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This appeal from the lower tribunal’s order stemmed from a vehicular collision case


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.

In order to attain precise treatment, our health care provider must evaluate and diagnose us correctly. Any misconception, even a little, might cause more complications and severity on the illness. If you obtain impairment from an accident, you can seek help from the NY Personal Injury Lawyer or New York City Injury Attorney. Somehow, you can also file a complaint when you suffered from a malpractice from any medical procedure. Simply call and asked assistance from the NYC Medical Malpractice Attorney at Stephen Bilkis and Associates.

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