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Driver must prove serious injury to collect insurance


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.

Were you injured in the spine as a result of an accident? You need to consult a New York Personal Injury lawyer. You also need assistance of New York City Personal Injury attorney who can help you gather objective medical evidence to prove the nature and extent of the spinal injury. At Stephen Bilkis and Associates, their NYC Personal Injury Lawyers on staff can represent you and help you make your case as clear and comprehensible for a jury. Call Stephen Bilkis and Associates and speak with any of their New York Personal Injury lawyers.

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