Opinion
14430/2007.
Decided May 26, 2009.
Plaintiff: Iroms, Wittels, Freund Serra, Bronx, NY.
Defendant: Richard T. Lau and Associates, Jericho, NY.
RELIEF SOUGHT
Defendants Sandra A. Bernard and Kashmar C. Hendricks, move for summary judgment and dismissal of the complaint against them, for the failure of the plaintiff to have sustained a "serious injury" as that term is defined in § 5102 of the Insurance Law.
ANOTHER VAGUE SERIOUS INJURY REQUIREMENT
In this motion, defendants argue that plaintiff's serious injury claim should be dismissedbecause, among other things, plaintiff has failed to provide sufficient evidence of range of motion limitations contemporaneous with the happening of the accident.
Is this a new requirement ? The Court notes that no such requirement is set forth, described or even mentioned in the Insurance Law; and since this new and novel judicially imposed "condition" is still evolving, and is somewhat vague, the Court declines to reach or decide this issue on this record.
FACTUAL BACKGROUND
The accident underlying this case occurred on August 2, 2005 at the intersection of Hunts Point Avenue near Bruckner Blvd. in the Bronx, New York. At that time, the plaintiff claimed that the vehicle she was driving was struck in the rear by the vehicle owned by defendant Bernard, and driven by defendant Hendricks. She testified at her deposition that she was employed in an accounts payable section of a temp agency, and that she missed two days from work immediately after the accident, and another two days approximately 1 week later.
The plaintiff did not receive any treatment immediately following the accident, but first sought medical attention at Extensive Medical P.C. within a week of the occurrence, where she made complaints of pain in her back and neck. According to her deposition testimony she began to receive treatment there consisting of acupuncture, chiropractic adjustment, and massages, for a period of from three to six months. When symptoms persisted she was referred for tests and an orthopedic evaluation.
On August 27, 2005, the plaintiff underwent an MRI test of her cervical spine, which revealed a straightening of the cervical spine with bulging intervertebral discs at C4-5, C5-6 and C6-7, with "no abutting of the interior surface of the thecal sac". On September 8, 2005, she underwent an MRI of the lumbar spine, which revealed a disc bulge at L5-S1. In neither report is there a mention of a degenerative condition. On September 9, 2005, she was seen by an orthopedist, Dr. Stuart Remer, to whom she complained of pain and restrictions in her right shoulder, neck, and lower back, which were somewhat improving; and she reported that she was still undergoing therapy; that she had no loss of consciousness at the time of the accident; and that she had had no prior injury to those areas of her body.
Doctor Remer performed various range of motion (ROM) and (SLR) straight leg raising tests and made the following findings: as to the plaintiff's shoulders, ROMs found to be within normal limits bilaterally in abduction, forward flexion, external rotation, and internal rotation but with pain at the extremes; as to the cervical region ROMs found to be full on flexion, extension, lateral right bending, lateral left bending, right rotation and left rotation, although complaints of pain were reported at all extremes of motion; as to the lumbar spine, ROM's found to be full on flexion, extension, right lateral bending, left lateral bending, right rotation, and left rotation, although pain was reported at all extremes of motion as well. Plaintiff's straight leg raising test was negative bilaterally.
Dr. Remer diagnosed plaintiff with a contusion of the right shoulder; a strain or sprain of the cervical spine with cervical myofascitis; and a strain or sprain of the lumbar spine, with lumbar myofascitis. He concluded that she had a "moderate disability" as a result of the accident; but the "prognosis for full recovery was guarded" and he recommended that physical therapy and rehabilitation treatment be continued.
After the last physical therapy treatment sometime in the middle of 2006, plaintiff received no treatment for over two years, and was not again seen by any physician until her return to see Dr. Remer on October 6, 2008. No explanation (either before or after) has been provided as to that gap in treatment.
On that visit to Dr. Remer, she reported that she had undergone therapy four times per week for two months immediately after the accident, and then three times per week for approximately 7 months. Upon examination, plaintiff stated that her right shoulder had improved but that she still had complaints to her neck and a lower back. Specifically, she complained of pain now with radiation into both of her legs, and that the pain increased when she walked distances or when the weather was bad. On physical examination, the doctor noted some mild tenderness over her cervical and lumbar spines, and indicated that the straight leg raising test was positive at 45ø bilaterally. He tested all ranges of motion, and made the following findings: in the cervical spine he found a 5ø of loss of forward flexion, extension, left lateral bending, right lateral bending, left rotation and right rotation; in the thoracolumbar spine, he found 10ø of loss of range of motion in forward flexion, extension, rotation, and lateral bending; and he noted spasm over the thoracic and lumbosacral spines; and in the upper extremities, he found all ROMs to be normal. His final impression was recorded as follows:
"29 year old female who was involved in a motor vehicle accident. She sustained injuries to the cervical spine, lumbosacral spine and right shoulder. The right shoulder is improved but she still has persistent symptoms to the cervical spine and the lumbosacral spine which are permanent. The motor vehicle accident was causally related to the injuries sustained".
DEFENDANTS MOTIONS AND CONTENTIONS
The defendants argue that the plaintiff has not sustained a "serious injury" as that term is defined in § 5102 of the Insurance Law. They contend that she received no treatment immediately after the accident; and they question her credibility as to therapy since she was inconsistent and unclear as to the amount of time she went to physical therapy, i.e., at her examination before trial she testified that it was somewhere between three and six months, whereas she told her orthopedist it was nine months of therapy. In addition, it is argued by defendants that since the report of the original radiologist provides no opinion as to causal connection and the reports of the MRI examinations indicate degenerative conditions, causation has not been established.
Defendants contend further that the plaintiff has not demonstrated any significant limitation deficits contemporaneous with the happening of the accident, since the first report by her orthopedist demonstrated that she had full ranges of motion, and there was an unexplained gap in treatment of over three years.
Finally, the defendants argue that the plaintiff has not demonstrated a serious injury under the "90/180"day provision of the Insurance Law since she testified that she returned to work shortly after the accident, and the findings of her orthopedist within one month of the happening of the accident demonstrated that she had full ranges of motion at that time.
In support of their contentions and the motion to dismiss, the defendants submit the affirmations of Dr. Michael Katz, an orthopedist, Dr. Michael Carciente, a neurologist, and Dr. Melissa Cohn, a radiologist.
Dr. Katz performed an orthopedic examination of the plaintiff on behalf of the defendants on the January 30, 2008, and plaintiff related a history of having injured her neck, back, and right shoulder in the automobile accident, and stated that she received chiropractic care and/or physical therapy five times per week for six months, but was no longer under treatment despite present complaints of pain in her lower back, especially with changes in the weather. Upon examination all tests were found to be normal; and Dr. Katz concluded that plaintiff had a resolved cervical strain, lumbosacral strain with radiculitis which had resolved, and a resolved right shoulder contusion; and that she was not disabled and was in need of no further care.
Dr. Carciente conducted a neurological examination of the plaintiff on December 17, 2007, at which time, plaintiff stated that she was only experiencing pain in her lower back and had no other symptoms; that she had had a prior lower back injury eight years before, but that the symptoms had resolved after a short time; and that she was currently working as an administrative assistant. He observed that she walked normally and without apparent difficulty; and after an examination, Dr. Carciente concluded that she had a normal neurological evaluation, and that she had no ongoing causally related neurological injury or disability.
Dr. Melissa Cohn, a radiologist, reviewed the MRI films of plaintiffs cervical and lumbar spines, and made the following observations and findings: as to the cervical spine, no evidence of disc bulge or disk herniation other than some straightening of the normal cervical lordosis; as to the lumbar spine, all disk spaces were within normal limits with the exception of minimal disk desiccation and bulging at the L5-S1 level, which was indicative of the beginning of early degenerative disc disease at that level. Doctor Cohen concluded that nothing in the MRI films was consistent with a traumatic injury.
APPLICABLE LAW
"Serious Injury"
Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. ( Licari v Elliot, 57 NY2d 230).
The term "serious injury" is defined in § 5102 of the Insurance Law as follows:
(d) "Serious injury" means a personal injury which results in death; dismemberment; disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. (emphasis added)
The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. ( Alvarez v Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d923 [1986]; Winegrad v. New York Un iv. Medical Center, 64 NY2d 851, 487 NYS2d 316). In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury." ( Lowe v. Bennett, 122 AD2d 728, 511 NYS2d 603 [1st. Dept. 1986], affirmed, 69 NY2d 701, 512 NYS2d 364.) When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts, and it is then incumbent upon the plaintiff to produce sufficient prima facie evidence in admissible form to support the claim of "serious injury ". ( Licari, supra; Lopez v. Senatore, 65 NY2d 1017, 494 NYS2d 101).
The "Permanent Consequential" and "Significant Limitation" Categories
Claims of "serious injury" under the "permanent consequential limitation" category and under the "significant limitation" category, are the most difficult for trial and appellate courts to assess. These terms are not clearly defined and many times have been used interchangeably. In an effort to assist the trial courts, and to better implement the "legislative intent . . . to weed out frivolous claims and limit recovery to significant injuries", the Court of Appeals, in Toure, infra, reviewed and discussed three cases in its decision reported at 98 NY2d 345(discussed infra, Toure v. Avis Rent-A-Car; Manzano v. O'Neil; and Nitti v. Clerico). However, the standards set in the Toure decisions have been inconsistently applied, and therefore trial courts are still left with uncertain guidance in determining motions for summary judgement on the No-Fault threshold.
Inconsistent Decisions
For a full discussion of the manner in which the Toure standards have been inconsistently applied, and the confusion caused thereby, see this Court's decision in Vidal v. Maldonado , 23 Misc 3d 186; 873 NYS2d 842; 2008 WL 5381596; 2008 NY Slip Op 28523; Law Journal Decision of Interest, 12/19/08 N.Y.L.J. 29 (col.1).
"Gaps In Treatment "
An unexplained gap in, or termination of, treatment, may result in a judicial determination that plaintiff has failed to establish a critical element, i.e., that the accident was a proximate cause of plaintiff's present or recent significant injuries. (See, Pommels v. Perez, 4 NY3d 566.) As stated by the Court of Appeals in Pommells: "We conclude that, even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment, an intervening medical problem or a preexisting condition — summary dismissal of the complaint may be appropriate". (emphasis added; Id at 572.)
It should be noted that Pommels also states that other factors, such as an "intervening medical problem or a pre-existing condition" may also "interrupt the chain of causation".
While a gap in, or cessation of, treatment is not necessarily dispositive — since the law does not require a record of needless treatment in order for a plaintiff's case to survive a summary judgment motion — a plaintiff who suspends therapeutic measures, while claiming a serious injury, must offer a bona fide and reasonable explanation for having done so. For example, when the plaintiff has provided evidence in admissible form from his physician that a continuation of medical therapy would have only been "palliative in nature", a subsequent gap in treatment would not necessitate the granting of summary judgment to the defendant, since the cessation of treatment was adequately explained. ( Pommels v. Perez, supra, Brown v.Dunlap, 4 NY3d 566.)Another explanation deemed reasonable is a cessation or gap caused by a claimant's inability to afford continued treatment after no-default benefits have been discontinued. (See, Wadford v. Cruz, 35 AD3d 258 [2d Dept. 2006]; Francovig v. Senekis Cab Corp. , 41 AD3d 643 [2d Dept. 2007].)However, inconsistent explanations for a cessation of treatment can be fatal to a claim of serious injury. (See, Gonzalez v AV Managing, Inc. , 37 AD3d 175 [1st Dept. 2007]; see also, DeLeon v. Ross , 44 AD3d 545 [1st Dept. 2007].
The amount of time which constitutes a fatal gap in treatment has not been definitively determined . (See, Sung v. Mihalios , 44 AD3d 500 [ 1st Dept. 2007][ unexplained gap of "over a year" leads to grant of summary judgment]; Wang v. Harget Cab , 47 AD3d 777 [2d Dept. 2008][ a 10 month gap was held to require an explanation]; Phillips v. Zilinsky , 39 AD3d 728 [2d Dept. 2007][ inadequate explanation for 15 month gap in treatment warrants grant of summary judgment].)
The "Contemporaneous Findings" Requirement
Recent First Department decisions have required a plaintiff to provide contemporaneous objective evidence of limitations caused by the accident. [ Jimenez v. Rojas 26 AD3d 256 [1st Dept. 2006]; Guadalupe v. Blondie Limo, Inc., 43 AD3d 669 [1st Dept. 2007]; Valentin v. Pomilla , 59 AD3d 184 [1st Sept. 2009]; but see, Hammett v. Diaz-Frias , 49 AD3d 285 [1st Dept. 2008]. Rather than being a stand alone new serious injury requirement, this issue seems to be merely another factor which may "interrupt the chain of causation" between the accident and the serious injury claimed by plaintiff.
In Jimenez v. Rojas, supra, the plaintiff pedestrian was struck by the defendant's van and was transported to the hospital immediately after the accident where he was treated for a scalp wound, and x-rays were taken which, revealed degenerative conditions in the cervical spine and a degenerative sclerosis in one shoulder. Thereafter, plaintiff was not treated or seen by a medical provider for a period of two years, and then came under the care of a chiropractor who found and opined that the plaintiff was a suffering from a permanent reduction in the range of motion of the cervical spine with muscle spasms; and tenderness in the right shoulder and rotator cuff, which caused diminishing rotation and abduction. The trial court's grant of summary judgment to the defendant was affirmed by the Appellate Division, which held that:
"since no objective findings of the injured plaintiff's purported loss of range of motion to his cervical spine were made until more than two years after the accident, there was a failure of proof relating to the range-of-motion restrictions in that region".[emphasis added]
The First Department also stated that, since the x-rays taken immediately after the accident showed degenerative conditions in both of the plaintiff's neck and shoulder, there was an absence of objective evidence as to how any disabilities were related to the accident. In other words, plaintiff had failed to demonstrate by qualified medical evidence that the accident was a proximate cause of any claimed injury and condition.
In Guadalupe v. Blondie Limo, Inc., supra, the First Department unanimously affirmed the dismissal of plaintiff's complaint despite a positive MRI report and a positive quantitative range of motion assessment, which was rendered two years after the accident, since "there were no objective findings immediately following the accident to demonstrate any initial range of motion restrictions on plaintiff's cervical and lumbar spine or any detailed explanation for their omission"(emphasis supplied). It would appear that if plaintiff had provided, by qualified evidence, an "explanation" for the omission and medical proof connecting all findings to the accident, the complaint may not have been dismissed on motion.
In Valentin v. Pomilla, supra, the plaintiff argued that the evidence was sufficient to raise a triable issue of fact as to serious injury since the plaintiff provided: (1) evidence (an examination by a Dr. Hausknecht) which showed some limitations approximately 2 months after the accident; and (2)"MRIs of the cervical and lumbar spine (which) revealed disc herniation at L4-5 and L5-S1 and disc bulging at C4-C5, and that EMGs revealed L5-S1 radiculopathy".Additionally, the plaintiff had supplied an affidavit from his chiropractor which demonstrated range of motion deficiencies from an examination done shortly before the motion was submitted. While there was an indication in the records that the chiropractor had initially seen the plaintiff a few days after the accident, no information was provided by the plaintiff as to the findings of the chiropractor, if any, at that visit. The Appellate Division unanimously reversed an order of the trial court, which had denied the defendant's motion for summary judgment, stating: "[T]here are no objective findings contemporaneous with the accident showing any initial range-of-motion restrictions on plaintiff's cervical spine"; but added, however, that "the most significant flaw in the plaintiff's arguments is his failure to address causation".In that regard the court observed that "plaintiff failed to raise an
inference that his injury was caused by the accident . . . by not refuting defendants' evidence of a preexisting degenerative condition of the spine"; and stated that:
"Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's conclusion that plaintiff's condition is causally related to the subject accident is mere speculation, insufficient to support a finding that such a causal link exists."[ 59 AD3d 184 at 185; emphasis added]
Compare Hammett v. Diaz-Frias, supra . In Hammett, the Supreme Court in Bronx County, citing previous appellate authority, granted defendant's motion for summary judgment, dismissing the complaint, stating among other things that plaintiff had failed to provide "medical evidence of limitations of her functioning contemporaneous with the collision"; and stating further that the physician's (Dr. Hausknecht's) conclusions based on limitations found on a medical exam conducted 10 months after the accident "do not raise a factual issue of the significant or permanent consequential limitations from that collision".
The Supreme Court, in support of its decision, expressly: (1) rejected the findings and the limitations found four days after the accident by plaintiff's initial physician (Dr. Howell) because he did not provide a quantitative or quantitative analysis in his report or specify the tests conducted; (2) rejected Dr. Howell's use and recitation of a contemporaneous unsworn report made by a Dr. Sloan which did provide a qualitative and/or quantitative opinion of plaintiff's limitations; and (3) rejected, as objective evidence, the MRI reports which showed disc bulges and herniations because Dr. Howell did not review of the films and merely recited reports. With regard to these issues, the Appellate Division held that the MRI reports were properly before the court since they were referred to by the experts for both sides, and that Dr. Sloan's unsworn report (which was relied upon by Dr. Howell) should have been considered by the court since "evidence otherwise excludable at trial may be considered to deny a motion for summary judgment provided that this evidence does not form the sole basis for the courts determination (citations omitted)"
The Appellate Division, First Department reversed and reinstated the complaint stating and holding, among other things, that:
"Even though he (Dr. Hausknecht) did not examine plaintiff until 10 months after the incident, plaintiff's doctor was able to report that plaintiff's symptoms were caused by the June 2004 accident, that her condition was permanent in nature, in part an exacerbation of underlying degenerative joint disease and prior injuries,' and that she sustained permanent consequential limitation in her cervical and lumbosacral spine. This was sufficient to raise a triable issue of fact as to the permanence of the injury." ( 49 AD3d 285 at 286; emphasis added)
At first blush, decision of the Appellate Division in Hammett does not appear to be entirely in sync with the rationale expressed by that Court in Guadalupe, Jimenez, and Valentine, at least as to the need for, and the medical proof required to establish, range of motion limitations which are "contemporaneous" with the incident . However, the evidence admissible on a motion for summary judgment (which had been excluded by the trial court)together with the "explanation" and expert opinion evidence as to causation provided by Dr. Hausknecht (albeit 10 months old) satisfied the Pommells proximate cause requirement.
It is noted that in most, if not all of the cases which make reference to the "contemporaneous evidence" requirement, the other more substantial (proximate cause) basis for a dismissal of the plaintiff's action is also mentioned. For example, in Valentine, where plaintiff failed to refute, or even address, defendant's evidence of a pre-existing degenerative condition, the First Department observed that "the most significant flaw in plaintiff's arguments is his failure to address causation". The same is true in Jimenez, where the First Department found that "there is no objective basis for concluding that the present physical limitation and continuing pain are attributable to the subject accident rather than to the degenerative condition discovered in the hospital X-rays"; and significantly added, "[i]n the absence of objective evidence as to how these disabilities and pain were causally related to the accident, as opposed to degenerative changes in the body, the motion for summary dismissal was properly granted."
Although the "causation factor" is not expressly discussed in numerous cases issued by the other departments of the Appellate Division which address this "contemporaneous findings" requirement, the causation nexus is evident. (For example, see Li v. Woo Sung Yun, 27 AD3d 624 [2d Dept. 2006][complaint dismissed because, in addition to the failure to provide contemporaneous evidence, plaintiff also failed to explain a six year gap in treatment]; Earl v. Chapple , 37 AD3d 520 [2d Dept. 2007]["The affirmed report of the plaintiff's treating neurologist, Dr. Hausknecht, was insufficient as it failed to demonstrate that limitations in the plaintiff's ranges of motion, observed in July 2005(an unspecified length of time after the accident) were contemporaneous with the accident"]; Espinosa v. Melendez , 40 AD3d 912[ 2d Dept. 2007] [Despite a positive MRI, " . . . plaintiff failed to provide any admissible medical proof that was contemporaneous with the subject accident that showed range of motion limitations in her spine and shoulder"]; Bestman v. Seymour , 41 AD3d 629 [2d Dept. 2007][examining neurologist's objectively determined ROM findings made three years after the accident were found insufficient since not supported by any limitations which were contemporaneous with the accident]; D'Onofrio v. Floton, Inc. , 45 AD3d 525 [2d Dept 2007] [ Recent medical proof of limitations found insufficient because the plaintiff "proffered (no) competent medical evidence that showed range of motion limitations in the plaintiff's spine that were contemporaneous with the subject accident"]; Cameron v. Engelhart , 44 AD3d 1152 [ 3d Dept. 2007]["(I)t is noted that in large measure plaintiffs' evidence concerning serious injury begins several years after the accident in question and several years after repeated medical exams which consistently fail to reveal any significant injury to plaintiff causally related to the accident. Given the lack of probative medical evidence that plaintiff suffered a serious injury contemporaneous with the subject accident . . ., defendants motion should have been granted by Supreme Court"].
In any event, it appears that this evolving "contemporaneous findings" requirement is, in essence, nothing more than a proximate cause issue, which has not yet been fully reviewed and explicated by the Court of Appeals, and is still a work in progress in the Appellate Divisions. In addition, as with the gap in treatment, and as indicated in Pommels, Guadalupe, and Hammett, supra ., a detailed explanation for the omission of contemporaneous evidence, may be sufficient to satisfy this proximate cause factor, even though provided only in a "recent" medical report and affirmation.
DISCUSSION AND CONCLUSION
The number of months that the plaintiff underwent physical therapy and the alleged deficits and limitations suffered by plaintiff during the initial period following the accident are unclear; and since no records have been provided for this initial period of treatment, the alleged injuries suffered by the plaintiff during this period and their relationship to the significant limitation found three years after the accident, could be found to be speculative; especially since plaintiff's orthopedist, in an examination conducted one month after the accident, found full ROMs for all body parts claimed to have been injured — albeit with pain. Although the presence of pain, after one month of therapy, appears to make this an abnormal ROM test, the "limitations" might be considered minimal rather than significant. In any event, the Court, declines to address the sufficiency of these "contemporaneous findings", and their impact on "causation", since there is another more compelling basis for dismissal of plaintiff's complaint, that is, the unexplained gap in treatment, which, as stated in Pommels, and its progeny , supra, has interrupted the "chain of causation".
No explanation is provided as to the plaintiff's gap in treatment from the end of her physical therapy sessions in 2006 to the time she again saw Dr. Remer in October of 2008. Failure to explain this "gap in treatment", standing alone, breaks the "chain of causation" and necessitates the granting of summary judgment. Therefore, the Court need not reach or decide whether the plaintiff has failed to provide sufficient "contemporaneous" objective evidence of limitations or an explanation for their absence.
Since the record is also barren of any proof that plaintiff sustained a medically determined injury that prevented her from performing all of her normal daily functions for 90 days out of the first 180 days immediately following the accident, the motions for summary judgment are granted and complaint herein is dismissed.
This constitutes the decision and order of the court.