A employee of a nursing home also worked part-time at a realty office as a clerk. She was married and she had young children. She rode as a passenger in the car driven by a friend. The car she was riding in was involved in a car accident. She lost consciousness and was taken to the hospital in an ambulance. When she regained consciousness, she complained of pain in her neck, her spine, her shoulder, her wrist, her hips, her knees and her ankle.
The initial diagnosis was a fracture of her cervical spine. MRI and CT Scans as well as x-rays were taken of her but a fracture was ruled out. She stayed a total of three days in the hospital but she was later discharged. She was ordered to see a neurologist to determine the cause of her pain. She was also advised to see an orthopedist and a chiropractor for the management of the pain she was experiencing. She was also advised to undergo physical therapy.
The Westchester employee testified that she sustained a back injury at work sometime six years prior to the accident and she was also in a motor vehicle accident nine years prior to the accident. She experienced pain in her lower spine and legs but she also testified that the pain she felt then was not in the same area that she feels pain now. She claims that she can no longer lift heavy things the way she used to do before the accident in 2006. She worked in a nursing home and her duties include assisting the elderly patients and residents in the nursing home. After the accident, she can no longer stand or sit for long periods of time and she has difficulty assisting to the patients’ physical needs. She couldn’t engage in sports the way she used to do prior to the accident and she cannot do laundry anymore as laundry involved bending down and lifting heavy clothes, lifting wet clothes and putting them in the dryer. All the movements involved the use of her back which now gave her constant pain.
The Staten Island defendants filed a motion for summary judgment alleging that the woman’s injuries, although they may have included her spine, have already been resolved and so, they are not compensable as serious injuries under the Insurance Law. The defendants asked for the dismissal of the employee’s cause of action.
The Court held that the attending physicians of the employee were a neurologist, a radiologist and an orthopedist. They were all unanimous in finding that the condition of the woman’s spine was within normal range. However, they all agreed that there were bulging discs, dessicated discs and compressed discs that may be age related or may be caused by a degenerative disease. They all reported that leg raising and flexing of the lower back in various postures caused muscle spasms. They all opined that the pain constantly experienced by the employee may have been initially caused by age-related degenerative damage to the spine which was aggravated or exacerbated by the spinal injury she sustained in the car accident.
The Court resolved to deny the motion for summary judgment filed by the defendants. The Court found that the reports of the three physicians raise an issue of material fact which must be tried by a jury. The issues of material fact was whether or not the employee suffered indeed from age-related or degenerative spinal condition; and whether or not the accident caused an exacerbation or aggravation of a pre-existing spinal condition; and whether or not this constitutes a serious spinal injury which is compensable under the Insurance Law.
The case was remanded for trial on these issues.
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