Another must read in the battle involving “significant limitation” and “permanent consequential”November 14, 2018
Tejada v LKQ Hunts Point Parts, 2018 NY Slip Op 07663 (1st Dept. 2018)
In opposition, plaintiff raised a triable issue of fact as to the existence of an injury involving a “significant” limitation of use of his lumbar spine, but not as to a “permanent consequential” limitation of use injury (see Kang v Almanzar, 116 AD3d 540 [1st Dept 2014]; Kone v Rodriguez, 107 AD3d 537 [1st Dept 2013]). Plaintiff’s orthopedic surgeon, who performed a discectomy procedure in May 2014, sufficiently addressed the findings of degeneration by opining that the MRI films did not show degeneration and that plaintiff’s acute onset lumbar condition was causally related to the accident (see Rabb v Mohammed, 132 AD3d at 528; Young Kyu Kim v Gomez, 105 AD3d at 415). Plaintiff also demonstrated the existence of significant limitations in his lumbar spine range of motion, both shortly after the accident and nine months later, through the reports of his orthopedic surgeon and his post-accident treatment records (see Castillo v Abreu, 132 AD3d 520, 521 [1st Dept 2015]). Since the medical records were submitted by defendants and were properly before the court, plaintiff was entitled to rely on them (see Wenegieme v Harriott, 157 AD3d 412 [1st Dept 2018]).
However, plaintiff failed to provide a reasonable explanation for his complete cessation of treatment for his lumbar spine conditions after the May 2014 procedure. Plaintiff’s claim that he ceased treatment because of an inability to pay due to a lack of no-fault insurance, is unpersuasive in light of his testimony that he had other insurance (see Alverio v Martinez, 160 AD3d 454 [1st Dept 2018]; Vila v Foxglove Taxi Corp., 159 AD3d 431 [1st Dept 2018]). The cessation of treatment renders the opinion of a nontreating physician, based on an examination of plaintiff in December 2016, speculative concerning the permanence and causation of plaintiff’s condition at that time (id. at 432; see Merrick v Lopez-Garcia, 100 AD3d 456 [1st Dept 2012]).
Check out the disunion of the “significant limitation” and “permanent consequential” branches of the 5102(d) serious injury statute. Also, has this order now disallowed the Plaintiff from proving a permanent injury? I would say no, but I am unsure.