5102(d) baseline under an aggravation and exacervbationJune 21, 2016

Boroszko v Zylinski, 2016 NY Slip Op 04830 (4th Dept, 2016)

In the realm of a complaint seeking to breach the serious injury threshold where significant limitation permanent consequential is pleaded in the BP, under an exacerbation and aggravation theory, how does a defendant knock out a case (or part of case) on threshold grounds?

Leave it to the upstate Appellate Divisions to divine on these issues, and it is interesting enough for me to share on here:

“The physician and the radiologist opined that plaintiff’s complaints following the second accident were the same as those prior to that accident, that plaintiff’s MRIs and X rays—which showed degenerative changes—were unchanged after the second accident, and that there was no evidence of posttraumatic injuries to plaintiff’s cervical or lumbar spine following the second accident (see Garcia v Feigelson, 130 AD3d 498, 499; Heatter v Dmowski, 115 AD3d 1325, 1326; Pina v Pruyn, 63 AD3d 1639, 1639; Faso v Fallato, 39 AD3d 1234, 1234). Although plaintiffs correctly note that the physician documented limited range of motion in plaintiff’s cervical spine upon his examination of her, the Peca defendants’ submissions also included a December 2010 chiropractic record that the physician reviewed. That chiropractic record showed that plaintiff had essentially the same levels of decreased range of motion just weeks before the January 2011 accident, and thus established that there was no aggravation or exacerbation of plaintiff’s condition as a result of the second accident.”

Since two MVA’s were included in the action, the second one was dismissed and the first one remains.

One last thought.  A lot of insurance carriers take the position that someone with priors will have a difficult time proving their case.  This case shows the perils of aggravation/exacerbation cases when there are priors close in time.  The situation of more remote priors and an injured person worse than their baseline should be remembered.

But one line of defense does not work on an aggravation and exacerbation theory: the biomechanical defense.  This assumes the person could not be injured due to the forces.  An aggravation and exacerbation case assumes prior injury and an eggshell Plaintiff.  This disallows reliance on a biomechanical defense.

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