The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a diversity action to recover insurance benefits under a Supplemental Uninsured/Underinsured Motorist ("SUM") automobile policy issued by Defendants. Now before the Court are the following applications: 1) Plaintiff's motion for partial summary judgment (Docket No. [#27]); 2) Defendants' cross-motion for partial summary judgment (Docket No. [#33]); and 3) Plaintiff's cross-motion for partial summary judgment (Docket No. [#35]). For the reasons that follow, Plaintiff's applications [##27,35] are granted, and Defendant's application [#33] is granted in part and denied in part.
On March 3, 2003, Plaintiff was driving an automobile, belonging to her employer and insured by Defendants, in the outside lane of an undivided four-lane highway. At that time, James Jackson ("Jackson"), the driver of another vehicle traveling in the same direction, failed to observe Plaintiff's automobile traveling beside him, and attempted an illegal right-hand turn from the inside lane, striking Plaintiff's car and causing her to crash into the curb on the opposite side of the highway. In a subsequent action against Jackson in New York State Supreme Court, Plaintiff was granted summary judgment against Jackson as to liability.
Plaintiff, a single mother of two young children, was employed as a medical case worker. In that capacity, Plaintiff traveled by car to meet with clients, and she spent most of her working day driving. Plaintiff was also required to perform some lifting, such as lifting clients' groceries. Immediately following the accident, Plaintiff missed eleven days of work, due to back pain. After eleven days, Plaintiff returned to work, with a doctor's restriction on her ability to lift. Due to low back pain, Plaintiff also had difficulty standing or sitting for more than a few minutes at a time. Consequently, Plaintiff adjusted her work activities, in that she traveled less, and had clients meet her at her office when possible.*fn1 Since the accident, Plaintiff also has been unable to perform household chores, including laundry, vacuuming, and washing dishes.
On May 29, 2003, Robert D. Schrock, Jr.,M.D. ("Schrock"), an othopedic specialist, examined Plaintiff and reported "moderate paraspinal muscle spasms" and "sore[ness] to palpation over the right sacroiliac joint." (Docket No. [#35-12] at 3). Schrock's diagnosis was "acute low back strain secondary to motor vehicle accident 03/10/2003." Id. Subsequently, on July 10, 2003, Schrock reported "marked paraspinal muscle spasm" and "mildly positive" straight leg test. Id. at 4.
On August 18, 2003, MRI testing indicated "multilevel disease with loss of disc height and disc signal, from the L2-3 disc space caudally with disc/osteophyte complexes, multilevel advanced facet arthropathy and central canal stenosis dominant at L3-4 and encroachment at multiple levels secondary to the facet arthropathy and disc/osteophyte complexes." (Docket No. [#35-6] at 30).
On August 28, 2003, Schrock stated, in relevant part: "On physical examination, patient has marked paraspinal muscle spasm, lumbar spinal range of motion is markedly limited.... The MRI of the lumbar spine shows as I expected severe central canal stenosis at L3-L4. There is multiple disease up and down the canal.... The patient was completely asymptomatic before her injury of 03/10/2003.*fn2 Now, she is profoundly symptomatic." (Docket No. [#35-12] at 5).
On October 30, 2003, Schrock wrote: "The patient has marked paraspinal muscle spasm today.... [S]he is clearly getting worse. I see no choice but to take her out of work.... She is working. I think that she should stop working. I am making her totally disabled from work on 11/04/03. I expect her to return to work on January 4, 2004." Id. at 6. On December 18, 2003, Schrock noted that Plaintiff was still working, and that she had an epidural steriod injection, which was helpful. Id. at 7.
On February 25, 2004, Peter N.Capicotto, M.D. ("Capicotto"), examined Plaintiff and reviewed x-ray and MRI testing results. Capicotto's impression was "low back pain, sciatica secondary to lumbar disk herniation at L3-4 and degenerative spondylolisthesis with stenosis at L4-5." (Docket No. [#37-7] at 8). Capicotto further stated, "I do believe the back pain and the sciatica secondary to her disk herniation and L4-5 stenosis has become symptomatic and the root cause being her [March 10, 2003] injury at work." Id. at 9.
On August 5, 2005, Clifford Ameduri, M.D. ("Ameduri"), a neurologist, examined Plaintiff, who was continuing to complain of back pain, radiating into her buttocks and left thigh. Upon examination, Ameduri reported a positive Minor's sign, positive straight leg raising test, and loss of normal lordotic curve. (Docket No. [#35-7] at 8).
On May 4, 2006, Richard Byrne, M.D. ("Byrne"), conducted an orthopedic evaluation for PMA Insurance. (Docket No. [#37-7] at 18). Byrne noted that Plaintiff was reportedly working, with restrictions. Id. at 19. Straight leg raising was "negative to 90 degrees bilaterally." Id. at 20. Byrne's diagnoses were "lumbosacral strain, resolved," "multilevel lumbar degenerative disc disease with multilevel spondylosis and spinal stenosis, pre-existing," and "aggravation of diagnosis #2 [multilevel lumbar degenerative disc disease] previously present but asymptomatic." Id. at 21 (emphasis added).*fn3 Byrne further stated that Plaintiff had not reached maximum medical improvement, and that she was "currently functioning at a level of temporary moderate partial disability." Id. at 21. Byrne further stated, with regard to Plaintiff's employment, that she should avoid lifting and repetitive bending, and be allowed to "change positions frequently as needed." Id.
On August 1, 2006, Darrick J. Alaimo, M.D. ("Alaimo"), a physician board certified in neurology and electromyography, performed neuromuscular and EMG testing. Left straight leg raising test produced "severe pain in the lower back at 30 degrees." (Docket No. [#37-7] at 16). Alaimo's impression was "left lumbosacral radiculopathy" and "lumbar spondylosis." Id. at 17.
On November 17, 2006, Ameduri performed a "comprehensive" evaluation and noted the following: 1) Plaintiff complained of lower back pain, radiating into her buttocks; 2) the pain waxed and waned, but was generally continuous; 3) Plaintiff was taking Vicodin, Tramadol, Naproxen, and Tylenol for pain; 4) Minor's sign was positive with back pain; 5) positive straight leg test; 6) loss of normal lordotic curve; 7) significant bilateral paraspinal spasm; 8) "extreme pain in any extension"; 9) "lack of truncal mobility; 10) "there has been a failure of treatment plan". (Docket No. [#35-7] at 15).
On December 26, 2006, Ameduri observed, "the patient has a very limited range of motion. She can only do 15 to 20 degrees of flexion, almost 0 degrees of extension." Id. at 17.
On September 25, 2007, Ameduri examined Plaintiff and reported, "the patient is unable to stand erect... The patient continues on with significant paraspinal spasm in the deep paraspinal muscles bilaterally at L4, L5, and S1, left greater than the right.... The patient's range of motion is virtually 0 in the lumbosacral spine. Straight leg raising is positive, but again very difficult to assess due to the patient's inability to sit in a more comfortable position." Id. at 36. On December 11, 2008, Ameduri examined Plaintiff and reported essentially the same findings. Id. at 64.
On or about September 17, 2007, Plaintiff commenced this action. Subsequently, the parties conducted discovery.
On November 20, 2008, Patrick J. Hughes, M.D. ("Hughes"), a non-treating, independent medical examiner retained by Defendant, examined Plaintiff. Hughes also reviewed Plaintiff's medical records, and in the report he prepared, he included an exhaustive recitation of Plaintiff's medical records for years covering 1968 through August 2008. Hughes noted, in relevant part, the following: Plaintiff complained of low back pain in 1979; an x-ray of Plaintiff's lumbosacral spine taken in 1984 was essentially normal; a CT scan taken of Plaintiff's lower lumbar spine taken in 1985 showed a "bulging disc somewhat more on the left than right at L4-5 level"; and an x-ray in 1995 showed degenerative changes "which are most significant at L4-5 and L5-S1." Upon examination, Hughes noted that Plaintiff walked slowly with the aid of a cane, was hunched, and had an antalgic gait. Hughes stated his impressions, in relevant part, as follows:
Ms. Sanchez has low back and left leg pain; some numbness of the buttocks and right thigh due to ...