The missing EMG/NCV undermined the expert’s analysis

Crewe v Pisanova, 2015 NY Slip Op 00041 (4th Dept. 2015)

(on to permanent consequential/significan limitation)

“Defendants’ expert opined that plaintiff did not have a serious injury within the meaning of those two categories, based upon his examination of plaintiff and his review of plaintiff’s medical records. The expert concluded, inter alia, that plaintiff did not sustain a serious injury because she did not have radicular pain. In addition, however, defendants submitted an electromyography study of plaintiff in support of their motion, indicating that plaintiff suffered from “moderate chronic left C5-6 radiculopathy.” Further, when defendants’ expert reviewed plaintiff’s medical history, it was admittedly missing the first page of that electromyography study. That is the page containing the conclusion that plaintiff has “moderate . . . radiculopathy,” and we thus conclude that the basis for the expert’s conclusion was thereby undermined.”

(on to 90/180)

SLOPPY EBT:  “To qualify as a serious injury under the 90/180[-day] category, there must be objective evidence of a medically determined injury or impairment of a non-permanent nature . . . as well as evidence that plaintiff’s activities were curtailed to a great extent” (Zeigler v Ramadhan, 5 AD3d 1080, 1081 [internal quotation marks omitted]; see Licari v Elliott, 57 NY2d 230, 236). Here, defendants rely on plaintiff’s deposition testimony addressing how her activities were curtailed as of the time of the deposition, over a year after the accident, rather than how they were curtailed during the relevant statutory period….”

More than $50,000 in basic economic loss (recovery limitation): “[P]laintiff[] correctly contend[s] that [she] need not await the full $50,000 payout for basic economic losses . . . before making a claim under Insurance Law § 5102 (a) for those additional economic losses that exceed the basic economic loss threshold” (Wilson v Colosimo, 101 AD3d 1765, 1767; see generally Montgomery v Daniels, 38 NY2d 41, 47-48; Colvin v Slawoniewski, 15 AD3d 900, 900; Barnes v Kociszewski, 4 AD3d 824, 825; Watkins v Bank of Castile, 172 AD2d 1061, 1062). Here, the three-year period in which plaintiff may accrue economic loss in excess of basic economic loss, as set forth in Insurance Law § 5102 (a) (2), commenced on the date of the accident and had not yet elapsed when the motion was decided. Therefore, summary judgment on this ground was premature.”

 

Triable issue of causation established

Vargas v Marte, 2014 NY Slip Op 08561 (2d Dept. 2014)

Triable issue of fact on causation

“In particular, plaintiff’s surgeon, recognizing that plaintiff had sustained a prior left knee injury and some age-related degeneration, opined, following his review of plaintiff’s MRIs from before and after the accident, that the lack of left knee pain prior to the accident, coupled with the acute onset of pain after the accident, showed that plaintiff’s left knee meniscal tears were causally related to the subject accident”

Assuming you do not have the MRI’s, would the remainder of the passage be sufficient to defeat summary judgment?  Unsure – but probably yes in light of Perl.

The inability to recall which shoulder was hurt damages the plaintiff’s case

Fludd v Pena, 2014 NY Slip Op 07747 (1st Dept. 2014)

This 5102(d) case is interesting because it stands for the proposition that the failure to make complaints of pain at the IME of the affected body parts will negate the requirement to examine that body part.  I am going to say that is the case even when there is record evidence of pain at that body part.

“Defendants were not required to present medical evidence with respect to plaintiff’s alleged injury to her left shoulder, since plaintiff failed to recall at her deposition which shoulder was injured (see Thomas v City of New York, 99 AD3d 580, 582 [1st Dept 2012], lv denied 22 NY3d 857 [2013]). Moreover, plaintiff made no complaints about any shoulder injury when she was examined by defendants’ expert.

Interesting…

Permanent consequential v. Significant limitaton – the value of early surgery

Sutliff v Qadar, 2014 NY Slip Op 07769 (1st Dept. 2014)

This case really discusses the danger on the personal injury side of the “significant limitation prong” of 5102(d).

Factually, there was an accident in December 2009.  The Claimant presumably had standard PT and other treatments.  He had positive clinical tests and other positive objective tests.  The Plaintiff underwent shoulder surgery February, 2010.

We learn that there was  minor limitation of the shoulder in June, 2010. Presumably. an IME in 2012 or 2013 found normal range of motion and attributed the injury to other forces.

On this record the following happened:

Permanent Consequential

(1) plaintiff failed to raise a triable issue of fact as to the existence of a “permanent consequential” limitation of use of the left shoulder.

(2) On the causation issue (and this is interesting): “To the extent plaintiff argues that the orthopedist found a causally related injury, the orthopedist opined that the causally related injury amounted to only a minor contusion and, based on his review of plaintiff’s medical records, attributed the more serious symptoms to the preexisting injury (see Bravo v Martinez, 105 AD3d 458, 458 [1st Dept 2013]).”

Significant Limitation

“The affirmed reports of plaintiff’s treating physician found substantial limitations and positive clinical tests results in January 2010, a month after the accident, and plaintiff underwent shoulder surgery in February 2010 (see Thomas v NYLL Mgt. Ltd., 110 AD3d 613, 614 [1st Dept 2013]; cf. Vasquez v Almanzar, 107 AD3d 538, 539-540 [1st Dept 2013]). The treating physician also noted that plaintiff’s prior shoulder injury improved with therapy, and opined that the subject accident caused significant injuries to the left shoulder. This evidence, as well as evidence that plaintiff returned to work full time over a year prior to the subject accident, raises a triable issue of fact as to whether this accident caused an aggravation or exacerbation of the prior injury (see Nelson v Tamara Taxi Inc., 112 AD3d 547, 548 [1st Dept 2013]). Further, plaintiff submitted an MRI report performed after the accident, and an operative report of his orthopedic surgeon, which provide objective proof of a preexisting partial tear that may have been aggravated by the subject accident, and of a new symptom following this accident ”

What do I take out of this?

Causation is varies on the prongs of the statute, which is strange.  But it tells us that a positive MRI, clinical results and early surgery will satisfy significant limitation.  Also, a Plaintiff who went back to work from a prior injury but then lost time from work will raise an issue of fact as to causation.

This one hurts the carriers, and I think increases the importance of early surgery in increasing the value of a PI case.  I cannot believe I am saying that exposing people to the risks normally attendant with surgery prematurely will many times shield the Plaintiff from being nonsuited on a significant linitation claim.

No Fault angle

No Fault covers any exacerbation.  We see (at least as to permanent consequential) that this not the case: “the orthopedist opined that the causally related injury amounted to only a minor contusion and, based on his review of plaintiff’s medical records, attributed the more serious symptoms to the preexisting injury”

In no-fault, any causal relationship would be payable by no-fault.  On the PI side, if you can disaggregate the symptoms, causation is not as clear cut and will go to the jury.  I have been looking for a case where the theory that the BI coverage on causation is less expansive as no-fault.

 

An interesting dissent on a 5102(d) case

Vale v Floyd, 2014 NY Slip Op 51241(U)(App. Term 2d Dept. 2014)

This was a 325(d) personal injury case in Civil Queens.  These are perhaps the only cases that get tried in that court nowadays.  The dissent is interesting because it pretty much discusses were the Plaintiff attorney went wrong in his direct examination of the expert, i.e., failing to compare normal rom with observed rom.  It also states why the dissenting justice (and I believe she is correct) would have tossed the 90/180 claim.  I am curious if the Appellate Division will take it up.  Assuming the dissenting Justice’s review of the record is correct, then I have to imagine this case should go up.

“I agree with defendant’s contention that, based upon the evidence presented at trial, there was no valid line of reasoning and permissible inferences which could possibly have led the jury to rationally conclude that plaintiff had sustained a serious injury under the significant limitation of use or 90/180-day categories of Insurance Law § 5102 (d) as a result of the accident in question. In order to establish that she had suffered a “significant limitation of use of a body function or system, plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration (see Laruffa v Yui Ming Lau, 32 AD3d 996 [2006]). Plaintiff’s trial evidence was insufficient to establish, prima facie, that, after the accident, the limitation of the use of her spine and left shoulder was significant in degree (see DiCariano v County of Rockland, 111 AD3d 879 [2013]). While plaintiff’s doctor testified that his testing revealed specified limitations in plaintiff’s range of motion in her spine and left shoulder, he was unable to establish what are considered normal ranges of motion with which to compare his measurements, thus leaving the jury, as finders of fact, to speculate as to the meaning of the doctor’s physical findings (see Djetoumani v Transit, Inc., 50 AD3d 944 [2008]).

Plaintiff also failed to present evidence showing that her injuries had curtailed her from performing her usual and customary activities to a great extent for the requisite period (see Parise v New York City Tr. Auth., 94 AD3d 839 [2012]). Rather, the testimony at trial established only that it had been harder for plaintiff to do certain activities with her family on the weekends and that she had experienced pain when making certain movements (see Lanzarone v Goldman, 80 AD3d 667 [2011]).”

Needless to say I have been trying a few of these soft tissue cases lately so it is something that I have some interest in – JT

Surgery was done so well that plaintiff lost his day in court

Acosta v Vidal, 2014 NY Slip Op 05025 (1st Dept. 2014)

“[h]e failed to address the conflicting findings made by plaintiff’s physical therapist of normal range of motion in all parts one week after the accident (see Thomas v City of New York, 99 AD3d 580 [1st Dept 2012], lv denied 22 NY3d 857 [2013]; Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]). The physical therapy records showed that plaintiff’s neck and back continued to have full range of motion at two subsequent appointments, while the left shoulder had limitations attributable to the surgical procedure, which improved within a month. Minor limitations are insufficient to support a serious injury claim (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]).

In addition, the surgeon’s report of a post-surgical examination found that plaintiff had a negative impingement sign, indicating the condition had been repaired.”

The surgery was so successful that the plaintiff did not sustain a permanent consequential injury injury or a significant limitation of a body system.  This is rough.

Peer report is sufficient to prima facie prove lack of serious injury (Ins Law Sec. 5102[d])

Fisher v Hill, 2014 NY Slip Op 00830 (4th Dept. 2014)

It is infrequent that I post on the serious injury threshold.  But a Plaintiff on a PI case that I am handling rejected a 3101(d) based upon the fact that our expert will be the classic peer reviewer.  He will look at the EBT testimony, medical records, Bill of Particulars and testify that Plaintiff did not sustain a “serious injury”  since the injuries were not causally related to the loss.

“In support of their motion, defendants submitted medical records and the affirmed report of a neuroradiologist who examined plaintiff’s medical records at defendants’ request.  The neuroradiologist concluded that the objective medical findings related only to a preexisting condition in plaintiff’s spine. “[W]ith persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff[s] had the burden to come forward with evidence addressing defendant[s’] claimed lack of causation” and, here, plaintiffs failed to meet that burden”

Cessation of treatment and its interplay with no-fault fraud?

Ramkumar v Grand Style Transp. Enters. Inc., 2013 NY Slip Op 06638 (2013)

“The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident. While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy.”

This is interesting because the Appellate Division in the 5102(d) context held that the failure to present an NF-10 stating that benefits were cut off or to affirmatively state that Claimant did not have insurance other that no-fault would non-suit the plaintiff on a threshold motion.

The Court I think is now holding that an insurance carrier has to affirmatively state as part of its motion for summary judgment that the Claimant had medical insurance other that no-fault in order to defeat this contention..  Alternatively, and this is interesting, the issue of reasonableness of cessation of treatment now goes to the jury.  This is a radical change because cessation of treatment has never been an issue for a jury and, in fact, there is no PJI for this issue.

As to the pure first-party no fault issue, the dissent says it all:

“[T]he legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries” (Dufel v Green, 84 NY2d 795, 798 [1995]). Since the statute was enacted, false claims of “serious injury” have done much to undermine the legislative goal. A number of courts, including ours, have pointed out that the no-fault system is riddled with abuse (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861 [*3][2003] [“Between 1992 and 2001, reports of suspected automobile insurance fraud increased by 275%, the bulk of the increase occurring in no-fault insurance fraud”]; Pommells v Perez, 4 NY3d 566, 571 [2005] [“Abuse . . . abounds”]; Perl v Meher, 18 NY3d 208, 214 [2011] [“No-fault abuse still abounds today”]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76, 78 [App Term, 2d Dept 2005] [“the steep increase in fraudulent no-fault benefits claims”], aff’d 42 AD3d 277 [2d Dept 2007], aff’d 10 NY3d 556 [2008]; id., 9 Misc 3d at 83 [Golia, J., dissenting] [“fraudulent claims are an ever increasing issue”]; Metroscan Imaging P.C. v GEICO Ins. Co., 8 Misc 3d 829, 831-832 [NYC Civil Ct 2005] [“unfortunately well documented . . . deluge of fraudulent claims”]).”

Inconsistency between chiropractor report and MRI reports spells the end of personal injury plaintiff’s claim

Komina v Gil, 2013 NY Slip Op 04744 (1st Dept. 2013)

“Furthermore, plaintiff’s chiropractor made no attempt to explain the conflicting findings of the tests he performed during plaintiff’s physical examination and the MRI reports of plaintiff’s radiologist, which found normal lumbar and cervical spine images with no evidence of disc bulging or herniation, and defendants are thus entitled to summary judgment on this basis”

Do not kid yourself – there is cross over between 5102(d) and 5106 litigation.

Range of motion measurements do not require an instrument

Frias v Son Tien Liu, 2013 NY Slip Op 04736 (1st Dept. 2013)

From the world of 5102(d) land:

Defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting the affirmed reports of an orthopedic surgeon who examined the alleged injured body parts, listed the tests he performed and recorded range of motion measurements, expressed in numerical degrees and the corresponding normal values, and found no limitations (see Singer v Gae Limo Corp., 91 AD3d 526, 527 [1st Dept 2012]). The surgeon’s examination was sufficient, even though he did not use an instrument to measure the ranges of motion.