Opinion
Index No.: 2016-2476
04-14-2020
MISCHALA R. HEMERDING, Plaintiffs, v. JORGE A. MORA. Defendant.
APPEARANCES: Joseph D. Giannetti, Esq., Horigan & Lombardo, P.C., Attorneys for Defendant Jorge Mora Peter A. McDaniel, Esq., Conway & Kirby, PLLC, Attorneys for Plaintiff Mischala R. Hemerding
PRESENT:
DECISION AND ORDER
RJI No.: 46-1-2018-1027 NOTICE:
PURSUANT TO ARTICLE 55 OF THE CIVIL PRACTICE LAW AND RULES, AN APPEAL FROM THIS JUDGMENT MUST BE TAKEN WITHIN 30 DAYS AFTER SERVICE BY A PARTY UPON THE APPELLANT OF A COPY OF THE JUDGMENT WITH PROOF OF ENTRY EXCEPT THAT WHERE SERVICE OF THE JUDGMENT IS BY MAIL PURSUANT TO RULE 2103 (B)(2) OR 2103 (B)(6), THE ADDITIONAL DAYS PROVIDED SHALL APPLY, REGARDLESS OF WHICH PARTY SERVES THE JUDGMENT WITH NOTICE OF ENTRY.APPEARANCES: Joseph D. Giannetti, Esq., Horigan & Lombardo, P.C., Attorneys for Defendant Jorge Mora Peter A. McDaniel, Esq., Conway & Kirby, PLLC, Attorneys for Plaintiff Mischala R. Hemerding MICHAEL R. CUEVAS , J.
INTRODUCTION
Defendant Jorge A. Mora ("Mora") moves this Court pursuant to CPLR §3212 for an Order granting summary judgment in his favor and dismissing Plaintiff Mischala R. Hemerding's ("Hemerding") Complaint in its entirety, with prejudice and on the merits on the basis that Hemerding did not sustain a "serious injury" as a result of the at issue motor vehicle accident as that term is defined by the Insurance Law. Hemerding, through her Complaint and Bill of Particulars, claims that she did in fact sustain a "serious injury," which resulted from the motor vehicle accident at issue, under the following categories of Insurance Law §5101, et seq.:
(1) Permanent loss of use of a body organ, member, function or system,
(2) Permanent consequential limitation of use of a body organ or member;
(3) Significant limitation of use of a body function or system; and/or
(4) Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes 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.
FACTUAL BACKGROUND
On February 13, 2014, Mora was driving his 2002 Mazda on Route 7 East near Watt Street, in Schenectady, New York, when he rear-ended a 2002 Nissan driven by Hemerding. Giannetti Aff. ¶4, Ex. B, Complaint, ¶¶3, 5, 6, 7; Giannetti Aff. ¶7, Ex. E Hemerding Trans., p. 34. The 2002 Nissan, driven by Hemerding, was owned by her stepfather. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 8. At the time of the accident, Hemerding was stopped at a stoplight, also on Route 7, where she was in the left-hand, turning lane heading into the plaza that contains Price Rite and Ocean State Job Lot near the crosstown. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 8, 30-32. She was faced towards Niskayuna. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 31. Hemdering described the impact of the accident as "heavy." Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 33. Hemerding's vehicle was pushed by the impact, but not all the way into the vehicle in front of her. Giannetti Aff. ¶7, Ex. E, Hemerding Trans, p. 34. Hemerding was wearing her seatbelt. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 35.
Hemerding did not get out of the vehicle until the paramedics came. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 36. The paramedics removed her from the vehicle and placed her on a hard board. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 40. She complained of back pain at the scene and was taken by Mohawk Ambulance to Ellis Hospital. Giannetti Aff. ¶8, Ex. F. At Ellis Hospital, Hemerding complained of back, right knee, and right shoulder pain. Giannetti Aff. ¶9, Ex. G. Hemerding alleges she suffered injuries to her back (lumbar/thoracic spine), knees, neck (cervical), and shoulder, as well as, migraines. Giannetti Aff. ¶6, Ex. D, No. 2.
A. MEDICAL RECORDS
1. Back/Spine
Hemerding's Ellis Hospital emergency room report (Eugene Guidarelli, PA) found that she had tenderness to her spine, but her x-ray was unremarkable. Giannetti Aff. ¶9, Ex. G. The diagnosis was that she had sustained a muscle strain in her back. Id. On March 11, 2014, she was seen at Schenectady Regional Orthopedic Associates, P.C. (Robert Cooley, M.D) and diagnosed with lumbar thoracic strain. Giannetti Aff. ¶10, Ex. H. On April 16, 2014, she was seen at Ellis Hospital (Jianyu Li, MD) and the record of such visit noted minimal disc bulging at L4-L5, and disc generation with a shallow left posterior protrusion, annular tear at L5-S1, and a minor mass effect in the ventral epidural space. Giannetti Aff. ¶9, Ex. G. In a report of Hemerding's visit on July 25, 2014, OrthoNY (Natalia Gyorke, CNP) stated that Hemerding has constant back pain post-accident that becomes worse if sitting, or standing for longer than 15 minutes at a time. Giannetti Aff. ¶12, Ex. J. She was also shown to have tenderness through her thoracic spine, right scapula, and lumbar spine. Id. Although notably, she was able to flex forward and extend back with pain at the end range. Id. The July 25th report also indicated a very mild disc protrusion. An Ortho NY report dated July 31, 2014 (Lee A. Kaback, MD), detailed slight limited range of motion ("ROM") with tenderness to the lower back. Id. The ROM limitations were not quantified. Giannetti Aff. ¶12, Ex. J. An MRI from OrthoNY dated August 7, 2014 (Natalia Gyorke, CNP), revealed degenerative changes to Hemerding's spine with left posterior disk protrusion and annular tear that is shallow in nature. Id. Notably, the Schenectady Regional Orthopedic Associates, P.C., report dated March 11, 2014, illustrates that Hemerding had prior x-rays of her spine taken in 2011. Giannetti Aff. ¶10, Ex. H. There is nothing in the record to show why these x-rays were taken. Id.
The OrthoNY report of July 25, 2014 (Natalia Gyorke, CNP), suggests that Hemerding was advised that she should follow-up with a rheumatologist, or an endocrinologist, to rule out fibromyalgia, rheumatoid arthritis, or Lyme disease. Giannetti Aff. ¶12, Ex. J. The July 25th report details that Hemerding's pain is diffuse, and indicates that if she suffers from fibromyalgia, it could have been caused by the motor vehicle accident. Id.
2. Neck/Shoulder
The Ellis Hospital Medical Records of February 13, 2014 illustrate that Hemerding complained of pain in her right shoulder. Giannetti Aff. ¶9, Ex. G. On March 11, 2014, Schenectady Regional Orthopedic Associates, P.C. diagnosed her with right shoulder contusion/strain. Giannetti Aff. ¶10, Ex. H. An OrthoNY report dated July 31, 2014, found full strength with minimal pain. Giannetti Aff. ¶12, Ex. J. The July 31 report also noted Hemerding had pain in the trapezius with cross body adduction. Id. It also found that Hemerding was neurovascularly intact in the entire right upper extremity. Id. An x-ray demonstrated a bony process in the shoulder blade, type 1. Id. The July 31 report also exhibited that there was no soft tissue or cortical irregularities. Giannetti Aff. ¶12, Ex. J. The report states that the shoulder pain Hemerding is experiencing is likely from a pinched nerve in her neck and a chronic muscular pain disorder. Id. On October 27, 2014, a report from chiropractor David Cerniglia detailed that Hemerding has restricted neck movement. Id.
3. Right Hip
Hemerding complained of right hip pain, as noted in the ambulance report and also the Ellis Emergency Room Records. Giannetti Aff. ¶¶8,9, Exs. F, G. Notably, Hemerding did not indicate that she had pain in her right hip in her Bill of Particulars. Giannetti Aff. ¶6, Ex. D.
4. Migraines
There was an indication in the ambulance report and the emergency room notes that Hemerding hit her head on the seat rest. Giannetti Aff. ¶¶8,9 Ex. F, G. An OrthoNY report dated January 15, 2015, noted that Hemerding had headaches along with diffuse body pain with a diagnosis of chronic intractable migraine headaches without aura (severe migraine greater than 72 hours). Giannetti Aff. ¶12, Ex. J. The emergency room report indicates a prior history of migraines and two concussions in 2010. Giannetti Aff. ¶9, Ex. G. Additionally, the Ellis Neuroscience Center (Brooks, MD) report dated April 25, 2014, identifies a long history of migraine headaches. Giannetti Aff. ¶11, Ex. I. The report states that the migraines were "less common in the last year, with a sudden return with a vengeance" post-accident. Id. Hemerding testified that she has had at least one headache every day from the date of the accident until now. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 52. An Ellis Medicine record dated October 19, 2018 (William Owens, PA), detailed that Hemerding started developing headaches in her teenage years and has been evaluated in the past for them. Giannetti Aff. ¶30, Ex. R. Moreover, that her mother also suffers from migraines. Id.
B. DEPOSITION TESTIMONY
Hemerding was deposed on August 1, 2017. At deposition she testified:
• She does not know how long she was out of work after her accident. (p. 18).
• Denied any prior complains, injury, or treatment to any body parts alleged to be injured in this accident. (p. 26-28).
• Specifically denied a prior history of headaches. (p. 27-28).
• Denied any subsequent accident where she re-injured her head. (p. 28-29).Giannetti Aff. ¶7, Ex. E.
C. WORK AND ACTIVITIES At the time of the accident, Hemerding worked at Time Warner Cable. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 16. She started there in December, two months before the accident. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 16. She was a customer service representative. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 17. It was a sedentary job where she answered phone calls and did computer work. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 17. There was no real physical component. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 17. Hemerding testified that a doctor took her out of work and then told her to go back to work, but there is no notation in the medical records that a doctor told her not to work. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 19. There were limitations on what she could do, relating to extended sitting and lifting. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 20. An OrthoNY record dated September 16, 2014 (Natalia Gyorke, CNP) states that Hemerding can work for four-hour days with breaks every half an hour to an hour to allow her to stand and move around. Giannetti Aff. ¶12, Ex. J. A later OrthoNY report dated October 28, 2014 (Natalia Gyorke, CNP) states that Hemerding returned to work in October 2014. Id. Hemerding informed the doctor that working was strenuous on her and increased her pain, especially in her lower back. Id. She was walking to and from work. Id. Hemerding testified that her work could not accommodate the limitations. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., p. 21. She stopped working for Time Warner in January 2015. Giannetti Aff. ¶7, Ex. E, Hemerding Trans., 23. Notably, Hemerding's Bill of Particulars alleges that she was only incapacitated from employment for approximately one-month following the date of the accident. Giannetti Aff. ¶6, Ex. D, Nos., 7-8.
After Hemerding lost her grandmother and was suffering from depression, she told Dr. Li that she was not feeling well and that she could not go back to work for the next few days. Dr. Li gave her a note excusing her from work for several days. Giannetti Aff. ¶22, Ex. O.
Hemerding was employed between January 2015 and June 2017, although she says she cannot remember where except for Maximus (health care) and Manpower. Giannetti Aff. ¶7, Ex. E, Hemerding, p. 23. She did customer service work for them. Giannetti Aff. ¶7, Ex. E, Hemerding, p. 23. At the time of the deposition, she was working for Kelly Services, a temp agency. Giannetti Aff. ¶7, Ex. E, Hemerding, p. 22. She has worked for Anthem (through Kelly) working on Insurance pre-certifications. Giannetti Aff. ¶7, Ex. E, Hemerding, p. 25.
Hemerding testified that she was unable to perform certain activities, including lifting heavy weight. Giannetti Aff. ¶7, Ex. E, Hemerding, p. 60-61. She cannot quantify it, but testified that this includes grocery shopping and carrying two to three containers of juice, or a case of soda. Giannetti Aff. ¶7, Ex. E, Hemerding, 61. She also cannot bake anymore, play cricket, or bend over in the shower. Giannetti Aff. ¶7, Ex. E, Hemerding, p. 62. Although, she testified that in the Summer of 2016, she spent four-hours on a plane travelling to visit her grandfather in Guyana. Giannetti Aff. ¶7, Ex. E, Hemerding, p. 63-64. There was no indication in the medical records that any doctor specifically told her to limit her activities.
D. SECOND ACCIDENT
On January 28, 2015, Hemerding was involved in a second accident. Giannetti Aff. ¶¶12, 22, 24, Exs. J, P, O. According to a report from Sunnyview Hospital dated March 27, 2015, Hemerding was at a stop sign and was hit on the driver's side. Id. She was removed from that accident by ambulance. Id. Hemerding complained of bilateral pelvic pain, pain to her head, back, neck, abdomen, left knee, left ankle, left wrist, left hand, and bilateral hip pain. Id. The emergency room reports that the accident was a minor one that resulted in no significant injury. Giannetti Aff. ¶ 22, Ex. O. There is a notation that there is no significant neck pain, headache, chest pain, abdominal pain, or extremity injury by history or on physical exam. Id. The impression was cervical strain, left hand contusion, abdominal contusion, left hip contusion, and lumbar strain. Id. An OrthoNY report dated February 19, 2015 (Amar A. Parikh, MD), notes Hemerding reported neck pain and headaches following the second accident. Giannetti Aff. ¶12, Ex. J. It also indicates that Hemerding sustained significant trauma to her low back as well as her neck. Id. It also detailed that she reported she suffered from a fainting like episode and loss of consciousness. Id. Hemerding had tenderness through her back, hip, and upper lower spine. Id. The March 27, 2015, Sunnyview record indicates a primary injury to her left hip and left arm. Giannetti Aff. ¶24, Ex. P. Hemerding claims shooting pain in her left leg to knee several times per day with tingling in her knee. Id. She claimed she also suffers from lightheadedness and pain. Id. The record notes that patient's detailed limited strength is inconsistent with her actual ability to transfer, sit and stand, and ambulate without difficulty. Id.
E. INDEPENDENT MEDICAL EXAM
An independent medical examination was performed on May 24, 2018, by Dr. Bradley D. Wiener, M.D. Giannetti Aff. ¶27, Ex. Q. This was after the occurrence of both accidents. Wiener detailed that he performed range of motion testing. His report illustrates that he made the following findings:
• Cervical spine: (tested with an inclinometer) 40 degrees of flexion (normal 50-60), 40 degrees of extension (normal 50-60), 40 degrees lateral rotation to both the right and left (normal 70-80), 20 degrees of tilt to both the right and left side (normal 40-50).
• Grip strength: (measured with a hand dynamometer) is 25 pounds and 15 and 15 pounds of pressure on the right, compared with 60 pounds and 40 pounds and 30 pounds on the left.
• Left shoulder: (measured with a goniometer) is 140 degrees of forward elevation (normal 170-180), 120 degrees of abduction (normal 170-180),
internal rotation to T7, which is normal. There was also 45 degrees of external rotation (normal 80-90).Giannetti Aff. ¶27, Ex. Q.
• Right shoulder: (measured with a goniometer) is 120 degrees of forward elevation (normal 170-180), 90 degrees of abduction (normal 170-180), 30 degrees of external rotation (normal 80-90).
• Lumbar spine: (measured with an inclinometer) is 20 degrees of flexion (normal 70-90), 20 degrees of extension (normal 20-30).
• Lower extremities: (measured with goniometer) is 70 active flexion on the right knee and 90 degrees on the left (normal 135- 150).
• Right hip: (measurement tool not indicated) right flexion to 90 degrees (normal 110-120) with 60 degrees of externa! rotation (normal 20-30), 30 degrees of internal rotation (normal 20-30), and 45 degrees of abduction (normal 40-50).
• Left hip: (measurement tool not indicated) is active range of motion of 80 degrees of flexion (normal 110-120), 40 degrees of external rotation (normal 20-30), 20 degrees of internal rotation, and 30 degrees of abduction (normal 40-50).
Wiener concluded that Hemerding suffers from:
(1) Lumbrosacral strain, superimposed on pre-existing degenerative disc disease at L5-S1, with subjective complaints of lower extremity radiculopathy without objective corroboration;
(2) Right knee arthralgia;Giannetti Aff. ¶27, Ex. Q.
(3) Right shoulder arthralgia; and
(4) Cervicalgia.
Mora's argument that pre-existing conditions are indicative of a lack of causality is unavailing. See, Pommells v. Perez, 4 N.Y. 3d 566 (2005), Falkner v. Hand, 61 A.D. 3d 1153 (3d Dept. 2009), Coston v. McGray, 49 A.D. 3d 934 (2008). First, regarding the pre-existing degenerative disc disease there is no substantive foundation laid that this was a pre-existing condition. Moreover, it does not eliminate all of the other alleged injuries. Regarding the migraines, there was evidence provided by the medical records, deposition testimony, and Dr. Parikh, that the accident may have exacerbated the condition.
Despite the findings on range of motion, Wiener opines that Hemerding does not suffer from a serious or significant injury. Giannetti Aff. ¶27, Ex. Q. He substantiates his dismissal of the range of motion findings by asserting that Hemerding is voluntarily withholding movement, and contending that she is engaging in subjective excessive complaints of pain. Id. Wiener provides no opinion or discussion on any differences in range of motion between the first and second accidents. Id. Notably, Wiener requested to review x-rays from 2011 to provide a complete opinion. Id. Additionally, Wiener's report does not include a curriculum vitae, nor does he provide a description of his specialty. Giannetti Aff. ¶27, Ex. Q.
F. AFFIDAVIT OF DR. AMAR PARIKH
Dr. Amar Parikh is a medical doctor licensed in pain management and anesthesiology. Parikh Aff. ¶2. He submitted an Affidavit in support of Hemerding's Opposition to Mora's Summary Judgment Motion. Parikh stated that he was asked to render an opinion regarding the injuries to Hemerding's head, knee, lumbar, cervical and thoracic spine. Parikh Aff, ¶15. Parikh indicates that the x-rays showed a straightening of Hemerding's spine, with a reversal of the normal lordotic curve. Parikh Aff. ¶19. Moreover, that upon palpation she exhibited tenderness at T1-C7, and right sided tenderness in her paracervical and trapezius musculature. Id. The x-rays also displayed a shallow left posterior disc protrusion with annular tear at L5-S1. Id. Parikh opined that the straightening of the cervical spine [sic] is an objective sign of injury, as it is caused by the muscles of the cervical spine spasming and contorting the normal curvature of the spine in response to trauma. Parikh Aff. ¶20. He detailed that it is more commonly known as whiplash injury, caused by the head of the patient violently being thrown backward and forward. Id. Parikh also noted that palpable muscle spasms are an objective finding and deviate from what would be a normal physical examination of a person's cervical spine and upper extremities. Parikh Aff. ¶21. He also noted that spasms cannot be faked. Id.
Parikh illustrated that Dr. Robert Cooley at Schenectady Regional Orthopedics found Hemerding to have some limitation in her forward flexion in her right shoulder, being able to forward flex 160 degrees, where normal flexion is 180, with moderate tenderness around the shoulder. Parikh Aff. ¶23.
Parikh detailed that Hemerding started at Ellis Medicine's Neuroscience Center on April 25, 2014, regarding her headaches. Parikh Aff.¶24. It was noted that she was palpably tender around the scalp and paravertebral muscles of her neck. Id. Parikh denotes that Dr. Brooks and Dr. Owens found that her migraines were exacerbated by the accident. Id. Moreover, that there was a notation that her migraines were causing her scalp and paravertebral musculature to spasm. Id.
Parikh also illustrated that Hemerding's OrthoNY records diagnosed her with lumbar and thoracic, possibly even cervical sprain/strain post-accident with sciatica type pain radiating to the lower extremities, shoulder pain, and bilateral knee pain, after Hemerding informed them that she was experiencing continued pain. Parikh Aff. ¶25. He acknowledged that the nurse practitioner she saw there suggested she test for fibromyalgia, Lyme disease, or rheumatoid arthritis to rule out these potential causes of her pain. Parikh Aff. ¶26. The same nurse practitioner described Hemerding's diffuse myofascial pain as fibromyalgia on August 7, 2014, and opined that it was casually attributed to the accident. Parikh Aff. ¶28. During a follow-up examination on September 16, 2014, Hemerding tested positive for a Haskins test and her grip strength showed 3/5 on the left and 4/5 on the right. Parikh Aff. ¶30. On October 28, 2014, Hemerding requested a back brace, and one was prescribed for her. Parikh Aff. ¶¶31, 32.
Parikh further details that his colleague Dr. Lee A. Kaback, MD, an orthopedic surgeon, saw Hemerding on July 31, 2014 and said her shoulder motion was measured showing a forward elevation of 150 degrees (normal of 180) and external rotation of 60 degrees (normal range is 90). Parikh Aff. ¶27. The examination of her cervical spine showed slight limited range of motion and tenderness. Id. Notably, this examination and measurements were taken before the second accident on January 28, 2015.
Parikh saw Hemerding, for the first time on January 15, 2015. Parikh Aff. ¶34. He admitted that he reviewed MRIs of her cervical and lumbar spine and found that they did not demonstrate any clear nerve root compression that would account for her symptoms. Parikh Aff. ¶35. He relied heavily on what Hemerding reported to him about her pain and migraine issues. Parikh Aff. ¶¶34, 35. Parikh noted that he examined her and she showed diffuse tenderness throughout her neck, mid-back, and low-back. Id. He also identified tenderness across the bilateral epicondylar regions, the anterior chest wall, and the popliteal fossa. Parikh Aff. ¶36. He also tested the range of motion of her neck and noted some stiffness, which he indicates is an objective sign of injury. Id.
Parikh diagnosed Hemerding with diffuse myofascial pain and chronic intractable migraine headaches without aura. Parikh Aff. ¶37. He believes the suggestion that it was fibromyalgia was incorrect. Parikh Aff. ¶38. Diffuse Myofascial pain is a regional condition caused by specific trigger points. Id. It can cause local or referred pain, tightness, tenderness, popping and clicking, stiffness and limitation of movement, automatic phenomena, local twitch response in the affected muscle, and muscle weakness without atrophy. Parikh Aff. ¶39. Parikh indicated that myofascial pain syndrome is chronic in nature and is not temporary. Id. It is long-term and life-altering and it persists and worsens over time. Id. It also develops after a muscle contracts repetitively, such as in a trigger point spasm as a result of trauma. Parikh Aff. ¶40. He prescribed therapy and Botox injections. Parikh Aff. ¶41.
Hemerding had her first Botox injections on January 26, 2015 (Amar A. Parikh, MD). Parikh Aff. ¶42. She said the Botox injections were successful and the pain and frequency were greatly diminished. Parikh Aff. ¶43. Parikh opined that the migraine diagnosis was causally related to the first accident, due to her migraines being controlled by the Botox (with no discussion of her history of migraines). Id. Hemerding was scheduled for another Botox injection in April 2015 and was prescribed medication for muscle spasms. Parikh Aff. ¶44. In April 2015, Hemerding reported that the Botox and water therapy were working. Parikh Aff. ¶45. On August 20, 2015, Parikh indicated he wanted Hemerding to have her thyroid checked to determine whether a low thyroid production was contributing to her symptoms. Parikh Aff. ¶46. On March 16, 2018 (Amar A. Parikh, MD), Hemerding reported headaches, and lower back spasms. Parikh Aff. ¶47.
The last time Parikh saw Hemerding was on June 1, 2018, a year before he signed the affidavit. Parikh Aff. ¶48. At that time, he stated medication won't help her and she needs to maintain an active lifestyle. Id. He noted that the second accident on January 28, 2015 exacerbated the conditions she was treated for from the February 13, 2014 accident. Parikh Aff. ¶49. Parikh disagrees with the diagnosis from the IME because Dr. Wiener did not address the chronic migraines or the clinical assessment of myofascial pain. Parikh Aff. ¶50. Parikh relies on Dr. Wiener's report of limitations in Parikh's range of motion in her cervical spine of 40 degrees of flexion (normal 50-60), 40 degrees of lateral rotation to both the right and left side (normal 70-80), and 20 degrees of tilt to the left and right side (normal 40-50). Parikh Aff. ¶51. Wiener also measured significant [imitations of Hemerding's lumbar spine of 20 degrees of flexion (normal 7-90) and observed tenderness on palpation. Id. Parikh stated that Hemerding was prevented from performing substantially all of her usual and customary activities for at least 90/180 days immediately following the subject accident. Parikh Aff. ¶60. This included: working, running, sitting for more than 15 minutes, standing for more than 15 minutes, lifting heavy objects, grocery shopping, baking, cooking, household chores from at least February 13, 2014 to January 26, 2015, since she experienced pain, fatigue, and weakness. Id.
PROCEDURAL SUMMARY
Hemerding filed a Summons and Complaint in the Schenectady County Clerk's office on November 7, 2016. Giannetti Aff. ¶4, Ex. B. An Answer was filed on December 21, 2016. Giannetti Aff. ¶5, Ex. C. Thereafter, Hemerding served a Verified Bill of Particulars on April 25, 2017. Giannetti Aff. ¶6, Ex. D. Hemerding was deposed on August 1, 2017, and Mora was deposed on August 2, 2017. Giannetti Aff. ¶7, Ex. E; McDaniel Aff. ¶6, Ex. 5. Mora filed summary judgment on March 28, 2019,seeking dismissal of the Complaint on the basis that Hemerding did not sustain any serious injury. Hemerding opposes dismissal, arguing that Mora has not established a prima facie entitlement to summary judgment, which is nonetheless improper given the existence of material factual issues. The opposition was filed on July 3, 2019. A Reply brief was then served on August 14, 2019.
THE LAW AND DISCUSSION
A. STANDARD OF LAW
The 1973 enactment of Insurance Law §5101, et seq., also known as the "No-Fault Law," was intended to "correct certain infirmities...under the common-law tort system of compensating automobile accident claimants." Licari v. Elliot, 57 N.Y. 2d 230 (1982). There is no right of recovery for pain and suffering, exclusive of a serious injury. Id. It is implicit in the No-Fault Law that any injury falling outside the statutory definition of "serious injury" may not proceed in litigation. Id.
A defendant seeking summary judgment on the grounds that a plaintiff's claimed injuries are not serious within the definition of Insurance Law must establish that plaintiff's injuries do not meet the statutory threshold.
Insurance Law §5102 (d) defines "serious injury" as follows:
Serious injury" means a personal injury which results in death; dismemberment, significant 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 eight days immediately following the occurrence of the injury or impairment.
It is well-settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Moat v. Kizale, 149 AD3d 1308, 1310 (3rd Dept. 2017); Bhatti v. Roche, 140 A.D.2d 660 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See, Friends of Animals, Inc., v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See, CPLR § 3212 (b); Olan v. Farrell Lines, Inc., 64 N.Y.2d 1092 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See, Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). When considering a motion for summary judgment, the function of the court is not to resolve issues, but rather to determine if any such material issues of fact exist. See, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See, Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 (1988). Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See, Barr v. Albany County, 50 N.Y.2d 247 (1980); Daliendo v. Johnson, 147 A.D.2d 312 (2d Dept. 1989).
B. WHETHER DEFENDANT SHIFTED THE BURDEN TO PLAINTIFF TO SHOW THE EXISTENCE OF A TRIABLE ISSUE OF FACT.
While a defendant may rely upon a plaintiff's medical records to show that no serious injury was sustained, and an expert's affidavit is not required, the proof relied upon must establish that the injuries were not as severe as alleged. Seymour v. Roe, 301 A.D. 2d 991 (3d Dept. 2003), Franchini v. Palmieri, 1 N.Y. 3d 536 (2003), Felton v. Kelly, 44 A.D. 3d 1217 (3d Dept. 2007), Oeffler v. Miles, 241 A.D. 2d 822 (3d Dept. 1997), Cody v. Parker, 263 A.D. 2d 866 (3d Dept. 1999), Tankersley v. Szesnet, 235 A.D. 2d 1010 (3d Dept. 1997), Torres v. Micheletti, 208 A.D. 2d 519 (2d Dept. 1994), Hochlerin v. Tolins, 186 A.D. 2d 538 (2d Dept. 1992).
In Perl v. Meher, the Court of Appeals addressed three cases dismissed under the serious injury law and found that the first two had been improperly dismissed. Perl v. Meher, 18 N.Y. 3d 208 (2011). While the Court detailed that subjective complaints alone are not sufficient to support a claim of serious injury, it also detailed that to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury. Id. The expert's qualitative assessment may suffice provided that it has an objective basis and compares the plaintiff's limitations to the normal function, purpose, and use of the affected body organ, member, function, or system. Id. In the Perl action, the defendant did not make out a prima facie case for summary judgment because Defendant's own doctor conceded that the objective test results provided that plaintiff sustained a serious injury. Id. After finding that plaintiff had limitations, the defense doctor then dismissed those limitations by subjectively opining that the plaintiff was "exaggerating" those symptoms. Perl, supra, 18 N.Y. 3d, at 208; see also, India v. O'Connor, 97 A.D. 3d 796 (2d Dept. 2012). The Court ruled that the subjective opinion that plaintiff was exaggerating the symptoms was an issue of credibility for the jury to determine. Id. The court also noted that defendants never provided their examining physicians with any of the plaintiff's medical records. Id. The Court of Appeals ultimately ruled that because defendants failed to meet their initial burden, their motion should have been denied regardless of the sufficiency of the opposing papers. Id. The Court also ruled that plaintiffs raised a question of fact by presenting defendant's doctor's qualitative assessment that plaintiff sustained a serious injury. Perl, supra, 18 N.Y. 3d, at 208.
Similarly, in Seymour v. Roe, defendant moved for summary judgment without an affidavit, affirmation, or the testimony of a medical or other expert. Seymour v. Roe, 301 A.D. 2d 991 (3d Dept. 2003). He relied on plaintiff's deposition testimony, limited medical records of treating physicians, diagnostic reports, physical therapy progress notes, and other documentary evidence related to prior injuries. Id. The Third Department determined that defendant's proof did not show that the injuries were not as severe as alleged, and the records did not define medical terms or state whether the injuries were caused by the accident or were preexisting conditions. Id. Let alone, the evidence did not address causation. Id.
Here, Mora relies on Hemerding's medical records, her deposition testimony, and the Independent Medical Examination ("IME") performed by Dr. Wiener, to shift the burden to Hemerding to present objective medical evidence to rebut her entitlement to summary judgment. The evidence submitted by Mora is not enough to shift the burden. Hemerding's medical records diagnose her with, among other injuries:
Notably, Hemerding argues that Mora failed to include the medical records of Dr. Li, from Ellis Internal Medicine, but this doctor was not indicated as a treating physical in Hemerding's Bill of Particulars, number 14.
• Lumbar thoracic strain
• Minimal disc bulging at L4-L5
• Disc degeneration with a shallow left posterior protrusion
• Annular tear at L5-S1
• Minor mass effect in the ventral epidural space
• Restricted neck movement
• Chronic muscular pain
• Chronic intractable migraine headaches without aura
• Diffuse body pain
• An indication of accident caused fibromyalgia or myofascial pain disorder.
Notably, Wiener stated that he did not have all of the records/imaging that he needed to review to provide a complete opinion. Despite conducting objective testing that showed limitations in her range of motion, Wiener opined that she suffered from no serious injury and merely dismissed her pain complaints by saying she was essentially exaggerating. The substance of the medical records and examination by Wiener actually demonstrate that Hemerding has a limited range of motion and ultimately fails to address whether that limitation is in fact significant. All Wiener does is assert that she is over-exaggerating her limitations. As indicated in Perl, whether Hemerding's range of motion testing and exclamations of pain are an over-exaggeration are merely a question of credibility that is for a jury to decide. See, Perl, supra, 18 N.Y. 3d, at 208.
Mora's reliance on plaintiff's deposition testimony, limited medical records of treating physicians, diagnostic reports, physical therapy progress notes, and the independent medical exam do not provide any foundation to show that Hemerding's injuries were not as severe as alleged. Seymour, 301 A.D. 2d, at 991. Additionally, as in Seymour, the records did not define medical terms or state whether the injuries were caused by the accident or were preexisting conditions. Id. Wiener's report also fails to discuss how the second accident may have impacted any results from the first. For these reasons, this Court finds that Mora failed to shift the burden to Hemerding to show a triable issue of material fact. Regardless, even if this Court found Mora shifted the burden, Hemerding has established a triable issue of fact exists.
C. PERMANENT LOSS OF USE OF A BODY ORGAN , MEMBER, FUNCTION OR SYSTEM
To meet the standard of permanent loss, such loss must be a total loss versus a partial loss of use. Oberly v. Bangs Ambulance, Inc., 96 N.Y. 2d 295 (2001). In Oberly, a dentist was riding in an ambulance when he was hit with an iv pump. Id. Afterwards, he complained of pain, cramping, numbness and limited ability to practice as a dentist. Id. The Court of Appeals disagreed with plaintiff's contention that the statute does not require proof that a permanent loss of use of a body member is a total loss of use, and that the limitation of the use of the arm itself qualifies as "permanent loss of use of a body organ, member, function, or system." Id.
As Hemerding has no objective medical evidence documenting a "total" loss of use of her back, neck, shoulder, hips, or through her migraines, her claim under this category would fail to establish a triable issue of fact.
D. PERMANENT CONSEQUENTIAL LIMITATION/SIGNIFICANT LIMITATION OF USE OF BODY FUNCTION OR SYSTEM
The categories of permanent consequential limitation of use and significant limitation of use both require medical proof including a qualitative determination of the alleged injury as compared with normal function. See, e.g., Shea v. Ives, 137 A.D. 3d 1404 (3d Dept. 2016), Pommells v. Perez, 4 N.Y. 3d 566 (2005). Quantitative loss need not be permanent, but the degree of the injury must be more than minor or slight. Id. Medical evidence that does no more than describe minor limitations of use combined with subjective complaints and symptoms of pain, is insufficient. Kimball v. Baker, 174 A.D. 2d 925 (3d Dept. 1991). In Negrete v. Hernandez, the Second Department found that plaintiff's bulging cervical discs with a painful restriction of motion by more than 15% with spasm and guarding was enough to raise a triable issue of fact. Negrete v. Hernandez, 2 A.D. 3d 511 (2d Dept. 2003). In Mazo v. Wolofsky, the Second Department found that plaintiff's use of a physician affidavit to show cervical and lumbar range of motion decrease of 20% or more was enough to raise a triable issue of fact as to the seriousness of plaintiff's injuries. Mazo v. Wolofsky, 9 A.D. 3d 452 (2d Dept. 2004). The Third Department in Stanavich v. Pakenas, found that where pain limits range of motion, and there is objective proof of that limited range of motion, along with an expert's testimony to substantiate the limitation, a serious injury may be found. Stanavich v. Pakenas, 190 A.D. 2d 184 (3d Dept. 1993). Additionally, that the various findings of tenderness, tightness, muscle spasm, trigger points, and decreased range of motion do qualify as objective proof of a physical injury. Id.
Notably, the Court in Stanavich ultimately ruled that defendant's directed verdict should have been granted since plaintiffs' expert testimony as to permanency of the injury was speculative. Stanavich v. Pakenas, supra, 190 A.D. 2d, at 184.
In this matter, Wiener found Hemerding to have a limitation on her range of motion to the cervical spine, right hand grip, left shoulder, right shoulder, lumbar spine, lower extremities, and right and left hips, at degrees either equal to or greater than the 20 degrees noted by the Second Department to be enough to constitute a question of whether plaintiff suffered a serious injury. Adding to this, Parikh detailed that Dr. Kaback, an orthopedic surgeon, also found objective signs of limitations in her shoulder, and cervical spine by quantitative calculation (before the second accident). Parikh examined her and found diffuse tenderness throughout her neck, mid-back, and low-back. He also noted tenderness across the bilateral epicondylar regions, the anterior chest wall, and the popliteal fossa, as well as, neck stiffness. He diagnosed her with myofascial pain and chronic intractable migraine headaches. He detailed that the myofascial pain syndrome is chronic in nature, and is not temporary. He also unequivocally noted that it is long-term, life altering, and persists and worsens over-time. Because Drs. Wiener, Kaback, and Parikh have detailed objective testing showing that Hemerding has limitations to her range of motion, a triable issue of fact has been established in relation to whether that limitation is a permanent consequential limitation, or a significant limitation of the use of a body function or system.
Mora makes the argument that the second accident is an additional contributory factor that should result in summary judgment unless there is objective medical evidence distinguishing the injuries caused by each accident. Mora's argument fails. In Falkner v. Hand, 61 A.D. 3d 1153 (3d Dept. 2009), plaintiff was in three separate car accidents. The court found that plaintiff's experts failed to submit objective medical evidence distinguishing the complaints attributable to any of the accidents. Here, there was objective range of motion testing performed by Dr. Kaback, prior to Dr. Wiener, and before the second accident showing limitations. Moreover, there is a history of medical records detailing the diffuse pain and injuries, prior to the second accident. Whether, or how much, the second accident impacted those injuries would be a question for the jury.
E. 90/180 DAYS
To establish plaintiff was unable to perform substantially all of their usual and customary activities for 90 out of 180 days, following the accident, plaintiff must establish:
1. That substantially all of the plaintiff's usual and customary activities were unable to be performed;
2. The activities were unable to be performed due to an objective medical problem; and
3. Any alleged activity restrictions were medically indicated.Buster v. Parker, 1 AD 3d 659 (3d Dept. 2003), Horowitz v. Clearwater, 176 A.D. 2d 1083 (3d Dept. 1991). Courts give weight to a medical determination that a plaintiff was totally disabled as a result of an accident, provided that determination is supported by objective, non-conclusory, credible medical findings. Relin v. Brotherton, 221 A.D. 2d 840 (3d Dept. 1995), Monk v. Dupuis, 287 A.D. 2d 187 (3d Dept. 2001). The Court requires a plaintiff to support a claim that restrictions on his or her activities were medically indicated and causally related to the injuries sustained in the accident. Id. On a 90/180 claim a plaintiff must also demonstrate that his or her usual activities were curtailed to a great extent rather than some slight curtailment. Id.; Licari, supra, 57 N.Y. 2d, at 230.
The evidence here establishes that Hemerding was out of work for some time, whether that be the one-month indicated in the Bill of Particulars, or the longer time periods indicated in her medical records. The OrthoNY record dated September 16, 2014, states that Hemerding could work for four-hours a day with breaks every half an hour to allow her to stand, or move around. This is approximately seven months after the accident. Hemerding was also given limitations for extended sitting and lifting. Hemerding also testified that she was unable to perform other activities during this time including lifting heavy weight (i.e. at the grocery store), baking, cricket, or proper showering. While there was nothing in the medical records indicating that her activities were limited by a doctor, the limitations were supported by Parikh's affidavit. Although, Wiener opined that her injuries and complaints of pain did not establish an inability to engage in activities, this further demonstrates that a triable issue exists. It is well-established that conflicting expert opinions may not be resolved on a motion for summary judgment. Cooper v. City of Rochester, 16 AD 3d 1117 (4th Dept. 2005). For these reasons, the evidence has shown that plaintiff has established a triable issue of fact that a jury may find in her favor under the 90/180 category of serious injury.
CONCLUSION
A. Mora has not established a prima facie entitlement to summary judgment and the burden has not shifted to Hemerding to show a triable issue of fact on one of the four categories of serious injury she pleads under Insurance Law §5102, et seq. Even if Mora was able to shift the burden, Hemerding establishes a triable issue of fact under the categories of: permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; and 90/180. Mora's summary judgment request as to these three categories of "serious injury" is hereby denied, without prejudice, in all respects. Defendant's motion for summary judgment is granted as to any claim that plaintiff sustained a permanent loss of use of body organ, member, function or system.
THE COURT'S RULING
ORDERED that the defendant's motion for summary judgment dismissing the complaint is denied without prejudice, except as to any claim that plaintiff sustained a permanent loss of use of body organ, member, function or system. As to the permanent loss of use of a body organ, member, function or system, the summary judgment is granted to defendant.
ORDERED that this decision constitutes the Order of this Court. Dated: April 14, 2020
at Schenectady, New York
/s/_________
HON. MICHAEL R. CUEVAS
Justice of the Supreme Court Papers Considered: Defendant's Notice of Motion, dated March 28, 2019 Memorandum of Law in Support of Summary Judgment, dated March 28, 2019 Affirmation of Attorney Joseph D. Giannetti, Esq., in support of Defendant's Motion for Summary Judgment dated March 28, 2019 with Exhibits A-R.
Exhibit A: Police Report Exhibit B: Summons and Complaint Exhibit C: Answer Exhibit D: Verified Bill of Particulars Exhibit E: Deposition Transcript Mischala R. Hemerding Exhibit F: Mohawk Ambulance Service records Exhibit G: Ellis Hospital records Exhibit H: Schenectady Regional Orthopedic Associate's office note (3/11/14) Exhibit I: Ellis Neuroscienece Center's office note (4/25/14) Exhibit J: OrthoNY records Exhibit K: EMG report Exhibit L: Joan Mack Physical Therapy records Exhibit M: Dr. Cerniglia's office note (10/27/14) Exhibit N: Rotterdam EMS report Exhibit O: Ellis Hospital records (1/28/15 accident) Exhibit P: Sunnyview records Exhibit Q: Dr. Wiener's exam report Exhibit R: Ellis Medicine office note (10/19/18) Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment Affirmation of Peter A. McDaniel, Esq. in support of Opposition to Defendant's Motion for Summary Judgment Exhibit 1: Police Report Exhibit 2: Affirmation of Dr. Amar Parikh dated June 18, 2019 Exhibit A: Curriculum Vitae for Dr. Amar Parikh Exhibit B: Treatment records of Dr. Amar Parikh Exhibit C: Mohawk Ambulance service records Exhibit D: Treatment records from Ellis Hospital Exhibit E: Treatment records from Schenectady Regional Orthopedics Exhibit F: Treatment records from Ellis Neuroscience Exhibit G: Treatment records of Sunnyview Rehabilitation Hospital Exhibit H: Examination report of defense medical expert Dr. Bradley Wiener Exhibit 3: Affidavit of plaintiff Mischala Hemerding Exhibit 4: Plaintiff Mischala Hemerding's deposition transcript Exhibit 5: Defendant Jorge Mora's deposition transcript Exhibit 6: Defense Medical Examination of Bradley D. Wiener Exhibit 7: Certified Medical records from Ellis Internal Medicine Exhibit 8: Certified Medical Records of OrthoNY Exhibit 9: Certified Medical Records of Ellis Hospital Emergency Department Affirmation of Dr. Amar Parikh (before a Notary) dated June 18, 2019 Reply Affirmation of Joseph Giannetti, Esq., in Support of Summary Judgment Motion