Serious Injury – Summary Judgment Motion Denied

DiMartini defeated defendant’s motion for summary judgment seeking to dismiss his client’s claim for not having sustained a “serious injury” as required by the Insurance Law for car accident victims.

The Accident Case

Mr. DiMartini’s client was injured in a car accident in 2014. The client did not receive emergency room treatment and sustained no fractures or torn ligaments.

His only injuries were a low back strain and two bulging discs for which he received approximately five months of physical therapy.

After discovery, the defendants moved the court to dismiss the claim.

The court decided in favor of the client and partly denied the motion leaving the client’s case alive.

The Decision

FILED: KINGS COUNTY CLERK 01/29/2018 11:51 AM
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INDEX NO.
RECEIVED NYSCEF: 01/29/2018

At an IAS Term, Part 9 of the
Supreme Court of the State of
New York, held in and for the
County of Kings, at the
Courthouse, at Civic Center,
Brooklyn, New York, on the 25th
day of January, 2018
PRESENT:
HON. DEBRA SILBER,
Justice.
_________________________________x

Plaintiffs,

-against-

Defendants.
_________________________________ x
Papers numbered 1 to 21 were read on this motion:

DECISION / ORDER
Index No.
Mot. Seq. # 2
Submitted: 1/11/18
Papers Numbered:

Notice of Motion/Order to Show Cause/Exhibits
Affirmation in Opposition/Exhibits
Reply Affirmation/Exhibits

Defendants move for summary judgment and dismissal of plaintiff
claims (the first cause of action in the complaint), pursuant to CPLR § 3212, on the grounds that plaintiff has failed to sustain a “serious injury,” pursuant to Insurance Law § 5102(d). Defendants make no mention whatsoever in their papers of plaintiff J.D.

For the reasons which follow, the motion is granted in part and denied in part.
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Movants have made a prima facie case with objective medical evidence with regard to the following categories of injury:

– a permanent consequential limitation of use of a body organ or member.

– a significant limitation of use of a body function or system.

– a medically determined injury or impairment which prevented the party from performing substantially all of the material acts which constituted his or her customary daily activities for not less than 90 days during the 180 days immediately following the accident.

As regards the category of “a medically determined injury or impairment which prevented the party from performing substantially all of the material acts which constituted his or her customary daily activities for not less than 90 days during the 180 days immediately following the accident,” it is noted that plaintiff states in his EBT taken on November 10, 2016 that he missed three days of work after the accident and then returned to work. [Page 10] He was a security guard at JFK at the time of the accident, and at the time of his EBT. He testified that he had been employed by the same company for seven years. [Pages 8-9]

In addition, defendants provide an affirmation from Dr. Michael L. Russ, following a no-fault exam conducted on February 4,2015, which was within ninety days of the accident date, which reports a normal exam, including normal range of motion, and concludes that plaintiff’s lumbar spine strain/sprain had resolved, as had the contusion to his ribs. Dr. Russ states that there “is no need for further treatment including physical therapy.”

In addition, defendants provide a report of nerve conduction studies performed on February 10,2015, at the request of plaintiff’s doctor, which concludes that the results were all within normal limits.
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With regard to the other two applicable categories of injury, defendants provide an affirmation from Dr. Igor Rubinshteyn, an orthopedist, dated February 10, 2017 following an exam on January 31,2017.

Therein, he states that plaintiff complained of continuing pain to his lower back, but on testing, plaintiff’s range of motion was completely normal, with full range of motion. He also examined and tested plaintiff’s ankles and reports that the range of motion in his ankles was normal. He concludes that plaintiff’s lumbar spine sprain had resolved, as had plaintiff’s right foot/great toe contusion. He states that “this individual is capable of performing all the tasks of daily living and maintaining full employment without restrictions.”
Defendants also provide an affirmation from Dr. Alan B. Greenfield, a radiologist, who reviewed the plaintiff’s x-rays and MRls. With regard to the plaintiff’s lumbar MRI, taken on November 21, 2014, about ten days after the accident, he states “there is mild degenerative disc bulging at L4-L5 and L5-S1, resulting in flattening of the dural sac at L4-L5 and epidural fat only at L5-S1 …. These findings are clearly chronic, degenerative and longstanding, irrespective of patient’s age and are unrelated to an accident occurring on 11/12/14 …. There is no evidence of fracture or focal disc herniation at any level and there are clearly no findings on this study which can be attributed to the accident of 11/12/14.”

Plaintiff opposes the motion. His papers include an attorney’s affirmation, his bill of particulars and his supplemental bill of particulars [improperly served after the note of issue and after the motion was served], the police report, his EBT transcript, affirmations from four different doctors and his physical therapy records with a certification from the records custodian.

The first affirmations [Exhibit 0] are from Dr. Gautam Khakhar, of Physical Medicine
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and Rehabilitation of New York, and are dated November 18, 2014, February 10, 2015, March 6,2015, March 31, 2015 and May 19, 2015. Therein, Dr. Khakhar indicates that plaintiff first came to him with complaints of pain to his lower back and to his ribs. He sent plaintiff for x-rays and a lumbar spine MRI. He sent plaintiff for nerve conduction studies.

After the first visit, plaintiff no longer complained of pain to his ribs, but only complained about his lower back. On each visit, plaintiff reported some improvement. On most of the visits, Dr. Khakhar performed range of motion testing of his lumbar spine. The results were never normal, although by May 19,2015, there was considerable improvement. He oversaw plaintiff’s physical therapy, which started at three times per week and then was reduced to twice a week, then once to twice a week, stopping entirely after six months and
switching to home exercises.

The next doctor’s affirmation is from Dr. Derek Johnston, also with Physical Medicine and Rehabilitation of New York, dated March 18, 2015. This is not subsequent to the reports from Dr. Khakhar, but in the middle, perhaps because Dr. Khakhar was unavailable for that visit. Plaintiff reported to this doctor that his right foot was painful, in addition to his lower back, but he did not mention this injury to Dr. Khakhar at the two subsequent visits. Dr. Johnston’s exam also reports restrictions in the range of motion in plaintiff’s lumbar spine.

Next, plaintiff provides affirmations from A. Robert Tantleff, M.D., a radiologist, dated August 14, 2017. [Exhibit E1 He was not the reading radiologist for Doshi Diagnostic, and his affirmations are addressed to plaintiff’s counsel. With regard to the MRI films of plaintiff’s lumbar spine, he states that he observed three disc bulges, at L3-L4, L4-L5 and L5-S 1. The first two compress the thecal sac, but the latter one does not. He also reports

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“a congenital transitional lumbosacral junction” and “chronic levoconvex scoliosis.” Either of these conditions can cause pain. The affirmation with regard to the x-ray of the plaintiff’s lumbar spine notes the two conditions mentioned above and also notes “pseudoarthritic changes of the sacral ala bilaterally. There is regional facet arthropathy.” This too can cause pain.
Plaintiff returned to see Dr. Khakhar on July 25, 2017, for a follow-up exam to respond to this motion. The doctor’s affirmation indicates that plaintiff informed him that he still experiences lower back pain, which is worse with bending, sitting and lifting. The pain causes plaintiff difficulties with the activities of daily living.

Plaintiff reported that he had changed jobs, and is now a mailman. He reported that he has not been in any subsequent accidents. Dr. Khakhar again tested plaintiff’s range of motion, using a goniometer, and still reports restrictions in the range of motion of plaintiff’s lumbar spine. For example, flexion was 70 degrees, when 90 degrees is normal. He states that, “if the above statements are true and accurate,” the accident of November 12, 2014 was the cause of plaintiffs bulging
discs at L4-L5 and L5-S1! and of his lumbar myofascial derangement. He concludes that “as Mr. X continues to have low back pain over two and a half years post trauma with positive diagnostic test results, he sustained significant injuries to the lumbar spine. With the above-stated complaints, positive examination findings, positive diagnostic test results, 1 Lumbosacral transitional vertebrae (LSTV) are congenital spinal anomalies, in which an elongated transverse process of the last lumbar vertebra fuses with varying degree to the “first” sacral segment.
https://www.ncbi.nim.nih.gov/pmc/articles/PMC4603258/
2 “Facet arthropathy is a disease or an abnormality in the facet joints usually caused by degeneration or arthritis.
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and significantly diminished range of motion, he sustained permanent injuries to the lumbar spine.” The court concludes that plaintiff has overcome the motion and presented objective medical findings which demonstrate that he sustained a “serious injury” pursuant to Insurance Law § 5102(d) with regard to the following categories of injury:

– a permanent consequential limitation of use of a body organ or
member.

– a significant limitation of use of a body function or system.

To be clear, whether the restrictions in plaintiff’s range of motion and the pain he is experiencing in his lower back were caused by the accident or by the two congenital conditions referred to by Dr. Tantleff is not addressed in either party’s motion papers. Dr. Khakhar has apparently not seen the affirmations of Dr. Tantleff, and the x-ray report and MRI report prepared by Doshi Diagnostic only refer to levoscoliosis at the L3 level, not to plaintiff’s congenital transitional lumbosacral junction, which is first diagnosed by Dr. Tantleff.

However, plaintiff has not presented any objective medical evidence which overcomes the motion with regard to the category “a medically determined injury or impairment which prevented the party from performing substantially all of the material acts which constituted his or her customary daily activities for not less than 90 days during the 180 days immediately following the accident” and defendants’ motion is granted as to that category of injury.

This constitutes the decision and order of the court.

ENTER:
Hon. Debra Silber, J.S.C.
Hon. Debra Silber
Justice supreme Court
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