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The opponent’s motion seeking an order granting summary judgment

The opponent’s motion seeking an order granting summary judgment pursuant to the Criminal Procedure Law and dismissing the victim’s complaint on the grounds that the victim’s injuries do not satisfy the serious injury threshold requirement of Insurance Law, and thus the complaint for non-economic loss is barred by Insurance Law is determined as provided.

The victim commenced a lawsuit by filing a summons and complaint wherein the victim claimed personal injuries resulting from a motor vehicle accident which occurred on October 8, 2009 at or near the intersection of Bellmore Avenue and Sunrise Highway, county of Nassau, state of New York.

According to the victim’s deposition testimony, after the accident, the police responded to the scene, an ambulance did not arrive and the victim exited her vehicle unassisted, was not experiencing pain in any part of her body and was able to drive her vehicle from the scene to her workplace. The victim testified that she first sought medical attention because of pain in her lower back and because of headaches. X-rays were taken at Medical First Aid and chiropractic treatment was rendered by a physician within a week of the first doctor’s visit. The victim testified that she was treated by her physician regularly until the winter of 2010, then discontinued treatment with him. Thereafter, the victim received physical therapy two or three times per week for a few months then stopped treating in the summer of 2010. The victim testified that she saw an orthopedist, on three or four occasions, the last time being in 2010.

The victim no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does she have any future medical appointments scheduled. She testified that she was confined to her bed for one day as a result of the accident and missed less than one week of work. The court notes that it contradicts the victim’s bill of particulars.

The victim claims that as a result of the subject accident she sustained cervical and lumbar derangement and radiculopathy; posterior disc herniation on the left nerve root; posterior disc herniation on the anterior aspect of the spinal canal on the left intervertebral formina; right radiculopathy and compression deformity.

The victim contends that her injuries, due to the subject motor vehicle accident, qualify as serious injuries, pursuant to the New York State Insurance Law. Under the said law, serious injury is defined as death; dismemberment; significant disfigurement; fracture; loss of a fetus; permanent loss of use of body organ or 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 personal injury of a non-permanent nature that prevents the injured person from performing substantially all of the material acts which constitute his usual and customary daily activity for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury.

Based upon a plain reading of the papers submitted, the victim is not claiming that her injuries fall within the first five categories of serious injury, to wit: death; dismemberment; significant disfigurement; a fracture; or loss of a fetus. Thus, the court will restrict its analysis to the remaining four categories of Insurance Law namely 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.

The accused argue that the victim’s injuries do not meet any definition of serious injury as defined in Insurance Law and therefore move for summary judgment pursuant to the Criminal Procedure Law seeking the dismissal of the victim’s complaint in its entirety.

Even where there is ample objective proof of the victim’s injury, the Court of Appeals held that certain factors may nonetheless override a victim’s objective medical proof of limitations and permit dismissal of the victim’s complaint. Specifically, the Court of Appeals held that additional contributing factors, such as a gap in treatment, an intervening medical problem, or a pre-existing condition, would interrupt the chain of causation between the accident and the claimed injury.

Additionally, when an accused party’s medical expert is rendering an opinion with respect to the victim’s range of motion, the medical expert must specify the objective tests upon which the stated medical opinions are based and must compare any findings to those ranges of motion considered normal for the particular body part.

The accused submits a physician’s affirmation from an orthopedist. In his affirmation, he indicated that his physical examination of the victim was essentially unremarkable with completely normal functional capacity of the cervical and lumbosacral spine areas, as well as the upper and lower extremities. Based upon his review of the provided medical records and his examination, there was no evidence of radiculopathy whatsoever. He dismisses the possibility of a compression deformity as indicated on the MRI findings as it is related to a Schmorl’s deformity as documented in the official MRI report, and is not related to a posttraumatic event, or the car accident.

The accused woman’s expert states that as a result of the accident, the victim sustained mild strains of the cervical and lumbosacral spine areas. The condition resolved uneventfully with the passage of time. There is no evidence of disability, sequelae or permanency. The victim has a completely normal functional capacity of the musculoskeletal system and no further treatment is indicated.

Applying the aforesaid criteria to the reports of the various doctors, the Court finds that the accused have established a legitimate case that the victim failed to sustain a serious injury as defined by New York State Insurance Law.

In order for a victim to satisfy the statutory serious injury threshold, the legislature requires objective proof of a victim’s injury. The Court of Appeals stated that a victim’s proof of injury must be supported by objective medical evidence paired with the doctor’s observations during the physical examination of the victim.

In opposition to the accused woman’s instant applications, the victim has submitted records from All County MRI & Diagnostic Radiology, South Nassau Orthopedic Surgery and Sports Medicine PC and a neurologist. The accused woman also submits her own affidavit.

The MRI report of the cervical spine prepared by the radiologist indicates the Posterior disc herniation on the anterior aspect of the spinal canal and on the left intervertebral foramina. The MRI report of the lumbar spine prepared by the orthopedist indicates the Posterior disc herniation impinging on the left nerve root.

On October 19, 2009, November 2, 2009, and June 15, 2011, the orthopedist, affirmed that the victim is partially disabled and that her injuries are causally related to the subject accident. He indicates that the victim suffered a decreased range of motion in her cervical and lumbar spine injury. He recommended chiropractic care, physical therapy, and epidural injections.

A neurologist affirmed that upon range of motion testing with inclinometer there is a limitation of the cervical spine and lumbar spine. On November 30, 2009, a neurologist conducted nerve conduction studies, wave studies, reflex studies and EMG studies. The electro-diagnostic study revealed evidence of right radiculopathy. On July 9, 2011, the neurologist performed additional range of motion testing with inclinometer which revealed decreased range of motion of the lumbar spine. In his letter, the neurologist states that the victim’s lapse of treatment was due to the fact that the patient was recommended to continue physical therapy.

The victim additionally submitted her own affidavit which states that as a result of the car accident, she was unable to attend her employment for several days immediately thereafter. She was confined to her home after work and on weekends for approximately four (4) months following the accident. She indicates that she stopped seeing her orthopedist and neurologist because she didn’t believe treatment would improve her condition and her insurance had stopped paying for treatment which she could not afford to pay herself. When examining medical evidence offered by a victim on a threshold motion, the court must ensure that the evidence is objective in nature and that a victim’s subjective claims as to pain or limitations of motion are sustained by verified objective medical findings.

Further, in addition to providing medical proof contemporaneous with the subject accident, the victim must also provide competent medical evidence containing verified objective findings based upon a recent examination wherein the expert must provide an opinion as to the significance of the injury.

Applying the foregoing principles to the medical evidence proffered by the victim, the court finds that the victim has successfully raised a triable issue of fact.

To meet the threshold regarding the significant limitation of use of a body function or system or permanent consequential limitation category, the law requires that the limitation be more than minor, mild, or slight, and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition.

The medical reports of the neurologist proffered as evidence by the victim provide an objective indication of a permanent consequential limitation that was caused by the subject accident.

When a claim is raised under the permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system categories, then, in order to prove the extent or degree of the physical limitation, an expert’s designation of a numeric percentage of the victim’s loss of range of motion is acceptable. In addition, an expert’s qualitative assessment of a victim’s condition is also probative, provided that the evaluation has an objective basis, and the evaluation compares the victim’s limitations to the normal function, purpose and use of the affected body organ, member, function or system.

Although the orthopedist fails to indicate the objective tests upon which he based his opinions, the neurologist delineated the objective tests that were performed which serve as the basis for his conclusions. The electro-diagnostic testing by the neurologist revealed evidence of right radiculopathy. The accused woman’s argument that the MRI results should be disregarded because the doctor who performed them was reprimanded by the New York State Board for Professional Medical Conduct for over-interpreting MRI studies on several occasions raises a question of credibility for the jury.

Although the defendant did succeed in making a legitimate showing that the victim did not sustain a serious injury pursuant to the Insurance Law, the victim successfully countered this showing with sufficient medical evidence demonstrating the existence of material issues of fact that she has in fact sustained a serious injury pursuant to the insurance law.

Accordingly, based on the foregoing, the motion by the accused woman for summary judgment dismissing the claims against her must be DENIED.

Some people want to gain out of their pain and suffering. Instead of claiming only for what is just, they add more to it. If you are battling a lawsuit for injuries that you caused someone, consult the NYC Personal Injury Lawyers together with the New York City Injury Attorneys. Stephen Bilkis and Associates can also provide you with NY Spinal Injury Lawyers and New York Spine Injury Attorneys.

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