and extension of the lumbar spine produced severe pain, with
marked restriction of movement in all directions.
She was unable to do any bending, kneeling, or crawling, and
was unable to walk on her heels or toes. There was always a
sensation of pins and needles down the lower extremity into the
toes. She was unable to carry weight of more than 10 pounds and
was in severe pain going up and down stairs. Deep and
superficial tests with pinwheel and brush revealed loss of
sensory perception along the C4-C7 dermatones down the right
arm into the ring and small finger. There was a loss of sensory
perception along the L5-S1 dermatones down the right leg into
Motor strength of the right leg was about two-fifths. Finger
pressure over the area C4-C7 and L1-S1 produced severe pain in
the cervical and lumbar spine within increasing pain down the
right arm into the ring and small finger and right lower
extremity into the toes.
Dr. Brescia referred her to Dr. Amir Borzouye on March 20,
1987. That doctor's impression was malalignment of the cervical
spine at C4-C7 displaced to the right with loss of the cervical
lordosis and the presence of kyphosis in the neutral position.
He also found marked restriction of motility noted in
hyperextension. In hyperflexion of the cervical spine there was
malalignment of C4-C5 indicative of instability. There was a
scoliosis of the dorsal spine with convexity to the left. There
was off-centering of T4-T11 with displacement to the right, and
narrowing of the disc spaces of T11 and T12. Viewing of the
lumbar spine revealed scoliosis with convexity to the right and
off-centering of L2-L5 displaced to the left. The disc space at
L1-L2-L3-L4 were narrowed.
Dr. Brescia also referred plaintiff to Dr. Henry Fleck on May
7, 1987. The conclusion of his examination was positive for a
bilateral L5-S1 radiculopathy on the lower right extremity.
Dr. Brescia also referred plaintiff to Dr. Miklos Weinberger
for a computerized tomography of the lumbosacral spine. His
findings were herniation of the L4-L5 intervertebral disc.
Dr. Brescia also made the reference referred to above to Dr.
Dr. Brescia's treatment was three times a week, including
manipulation of the spine, ultrasound, EMS treatment, TENS
treatment, heat treatment, cervical and lumbar spine traction.
He also advised her to use some hydrotherapy and a cane. She
was also fitted for and instructed to use a lumbosacral
Dr. Brescia's prognosis was as follows. "The prognosis for
this patient is extremely poor. The patient has a permanent
disability due to the injury related on January 15, 1986. The
usual course for such a condition of such continued persistence
of symptoms and signs is a progressive down hill course. The
patient will have extreme difficulty in doing any work which
will require the use of the areas injured. I suggest the
patient continues medical and chiropractic treatment as
required. The patient is totally disabled from participating in
any gainful work activity."
The Administrative Law Judge did not consider Dr. Brescia as
a "treating physician" because he was a chiropractor and not a
physician, osteopath or psychologist. He therefore found Dr.
Brescia's opinion to carry "limited weight in the determination
This court holds, as did the court in Santiago v. Bowen,
715 F. Supp. 614, 615 (S.D.N.Y. 1989), that a treating
chiropractor's opinion as to the diagnosis and nature and
degree of impairment arising from a condition within the
chiropractor's field of expertise should ordinarily have a
binding effect under the treating physician rule in the absence
of substantial evidence to the contrary. At the very least the
opinion is entitled to "significant weight." Poole v. Railroad
Retirement Board, 905 F.2d 654, 662 (2d Cir. 1990).
Application of the treating doctor rule in this case requires
reversal of the defendant's decision.
Plaintiff is granted judgment on the pleadings, and the
matter is remanded to
defendant for calculation and disbursement of benefits.
© 1992-2003 VersusLaw Inc.