Opinion
103749/06.
Decided September 18, 2008.
Firm: Baker, McEvoy Morrissey, New York, New York, Attorney for the Defendants.
Firm: David I Pankin, P.C., Brooklyn, New York, Attorney for the Plaintiffs
In this personal injury action, defendants Mohammed M. Rahman ("Rahman") and Comilla Corporation ("Camilla") move pursuant to CPLR § 3212 for summary judgment dismissing the complaint.
BACKGROUND
Plaintiff, Barry Scott ("Scott"), a postal worker, alleges that he was seriously injured on March 19, 2003 when his motor vehicle was struck in the rear by a vehicle operated and/or owned by defendants Rahman and Camilla. Following the accident plaintiff was taken, by ambulance, to St. Lukes Roosevelt Hospital where he was examined. X Rays of his neck and back that were taken at the hospital showed no evidence of acute injury (Pankin Aff. Ex. 3). Scott alleges that, following the accident, he was confined to his home for approximately five weeks. (Pankin Aff, Ex. 1) He did, however, receive chiropractic care for his alleged back injury in the weeks following the accident. (Pankin Aff. Ex. 4). In April, 2003 Scott was given an MRI which showed "annular bulging of the posterior annular fibers at the L5-S1 level" of the spine. (Pankin Aff. Ex. 2) Thereafter, in May 2003, Scott was examined at Diagnostic Medicine, P.C., a healthcare facility, and he subsequently received physical therapy at that facility for mild neck pain and a lower back pain sprain/strain. The records indicate that Scott's last physical therapy treatment was in July 2003. (Pankin Aff, Ex. 4).
Almost two years later, in May 2005, Scott was seen by Dr. Leonard Harrison, an orthopedic surgeon, who examined Scott and reviewed the April 2003, MRI results. In a March 2008 affirmation, Dr. Harrison states that, "[b]ased upon my initial physical examination of the patient, as well as my review of the MRI films, my initial diagnosis of this patient was: (i)Acute traumatic lumbosacral myofacitis with radiculopathy, and symptomatic disc bulging/partial herniation at the L5-S1 level." At that time the doctor prescribed anti-inflammatory medication as well as narcotic analgesics, a corset and alternative physiotherapy. Dr. Harrison states that he continued to treat Scott from time to time until January 30, 2007 when Scott returned to Dr. Harrison's office complaining of severe back pain. Dr. Harrison gave Scott a note excusing him from work from January 10, 2007 through February 3, 2007 because of his medical condition. Dr. Harrison's most recent examination of Scott on February 7, 2008 revealed that Scott was still complaining of back pain, that he had reduced lumbosacral motion and decreased sensation along both his calves. Dr. Harrison once again prescribed anti-inflammatory medication and narcotic analgesics.
In his March 20, 2008 affidavit, Dr. Harrison states that at his examinations on May 7, 2005 and February 7, 2008, Scott lacked 25% of the expected lumbosacral motion and his straight leg raise was limited to 60 and/or 70 degrees bilaterally and the doctor concludes:
Based on my findings during my continued examination of the patient; the patient's physical complaints; and those past treatment and evaluation records made available for my review, including results from MRI testing previously conducted, my diagnosis of the patient remains as follows: (i)Traumatic acute lumbrosacral myofascitis with radiculopathy, and symptomatic disc bulging/partial herniation at the L5-S1 level. Based on the patient's continued complaints the patient is a surgical candidate to excise the bulging/herniated disc at the L5-S1 level. The patient's injuries represent evidence of partial permanent disability of the lumbosacral spine, which appeared directly related to and caused by the accident of March 19, 2003. (Pankin Aff., Ex. 5, para. 10)THE INDEPENDENT MEDICAL EXAMS
Dr. Michael P. Rafiy performed an independent orthopedic exam of Scott on December 13, 2007 and found that, "despite Mr. Scott's subjective complaints there were no objective findings to support them. He has a normal orthopedic exam of the cervical and lumbar spine." Dr. Rafiy found that Scott was not orthopedically disabled in that he can carry out his daily activities without any limitations or restrictions. (Galarza Aff., Ex. C)
In April 2007, Dr. Audrey Eisenstadt performed an independent radiological review of Scott's April 21, 2003 MRI. She found that there was a congenital variant at the S1 level that Scott was born with this condition and that the condition predisposes to abnormal movement in the lower lumbar spine and premature degenerative disc disease. Dr. Eisenstadt did not see any changes associated with the congenital condition. Moreover, she noted that there were no traumatic or post traumatic disc changes that could be seen in the MRI, (Galarza Aff., Ex. D).
CONTENTIONS
In support of the motion, defendants contend that the complaint must be dismissed because Scott failed to produce objective medical evidence that he sustained a serious injury as that term is defined in the New York State Insurance Law § 5102(d)(7) and (8). Moreover, defendants argue that even if Scott has submitted proof that substantiates a medically determined injury that is causally related to the accident, he has failed to demonstrate that he was unable to perform substantially all of his daily activities for at least 90 of the 180 days following the accident. (See, Insurance Law 5102[d][9])
Plaintiff does not make a claim of "serious injury" under Insurance Law § 5102(d)(9)
In opposition to the motion, Scott contends that his medical evidence establishes that, as a result of the accident, he suffers from a partial permanent disability of his lumbosacral spine.
DISCUSSION
It is well settled that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to serious injuries.'" ( Toure v. Avis Rent-A-Car Sys., Inc., 98 NY2d 345, 350 [2002]quoting Dufel v. Greene, 84 NY2d 795, 798) The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the courts which may decide the issue on a motion for summary judgment. ( Perez v. Rodriguez , 25 AD3d 506 , 507 [1st Dept 2006])
Section 5102(d)(7) of the Insurance Law states that a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury" for the purpose of the No-Fault Law. Under this section of the law the medical proof must establish in a non-conclusory manner that the plaintiff has suffered a permanent limitation ( Mickelson v. Padang, 237 AD2d 495 [2nd Dept 1997]) that is not minor or slight, but rather is consequential. ( Gaddy v. Eyler, 79 NY2d 955) Consequential has been defined by the courts as an important or significant limitation. ( Countermine v. Galka, 189 AD2d 1043 [3rd Dept 1993])
A significant limitation of the use of a body function or system also may qualify as a "serious injury" under Section 5102(d)(8) of the Insurance Law. Under this category, plaintiff must present admissible evidence which identifies a limitation that is causally related to the accident. "Whether a limitation is significant (i.e. important) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part." ( Toure, 98 NY2d at 353 [internal citations and quotations omitted])
Once the proponent of a motion for summary judgment has set forth a prima facie case that the claimed injury is not serious, the burden shifts to the plaintiff to demonstrate by the submission of objective proof of the nature and degree of the injury, that he/she did sustain a serious injury or that there are questions of fact as to whether the alleged injury was "serious". ( Toure, 98 NY2d at 350; Cortez v. Manhattan Bible Church , 14 AD3d 466 , 467 [1st Dept 2005]) However, even when there is medical proof, when additional contributing factors, such as a gap in treatment, interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate. ( Pommells v. Perez , 4 NY3d 566 , 572; Perez v. Rodriguez, 25 AD3d at 508;
In this case, defendants have established their prima facie case that plaintiff did not suffer a "serious injury", within the statutory definition, by submission of the reports from Dr. Rafiy, an orthopedist, who, among other things, tested Scott's range of motion and found that Scott was not orthopedically disabled and that there was no permanency or residuals and the report of Dr. Eisenstadt, a radiologist who reviewed Scott's 2003 MRI and found no traumatic or post-traumatic changes.
In response, Scott submits the affidavit of Dr. Harrison, who first examined Scott on May 7, 2005, more than two years after the accident. Dr. Harrison's affirmation also includes his findings for office visits on January 30, 2007 and February 8, 2008. In addition to Dr. Harrison's affirmation, Scott submits medical records from St. Lukes Roosevelt Hospital that have not been certified; an unsworn medical report from Dr. Steven Brownstein of Manhattan Medical Imaging PC and an unsigned and unsworn medical report from Dr. Vladimir Slutsker of Diagnostic Medicine PC. The unsigned, unsworn and/or uncertified medical reports do not constitute evidentiary proof in admissible form and will not be considered by the court. ( Grasso v. Angerami, 79 NY2d 813; Black v. Regalado , 36 AD3d 437, 438 [1st Dept 2007]; Medley v. Lopez , 7 AD3d 470 [1st Dept 2004])
In Toure v. Avis Rent-a-Car Systems, Inc., 98 NY2d at 350, the Court of Appeals stated that resolving the question of whether plaintiff suffered a "serious injury" involves a comparative analysis of the quantified degree and duration of an alleged injury, or its qualitative impact and duration in the claimant's normal activities. This analysis requires admissible proof of injury based on objective medical testing, which establishes a causal relation between the accident and the injury alleged, as well as between the injury and the claimed limitation and impairment. ( Toure v. Avis Rent-a-Car Systems, Inc. at 350) To satisfy this analysis, plaintiff has the obligation come forward with an affirmation from a physician who can appropriately testify to examination of the plaintiff within the near aftermath of the accident. ( See, Phillips v. Osborne, 2006 WL 734263 (App. Term, 1st Dept); Robinson v. Grecian Transport, 278 AD2d 90 [1st Dept. 2000]; Bandoian v. Bernstein, 254 AD2d 205 [1st Dept 1998]) Since Dr. Harrison's affirmation establishes that he first examined Scott approximately two years and three months after the accident and almost two years after Scott discontinued physical therapy, his examination of Scott was clearly not "within the near aftermath of the accident".
Moreover, neither Dr. Harrison nor Scott, discuss the prolonged cessation of treatment from the time Scott ended his physical therapy in July, 2003 until he visited Dr. Harrison in May 2005. In Pommells v. Perez, 4 NY3d at 574, the Court of Appeals affirmed the dismissal of the complaint based, in part, on a three and one half year "cessation" of treatment after the plaintiff's accident. There the Court stated:
While a cessation of treatment is not dispositive the law surely does not require a record of needless treatment in order to survive summary judgment a plaintiff who terminates therapeutic measures following an accident, while claiming "serious injury," must offer some reasonable explanation for having done so. Here, plaintiff provided no explanation whatever as to why he failed to pursue any treatment for his injuries after the initial six month period, nor did his doctors.
In Pommells at 575, the Court found that the gap in treatment, combined with a notation of kidney surgery in plaintiff's medical history, "left wholly unanswered the question whether the claimed symptoms diagnosed by [the doctor] were caused by the accident ". (See also, DeLeon v. Ross, 44 AD3d 545 [1st Dept 2007]; Otero v. 971 Only U, Inc. , 36 AD3d 430 [1st Dept 2007][plaintiff's submission failed to explain a gap in treatment of more than a year, which is fatal to a claim of serious injury]; Park v. Champagne , 34 AD3d 274 , 275 [1st Dept 2006][the failure to provide any explanation for the gap in treatment is fatal to the viability of the personal injury action])
In addition, Dr. Harrison's report failed to establish that there was a connection between the plaintiff's current medical condition and the accident. Dr. Harrison did not explain how he came to the conclusion that Scott's lumbosacral problems resulted from the accident or how he was able to exclude the possibility that plaintiff's medical condition resulted from another source, such as plaintiff's occupational duties or the congenital condition that Dr. Eisenstadt found when she examined the MRI. (See, Chan v. Garcia , 24 AD3d 197 , 198 [1st Dept 2005]) The doctor's affirmation does not contain evidence that the bulging disc, noted in the MRI report, was caused by the accident. As stated in Pommells at 574, "Proof of a herniated disc, without additional medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish serious injury." ( See also, Navedo v. Jaime , 32 AD3d 788 [1st Dept 2006])
Furthermore, Dr. Harrison's affirmation fails to specify what objective tests, if any, were performed and it fails to set forth a sufficient description of the qualitative nature of the limitations based on the normal function, purpose and use of the body part. ( Otero v. 971 Only U, Inc, 36 AD3d at 431; Vasquez v. Reluzco , 28 AD3d 365 [1st Dept 2006])
Accordingly, because plaintiff has utterly failed to explain the two-year cessation of treatment and has failed to establish, by competent evidence, that his current medical condition is attributable to the accident, he has failed to overcome defendants prima facie case that plaintiff did not suffer a "serious injury as that term is defined in Insurance Law § 5102(d).
Therefore, it is ORDERED that defendants' motion for summary judgment dismissing the complaint is granted and the complaint is dismissed.
The Clerk is directed to enter judgment accordingly.