Opinion
# 2014-039-437 Claim No. 119207
03-18-2015
JUAN M. LUCAS v. STATE OF NEW YORK
Levine & Slavit, PLLC By: Ira S. Slavit, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York By: Theresa N. Wilson Assistant Attorney General
Synopsis
The claim is dismissed following a trial on the issue of damages. Claimant failed to prove that he suffered a serious injury within the meaning of the Insurance Law as a result of the car accident.
Case information
| UID: | 2014-039-437 |
| Claimant(s): | JUAN M. LUCAS |
| Claimant short name: | LUCAS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119207 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Levine & Slavit, PLLC By: Ira S. Slavit, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Theresa N. Wilson Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 18, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This action arises out of a motor vehicle accident that occurred on June 7, 2010 on the Meadowbrook State Parkway (hereinafter the Parkway) in the Town of Hempstead, Nassau County, New York. Claimant was driving a school bus in the middle lane of the Parkway when the bus was struck in the rear by a dump truck owned by defendant State of New York and operated by State employee Thomas W. Schneider. In this claim, claimant seeks damages for his non-economic loss (pain and suffering). By Decision and Order dated August 19, 2013, the Court granted claimant's motion for partial summary judgment on the issue of liability (Lucas v State of New York, UID No. 2013-039-375 [Ct Cl, Ferreira, J., Aug. 19, 2013]).
The claim originally named the State of New York, the New York State Department of Transportation and Schneider as defendants. In its August 19, 2013 Decision and Order, the Court also granted defendant's cross motion to dismiss the claim as against Schneider and amended the caption of this claim to reflect the State of New York as the only proper defendant (see Lucas v State of New York, UID No. 2013-039-375 [Ct Cl, Ferreira, J., Aug. 19, 2013]).
A trial on the issue of damages - including the issue of whether claimant sustained a serious injury within the meaning of Insurance Law § 5102 - was held at the Court of Claims in Hauppauge, New York on March 19 and 20, 2014. Claimant testified and called two other witnesses: Dr. Louis Cornacchia, his treating neurologist, and Socorra Lucas, his wife. Defendant called two witnesses: Dr. Mark Zuckerman, who performed an independent medical examination of claimant, and Andre Jod, a State investigator. Both parties also read into the record portions of claimant's deposition testimony, taken on January 13, 2014. The parties offered documentary and photographic evidence, which was received into evidence. They also submitted post-trial memoranda on November 5, 2014.
Claimant's entire deposition was admitted into evidence without objection as Defendant's Exhibit Q.
FACTS
At the damages trial, claimant testified that he was born on June 1, 1949 and was 64 years old at that time. He holds a bachelor of science in mechanical engineering. He worked as a maintenance engineer with a manufacturing plant in New Jersey from 1983 until 2000. In 2003, he began working for Independent Coach as a school bus driver. He continuously worked as a school bus driver from 2003 until the accident on June 7, 2010. Claimant testified that he did not have any problems with his lower back, leg or neck before the accident.
He testified that, on June 7, 2010, he was driving the bus when it was rear-ended by defendant's dump truck. He was wearing his seat belt at the time. The impact caused his body to be "thrown away and twisted" (T1 at 13). Claimant declined an ambulance at the scene; he explained that, at that time, he felt "normal" and "did not feel anything at all" (id.). He remained at the scene for about half an hour. From there, he drove the bus to the depot. When he arrived at the depot, he began to feel low back pain. He then drove his car to Brookdale Hospital in Brooklyn, where his wife works. He was treated in the emergency room; at that time he complained of low back pain. He was given pain medication and an x-ray was taken. He was given instructions to rest and take the pain medication.
References preceded by "T1" are to the March 19, 2014 trial transcript, and references preceded by "T2" are to the March 20, 2014 trial transcript.
About a week after the accident, claimant saw Dr. Cornacchia, a neurosurgeon, for back pain. He described the pain as "throbbing and tingling pain on [his] lower back and . . . numbness on [his] right foot all the way to [his] toe" (T1 at 21). Dr. Cornacchia prescribed an MRI and recommended physical therapy. Claimant thereafter went to physical therapy three times per week; each session lasted about an hour. He continued to participate in physical therapy for about six or seven months. He saw Dr. Cornacchia about a month after his first visit. As of that visit, claimant reported continued back pain and numbness in his right leg. At some point, Dr. Cornacchia referred claimant to a pain management doctor. Claimant saw the pain management doctor, Dr.Walaa Housny, in November 2010; claimant testified that he reported "severe pain on [his] back and [his] leg problem" (T1 at 19). Dr. Housny prescribed pain medication, epidural injections and nerve block injections. Dr. Housny administered four epidural injections; the first one was in November 2010 and the last one was in March 2012. Claimant testified that the epidural injections "did not work" (T1 at 21). Claimant testified that he got two facet nerve block injections in 2012; the first "was not so successful" but the second one brought him some relief, in that the "pain [was] bearable" (T1 at 22-23). In September 2013, he had another facet nerve block injection, which gave him several months of relief, after which "the same pain" returned (T1 at 24). His latest facet block injection was a week before the trial, on March 12, 2014. When asked how he was presently feeling, claimant responded that the "pain is bearable" (T1 at 25). Before the injection, he had felt "severe pain on [his] back" (T1 at 25). He testified that his doctors had told him that, if the pain persists, he may need surgery. However, no surgery is currently planned.
Claimant testified that he has not worked at all since the accident because of his back injury. He explained that "the suspension of school bus[es] are very stiff and the seat[s] are bouncy and that would just aggravate [his] back" (T1 at 30). Claimant affirmed that his injuries have affected his daily activities, in that he cannot repair his cars, cannot help his wife with cleaning their home and their backyard and cannot lift heavy objects like his one-year-old grandson. If he engaged in these activities, it would "hurt [his] back more and . . . would have to take [his] pain medication and go to sleep" (T1 at 32). Claimant explained that he takes Vicodin as needed when the pain is severe and takes Lyrica and Daypro twice a day, every day. He estimated that he takes Vicodin three times a week. Claimant testified that he also takes medication for his diabetes - two 1,000 milligram tablets of Januvia per day and one 20-unit insulin injection per day. He was first diagnosed with diabetes about four or five years ago and was treated for that condition by his primary doctor and an endocrinologist.
On cross-examination, claimant testified that, "[a]t the moment," he is able to stay seated for "maybe an hour or more" (T1 at 36). When the injection wears off, he can sit for "[m]aybe an hour" without feeling any pain (id.). When he is having relief as a result of the facet injections, he is still not able to work on his car. Before the accident, he would vacuum the house and clean the windows; now he is unable to clean the windows and cannot lift the vacuum (T1 at 37). In 2011, he and his wife began to hire help to clean the house. Claimant testified that he also used to do spring cleaning in the yard, but he is no longer able to shovel dirt, although he is "sometimes" able to use their hand-held blower (T1 at 38). In the winter, he is able to use their self-propelled snow blower and is able to "push the shovel" without lifting the snow (T1 at 39). He is also able to do food shopping by himself. Prior to the accident, he played tennis once a week; claimant acknowledged that he tried to play tennis after the accident. Claimant also acknowledged that he is an avid swimmer and can still swim. He acknowledged that, between 2007 and 2013, his blood sugar levels were not normal on a consistent basis and he had been on several different medications to control his diabetes during that time. He testified that, since the accident, the longest period of time he could remain seated without his leg getting numb was "[m]aybe" two hours and "maybe an hour" when his injections were not working (T1 at 59).
With respect to the accident, claimant affirmed that he did not lose consciousness as a result of the impact and did not feel any pain at that time. He later told his dispatcher and wife that he was having back pain; he did not mention that he had neck pain or pain, tingling or numbness in his leg. He testified that "[r]ight after the accident[, he] could barely walk for more than five minutes" and could not walk for more than five minutes right before his most recent injection (T1 at 68).
Although he had a bruise on his left shoulder from the impact, it went away after a few days. He affirmed that he never had any neck pain. Claimant affirmed that he felt relief as a result of his April 2012, September 2013 and March 2014 injections. The relief from the April 2012 injection lasted more than a year. The relief from the September 2013 injection lasted five or six months. He acknowledged that he had recently shoveled snow for his neighbor and testified: "All I do is just push the snow" (T1 at 75).
Next, Dr. Louis Cornacchia, a doctor board-certified in neurosurgery and licensed to practice medicine in New York, testified on claimant's behalf. Dr. Cornacchia testified that he first saw claimant on June 16, 2010. Claimant's chief complaint was low back pain, which began immediately after the subject accident; he also complained of right shoulder pain and neck pain. Dr. Cornacchia noted that claimant had a history of high blood pressure and diabetes. He examined claimant and a MRI scan; his assessment at that time was "low back pain, without radicular pain, mild back and more severe shoulder pain; neurological exam was grossly normal; patient not complaining of weakness and numbness. Exception is occasional numbness in the buttocks area. The MRI lumbar spine shows degenerative disc disease" (T1 at 88; see also Claimant's Exhibit 6, at Notes dated June 16, 2010). He explained that his finding of degenerative disc disease means that "there is evidence of degeneration of the disc joints in the lumbar spine," which is commonly found in patients over the age of 50 (T1 at 89). Dr. Cornacchia recommended physical therapy, which is "a first course of treatment for patients with low back pain" (T1 at 89). He testified that, at that time, "[i]t appeared to be a pretty typical case of a patient who has sustained injury in a motor vehicle accident, which is a very common cause of spinal injury, and the course and presentations seemed very typical of that" (T1 at 90).
At trial, claimant proffered a package of documents that was identified as Dr. Cornacchia's chart and marked as Claimant's Exhibit 6. Most of Claimant's Exhibit 6 was admitted into evidence without objection. The Court also admitted, over defendant's objection: (1) Dr. Cornacchia's notes with respect to a March 8, 2012 visit; (2) three radiology reports, dated June 7, 2010, November 18, 2010 and January 13, 2011; (3) two reports of Dr. Housny, dated December 30, 2013 and March 17, 2014; and (4) a computer printout of CT scan images, dated November 18, 2010.
Claimant's next visit with Dr. Cornacchia was on August 6, 2010. At that time, claimant complained of low back pain and stated that he thought that the leg pain had improved. Dr. Cornacchia's assessment after examining claimant was that he had improved with physical therapy; he recommended that claimant walk, but limit his lifting, pulling and pushing to five pounds, and continue physical therapy. Dr. Cornacchia saw claimant again on September 15, 2010. Claimant complained of increased leg pain on the right side. Under chief complaint, Dr. Cornacchia's notes state: "I have a right-sided lumbar radiculopathy," which Dr. Cornacchia explained was "sharp shooting pain in the right leg" (T1 at 91; see also Claimant's Exhibit 6, at Notes dated September 15, 2010). He testified that he was not sure why the chief complaint was in quotes on his notes and observed that "[i]t doesn't sound like something the patient would say" but rather, something he or one of his associates would say (T1 at 92). Dr. Cornacchia noted that claimant also complained of low back pain that is not alleviated with rest and physical therapy. He referred claimant to pain management to "consider epidural steroids" and prescribed him more pain medication (T1 at 93;Claimant's Exhibit 6, at Notes dated September 15, 2010).
Dr. Cornacchia next saw claimant on November 10, 2010. Claimant complained of right sided leg pain and low back pain and reported that he is "[a]ble to walk about one block without stopping" (Claimant's Exhibit 6, at Notes dated November 10, 2010). Dr. Cornacchia testified that he did not think claimant had improved at that point. Dr. Cornacchia's assessment was as follows:
"The patient continues to have severe[] low back and right leg pain. MRI from June 2010 does not d[e]monstrate pathology that can explain the low back pain. The pain has not changed in nature or sever[i]ty since June 2010, so I do not believe that repeating the MRI will be helpful. However, CT of lumbar spine could show more" (id.).
Dr. Cornacchia explained that "[c]ertain types of bony degenerative disease are better seen on the CT scan than they are on the MRI scan" (T1 at 97).
A CT scan of claimant's lumbar spine was performed on November 18, 2010. The radiology report found: "Degenerative changes of the L5-S1 facet joints and minimal degenerative end-plate changes. The study is otherwise negative. No evidence of spinal stenosis or disk herniation. . . . No evidence of fracture or subluxation" (Claimant's Exhibit 6, at Final Report, dated November 18, 2010; see also Claimant's Exhibit 5, at November 18, 2010 radiology report). According to Dr. Cornacchia, the scan was "[n]ot particularly" helpful in explaining claimant's severe low back pain or radicular pain (T1 at 99). He identified a "very tiny osteophyte[]" at L-3-4 on the computer printout of the CT scan images and testified that it shows mild/minimal degeneration, if any, but does not explain claimant's leg pain because leg pain is explained "mostly by L-4, L-5 and S-1 nerve roots because they ambulate the leg for the most part" (T1 at 154).
Claimant saw Dr. Cornacchia again on December 1, 2010. Dr. Cornacchia's assessment was that claimant had continued low back pain and that pain management was not helping. He noted that claimant had undergone one epidural steroid injection and was waiting for approval for a second and that claimant reported pain scaled at 8-9/10 "most of the time" (T1 at 104; see also Claimant's Exhibit 6, at Notes dated December 1, 2010). Claimant's next appointment with Dr. Cornacchia was on May 11, 2011. At that time, claimant complained of low back pain and right leg pain. Dr. Cornacchia's notes indicate: "[A]mbulates less than one block. The pain is interfering with activities of daily living. 'I have no more comfort zones - every position hurts now[']" (Claimant's Exhibit 6, at Notes dated May 11, 2011). At that point, claimant had completed a series of epidural steroid injections. Dr. Cornacchia testified that claimant's case was "evolving into a chronic pain picture which is not resolving with the usual conservative management" (T1 at 106). His assessment was that there had been no improvement and his plan was to re-evaluate the MRI scan.
Dr. Cornacchia next saw claimant on September 2, 2011. At that appointment, claimant complained of low back pain and right and left leg pain, with the right leg pain being more severe. Dr. Cornacchia noted that the MRI did not explain claimant's pain syndrome. His assessment was: "I do not believe that the pain is secondary to spine pathology at this time. Etiology of pain is unknown" (T1 at 107; see also Claimant's Exhibit 6, at Notes dated September 2, 2011). He explained that there was "no anatomic pathology that can be corrected by surgery" (T1 at 107). Dr. Cornacchia next saw claimant on March 8, 2012. His complaints were the same. Dr. Cornacchia's assessment was that claimant had "[s]evere pain despite conservative management. Surgery may be the next step. Unable to function, perform ADL. Spends most of day in []and out of bed. Ativan causes him to sleep most of the day" (Claimant's Exhibit 6, at Notes dated March 8, 2012).
When asked whether he had an opinion as to whether claimant's low back condition was substantially caused by the motor vehicle accident of June 7, 2010, Dr. Cornacchia responded: "Yes, the pain initiated shortly after the motor vehicle accident and persisted. He had no back pain before and . . . actually this is pretty typical of patients with soft tissue injury and . . . chronic pain syndrome. We call it lumbalgia when it reaches this point . . . with radicular pain" (T1 at 108). He explained that lumbalgia is "a pain syndrome of lower back . . . pain, without a specific anatomic pathology . . . or a diagnosis" (id.). He called it a "wastebasket term" that is used when a doctor "can't define a specific spine pathology that might be the underlying source of his pain" (T1 at 113). Dr. Cornacchia testified that he was aware that claimant had undergone a number of facet block injections. He testified that the fact that they provided him some relief "indicates that the facet joint is one of the generators of the pain syndrome," the technical term for which is facet arthropathy (T1 at 111). He testified that it was his opinion that "this is all the result of the motor vehicle accident" (id.). He explained that the injury caused an "accelerated degenerative process" and a pain syndrome that progressively evolves (T1 at 112). Dr. Cornacchia's prognosis was that claimant would likely have low back pain and lower extremity pain for "many years" (T1 at 113).
Dr. Cornacchia testified that it was his opinion that claimant was not able to perform his functions as a bus driver during the time claimant was under his care, as "the sitting position is often the most painful" for a patient with claimant's condition (T1 at 116). He testified that it is "likely" that claimant's condition is permanent (T1 at 116). He clarified that he did not think that either the MRI or CT scans explain claimant's pain and that the degenerative changes seen there "were actually quite mild" (T1 at 117). He affirmed that he was aware that claimant is a diabetic and that there is a complication of diabetes called diabetic neuropathy which may affect a person's lower extremities. He testified that "this is not diabetic pain," as such pain typically manifests as a burning sensation in the feet, whereas claimant's pain is radicular and a "completely different diagnosis" (T1 at 118).
On cross-examination, Dr. Cornacchia testified that epidural steroids are not uniformly effective with respect to radiculopathy. He testified that a normal NCD EMG test would not change his opinion with respect to whether or not claimant has radiculopathy, because "many, many patients will have absolutely normal EMG and NCD [and] will have . . . severe radicular pain, and . . . an MRI finding showing radiculopathy. . . . EMG is not always going to indicate what is present" (T1 at 124). He clarified that a diagnosis of radiculopathy is made from a patient's description of the pain as shooting pain. Dr. Cornacchia affirmed that he had filled out claimant's workers' compensation paperwork and indicated that he expected that claimant could return to work, on light duty with restrictions, on October 1, 2010. When asked whether claimant would be able to take a 12-hour road trip, he responded that "it's not that he can't drive the bus, it's just that he's going to be in constant pain everyday trying to drive that bus" (T1 at 143). When asked whether he would be able to shovel snow, Dr. Cornacchia responded that "he's not paralyzed; he has pain" (T1 at 147).
Dr. Cornacchia affirmed that claimant's facet pain could be called arthritic, but explained that arthritis is a "generalizable term . . . so that can result from trauma, it can result from inflammation, infection; it could result from prior injury, it could result from progressive degeneration, et cetera" (T1 at 150). He affirmed that he did not examine claimant for range of motion.
Next, claimant's wife, Socorra Lucas, testified on his behalf. She affirmed that claimant has not worked since the accident. She testified that, prior to the accident, claimant participated in taking care of the household. She explained:
"When there are home improvement that we want to do, we work it together. In the household he is the heavy lifter and the cleaning thing we do - clean our house together . . . we have an in ground pool - in opening and closing [the pool] he does it. And everything and I help him" (T2 at 125).
She testified that this has changed "[b]ig, big, big time" since the accident (id.). Now, claimant "cannot lift chairs and things anymore" so Mrs. Lucas has to ask other family members to help her (id.). They have had to hire a company to open the pool and have had others fix things around the house that claimant would have fixed before the accident. Mrs. Lucas testified that, in July 2012, she and claimant, along with several other family members, drove to Florida for a family reunion. With respect to claimant's back, she testified "I think he said he was okay because he just finished an injection that worked at the time" (T2 at 130). She testified that they also flew to Nashville, Tennessee in 2011 and drove to Smoky Mountain, Tennessee in 2013. She also affirmed that claimant helps Pearl Rosette, their 88-year-old neighbor.
On cross-examination, Mrs. Lucas testified that if claimant drives during one of their trips, "it is less than an hour - if it's okay with him" (T2 at 132). When they drove to Florida, they drove "[m]aybe [12] to [14] hours" on the first day and they "must have stopped along the way" (T2 at 133). While in Florida, they went to Disney and Universal; while in Tennessee, they went to Dollywood. Claimant used a wheelchair during their Florida trip and at Dollywood. While in Nashville in 2011, they went on a half-day "hop in hop out" tour of Nashville by bus and saw a sit-down country music show, which lasted "[a]n hour or two" (T2 at 140-141). Claimant did not use the wheelchair during the bus tour. She could not recall whether claimant had an injection before the 2013 trip. She clarified that claimant helps their elderly neighbor by driving her to the grocery store or the doctor and picking up her newspaper and bringing it inside.
For defendant, Dr. Mark Zuckerman, a doctor board-certified in neurology and licensed to practice medicine in New York, testified that this case had been referred to him by defendant's counsel and he had conducted an examination of claimant on February 21, 2012 and prepared a report. In preparing for the examination, he reviewed claimant's medical records, including an emergency room report from Brookdale University Hospital, a MRI report, a nerve conduction EMG test done by Dr. Hausknecht, a report prepared by Dr. Hausknecht, reports of Dr. Cornacchia and Dr. Housny and physical therapy treatment notes. Dr. Zuckerman testified that, at the examination, claimant complained of low back pain leading into the right leg from the buttock, through the thigh and into his right calf. He also complained of numbness in his toes. In examining the strength of claimant's lower extremities, claimant initially "gave less effort" on the right side but "with coaxing he was able to provide full effort and [Dr. Zuckerman] felt it was normal strength" (T2 at 25-26). Dr. Zuckerman also found that claimant had "a little bit less sensation" on his right thigh as compared with his left "but it wasn't in any specific pattern" (T2 at 28-29). He was unable to elicit reflexes in his ankles. Dr. Zuckerman performed stretch testing on claimant; claimant had "some discomfort" in his right thigh and his back but "he did not have the radicular pain going all the way down his leg" (T2 at 32-33). Dr. Zuckerman testified that the stretch testing "did not indicate any nerve root pathology;" his impression was that claimant's muscles were tight (T2 at 33). Dr. Zuckerman testified that, except for claimant's ankle reflexes, claimant's neurological examination was normal with respect to his strength, sensation and his ability to walk and function. He explained that he felt that the ankle test was "possibly related to a diabetic condition" (T2 at 35).
Dr. Zuckerman's report was admitted into evidence, without objection, as Defendant's Exhibit D.
With respect to his impressions, Dr. Zuckerman observed that claimant had some tenderness at the right sacroiliac region, which he suspected was possible joint dysfunction, but he did not have any data - such as images of the sacroiliac joint - to "support anything further" (T2 at 51). Dr. Zuckerman also testified that claimant's subjective complaints "are symptoms of a radiculopathy" but there was no "objective evidence of a radiculopathy" (T2 at 52). He explained that a radiculopathy: "is a dysfunction on pathology of a nerve root. . . . [F]rom the upper neck to the lower spine - there are neurofibers that lead the spinal cord - they collect together and form a nerve bundle called a nerve root. They exit the spinal canal through these holes called the foramen. They mix together and form nerve bundles that we call querkle nerves. They allow movement of the limbs - they control muscles and sensation from the porphyry that travels through the nerve to the nerve roots to the spinal cord and to the brain. A radiculopathy is a dysfunction of that nerve bundle as it leaves the spinal cord" (T2 at 54-55).
He further explained that "[t]he diagnosis of a radiculopathy is based upon . . . the examination, the symptoms, an MRI imagining demonstrating a pinched nerve - or an [EMG] test that would support it" (T2 at 52). Dr. Zuckerman testified that he had reviewed a series of MRI films taken on June 10, 2010 of claimant's lumbar spine. He did not see "any signs of any significant bulging, herniation, protrusion, or other disc pathology other than . . . some minor disc dehydration," which he explained was "degenerative change" (T2 at 39, 44). After reviewing the films, it was his opinion that "there is even less degeneration tha[n] the MRI report" indicated (T2 at 50). He also reviewed a series of MRI films taken on March 20, 2012; he did not think that they showed a significant change from claimant's prior MRI. He also reviewed Dr. Hausknecht's EMG report, dated May 9, 2011, in which Dr. Hausknecht found that the electrodiagnostic study to be within the normal limits. Dr. Zuckerman testified that the report indicated that, if the doctor was examining for radiculopathy, which he was "according to his . . . file report," he "did not find EMG evidence . . . of a radiculopathy" (T2 at 54). Dr. Zuckerman was asked to review the computer printout of claimant's November 18, 2010 CT scan. He identified an "anterior osteophyte" on the CT scan and testified that he "wouldn't expect [it] to cause any neurological problem because it's to the front of the spine not to the back" (T2 at 50).
The MRI films dated June 10, 2010 were admitted into evidence, without objection, as Defendant's Exhibit R-1.
The MRI films dated March 20, 2012 were admitted into evidence, over claimant's objection, as Defendant's Exhibit R-4.
The report was admitted into evidence, without objection, as Defendant's Exhibit K.
Dr. Zuckerman further testified that an epidural injection is an injection that is done into the spinal canal, the purpose of which is to "reduce pain and inflammation surrounding a disc herniation - it's generally used in the acute stages of a disc herniation where there is . . . swelling . . . painful radicular pain in the radiculopathy" (T2 at 63). By contrast, a facet block injection is designed to reduce pain "originating from that facet joint if there is arthritis . . . or a derangement of the facet joint" (T2 at 64). He testified that, if claimant received no relief from four steroid epidural injections, "[i]t would suggest that the pain is not . . . coming from the . . . disc herniation or a pinched nerve root or a radiculopathy itself" (T2 at 65). The fact that claimant received relief from a medial branch block injection "suggests that the source of the pain might be the facet joint itself. And it certainly would lead me away from the nerve root of the disc as the generating source of his pain" (T2 at 66-67). Dr. Zuckerman further testified that, if claimant got relief from an injection to the sacroiliac joint, it would mean that the sacroiliac joint "could be a generator of [his] pain as well" (T2 at 68). He affirmed that diabetes can "affect any nerve in the body" (T2 at 74).
Dr. Zuckerman opined, to a reasonable degree of medical certainty, that claimant had "no . . . traumatically induced . . . neurologic dysfunction to indicate a neurologic disability" (T2 at 70). There was also "no objectives or findings to indicate a radiculopathy" and there was "no evidence of any herniation or traumatically induced pathology" on the MRI that he reviewed (T2 at 73). According to Dr. Zuckerman, claimant could perform his work activities from a neurological perspective and did not have any condition that would require surgery. Based on his examination, he felt that claimant "had no []permanent [in]ability to perform activities of daily living" (T2 at 87).
On cross-examination, Dr. Zuckerman acknowledged that he believed that claimant's subjective complaints of pain were causally related to the accident and that he had not seen any medical records indicating that claimant had back, leg or neck pain before the accident. He also affirmed that he saw very minimal degenerative changes on claimant's June 2010 MRI. He testified that facet nerve atrophy can be a result of trauma if the trauma is "sufficient to disrupt and have a major impact on the joint" (T2 at 109). On redirect, he stated that such sufficient trauma would be a "fracture or a joint disruption or a dislocation" (T2 at 118). He testified that he did not believe there was trauma in this case that was sufficient to cause facet atrophy.
Finally, Andre Jod testified for defendant. He testified that he is employed as an Investigator 2 with the New York State Attorney General's Office. His duties include conducting investigations and surveillance to assist the Attorney General's Office in its representation of legal matters. On January 16, 2014, he was asked by defendant's counsel to investigate claimant to ascertain the extent of his injuries. On January 17, 2014, he went to claimant's residence and observed from a distance. He saw claimant two times between January 17, 2014 and February 14, 2014. On the first occasion, he observed claimant get into a vehicle at his residence and travel to a supermarket, about six to ten minutes away. Jod observed claimant use a hand-held cart at the supermarket and load it with vegetables. Jod testified that the second occasion was February 14, 2014, the day after a major snowstorm. On that occasion, he observed claimant shoveling snow from the street and from the steps of a residence. Jod testified that "the way he shoveled the snow would be like bending . . . - cause there was a lot of snow - he was actually turning the snow over. This took about 20 minutes. After that he ended to the back of the residence. He collected . . . salt which he proceeded to sprinkle on the steps and from there he kept shoveling back to his residence. He closed the garage. He went into his residence" (T2 at 157-158).
Claimant objected to the consideration of Mr. Jod's testimony and the admission of the photographs taken by him on the ground that he was only notified of the testimony and evidence about a week before the trial began (T2 at 150). At trial, the Court reserved on the objection. Upon due consideration, the Court will admit the testimony and the photographs into evidence, but notes that the photographs have only minimal relevance, if any.
Jod later learned that the residence where claimant was shoveling belonged to an 85-year old woman named Pearl Rosette. Defendant offered into evidence three photographs taken by Jod on February 14, 2014; Jod testified that they fairly and accurately represented what he observed that day.
ANALYSIS
Pursuant to New York's No-Fault insurance law, "in any action by or on behalf of a covered personagainst another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss" (Insurance Law § 5104 [a]). Insurance Law § 5102 (d) defines "serious injury" as "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 eighty days immediately following the occurrence of the injury or impairment."
A "covered person" includes, as is relevant here, "any owner, operator or occupant of, a motor vehicle which has in effect the financial security required by article six or eight of the vehicle and traffic law or which is referred to in subdivision two of section three hundred twenty-one of such law; or any other person entitled to first party benefits" (Insurance Law § 5102 [j]). There is no dispute that each party is a covered person within the meaning of the statute.
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Here, claimant asserts that he suffered a serious injury based upon the permanent consequential limitation, significant limitation and so-called "90/180" categories.
In order to satisfy the serious injury requirement, claimant must present at trial "objective proof" of a qualifying injury; "subjective complaints alone are not sufficient" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). In order to establish a serious injury under the permanent consequential limitation and significant limitation of use categories, "the medical evidence submitted by [claimant] must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing [claimant's] present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [3d Dept 2003]; accord DeHaas v Kathan, 100 AD3d 1057, 1058 [3d Dept 2012]; Peterson v Cellery, 93 AD3d 911, 913 [3d Dept 2012]; see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351]). In addition, "a 90/180-day serious injury requires both objective evidence of a medically determined injury or impairment causally related to the accident, as well as proof that such impairment prevented the plaintiff from performing substantially all of his [or her] regular activities for the requisite period of time" (Howard v Espinosa, 70 AD3d 1091, 1093 [3d Dept 2010]; see DeHaas v Kathan, 100 AD3d at 1058-1059).
Upon careful review, the Court concludes that claimant has failed to prove that he sustained a "serious injury" within the meaning of the Insurance Law. The Court received no objective proof of claimant's injuries. It is undisputed that claimant's two MRI scans, a CT scan and an EMG test all came back negative/normal and showed, at most, only minimal degenerative change, which the experts agreed would not explain claimant's pain. Both claimant's treating physician and defendant's medical expert agreed that there was no anatomical pathology present on the MRIs or the CT scan that explained claimant's complaints of pain. Moreover, Dr. Zuckerman found claimant's neurological examination to be normal with respect to his strength and sensation and his ability to walk and function. Claimant did not present any objective evidence contradicting this finding. Although Dr. Cornacchia testified that claimant had a chronic pain syndrome, radiculopathy and facet arthropathy, it is clear from his testimony that his diagnoses were based only upon claimant's subjective complaints of pain. Without more, claimant has failed to establish that he suffered a qualifying serious injury under Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Tuna v Babendererde, 32 AD3d 574, 575-576 [3d Dept 2006]).
In addition to the lack of objective proof of an injury, claimant has also failed to establish that he suffered a "serious injury" under the specific categories raised. With respect to the permanent and significant limitation of use categories, the Court notes that Dr. Cornacchia acknowledged that he did not examine claimant for range of motion, and the Court received no other evidence or testimony with respect to any degree of limitation - quantitative or qualitative - related to claimant's lower back and/or legs. Therefore, the Court cannot find that claimant suffered a "serious injury" under these two categories.
With respect to the 90/180 category, it is undisputed that claimant has been out of work since the accident. However, claimant's decision not to return to work was based entirely on his subjective complaints of pain, and not as a result of any objective findings (see DeHaas v Kathan, 100 AD3d at 1060). Moreover, contrary to claimant's argument, the fact that claimant did not return to work is not dispositive; claimant is still required to demonstrate that he was "prevented from performing substantially all of the material acts that constituted his usual and customary daily activities" for the requisite time period (Insurance Law § 5102 (d); see Davis v Cottrell, 101 AD3d 1300, 1303 [3d Dept 2012]). Claimant has not done so here. He provided no specific testimony with respect to his abilities to perform his usual and customary daily activities during the requisite time period, which lasted from June 7, 2010, the date of the accident, until December 4, 2010. Moreover, Dr. Cornacchia's treatment notes from that period do not contain sufficient information to make a finding as to claimant's abilities during that time. Therefore, the Court cannot find that claimant suffered a "serious injury" under the 90/180 category.
Based upon the foregoing, the Court concludes that claimant failed to establish that he suffered a serious injury within the meaning of the Insurance Law and therefore cannot recover non-economic damages against defendant. It is ordered that Claim No. 119207 is dismissed in its entirety. Any motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
Let judgment be entered accordingly.
March 18, 2015
Albany, New York
James H. Ferreira
Judge of the Court of Claims