighed by the trier of fact. In addition, the osteopath doctor’s report does not indicate with specificity when the examination results were obtained. Contrary to the complainant’s deposition testimony wherein he stated that he was not working because he had moved, the osteopath doctor noted that the patient was not working because of the accident. He was totally disabled. The osteopath doctor notes that the complainant’s gait was not counteracting. Thus, his report appears to be inconsistent with the complainant’s testimony and internally inconsistent as to the level of the complainant’s alleged disability.

Moreover, the osteopath doctor stated in his opinion and prognosis section that, in such type of injury there are nerves and disc pathologies as well as tearing of soft tissue components without addressing the degenerative disc disease findings of the radiologist, or the complainant’s previous accident. He also opines in general terms that there can be permanent limitations of motion to the cervical and lumbar spine due to the injuries sustained. He states in vague terms that, the patient remains impaired with regard to some functional capabilities thus his opinion that the complainant has sustained traumatic injuries as a direct causal result of the accident is rendered speculative and insufficient to raise a triable issue of fact.

The pain management physician also examined the complainant on November 25, 2008. Although he wrote that the complainant’s level of activity is severely limited, he did not report the basis for that conclusion. Instead, he noted that the complainant’s pain, at its worst, is 3 out of 10, and that the complainant continues to work as a driver. The pain management physician further states that the complainant is not limited in activities of daily living and that the complainant’s pain does not interfere with the quantity and quality of his sleep, which the complainant reported as being six hours of restorative sleep. The pain management doctor concluded that the complainant has done well with therapy and his pain is minimal he has a mild partial disability from the motor vehicle accident dated 4/20/2008. The conclusion in November 2008 is markedly at odds with his initial statement that the complainant’s level of activity is severely limited, and also at odds with the osteopath doctor’s October 2011 report that the complainant has sustained traumatic injuries.

For all the foregoing reasons, the Court has determined that the complainant has failed to raise a triable issue of fact with respect to the issue of serious injury within the meaning of Insurance Law. Accordingly, the accused parties’ summary judgment motion is granted in its entirety, and the complaint is dismissed.
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A Brooklyn bagel shop clerk met an accident while driving near the corner of West Merrick and Rockaway Avenue: her car collided with another car on August 21, 2007. As a result of the accident, the bagel shop clerk missed two weeks of work. The pain she felt prevented her from lifting baskets of bagels as she had been doing previous to the accident. She was unable to stand behind the counter for long periods of time as she had been doing before the accident. She held down another part-time job at a clam bar and was also enrolled as a full time college student. She missed two weeks of classes after the accident and she had to stop working at the clam bar.

The owner of the bagel shop allowed the clerk to reduce the number of hours she had to work. She also allowed her more frequent breaks and excused her from having to lift heavy objects while on duty. Still, the woman was unable to continue working full time: she began working part-time and clocked only eighteen hours of work every week. The pain in her neck and back intensified and she resigned from her employment.

She received treatment consistently since the accident and stopped treatment and therapy only when her “no-fault” insurance ran out and she could no longer afford the treatments and therapy. She filed a case in damages seeking compensation for her spinal injury under the Insurance Law. She claims that the use of her cervical spine and lumbar spine has been significantly limited; she also claimed that the spinal injury she sustained resulted in non-permanent impairment which prevented her from performing all the activities of daily living within ninety days from the accident.

The defendant filed a motion for summary judgment asking that the cause of action for damages be dismissed for failure of the plaintiff to present initial proof that the spinal injury she sustained was a serious injury.

The defendant asked that the bagel shop clerk be examined by an orthopedic surgeon. The orthopedic surgeon found that there was no evidence of any spinal injury: there was no fracture, no atrophy of the discs; no bulging or swollen discs and no derangement of the discs in her spine. The orthopedic surgeon also used a hammer, sensory pins and measuring tape to objectively determine the presence of pain or paralysis. He also measured the bagel shop clerk’s range of motion and found these within normal limits. He concluded that there is no evidence of disability resulting from the accident.

For her part, the bagel shop clerk presented the medical findings of the Westchester orthopedic surgeon who treated her within two weeks after the accident. She also presented the report of findings of the neurologist/pain expert who examined her. The orthopedic surgeon noted tenderness in the cervical spine and lumbar spine. He also noted spasms in the cervical and lumbar spine. He found that the bagel shop clerk’s range of motion was restricted and he traces the cause of her loss of use of her neck and lower back to the accident. He also noted that he recommended that she be examined by a pain specialist. He recommended steroid injections directly into the areas of the spine that experienced the pain. In the two years that she had been receiving treatment since the accident, the pain persists and the doctor has opined that if her pain persists, she will be a candidate of surgical repair on her spine.

The court denied the motion for summary judgment, ruling that the bagel shop clerk has succeeded in proving that there are issues of material fact that have to be determined by a jury at trial on the nature and extent of her spinal injury and of the disability she has suffered.
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Brooklyn Claimant sustained injuries arising out of and in the course of her employment on two occasions. First was in December 1988, when claimant injured her neck, back, shoulders, knee and left elbow, and the second was in September 1989, after claimant had been released to return to full-duty work, when claimant injured her fingers. Since her first injuries, claimant has been treated by a doctor, doctor-one, who is a board-certified orthopedic surgeon. Doctor-one diagnosed claimant as suffering from cervical and lumbar spondylosis or arthritis.

According to doctor-one, claimant had suffered from a pre-existing arthritic condition which was exacerbated by her work related injury; that, because of claimant’s arthritis, she was not going to get better, that is, she would continue to experience good periods and bad periods, as she had for some time; that there was little that he could offer claimant in the way of new treatment. Doctor-one prescribed physical therapy which had included traction, heat, ultrasound and electrical stimulation for some time, for temporary relief of claimant’s symptoms; and recommended that claimant continue to receive physical therapy as needed. However, according to the claimant, the physical therapy prescribed by doctor-one provided only temporary relief from her symptoms. Thus, she wanted to be treated by doctor-two, a chiropractor, by reason of the fact that her husband had been treated successfully by the said doctor, and she felt that doctor-two could achieve similar results with her. Claimant then filed a claim seeking authorization for a chiropractic treatment to be conducted by doctor-two.
Consequently, doctor-two was called to testify. According to doctor-two who is a chiropractic physician, claimant is suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar strain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, doctor-two concluded that claimant was a candidate for chiropractic therapy which basically consists of adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints; that he would use traction in the low back, exercises and some electrical stimulation. Doctor-two opined that chiropractic treatment would be beneficial to the claimant because the key thing is to get the vertebrae that are out of place, or the subluxated, back into their proper respective position and functioning again, and he saw nothing about claimant’s condition to suggest that it would be inappropriate to treat her in such a way.

Now, over the objection that he was unqualified to render such opinions, doctor-one states that he tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a Westchester chiropractor offers; and that he had had training in some forms of manipulation; that, within a reasonable degree of medical probability, while manipulation in the proper hands in the proper situation is beneficial, in claimant’s case manipulation might be harmful; that arthritic joints which would be placed through a motion that they would not normally be placed through in some respects would be like going through the trauma or the initial auto accident that the patient describes; that it could increase the symptoms; and that the treatments other than manipulation which were normally used in the practice of chiropractic were not different from those already available to claimant through physical therapy.

Thereafter, the judge of compensation claims concluded that doctor-two should not be authorized because based upon doctor-one’s testimony, manipulation would be inappropriate, given claimant’s condition; that, other than manipulation, claimant was already receiving essentially the same treatment that doctor-two recommended; and that claimant’s request was motivated by unrealistic expectations, because she believed that chiropractic treatment would result in a cure. The judge issued a worker’s compensation order denying the claimant’s request for authorization. Thus, claimant now seeks for a review of the order.

Here, claimant argues that the conclusions of the judge of compensation claims is not supported by competent substantial evidence because doctor-one, as an orthopedic surgeon, was not qualified to render opinions on the subject of the appropriateness of chiropractic treatment, thus, doctor-two’s testimony that chiropractic treatment was appropriate was not controverted. The court finds this bereft of merit.

Under the law, an employer is required to furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require. The terms “medically necessary” is defined as any service or supply used to identify or treat an illness or any personal injury which is appropriate to the patient’s diagnosis, consistent with the location of service and with the level of care provided; and the service should be widely accepted by the practicing peer group, should be based on scientific criteria, and should be determined to be reasonably safe. While it may well be true that, in a majority of cases, only a similar health care provider will possess the qualifications necessary to permit him or her to testify regarding whether a requested care or treatment is medically necessary, this is not the case herein. Under the Evidence Code, the determination of a witness’s qualifications to express an expert opinion is within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error. The court does not see why a different standard should be applied in workers’ compensation cases.
It is unquestionable that doctor-one, as an orthopedic surgeon, possesses the qualifications necessary to permit him to offer opinions regarding the effect of arthritis upon a person’s joints in general, and spine in particular. And, there can only be a little question regarding doctor-one’s qualifications to offer opinions as to the likely effect of unusual or abnormal movement of the spine upon one suffering from arthritis. Such opinions are clearly based upon his knowledge acquired as an orthopedic surgeon. The only real question presented is whether doctor-one possesses enough knowledge about chiropractic manipulation to be able to render an opinion as to the effect of such movement upon the spine of someone like claimant, who is suffering from arthritis. It must be noted that doctor-one tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a chiropractor offers; and that he had had training in some forms of manipulation. The court believes that such testimony was sufficient to permit the judge of compensation claims to conclude that doctor-one knew enough about chiropractic manipulation to opine whether, from a medical standpoint, such movement of the spine would be likely to help or to harm claimant. In fact, the court fails to see any meaningful distinction between such testimony and testimony that, within a reasonable degree of medical probability, a particular type of unusual or abnormal movement, such as might occur during a fall or an auto accident, would be likely to cause a spinal injury, or a cervical or lumbar sprain or strain. Clearly, an orthopedic surgeon would be permitted to offer the latter opinions.

In sum, it is without a doubt that the record contains competent substantial evidence to sustain the finding of the judge of compensation claims that chiropractic manipulation would be inappropriate given the claimant’s arthritic condition. The court finds that the evidence is indeed sufficient to support the decision of the judge of compensation claims to deny the request to authorize doctor-two by reason of the fact that the requested chiropractic treatment was not medically necessary. Thus, the order appealed from must be affirmed.
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On 1994, a man was admitted to a NYC 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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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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On 2003, a complainant man obtained a back injurywhile he was employed. Shortly thereafter, his employer accepted his injury’s compensability and commenced the payments of both medical and indemnity benefits. An Nassau authorized orthopedist initially diagnosed the complainant man with disc herniation with chronic low back pain. After that, a surgical procedure was performed and the orthopedist’s explained that the surgery revealed spinal stenosis with no evidence of disc herniation. The orthopedist also informed the attorney of the man’s employer that one hundred percent of the complainant’s need for medical treatment was caused by pre-existing degenerative changes due to his personal condition. The complainant then filed an appeal for benefits requesting authorization of a neurologist and compensability of the claim, which the carrier timely controverted because of the opinion of the complainant’s treating orthopedist.

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

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

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

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

As a result, the court decided that under such circumstances, the provisions relating to the carrier’s obligations in responding to an appeal for benefits and on its timely denial on the specifically requested surgery just after it had been claimed, it could not be considered to have waived its right to contest. The court finds that the employer timely denied the appeal seeking the authorization of a neurologist within 14 days after the receipt of the appeal.
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