Barnes v Occhino, 2019 NY Slip Op 03159 (4th Dept. 2019)
(1) ” That report contains a review of plaintiff’s imaging studies, which showed disc herniations, and plaintiff’s medical records, which noted that plaintiff had significant limited range of motion as well as muscle spasms, thus raising a triable issue of fact whether there was objective evidence of an injury “
(2)”Defendants’ submissions in support of their motion also raised a triable issue of fact whether the motor vehicle accident caused plaintiff’s alleged injuries (see Schaubroeck v Moriarty, 162 AD3d 1608, 1609 [4th Dept 2018]). In the affirmed report of the same physician, he opined that the imaging studies showed only preexisting degenerative changes, but he ” fail[ed] to account for evidence that plaintiff had no complaints of pain prior to the accident’ ” (Crane, 151 AD3d at 1842; see Thomas v Huh, 115 AD3d 1225, 1226 [4th Dept 2014]). “
This is really interesting. A physician who reviews a study and says it is all degenerative will not eliminate all issues of fact where the report fails to account for evidence of a lack of pain prior to the incident.
