Opinion
23531
April 21, 2003.
Jeffrey Samel Partners, New York City, for defendant.
Andrew Hirschhorn, Rosedale, for plaintiff.
DECISION AND ORDER
The novel issue raised in this "serious injury" case, under Insurance Law section 5102(d), is whether the device of an inclinometer is one that can provide objective measurements of a limitation of motion so as to permit a plaintiff to survive a defense threshold motion.
Upon the foregoing papers, the defendant moves for summary judgment dismissing the complaint regarding a motor vehicle accident that occurred in Queens County on May 6, 2001.
Contrary to the plaintiff's allegations, defendant's two experts offered reports in admissible form contending that plaintiff did not sustain a serious injury ( see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957 (1992); Pech v. Yael Taxi Corp., 303 A.D.2d 733, 2003 WL 1735023, 2003 N.Y. Slip Op 12651 (2nd Dept. 2003]; Khalil v. Morris, 304 A.D.2d 530, 2003 WL 1825734, 2003 N.Y. Slip Op 12839 [2d 2003]; Torres v. Szafranski, 304 A.D.2d 559, 2003 WL 1827157, 2003 N.Y. Slip Op 12908 [2nd Dept. 2003]; Torre v. Seckel, 303 A.D.2d 673, 2003 WL 1538969, 2003 N.Y. Slip Op 12468 [2nd Dept. 2003]; Brush v. Levy, 303 A.D.2d 536, 2003 WL 1240133, 2003 N.Y.S.lip Op 12031 [2nd Dept. 2003]; Arrowood v. Lowinger, 294 A.D.2d 315 (1st Dept. 2002); Grant v. Heli Trucker, Inc., 294 A.D.2d 538 (2nd Dept. 2002); Wiegand v. Schunck, 294 A.D.2d 839 (4th Dept. 2002); Castaldo v. Migliore, 291 A.D.2d 526 (2nd Dept. 2002); Greggs v. Kurlan, 290 A.D.2d 533 (2nd Dept. 2002); Trotter v. Hart, 285 A.D.2d 772 (3rd Dept. 2001); Sauer v. Marks, 278 A.D.2d 301 (2nd Dept. 2000); Toriola v. Hyun, 186 Misc.2d 590 (App Term 2nd Dept. 2000).
Plaintiff contends that he ought to be permitted to go to trial under two categories of section 5102(d), namely, a "permanent consequential limitation of use of a body organ or member" and a "significant limitation of use of a body function or system."
First, defendant relies on the "gap in treatment defense," contending that plaintiff failed to seek treatment for a period of seventeen months ( see, e.g., Crespo v. Kramer, 295 A.D.2d 467 [2nd Dept. 2002] [5 year gap in treatment]; Taylor v. Jerusalem Air, Inc., 280 A.D.2d 466 [2nd Dept.], lv. denied, 96 N.Y.2d 716 [2 ½ year gap]; Pierre v. Nanton, 279 A.D.2d 621 [2nd Dept. 2001]; Paulino v. Dai, 279 A.D.2d 619 [2nd Dept. 2001] [3 year gap]; Betheil-Spitz v. Linares, 276 A.D.2d 732 [2nd Dept. 2000] [3 year gap]; Slasor v. Elfaiz, 275 A.D.2d 771 [2nd Dept. 2000] [2 ½ year gap]; Reynolds v. Cleary, 274 A.D.2d 509 [2nd Dept. 2000] [4 year gap]; Villalta v. Schechter, 273 A.D.2d 299 [2nd Dept. 2000] [4 year gap]; Borino v. Little, 273 A.D.2d 262 [2nd Dept.], lv. denied, 96 N.Y.2d 704 [3 ½ year gap in treatment]; Kim v. Budhu, 273 A.D.2d 204 [2nd Dept. 2000] [21 month gap in treatment]; Lauretta v. County of Suffolk, 273 A.D.2d 204 [2nd Dept.], lv. denied, 95 N.Y.2d 770; Grossman v. Wright, 268 A.D.2d 79, 84 [2nd Dept. 2000]; Carroll v. Jennings, 264 A.D.2d 494 [2nd Dept. 1999] [almost 4 year gap]).
The court believes that where a plaintiff contends that he has a permanent consequential limitation of a body organ or member, application of the "gap in treatment" defense makes little sense. Analytically, if a plaintiff's restriction is deemed by a competent health care provider to be permanent in nature, it makes little sense for an injured person to keep doling out money for physical therapists and other practitioners when a cure has been described as basically hopeless or unavailing. In the present case, Doctor Frank D. Cohen, a chiropractor, attests that plaintiff has sustained a 75% limitation in cervical extension that is permanent. If believed by a jury, such a restriction should not be tossed out on a summary judgment motion because the plaintiff sought treatments for only four months following the accident.
Dr. Cohen states that he performed range of motion studies using "a computerized inclinometer." Defense counsel argues that the operations of the inclinometer are susceptible to a plaintiff's manipulations and exaggerations of subjective pain and, therefore, such a device should not be recognized by this Court.
Whether a plaintiff can feign a restriction of motion on a "computerized inclinometer" and thereby manipulate and fabricate the results is not clear to this Court. In Kraemer v. Henning ( 237 A.D.2d 492 [2nd Dept. 1997]), the Appellate Division, Second Department, indeed, held that a test of cervical and lumbar range of motion, showing restricted movement, performed using a "Cybes EDI 320 Inclinometer" raised a triable issue of fact on the issue of "significant limitation" of use of a body organ or system. Kraemer is the only reported New York decision on this device to measure a plaintiff's allegations of injuries.
The Appellate Division's opinion in Kraemer, however, is supported by other federal and state court decisions that have approved of an inclinometer to test an alleged restriction of motion to the cervical and lumbosacral regions of the spine ( see, Hatcher v. Apfel, 167 F. Supp.2d 1231, 1235 [D. Kan. 2001] [measurements of the flexion and extension of the lumbosacral spine were taken using an inclinometer]; Brown v. State, 931 P.2d 421, 423 n. 2 [Alas. Sup Ct 1997]; Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 413 415 [Colo. Ct App. 1995] [use of an inclinometer is recommended by American Medical Association Guides]; Allstate Ins. Co. v. Orthopedic Evaluations, Inc., 300 N.J. Super. 510, 513, 693 A.2d 500, 501 [App Div], cert. granted and cause remanded, 151 N.J. 67, 697 A.2d 541, on remand, 304 N.J. Super. 278, 700 A.2d 372 [adhering to original determination]; McCabe v. North Dakota Workers Compensation Bur., 1997 ND 145, 567 N.W.2d 201, 204 n3 [N.D. Sup. Ct. 1997]; Matter of Snyder v. Barrett Bus. Servs., 147 Or. App. 619, 622, 939 P.2d 47, 48 [Ct App. Or 1997]; see also, Elmore v. Travelers Ins. Co., 824 S.W.2d 541 [Tenn Sup Ct 1992] [upholding trial court's evidence ruling despite challenge that doctor failed to use inclinometer to measure range of motion]. But see, Vitale v. Apfel, 49 F. Supp.2d 137, 140 143 [ED N.Y. 1999][results of range of motion "utilizing a computerized inclinometer" were properly discounted because the tests were performed thirteen years after the accident]; Witty v. United States, 947 F. Supp. 137, 144 [D. N.J. 1996][doctor who used inclinometer did not state that the injuries were permanent]).
In the case at bar, to the extent that defense counsel, at trial, wants to explore the issues associated with the use of an inclinometer [i.e., the various types of inclinometers, the ability of patient to fabricate, exaggerate, or manipulate its results, etc.], he is free to do so, by presenting experts and other admissible proof. For example, one article written by a federal administrative law judge comments: "In using reproducibility of a test result, an examiner may look to see if a critical measurement (i.e., the use of an inclinometer to measure range of motion) varies from one test to another by five degrees or plus or minus 10 percent on consecutive measurements" (Kevin F. Foley, "Malingering? Or More than Meets the Eye?," 1999 WL 33504641, NCATL Trial Briefs Magazine [Nov. 1999]); see also the interesting discussions in two articles written by Prof. Ellen Smith Pryor in "Compensation and the Ineradicable Problems of Pain," 59 Geo. Wash. L. Rev. 239, 252 n. 60 [1991], and "Flawed Promises: A Critical Evaluation of the American Medical Association's Guides to the Evaluation of Permanent Impairment," 103 Harv. L. Rev. 964, 974 [1990]).
The motion for summary judgment is thus granted only to the extent of dismissing the "permanent loss of use" and "90/180-day" categories of Insurance Law section 5102(d). This case should be tried on the categories of "permanent consequential limitation" and "significant limitation." There are several issues that ought to be determined by a jury with regard to those two categories ( see, Corbett v. County of Onondaga, 291 A.D.2d 886 [4th Dept. 2002]; Pagels v. P.V.S. Chems., Inc., 266 A.D.2d 819 [4th Dept. 1999]; Johnson v. Baker, 2002 N.Y. Slip Op 50103[U], 2002 WL 494892, 2002 N.Y. Misc. LEXIS 189 [App Term 1st Dept. March 19, 2002]).