Opinion
1012/03
Decided March 22, 2005.
Defendant has submitted competent medical evidence including the affirmation of his examining orthopedist and radiologist and the plaintiff's deposition testimony which establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. (See, Gaddy v. Eyler, 79 NY2d 955; Jackson v. New York City Tr. Auth., 273 AD2d 200; Greene v. Miranda, 272 AD2d 441). Thus, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting competent medical proof. (see, Gaddy v. Eyler, supra; Licari v. Elliott, 57 NY2d 230, 235; Lopez v. Senatore, 65 NY2d 1017).
In opposition the plaintiff submitted the sworn report of his treating chiropractor Dr. Rosner, dated January 14, 2005, and the affirmed cervical and lumbar MRI reports.
Dr. Rosner's report is insufficient to raise a triable issue of fact because he failed to set forth any objective medical basis for his conclusion that the alleged herniations and/or bulges in plaintiff's cervical and lumbar spine are causally related to the accident and failed to address the defendant's radiologist's affirmed report stating that they are degenerative in nature. (See, Franchini v. Palmieri, 1 NY3d 536; McHaffie v. Antieri, 190 AD2d 780; Gaddy v. Eyler, supra; Lopez v. Senatore, supra; Cannizzaro v. King, 187 AD2d 842; Flater v. Brennan, 173 AD2d 945.) Moreover, while disc bulges and/or herniations may constitute a serious injury, a plaintiff must still provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration. ( see, Diaz v. Turner, 306 AD2d 241; Monette v. Keller, 281 AD2d 523, 523-24; see, Duldulao v. City of New York, 284 AD2d 296, 297). While Dr. Rosner found restrictions in movement of plaintiff's cervical and dorsolumbar spine when he first examined the plaintiff in June, 2002, he noted improved at each subsequent re-evaluation. On November 22, 2002 the doctor noted some limitations in the plaintiff's dorsolumbar spine but none in his cervical spine. On November 26, 2002, no restrictions in the range of motion of plaintiff's cervical or lumbar spine are noted.
Dr. Rosner examined the plaintiff on January 5, 2005, after an unexplained gap in treatment of two years, he found decrease in the range of motion of plaintiff's dorsolumbar spine of 10 on flexion 5 on extension and moderate restrictions on flexion of his cervical spine. The doctor does not opine that any of the plaintiff's limitations are significant but only that they are "permanent". (See, Kravtsov v. Wong, 11 AD3d 516; Ibragimov v. Hutchins, 8 AD3d 235 Lorenzo v. O'Keefe, 1 AD3d 411.) However, merely using the word "permanent" in describing plaintiff's condition is insufficient to raise a question of fact (see, Trotter v. Hart, 285 AD2d 772; Fountain v. Sullivan, 261 AD2d 795, 796-797) where, as here, there is no claim of total loss of use. (See, Oberly v. Bangs Ambulance, 96 NY2d 295.)
Finally, in the absence of objective evidence of a medically determined injury resulting from the accident which caused his 4 month absence from work, the plaintiff's absence alone is insufficient to raise a question of fact as to whether he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident. (see, Lorenzo v. O'Keefe, 1 AD3d 411; DiNunzio v. County of Suffolk, 256 AD2d 498, 499; Beckett v. Conte, 176 AD2d 774; Zelenak v. Clark, 170 AD2d 677; Phillips v. Costa, 160 AD2d 855).