Opinion
9128/06.
Decided April 14, 2008.
Nesci Keane Piekarski Keogh Corrigan, Esqs., Attorneys for Defendant, White Plains, New York, James J. Killerlane, Esq.
Attorney for Plaintiff, White Plains, New York.
Plaintiff seeks to recover for personal injuries she allegedly sustained on April 4 2005, as a result of a rear end collision with defendant's vehicle. Plaintiff claims in her Bill of Particulars that, as a result of this accident, she had sustained a tear of the superior and posterior aspects of the glenoid labrum in her right shoulder, a right shoulder rotator cuff tear, as well as disc herniations at C4-5 and C5-6 and bulges at C3-C4, C5-C6 and C6-C7.Presently, defendant is moving for summary judgment dismissing the complaint, arguing that plaintiff has not sustained a statutory threshold injury within the meaning of Insurance Law section 5102, subdivision (d). In support his motion, defendant relies in part on his examination before trial testimony with respect to the happening of this accident. Defendant had testified that he had brought his vehicle to a complete stop behind plaintiff's vehicle and that once plaintiff's vehicle had begun to move forward, he too had moved forward. As he then looked over his shoulder for oncoming vehicles, defendant testified that he had moved his vehicle forward, failing to have observed that plaintiff had again stopped her vehicle, whereupon he had struck the rear of plaintiff's vehicle while traveling at a speed of what he claimed was approximately 3 miles per hour. Submitted photographs of the involved vehicles show, according to defendant, minimal body damage, thus supporting defendant's claim that this was an extremely low impact collision. Defendant also had testified that, immediately subsequent to the accident, plaintiff and he had exchanged their names and phone numbers and thereupon had gone their separate ways. Later that same day, defendant testified that plaintiff had advised him that she was going to the hospital emergency room. Defendant thereafter had met plaintiff at the hospital and, after she was examined and released, defendant claims that he and plaintiff both went to police headquarters where they had reported this accident.
In support of his dismissal motion, defendant argues that plaintiff had been involved in both a prior 1998 and a subsequent 2007 motor vehicle accident, that plaintiff's alleged cervical injuries are unrelated to the accident at issue herein, plaintiff having had on-going symptomatology and degenerative disc disease prior to this accident, and that plaintiff's medical records evidence that her shoulder injury had pre-existed this accident, plaintiff also having experienced long term symptomatology with respect thereto. Notwithstanding plaintiff's examination before trial testimony that she never had complaints about or testing involving her right shoulder prior to the subject accident, defendant argues that said testimony is completely belied by plaintiff's medical records from her treating physician at the Westchester Medical Group, which establish both long term shoulder and cervical pain. Indeed, defendant notes that plaintiff's medical records include an x-ray of her right shoulder taken on July 21, 2003, a visit and complaints to treating physician Dr. Todd Friend, on July 31, 2003, for right knee and right shoulder pain following her playing tennis, a visit to Dr. Friend on August 18, 2003, for persistent knee and shoulder pain, a visit to Orthopedist Young Don Oh on September 15, 2003, for intermittent pain in her right shoulder which "comes and goes" and which had resulted in a physical examination at that time which found full range of motion but with pain and tenderness and a diagnosis of rotator cuff syndrome, as well as a visit to Neurologist Dr. Richard Sweet on November 17, 2003, for complaints of pain in her neck and shoulder over the past four years.
Further, defense counsel notes that plaintiff's medical records from Dr. Friend pursuant to plaintiff's initial post-accident visit on April 11, 2005, reveal that she did not complain at that time about shoulder pain and that she in fact had failed to seek any medical treatment for her alleged shoulder injury until one year after this accident, at which time she underwent arthroscopic surgery.
Plaintiff's medical records, according to defendant, also support the finding that plaintiff had had cervical complaints for a number of years and treatment with respect thereto, including neck x-rays taken on September 4, 2003, at which time a physical examination had revealed a decreased range of motion, bilateral paracervical muscle spasms, acute cervical strain and cervical somatic dysfunction, and a neurological evaluation by Dr. Sweet on November 17, 2003, for neck and lower back pain, which Dr. Sweet diagnosed as cervical-occipital pain of unknown etiology, probable degenerative and muscle contraction in nature.
Defendant also argues that plaintiff's medical records from her treating orthopedist, Dr. Stanley Liebowitz, dated February 28, 2007, establishes that plaintiff had had a subsequent motor vehicle accident on February 12, 2007, at which time she had claimed an injury to her neck, which had brought on cervical and lumbar pain. Dr. Liebowitz notes that x-rays of plaintiff's cervical spine at that time "shows some arthritic changes in the mid cervical area." Dr. Liebowitz's medical records, defendant notes, also include a notation that plaintiff had a prior history of cervical disease in 1999 which was asymptomatic prior to the February 12, 2007, accident. Notably absent from this entry, defendant argues, and unexplained, is any reference to the subject accident which had occurred on April 4, 2005.
In support of his claim that plaintiff's injuries are all pre-existing conditions unrelated to the subject accident, defendant also submits two independent medical examination reports, one from orthopedist Ralph N. Purcell and the other from neurologist Rene Elkin, who had examined plaintiff respectively on September 5, 2007 and September 10, 2007.
Dr. Purcell had reviewed plaintiff's medical records and films, including an MRI report and films of plaintiff's right shoulder, dated August 18, 2005, an MRI report of plaintiff's lumbar spine, dated April 29, 2005, and an MRI of her cervical spine, dated July 2, 2005, the last two of which indicate that plaintiff suffers from degenerative disc disease. Upon his examination of plaintiff on September 5, 2007, and his range of motion testing of her cervical and lumbar spines, Dr. Purcell did note two limitations, including plaintiff's cervical spine extension measuring 40 degrees, as compared to a normal of 45 degrees, and a 50 degree rotation of her cervical spine to the right whereas 60 degrees is stated to be normal. Upon examination of her shoulders, Dr. Purcell found that plaintiff has external rotation of 45 degrees of her right shoulder, whereas normal is 60 degrees. Dr. Purcell opines, however, that "there is no basis for any orthopedic disability causally related to the alleged motor vehicle accident of 4/4/05. She can work and do her usual activities of daily living with no orthopedic restrictions . . ." Dr. Purcell further opines that the surgical decompression procedure performed in August, 2006, was for orthopedic pathology which was degenerative in nature, that there is no evidence that the labral tear had been caused by the subject accident, that the plaintiff's rotator cuff tendinosis was a preexisting condition, as were the bulging discs, which are all degenerative in nature, that there is no evidence that plaintiff's herniated discs were caused by the subject accident, that there is no evidence of traumatic orthopedic injury, that plaintiff's range of motion restrictions are all subjective in nature and there is no objective basis for plaintiff's claim of constant pain or intermittent episodes of neck and back symptoms, and no basis for her claimed inability or diminished ability to participate in recreational and social activities and perform household duties.
Neurologist Rene Elkin had examined plaintiff on September 10, 2007, and had reviewed her medical records and prior cervical spine, shoulder and lumbar spine MRI reports. Reviewing those reports, Dr. Elkin states:
An MRI of the right shoulder revealed degeneration and supraspinatus and infraspinatus tendinosis. Additional abnormalities orthopedic in nature were described. The cervical spine MRI . . . revealed a mild loss of disc signal from C3-C4 through C6-C7. There was disc bulging at C3-C4 and C6-C7 and at C5-C6 a central and right sided disc herniation and a small central and bilateral disc herniation at C4-C5. The herniations were chronic in nature with no evidence for impingement of surrounding neural structures. There was no compression of exiting nerve roots at any level. Lumbar MRI [showed] degenerative disease at L5-S1 and also at L4-L5. There was no evidence of disc herniation. There was no evidence for compression of surrounding neural structures. There was no evidence for acute traumatic injury.
Upon range of motion testing, Dr. Elkin had found that plaintiff has a full range of motion except for cervical lateral rotation limitation of 50 degrees on the left and 40 degrees on the right, whereas normal is stated to be 60 degrees, lumbar retroflexion which was limited to 20 degrees whereas normal is 30 degrees, and lateral bending to 20 degrees on both sides whereas normal is 30 degrees.
Dr. Elkin concludes that the neurological examination was "entirely normal with no objective findings for any neurologic injury attributable to the subject accident." According to Dr. Elkin, there is "no accident-related neurologic reason for non-resolution of her symptoms. Ongoing symptoms may be explained on the basis of degenerative disease of the cervical and lumbar spine for which there is no relationship to the subject accident."
Defendant submits that the foregoing record establishes that plaintiff has not sustained a permanent loss of use of a body organ, member, function or system, or a permanent, consequential limitation of use of a body organ, member, function or system, or a significant limitation of use of a body function or system, and thus that dismissal of any such claims are warranted.
Defendant further argues that the record supports the finding that plaintiff also did not sustain any medically determined injury which had prevented her from performing her usual and customary work and daily living activities for at least ninety days within the first 180 days following the accident given that she had returned to her job as a correction officer the day following her accident and thereafter had missed only sporadic work days totaling about a week.
Plaintiff opposes the motion, arguing that there exists a triable issue of fact with respect to whether plaintiff has sustained a serious threshold injury as statutorily set forth in Insurance Law Section 5102, subdivision (d). Plaintiff had testified that she immediately had begun to feel pain in her neck, right shoulder and back at the accident scene, that she went to the hospital emergency room following the accident and thereafter had followed up with her physician, who had prescribed an MRI and physical therapy. Plaintiff further had testified that she underwent the MRIs and had continued with physical therapy three times a week for approximately five or six months. According to plaintiff, she had discontinued the physical therapy because she did not feel as though she was responding to it. When she had visited Dr. Liebowitz in 2006, plaintiff claims that he had reviewed her shoulder MRI, observed a tear and had suggested surgery, which she thereafter underwent in August, 2006. According to plaintiff, she continues to see her neurologist Dr. Daras approximately every six weeks and presently undergoes physical therapy. Moreover, she contends that she experiences "bad pain" in her back, neck and right shoulder every day since the accident, that she had never injured her back prior to the subject accident, and that she cannot use and has been unable to use since the accident her right shoulder to full capacity. Further, plaintiff argues that while she did receive neck treatment prior to the subject accident, the neck injury had been dormant and the subject accident had aggravated and exacerbated her injury. Plaintiff also claims that she had not had any complaints or treatment to her cervical spine prior to the accident. Plaintiff avers that performing regular household chores and grocery shopping and laundry all cause her extreme neck, shoulder and back pain. She notes that her doctor has advised her that she may have to undergo a second surgery on her shoulder for a spur.
In further support of her opposition to defendant's dispositive motion, plaintiff submits affirmations from Dr. Michael Daras, Dr. Stanley Liebowitz and Dr. Eugene Liu. Plaintiff argues that the record supports the finding that she has sustained a consequential limitation of use of a body organ, member, function or system, or a significant limitation of use of a body function or system, and thus that defendant's motion should be denied.
Initially, to the extent that plaintiff does not dispute defendant's claim that plaintiff has not sustained a permanent loss of use of a body organ, member, function or system (and additionally there is no evidence that any claimed injury had resulted in a "total loss" thereof, see Oberly v. Bangs Ambulance, Inc., 96 NY3d 295) and that she has not sustained any medically determined injury which had prevented her from performing her usual and customary work and daily living activities for at least ninety days within the first 180 days following the accident, said claims are both hereby dismissed.
After this Court's careful consideration of the record at bar and the parties' respective arguments, the Court further grants defendant summary judgment dismissing plaintiff's remaining claims predicated upon an alleged consequential limitation of use of a body organ, member, function or system, and a significant limitation of use of a body function or system, as the Court finds that plaintiff has failed to raise any triable issue of fact refuting defendant's prima facie demonstration that plaintiff's claimed injuries were not causally related to the subject accident.
Plaintiff's self-serving affidavit is insufficient to raise any triable issue of fact with respect to her having sustained any serious threshold injury, see Doherty v. Ajaib, _ AD3d _, 2008 WL 809028 (2nd Dept. 2008); Espinosa v. Melendez , 40 AD3d 912 (2nd Dept. 2007); Yakubov v. CG Trans Corp. , 30 AD3d 509 (2nd Dept. 2006), particularly where the emergency room records indicates that plaintiff, immediately post-accident, had complained only of neck and back pain, with no mention of a right shoulder injury, and indeed plaintiff at that time had been diagnosed solely as suffering with cervical strain and lumbar strain, and she further has not addressed nor explained her failure to have sought any medical treatment for her right shoulder until months after the April accident, and her deposition testimony and representation during the hospital emergency triage that she never previously had back and neck injuries is clearly refuted by her medical records showing a history of neck and back pain.
Of course, counsel's affirmation in opposition also is without probative value on the issue of plaintiff's having sustained a serious injury, see Marietta v. Scelzo , 29 AD3d 539 (2nd Dept. 2006); see, also Noel v. L M Holding Corp. , 35 AD3d 681 (2nd Dept. 2006); Gajjar v. Shah , 31 AD3d 377 (2nd Dept. 2006), and in any event the Court notes that it contains a serious misrepresentation to the extent counsel states therein that plaintiff, prior to this accident, never had sustained injury to her lower back. Plaintiff herself admits, as well as the medical records establish, that she had neck and back injuries in 1999 when she was involved in a prior motor vehicle accident, and her medical records also establish that she sought medical treatment over a period of months in 2003 for neck pain.
Analyzing first Dr. Daras' submitted affirmation, the Court notes that he has failed to properly set forth what normal range of motions findings are on the various tests performed, and thus his opinion that plaintiff has sustained a decreased range of motion is unsupported and without evidentiary value. See Cruz v. Rosenbaum, ___ AD3d ___, 2008 WL 809074 (2nd Dept. 2008); Kaminski v. Kawamoto 2008 WL 607262 (2nd Dept. 2008); Morris v. Edmund, 48 AD3d 432 (2nd Dept. 200).
Moreover, Dr. Daras admittedly never had reviewed plaintiff's prior medical records which include her longstanding prior complaints of cervical and lumbar pain and he apparently was unaware of same. Consequently, his proffered opinion that her current injuries are causally related to the April, 2005, accident is mere speculation and inadequate to raise any triable issue of fact. See Kupka v. Emmerich , 2 AD3d 595 (2nd Dept. 2002); Narducci v. McRae, 298 AD2d 443 (2nd Dept. 2002); Kallicharan v. Sooknanan, 282 AD2d 573 (2nd Dept. 2001); Ifraich v. Neiman, 306 AD2d 380 (2nd Dept. 2003).
With respect to Dr. Liebowitz's affirmation, his medical records demonstrate that he did not first see plaintiff for pain in her right shoulder until May 24, 2006, thirteen months post the subject accident. There is no indication in those records that plaintiff at that time had related to Dr. Liebowitz anything other than that she had been in a motor vehicle accident on April 24, 2005; there is no indication that she had advised him at that time that she had been suffering with a shoulder injury diagnosed as rotator cuff syndrome prior to the April 24, 2005, accident, nor, as defendant notes, that she had had a cortisone injection to her right shoulder seven months prior to said accident.
Based upon the foregoing, and notwithstanding that Dr. Liebowitz opines with a reasonable degree of medical certainty based upon his stated review of plaintiff's shoulder MRI films, his reading of her physical therapy records and his physical examinations, as well as upon the surgery that he performed, that plaintiff's right shoulder injury has caused a loss of range of motion, and that it causes her pain and difficulty in sitting, standing and lifting both in and around her house and her work every day, and that such injury is permanent in nature and causally related to the underlying April 24, 2005, accident, this Court must find that Dr. Liebowitz's affirmation is insufficient to raise any triable issue of fact with respect to plaintiff having sustained a serious injury as a result of the underlying accident. Not only has Dr. Liebowitz failed to offer any range of motion findings supporting his otherwise wholly conclusory claim that plaintiff has sustained a loss of range of motion, see Piperis v. Wan, 2008 WL 803163 (2nd Dept. 2008); Duke v. Saurelis , 41 AD3d 770 (2nd Dept. 2007); Daley v. Shahzad , 13 AD3d 475 (2nd Dept. 2004), but Dr. Liebowitz admittedly had not reviewed plaintiff's earlier medical records which included complaints about right shoulder pain and a diagnosis of rotator cuff tendinosis prior to the subject accident, and consequently he fails in his affirmation to address why these prior diagnoses do not account for plaintiff's presentation of injury to him in May, 2006, rather than the subject April, 2005, accident. Since Dr. Liebowitz sets forth no objective basis for his finding of causation, the Court necessarily finds his opinion with respect to same to be merely conclusory in nature, and thus insufficient to raise any triable issue of fact. See Kupka v. Emmerich, supra, 2 AD3d 595; Narducci v. McRae, supra, 298 AD2d 443; Kallicharan v. Sooknanan, supra, 282 AD2d 573; Ifraich v. Neiman, supra, 306 AD2d 380.
Parenthetically, the Court notes that, in his February 28, 2007, report, Dr. Liebowitz states that plaintiff had come to see him for lumbar and cervical pain following a motor vehicle accident that she was in on February 12, 2007, and that she "was asymptomatic prior to the [February 12, 2007] accident." Notably, there is no mention in Dr. Liebowitz's February 28, 2007, report of plaintiff's having sustained any lumbar or cervical injuries as a result of the subject April 4, 2005, accident. Dr. Liebowitz not only fails in his affirmation at bar to explain this discrepancy, but he indeed limits his affirmation only to addressing plaintiff's right shoulder injury and not her claimed lumbar or cervical injuries, and plaintiff otherwise has failed to explain this cervical/lumbar "asymptomatic" notation.
Lastly, the Court finds that Dr. Eugene Liu's affirmation also is wholly insufficient to raise any triable issue of fact. Not only does Dr. Liu fail to identify what are his qualifications other than being "board certified," but he too admitted not having reviewed plaintiff's prior medical records which include her longstanding prior complaints of shoulder, cervical and lumbar pain and he apparently was unaware of same. Consequently, his proffered opinion that her current injuries are causally related to the April, 2005, accident also is mere speculation and inadequate to raise any triable issue of fact. See Kupka v. Emmerich, supra, 2 AD3d 595; Narducci v. McRae, supra, 298 AD2d 443; Kallicharan v. Sooknanan, supra, 282 AD2d 573; Ifraich v. Neiman, supra, 306 AD2d 380.
Finally, the Court notes that conspicuously absent from plaintiff's opposition is any affirmation from Dr. Friend, plaintiff's primary care physician since 2003 and who is the physician from whom plaintiff first sought medical treatment for her prior claims of neck, back and shoulder pain and who clearly was best suited to address plaintiff's pre-accident and post-accident condition and the critical issue of causation.
This action is hereby dismissed.