Proof of exacerbation insufficient in 5102(d) case to defeat summary judgment motion

Tyson v Nazarian, 2012 NY Slip Op 04459 (4th Dept. 2012)

I think a case like this probably explains on some level the 1% rule in no-fault verses the “exacerbation” rule in the 5102(d) context.  Here is the cased before the Fourth Department:

Defendant’s evidence:

(1) SSD evidence, re: 2002 MVA: “Plaintiff’s medical records demonstrated that she sustained injuries from a March 2002 motor vehicle accident. Plaintiff complained to her medical providers of severe neck and lower back pain after the 2002 accident and, in May 2006, she underwent a spinal fusion. In November 2006 she obtained Social Security disability benefits for a ” severe’ impairment” consisting of “lumbar back problems and status post surgery, with chronic pain.” Plaintiff continued to complain of neck pain and lower back pain until the date of the 2008 accident.”

(2) The films are the same: “The physician opined that “[t]he symptoms that [plaintiff] had before [and after] March . . . 2008 . . . are essentially one in the same,” and that there were no new abnormalities or disc problems attributable to the 2008 accident. Defendant submitted the affirmation of another physician who reviewed plaintiff’s medical records at defendant’s request, and he also concluded that plaintiff’s “imaging studies that were performed [*2]prior to and subsequent to the [2008] accident . . . are essentially the same[, and her] cervical spine and lumbar spine complaints prior to and subsequent to the [2008] motor vehicle accident . . . are virtually the same.” In addition, defendant submitted the affirmation of a third physician who reviewed plaintiff’s diagnostic films, and he too found no evidence of a traumatic injury to the spine attributable to the 2008 accident.”

(3) “Plaintiff submitted the affidavit of her treating physician, who noted “a significant disc herniation broad based with foraminal encroachment at L4-L5” on an MRI performed after the 2008 accident and recommended surgery. In April 2009 he performed “an acute discectomy at L4-5 with posterior lumbar interbody fusion to repair the L4-5,” but plaintiff continued to have back pain after the surgery. Plaintiff’s treating physician opined that the 2008 accident caused the “large lumbar disc herniation at L4-5” and accounted for a persistent worsening of her pain symptoms.

(4) Court’s holding – read this a few times.

• Although that affirmation was sufficient to raise a triable issue of fact concerning the existence of a new injury, plaintiff failed to raise a triable issue of fact whether she had any new physical symptoms, i.e., worsening of her pain or limitations, that were attributable to the 2008 accident.
• Once defendant met his initial burden, plaintiff’s treating physician was required “to adequately address plaintiff’s preexisting . . . condition” (Franchini v Palmieri, 1 NY3d 536, 537).
• In light of the evidence submitted by defendant establishing that plaintiff had no new symptoms or pain complaints after the 2008 accident, plaintiff was required to offer some explanation with respect to how her current limitations were caused by that accident rather than the preexisting condition. In the event that plaintiff’s treating physician was unable to do so by giving a quantitative comparison of plaintiff’s limitations before and after the 2008 accident, he was required to give a qualitative comparison (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351). Here, however, he failed to provide either comparison.
• His statement that plaintiff had a “persistent worsening” of symptoms was conclusory, and he “failed to refute the opinion of defendant’s expert[s] that plaintiff did not sustain a functional disability or limitation related to the [2008] accident by, for example, comparing plaintiff’s pre- and post-accident range of motion restrictions in her neck or back or assessing her pre- and post-accident qualitative limitations” (Overhoff v Perfetto, 92 AD3d 1255, 1256).

I think the statement that  there was increased pain, etc., would have probably defeated Defendant’s summary judgment motion on the no-fault side, and would have probably resulted in a Plaintiff victory at trial.

(dissent by two judges)