This is what Perl spoke up against

Lee v Rodriguez, 2017 NY Slip Op 03869 (1st Dept. 2017)

“They also submitted evidence that plaintiffs neither reported any injury to the police immediately after the motor vehicle accident nor sought any medical treatment shortly after the accident, indicating that their claimed injuries were not causally related to the accident”

I cannot say much more.

Causation defense not substantiated in intercompany arbitration

Matter of DTG Operations, Inc. v Travelers Indem. Co., 2016 NY Slip Op 08967 (1st Dept. 2016)

This looks like a case where the Petitioner was fighting an inter-company arbitration award on the basis that the injuries sustained to Respondent Assignor were not related to the accident

(1) “Accordingly, this matter involves compulsory arbitration, and the award will be upheld so long as it comports with CPLR 7511 and is not arbitrary and capricious (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of Emerald Claims Mgt. for Ullico Cas. Ins. Co. v A. Cent. Ins. Co., 121 AD3d 481, 482 [1st Dept 2014]).”

(2) “An evidentiary basis exists in the record to support a finding that respondent had demonstrated a causal relationship between the accident and the medical treatments for which it paid (American Transit Insurance Company v Acceptance Indemnity Insurance Company, 2009 NY Slip Op 33169[U] [Sup Ct, Nassau County [2009]). Respondent “responded in writing to the causation argument” (emphasis omitted), stating that the applicant passenger, who was injured while riding in an Access-A-Ride vehicle insured by respondent, was disabled prior to this loss, that the loss worsened any prior condition, that it takes a disabled person much longer to recover from said injuries, and that a disabled person therefore requires more treatment.

As can be seen here, the exacerbation argument won the day in this case.  As we saw in Liberty v. Global, the burden was on DTG to present evidence that the injury was not related or that the accident made the condition worse.  Failing this showing, the award could not be vacated.


Serious injury, causation and the ability to recover

Hojun Hwang v Doe, 2016 NY Slip Op 07610 (1st Dept. 2016)

(1) “Defendant made a prima facie showing that plaintiff did not sustain a serious injury to his right knee, by submitting the report of their orthopedic surgeon who found full range of motion, and opined, upon review of intraoperative photographs, that plaintiff’s knee surgery was not causally related to the accident (see Hernandez v Cespedes, 141 AD3d 483 [1st Dept 2016]; Acosta v Zulu Servs., Inc., 129 AD3d 640 [1st Dept 2015]).

(2) “Plaintiff’s failure to raise an issue of fact as to whether his right knee condition was causally related to the accident means that he cannot recover for any right knee injury, regardless of whether he meets the serious injury threshold with respect to his cervical and lumbar spine claims (see Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept 2010]).”

This is an example of the causation defense at its worst.  Plaintiff in his BP/Supp BP appears to have pleaded neck, back and right knee with surgery.  The value of the case would rest with the right knee injury.  The court in the SJ motion dismissed threshold on the right knee injury based upon lack of causation.  The neck and back remain.  The net effect because the Court found lack of causation (as opposed to lack of serious injury) is that the knee injury cannot be considered at all if the neck and back surpass threshold.  The decision makes sense.

The causation piece fits within the more contemporary manner of trying an extremity of surgery where hevay reliance is placed on the operative photos and mininal reliance is palced on the MRI filns.

Causation not proved

Bobbio v Amboy Bus Co. Inc., 2016 NY Slip Op 07101 (1st Dept. 2016)

(1) “[defendant] found no objective neurological disability or permanency and full range of motion (see Birch v 31 N. Blvd., Inc., 139 AD3d 580 [1st Dept 2016]; Mayo v Kim, 135 AD3d 624 [1st Dept 2016]). Their orthopedist’s finding of minor limitations in range of motion does not defeat this showing (see Stephanie N. v Davis, 126 AD3d 502, 502 [1st Dept 2015]). Defendants also relied on plaintiff’s deposition testimony that she had been found to be disabled as a result of a neck condition more than six years before the subject accident, thereby shifting the burden to plaintiff to demonstrate a causal connection between the accident and her claimed cervical injury.”

(2)  “Her orthopedist acknowledged that an MRI of the cervical spine taken four years before the accident showed a preexisting condition, but he provided no objective basis, only the history supplied by plaintiff, for his opinion that the accident exacerbated the preexisting condition (see Campbell v Fischetti, 126 AD3d 472, 473 [1st Dept 2015]). Plaintiff offered no evidence of any injuries different from her preexisting condition, and her orthopedist failed to explain why her preexisting conditions were ruled out as the cause of her current alleged injuries”

On causation (and we are assuming the only issue is cervical injury), a prima facie showing was satisfied through a disability caused because of a neck injury.  The failure to adduce that the injuries were different as a result of the new injury was fatal to plaintiff’s case.

A good causation case

Jones v MTA Bus Co., 2014 NY Slip Op 08915 (1st Dept. 2014)


As for plaintiff’s other claimed injuries, defendants met their burden by relying on plaintiff’s testimony that her eye stopped hurting within weeks of the accident, and her post-accident hospital and medical records showing that she made no complaints until about five months after the accident, which was too remote in time to establish a causal relationship (see Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012]).

There was a bit more to the case but this is the snippet that has relevance to me.

Contemporaneous medical records sufficient

Sanchez v Draper, 2014 NY Slip Op 08584 (1st Dept,. 2014)

“Plaintiff also submitted certified medical records of the physical therapy and chiropractic treatment he started receiving within days of the accident. Such evidence supports a finding of a causal connection between the accident and the injuries”

In light of Amato, this has a potential application in first-party practice.

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.

It did not work the second time around

Perhaps the only thing worse than leaving your fate in the hands of the Civil Court is to leave your fate at the mercy of the Appellate Division.  I say this not in a disparaging way; it just bespeaks the randomness of the decisions that come from these Courts.

Those who have been in this business awhile (>10 years) can tell you that cases you didn’t think you should win you won, and those cases that you should have won, you did not win.

This occurred to me in the last month.  An appeal that I perfected due to frustration and without much legal precedent was a victory for me. (Koyachman v Paige Mgt. & Consulting, LLC, 121 A.D.3d 951 [2d Dept. 2014]).  I was beyond shocked to have won Koyachman.  The failure to serve an OSC as directed in the order mandates the denial; yet, there is now a Koyachman exception.

Yesterday, the court despite granting similar relief to Plaintiff on similar affidavits in Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102 (2d Dept. 2009), denied similar relief in Interboro v. Johnson.   In both of these cases, the insurance carrier solely relied upon a radiological review.  Compare Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co.. 28 Misc.3d 136(A)(App. Term 2d Dept. 2010)(finding prima facie entitlement to summary judgment on causation based upon radiological review)

Compare this to  Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc.3d 135(A)(App. Term 1st Dept. 2013), where the carrier relied upon a radi0logical review and a peer review to dispute the causal relationship between the accident the treatment, and the Court dismissed the complaint.

A similar instance of this disconnection between cases with similar records  is the Appellate Term holding that a low-impact study cannot disprove causation (Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.. 17 Misc.3d 97 [App. Term 1st Dept. 2007]), while another Appellate Term held that the low impact study was not only sufficient to raise an issue of fact; but was sufficient to prima facie prove lack of causation.   Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 34 Misc.3d 153(A)(App. Term 2d Dept. 2012)

Or, how about the Appellate Term which held a conclusory affidavit was insufficient to defeat a medical necessity motion (Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc.3d 139[A][App. Term 1st Dept. 2013]), yet allowed the same type of conclusory affidavit to defeat the motion.    Arnica Acupuncture P.C. v Interboro Ins. Co., 43 Misc.3d 130(A)(App. Term 1st Dept. 2014)

So Johnson is another example of placing your fate with the Appellate Division and hoping for the best.

Break in the chain of causation

Kester v Sendoya, 2014 NY Slip Op 08379 (1st Dept. 2014)

“While plaintiff’s certified medical records may be referenced to show her complaints and the doctor’s referral for treatment (see Salman v Rosario, 87 AD3d 482, 483 n [1st Dept 2011]), those records demonstrate that in the months following the February 2010 accident plaintiff sought treatment for other conditions but made no complaint of shoulder pain until June 2010. She was then referred to an orthopedist, but did not seek medical treatment for her shoulder injury until August 2010, some six months after the accident, and had an MRI performed the next month. Absent any evidence of contemporaneous, postaccident treatment or evaluation of plaintiff’s shoulder, she failed to raise an issue of fact as to whether her shoulder condition was causally related to the accident (see Henchy v VAS Express Corp., 115 AD3d 478, 479 [1st Dept 2014]; Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]). Furthermore, the affirmed report of her orthopedic surgeon, who first examined plaintiff a year after the accident, was insufficient to raise an issue of fact”

The failure to treat for a particular condition (or to show evidence of same) for 6 months following the motor vehicle accident will break the chain of causation and render an opinion on causation as speculative.  This is the extension and really what the Appellate Term meant when it reversed Amato.

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.