Aggravation of a pre-existing injuryFebruary 15, 2019

Ortiz v Boamah, 2019 NY Slip Op 01129 (1st Dept. 2019)

I am always interested in how issues of causation play out in the statutory no-fault world

(1) Prima facie: pre-existing injury. ” Defendants submitted plaintiff’s medical records and the affirmed report of an orthopedist who, following examination and review of the medical records, found that plaintiff had preexisting conditions and no evidence of injuries caused by trauma  “

(2) “An explanation that the plaintiff was previously asymptomatic and the accident aggravated an underlying pre-existing condition, rendering the plaintiff symptomatic, is sufficient to raise an issue of fact as to causation (id. at 486 [“To the extent plaintiff’s physicians asserted that plaintiff Pham had degenerative joint disease which was common for her age, that she was previously asymptomatic, that the accident aggravated her underlying degenerative joint disease, and that trauma increases the rate of disc desiccation, rendering her now symptomatic, this was sufficient to raise an issue of fact as to causation”] [internal quotations marks omitted] “

(3) ” Plaintiff submitted the reports of both her treating neurosurgeon and treating chiropractor, each of whom independently opined that because she had no history of symptoms or medical treatment for her spine before the accident, her injuries were caused, or at least aggravated by the motor vehicle accident. Plaintiff’s neurosurgeon noted that although plaintiff has chronic degenerative spinal stenosis and spondylolisthesis, she had no prior history of back pain and leg pain. He opined that “[i]t is not unusual for such a chronic pathology to become aggravated by a relatively mild-to-moderate trauma.” He further opined, within a reasonable degree of medical certainty, that the motor vehicle accident aggravated plaintiff’s latent asymptomatic age related degenerative spine conditions and was the cause of her symptoms. Plaintiff’s chiropractor also opined that because plaintiff did not seek medical treatment for her preexisting back conditions prior to the accident, the accident had activated, accelerated, or aggravated those conditions as well as causing additional damage. This is sufficient to raise an issue as to causation”

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