Howard v Espinosa, 2010 NY Slip Op 00759 (3d Dept. 2010)
This is yet another 5102(d) case. But, there is a line in this case that I highlighted, which should interest some people out there, especially in light of the discussion that was herein presented on the topic of experts.
“The issue thus distills to whether plaintiffs’ submissions in opposition to the motion raise a triable issue of fact as to the existence of any serious injury related to the 2005 accident (see Lee v Laird, 66 AD3d 1302, 1303 [2009]). With respect to both the permanent consequential limitation and significant limitation categories, Supreme Court correctly concluded that plaintiff failed to submit any medical “quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones” (Clements v Lasher, 15 AD3d 712, 713 [2005]; see Paton v Weltman, 23 AD3d 895, 897 [2005]; John v Engel, 2 AD3d 1027, 1029 [2003]). Plaintiffs submitted the affidavit of a physical therapist, Steven Bassin, and rely on an independent medical examination conducted in December 2005 by physician Robert Sellig, both of whom reported limitations on plaintiff’s range of motion. Sellig also diagnosed plaintiff with preexisting cervical spondylosis, noted the new bulge at C-7, T-1 and opined that plaintiff’s condition was aggravated by the May 2005 accident. Plaintiff also relies on his own description of the physical limitations he experienced following the accident.
As Supreme Court noted, however, the limitations on plaintiff’s range of motion as reported by Sellig, which are comparable to those reported by Bassin immediately following the [*3]accident, are nearly identical to those taken by the Department of Veterans Affairs approximately eight months prior to the accident in question [FN1]. Further, although Sellig opined that plaintiff’s preexisting disease was aggravated by the 2005 accident, he does not compare plaintiff’s current complaints or limitations with those preexisting the accident or otherwise specify what injuries were caused by the 2005 accident (see Nowak v Breen, 55 AD3d at 1188). Indeed, Sellig never opines either that the C-7, T-1 bulge was caused by the accident or whether and how it might relate to plaintiff’s physical complaints (see June v Gonet, 298 AD2d 811, 812 [2002]). Evidence of the bulge alone, even if there were evidence of causation, would not be sufficient to sustain a claim of serious injury (see John v Engel, 2 AD3d at 1029).
To the extent that plaintiffs continue to rely on Bassin’s conclusion that, despite the fact that plaintiff’s loss of range of motion did not worsen immediately following the 2005 accident, it got progressively worse over the next two years and that this decline was causally related to the 2005 accident’s aggravation of his preexisting spinal stenosis and arthritis, it is misplaced. As Supreme Court properly noted, a physical therapist “cannot by definition diagnose or make prognos[e]s and is incompetent to determine the permanency or duration of a physical limitation” (Delaney v Lewis, 256 AD2d 895, 897 [1998]; see Brandt-Miller v McArdle, 21 AD3d 1152, 1154-1155 [2005]; Tornatore v Haggerty, 307 AD2d 522, 522-523 [2003]).”
Read the bolded portion of this opinion. Thank you.
