The opinion of the court was delivered by: Paul A. Victor, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Defendants Ricardo Maldonado and Zobeida Franco move for summary judgment pursuant to CPLR § 3212 and dismissal of the complaint against them, for the failure of the plaintiff Victor Vidal to prove that he has sustained a "serious injury", as that term is defined in §5102 of the Insurance Law.
Another Frustrating Assembly Line "Serious Injury" Motion
The defendants' motions and plaintiffs' responses have become almost assembly line, "cookie cutter" prototypes; and attorneys for defendants (and most plaintiffs) have become expert on how to present or attack a serious injury claim.
Defendants are very adept at providing prima facie proof demonstrating that plaintiff has not suffered a serious injury; proof at the very least sufficient to meet their "initial burden" to present competent evidence that plaintiff has no cause of action. Plaintiffs, too, have become quite conversant with the requirements to defeat defendant's motion.
Defendant's counsel usually submits at least two (sometimes three) affirmations of so-called "independent"*fn1 medical experts (an orthopedist, a neurologist, and radiologist, usually from the same stable of defense medical experts) each of whom examine the plaintiff and/or the reports and tests submitted by plaintiff; and then by affirmation refute plaintiff's claim to have sustained a serious injury. These examinations usually take place years after the automobile accident, which has been alleged to cause injury; and each of the defendant's medical experts conclude that plaintiff is no longer impaired or injured ; that all tests and findings are normal; that if originally injured, said injuries have resolved; and that, in any event, all of plaintiff's claimed limitations or impairments have been caused, not by the accident, but by degenerative (normal, aging process) changes in the cervical and lumbar regions. Except for the dates and the unique peripheral circumstances presented by each case, these medical reports and affirmations submitted by defendants' chosen medical experts, are virtually identical. Plaintiff's submissions, made in opposition to a defendant's motion, are no less boilerplate.
Following an automobile accident many of the claims made by plaintiffs seem to have the same script; and many of the medical experts also are drawn from an oft-used and known pool of plaintiffs' physicians. In addition to "treating" physicians (usually a chiropractor and/or physiatrist, and sometime the family doctor), plaintiff's proof of serious injury is "supported" (as it must in accordance with judicially imposed guidelines) by an attempt to provide the "qualitative" or "quantitative assessment" of an orthopedist or a neurologist, who, after conducting a number of range of motion (ROM) tests ( which are said to be positive because of the detection of spasm), and a review of a positive MRI and/or and EMG/NCV test, concludes that plaintiff has a herniated disk or bulges which impinge on the thecal sac and thus causing significant limitations and quality of life impairments which meet the statutory definition of serious injury.
Great Expenditure of Limited Judicial Resources
Trial courts are then presented with the "serious injury" issue on a motion made by a defendant for summary judgment ; and the court must then use its "powers" to discern whether the minimum legal requirements have been met to send the case to a trial by jury. The motions and papers submitted by both sides are usually copious, and thus, a thorough review of the record and current appellate decisions requires a great expenditure of limited judicial time. In any event, the decision rendered is usually challenged and refuted by the losing side; and thus many (too many) of these cases are appealed, and many of those appeals result in non-unanimous (and sometimes acrimonious ) decisions which are often difficult to reconcile with prior precedent.
The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used. For example, one should reasonably assume that the legislature sought to distinguish "significant limitations of a body function or system" from a "consequential limitation of a body organ or member". However, there appears to be no practical difference. Some courts have held that "consequential" means "significant" ( See, eg. Altman v. Gassman, 202 AD2d 265 [1st Dept. 1994]); and there are abundant cases in which all of the above terms (including body function, system, organ or member) are used interchangeably. The guidelines, conditions and examples provided by the Court of Appeals in a series of decisions, including Toure ( cited and discussed, infra ) although very helpful, have not entirely unburdened the trial courts; and these serious injury claims continue to be the cause of incessant motion practice, and an abundant use of judicial resources at both the trial and appellate levels.
This case, like all other "serious injury" cases, presents the court with the ongoing and frustrating conundrum of deciding when a plaintiff's injury qualifies as significant within the meaning of the No-Fault law.
As noted in a 3 to 2 decision rendered by the First Department of the Appellate Division concerning a similar "serious injury" claim:
"This personal injury lawsuit... once again presents us with the sometimes frustrating task of deciding when evidence presented on a motion for summary judgment meets the serious injury threshold... an elusive standard that all too frequently escapes facile and final resolution" (emphasis supplied)
Brown v. Achy, 9 AD3d 30, 31 [ 1st Dept.2004]).
The accident underlying this case occurred on December 21, 2004 at approximately 12:45 p.m. at the intersection of E. 188th St and Cambreleng Avenue in the Bronx; at which time and place the vehicles owned and driven by the plaintiff and defendant collided. The 33-year-old plaintiff, who did not lose consciousness, and was not bleeding, was removed from the scene of the accident by ambulance and taken to St. Barnabas Hospital. At the hospital, he complained of pain in his chest, neck and back; and he stated that, even though he was wearing a seatbelt, his chest hit the steering wheel. X-rays were taken of the cervical spine and of the chest, both of which were determined to be negative. Thereafter, he was released the same day.
On December 30th, nine days post-accident, plaintiff came under the care of Dr. Vladimir Zlatnik, an internist. The underlying treatment records and the empirical data contained therein, were provided and reviewed by the defendant's physicians, but were not submitted to the Court. All of the information concerning the substance of plaintiff's care and treatment is gleaned from the affirmation of Dr. Zlatnik, dated April 21, 2008, which was submitted in opposition to defendant's motion to dismiss. In any event, on plaintiff's first visit to Dr. Zlatnik, the plaintiff reported that after the accident he had ringing in his ears and nausea; and he complained of neck pain radiating down to his shoulders with numbness; had periods of dizziness when turning his head; shooting pain in his arms when turning his neck, especially on the left side; lower back pain which gets worse on physical exertion and which spreads to the right buttocks, right thigh and leg, with a tingling sensation. On that occasion Dr. Zlatnik conducted a neurological and physical examination, which, with the use of a goniometer, included cervical and lumbar range of motion tests and measurements ; and he found that Mr Vidal "suffered from a limited range of motion of the cervical and lumbar spines, and diagnosed the plaintiff with "traumatic nerve root injury, plexopathy due to plexus stretching of compression pain by injured muscles, referred nociceptive pain, myofascial pain syndrome with cervical and lumbar spine trigger points and a lumbosacral sprain". Despite the use of the goniometer, the numerical measurements of the limitations are not set forth anywhere in the plaintiff's submissions. Dr. Zlatnik does state in his affirmation, however, that they were "less than the normal range of motion".
Based on all of the above, plaintiff was started on a course of aggressive physical therapy (which continued from December 30, 2004 until May 27, 2005); and he was "sent for MRI and other diagnostic testing", including nerve conduction velocity (EMG/NCV) tests. However, only the results of the MRI, which was conducted on January 17, 2005, are presented to the court on this motion.
The MRI testing of plaintiffs lumbar and cervical spine was conducted by Dr. John Rigney, a radiologist, who in an affirmation dated April 15, 2008, states that the plaintiff :
" suffered a posterior disc herniation at L5-S1 into the epidural fat abutting the interior sac margin and anterior disc bulges into the prevertebral soft tissues at L2-3 and L4-5; (and)***posterior disc bulges at C3-4, C4-5 and C5-6 all of which impinge on the thecal sac."
In the MRI report, attached to the affirmation dated January 17, 2005, the following additional relevant findings are set forth: a straightening of the lumbar curvature, and a mild loss in the signal intensity of the L2-3, L4-5, and L5-S1 intervertebral discs "which reflect mild and slight loss in fluid content respectively".
On February 8, 2005, after a review of his own records together with the MRI results, Dr. Zlatnik concluded that plaintiff's cervical and lumbar injuries "were caused as a result of (plaintiff's) motor vehicle accident of December 21, 2004"; and "it was determined that the best course of treatment would be continued physical therapy", which, as noted above, lasted until May 16, 2005.
In May of 2005, the physical therapy sessions were discontinued because the plaintiff's "no-fault benefits were terminated" and Doctor Zlatnik determined that, in any event, "any further physical therapy would have only been palliative in nature". In his affirmation Dr. Zlatnik states:
"The course of treatment was designed to decrease pain, promote healing of the affected areas and restoration to pre-injury range of motion, strength and functional capabilities. However, Mr. Vidal made slow, poor and erratic improvement while under our care and continued to suffer with severe pain and exacerbations upon performance with his daily activities". (emphasis added)
Dr. Zlatnik next and last examined the plaintiff almost 3 years later, on April 7, 2008, and reported in his affirmation, that "it is my impression that (plaintiff) continued with residual signs of right sided L5 radiculopathy and post-traumatic myofascial pain syndrome". In paragraph 13 of the affirmation, Dr. Zlatnik also states that:
"There is objective verification of the injuries suffered by Mr. Vidal based upon my most recent examination as well as his course of physical therapy and diagnostic test results. My opinion as to the degree of permanence is based these objective measurements as well as how his injuries affect his daily activities. In sum, because of the severity of the symptomatology as well as the persistence of the plaintiff's signs and symptoms, Mr. Vidal is limited in his daily activities and will continue to be because of the injuries he suffered to his back as a direct result of the accident on December 21, 2004. The plaintiff, as set forth in his complaints above, has difficulty lifting and bending. Further, since the date of his accident, he has been unable to perform his usual and customary activities as he did before the accident".
In the above quoted statement Dr. Zlatnik appears to lump all of his examinations and findings together, and thus it is difficult to determine what, if any, objective findings were made on this last occasion to support Dr. Zlatnik's "impressions".
In any event, Dr. Zlatnik in his affirmation concludes and states (with reference to plaintiff's claimed on-going limitations) that:
"The lumbar and cervical spine are areas that will continue to present problems and will cause difficulties for the rest of Mr. Vidal's life. Based upon the severity of Mr. Vidal's symptoms, results of examinations and past experience with similar cases, the injuries that were sustained will result in a predisposition to further complications. The trauma of the accident will cause abnormal degenerative changes at an accelerated rate. As such, he will surely sustain greater restrictions in his ranges of motion. The herniating and bulging discs produce localized pain and radicular symptoms; (and) Mr. Vidal's prognosis is guarded. His injuries are causally related to his accident of December 21, 2004. I found him to be permanently disabled from performing heavy lifting or strenuous types of activity". (emphasis supplied)
At the time of the accident, the plaintiff was employed seven days a week in two different jobs. The first as a supervisor at a company called PCF, which is a publication service for the New York Times, in which capacity he supervises 360 delivery people. At this job he was required to drive around to make sure that the various routes were being covered. As an employee of PCF, plaintiff worked every night from 1:30 AM to 7:30 AM-8:00 AM, except Wednesday and Thursday. In his second job, plaintiff is employed as a messenger for a company called SDS, based in Long Island City, where he would drive to deliver medications to various dental offices. He normally worked at that job Monday through Friday from 9:30 a.m. to 5:30-6:00 PM. As a result of the injuries sustained he was apparently unable to work for approximately one month; and has been fully employed at both jobs to date.
Defendants claim that the plaintiff has not sustained a "serious injury", as that term is defined in §5102 of the Insurance Law; and in support thereof they submit the affirmation of Dr. Charles Totero, an orthopedist, and the report of Dr. Stephen Mendelsohn, a radiologist.
Dr. Totero saw the plaintiff on November 14, 2007 and conducted a comprehensive orthopedic evaluation, as well as a review of all of plaintiffs prior medical records*fn2, and the report submitted by defendant's radiologist, Dr. Stephen Mendelsohn. After obtaining and recording the history of the accident as well as plaintiffs work history and past medical history, the following present complaints were set forth:
"The claimant tells me that his neck is improving little by little. He does have some pain which is intermittent. He complains primarily of back pain, particularly with cold weather and certain types of activities. He ...