The need for contemporaneous records

Martinez v Keenan, 2019 NY Slip Op 50474(U)(App. Term 2d Dept. 2019)

” We note that, contrary to defendant’s argument, plaintiff was not required to submit a contemporaneous examination to raise a triable issue of fact (see Perl v Meher, 18 NY3d 208, 218 [2011]).”

This is a token 5102(d) appeal from an order not dismissing the complaint. In the Second Department, these appeals usually lose. These threshold motions in the First Department are often dispositive as that Court takes a more technical approach to Plaintiff’s proof in opposition. One of the issues where there is a clear split is the contemporaneous examination. The First Department still requires it; The Second Department never comments on it but we can assume they do not. And the Appellate Term, which rarely gets to rule on these motions since a 325(d) order is usually well post notice of issue, get to explicitly state what we already knew.

Oh, and shout out to my friend Gary Novins. ” Zimmerman Law, P.C. (Gary R. Novins of counsel), for respondent. “

Use of Social Security Findings to establish a threshold injury

Savilo v Denner, 2019 NY Slip Op 01972 (4th Dept. 2019)

Plaintiff lost his threshold motion, which are common in the Fourth Department based upon their rules of establishing liability. But this was an interesting tidbit. ” Although plaintiff submitted a decision of the Social Security Administration in which an administrative law judge (ALJ) concluded that, since the date of the accident, plaintiff has a disability within the meaning of the Social Security [*2]Act, that conclusion was based on the ALJ’s finding that plaintiff has a degenerative disc disease. We therefore conclude that plaintiff was not entitled to judgment as a matter of law with respect to the permanent consequential limitation of use and significant limitation of use categories.”

The what-if’s are mind boggling.

The intersection of Ins Law 5106 and 5102(d)

Ampofo v Key, 2019 NY Slip Op 00559 (1st Dept. 2019)

“Defendants established prima facie that plaintiff’s claimed right ankle and foot sprains were not serious injuries within the meaning of Insurance Law § 5102(d) through affirmed reports by their orthopedist, who documented normal range of motion (see Hernandez v Adelango Trucking, 89 AD3d 407 [1st Dept 2011]; Whisenant v Farazi, 67 AD3d 535 [1st Dept 2009]). They also submitted an affirmed report by an orthopedic surgeon who performed a no-fault peer review, which noted that plaintiff’s MRI reports showed osteoarthritis and other conditions, and opined that the right ankle arthroscopy performed four months after the collision was not medically necessary or causally related to the accident.

The no-fault peer review: If properly performed and utilized, it is a death trap. So I found the file online. The peer review was performed by Dr. Westerband. (He actually lost a threshold case as a plaintiff on a PI action). It has a Geico claim number and the vendor is my next door neighbor MedSource National. The medical rationale would not suffice for most arbitrators, but alas the Appellate Division found it persuasive. LOL?

Threshold not required

Gore v Cardany, 2018 NY Slip Op 08632 (2d Dept. 2018)

“The plaintiff has the burden of establishing damages for past and future lost earnings with reasonable certainty (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris v City of New York, 2 AD3d 782, 784). A plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law § 5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a]; Thomas v Cefola, 99 AD3d 986, 987).”

Here is a case that addresses the issue better –

“While plaintiffs correctly contend that they need not await the full $50,000 payout for basic economic losses from their   first-party no-fault policy before making a claim under Insurance Law § 5102 (a) for those additional economic losses that exceed the basic economic loss threshold, they still failed to establish that plaintiff’s total economic losses here did actually “exceed basic economic loss””  Wilson v Colosimo, 101 A.D.3d 1765, 1767 (4th Dept. 2012)

Gap in treatment analyzed

Lambropoulos v Gomez, 2018 NY Slip Op 08118 (2d Dept. 2018)

In opposition, however, the plaintiff submitted evidence sufficient to raise a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 NY3d 208, 218-219). As the defendants failed to establish, prima facie, a lack of causation, the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v Perez, 4 NY3d 566, 572; Rivera v Ramos, 132 AD3d 655, 656).

Nice to a gap in treatment is limited to “causation” issues.  This is an interesting wrinkle on gap in treatment law.

Mr. Ortega, why did you lie to us?

Ortega v Healthcare Servs. Group, Inc., 2018 NY Slip Op 07568 (4th Dept. 2018)

(1) “Plaintiffs commenced this action seeking damages for injuries Rose Ortega (plaintiff) allegedly sustained as a result of a slip and fall that occurred at a facility, which was maintained by defendant. Following the damages phase of a bifurcated trial, the jury awarded plaintiff $4,200 for past pain and suffering, $3,300 for past lost wages, and $2,500 for past medical expenses. Plaintiffs moved to set aside the verdict as against the weight of the evidence on the issue of damages, and for a new trial thereon (see CPLR 4404 [a]).”

(2) “Defendant appeals from an order that, inter alia, granted the motion and ordered a new trial on damages unless defendant stipulated to increase the award for past pain and suffering to $300,000”

(3) “Here, the central issue at the damages trial was whether plaintiff’s claimed shoulder and cervical spine injuries were causally related to the subject fall, or if they resulted from unrelated prior motor vehicle accidents or other unrelated incidents or conditions. Given the conflicting evidence on that issue, plaintiff’s selective and incomplete disclosure of her health history to her healthcare providers and the examining physicians, and her inability to recall prior accidents and injuries during cross-examination, we conclude that the verdict on damages is not against the weight of the evidence because a fair interpretation of the evidence supports the jury’s determination that plaintiff’s shoulder and cervical spine injuries were unrelated to the subject fall and that the only injury sustained by plaintiff in the fall was a knee sprain.”

Another must read in the battle involving “significant limitation” and “permanent consequential”

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.

The recent examination

Fiorucci-Melosevich v Harris, 2018 NY Slip Op 07410 (2d Dept. 2018)

“In opposition, the plaintiff submitted, inter alia, the affirmation of a physician who stated that he measured the range of motion of the cervical and lumbar regions of the plaintiff’s spine at a recent examination and found significant restrictions. The plaintiff’s physician did not specify the objective test he used to measure the plaintiff’s range of motion.”

Always comes down to the objective tests that were performed, the listing and quantification of the same,

 

20% deficit is a serious injury

Kholdarov v Hyman, 2018 NY Slip Op 07111 (2d Dept. 2018)

“In opposition, the plaintiff submitted the affirmed report of a neurologist who examined the plaintiff on March 16, 2016. The neurologist measured the range of motion of the cervical region of the plaintiff’s spine and compared his results to what would be considered normal range of motion. The neurologist found a 20 percent deficit in the flexion of the plaintiff’s cervical spine, but otherwise found the results to be normal”

Court of Appeals upholds dismissal of a 5102(d) case (4-3)

Rosa v Delacruz, 2018 NY Slip Op 07040 (2018)

“The order of the Appellate Division should be affirmed, with costs.

In support of their motions for summary judgment, defendants relied on independent physician reports finding that plaintiff had a normal range of motion six months following the accident, with no permanent effects, and on the results of a shoulder MRI performed six weeks after the accident by plaintiff’s radiologist, who reported that plaintiff’s rotator cuff tendons were intact and there was no MRI evidence of a tear. Plaintiff’s responding medical submissions were inadequate to raise a triable issue of fact because they failed to acknowledge, much less explain or contradict, the radiologist’s finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tears that he observed (and repaired) during surgery nearly two years after the accident. ”

This case involves Ins Law 5102(d) on the issue of causation.  Defendant relied on a normal no-fault IME and the Plaintiff’s own radiologist averring that it is a normal and anything wrong was degenerative in nature.  Plaintiff opposed with an affidavit from a surgeon that  performed the surgery and saw tears that were traumatic in origin and related to the accident.  The surgeon also diagnosed Plaintiff with a tear early on during the treatment.

I am assuming the affirmance is based upon the reasons that the Appellate Division laid out – the failure of the treating orthopedist to rule out degeneration.