A complainant woman commenced an action for her claimed of personal injuries resulting from a motor vehicle accident.
According to the woman's statement, after the car accident the police responded to the scene but an ambulance did not arrive. The Queens woman then exited her vehicle unassisted, without any pain in any part of her body and was capable of driving her vehicle from the scene to her workplace. The woman testified that she first sought medical attention when she felt some pain in her lower back and headaches. X-ray examinations were taken and chiropractic treatment was rendered by a physician. She further testified that she was treated by the same physician regularly until the winter and eventually discontinued the treatment. Thereafter, she received physical therapy two or three times per week for a few months. She also testified that she visited an orthopedist on three or four occasions.
The woman no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does 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 the testimony contradicts the woman's bill of particulars.
The woman also claims that as a result of the accident she sustained several spinal injuries. She contends that the injuries was due to the motor vehicle accident and qualify as serious injuries in insurance law. Based on records, serious injury under the insurance law is defined as death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use of body organ, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and a medically determined damage 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 incident.
Based upon the plain reading of the papers submitted, the woman is not claiming that her injuries fall within the first five categories of the serious injury definition which includes death, dismemberment, significant disfigurement, a fracture or loss of a fetus. Therefore, the Staten Island court restrict its analysis to the remaining four categories of insurance law that includes 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 damage 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 incident.
Consequently, the opponent of the woman move to dismiss the action against her on the ground that the complainant’s injuries do not meet any definition of serious injury as defined in insurance law.
Based on records, in moving to dismiss the case, the opponent must make sufficient evidence that the complainant woman did not sustain serious damages within the meaning of the law. Once it is established, the burden then shifts to the complainant to come forward with evidence to overcome the opponent’s submissions by demonstrating a triable issue of fact that a serious harm was obtained.
The opponent submits a physician's affirmation from an orthopedist. In his affirmation, the orthopedist indicated that his physical examination to the woman 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. He dismisses the possibility of a compression deformity of L3 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 to the accident.
The orthopedist further states that as a result of the accident, the woman 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 woman has a completely normal functional capacity of the musculoskeletal system and no further treatment is needed.
In opposition to the opponent’s instant applications, the woman submitted records from three doctors. She also submits her own affidavit.
The MRI report of the cervical spine prepared by one of the doctor indicates the there was a posterior disc herniations at cervical spinal nerve 5-6 and at cervical spinal nerve 6-7 which is both eccentric toward the left impinging on the anterior aspect of the spinal canal and on the left intervertebral foramina. With the MRI report of the lumbar spine prepared by the orthopedist, it indicates a posterior disc herniation at lumbar spinal nerve 5 to sacral spinal nerve 1 impinging on the left nerve root. In addition, there is also a mild central compression deformity in the lumbar spinal nerve 3 vertebral body superiorly with an associated schmorl's node and probably had no acute significance. It is an osteoarthritic changes’ at lumbar spinal nerve 4-5.
The orthopedist also affirmed that the woman is partially disabled and that her injuries are causally related to the car accident. He indicates that the woman suffered a decreased range of motion in her cervical and lumbar spine. He recommended chiropractic care, physical therapy, and epidural injections.
A neurologist also affirmed that upon range of motion testing with inclinometer there is a limitation of the cervical spine and lumbar spine. The neurologist moreover conducted a nerve conduction studies, wave studies, reflex studies and EMG studies. The electrodiagnostic study revealed evidence of right L5-S1 radiculopathy. He also performed additional range of motion testing with inclinometer which revealed decreased range of motion of the lumbar spine. Based on record, inclinometer usually used to measure and evaluate ranges of motion of the human joint. In his letter, the neurologist states that the woman’s lapse of treatment was due to the fact that the patient was recommended to continue physical therapy.
The woman additionally submitted her own affidavit which states that as a result of the accident, she was unable to attend her employment for several days. 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 his neurologist because she didn't believe that the treatment would improve her condition and her insurance had stopped paying for treatment which she could not afford to pay herself.
When the court examined the medical evidence offered by the woman on a threshold motion, the court ensure that the evidence is objective in nature and that the woman’s subjective claims as to pain or limitations of motion are sustained by verified objective medical findings. Consequently, the court denied the motion of the opponent to dismiss the claims against her.
There are times that when emergency occurs, instant reaction from our body comes out and gives as extraordinary strength, swift movement and even unusual tolerance to pain.
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