Opinion
2091/08.
Decided on January 29, 2010.
The underlying action is for personal injuries sustained by the plaintiff in a motor vehicle accident on February 3, 2005 at 194 Street and Hollis Avenue, St. Albans, New York.
The moving defendants assert that the plaintiff did not sustain a "serious injury" as a result of the accident.
In order to maintain an action for personal injury in an automobile case a plaintiff must establish that he has sustained a "serious injury" which is defined as follows:
"Serious Injury" Insurance Law § 5102(d):
Serious injury means a personal injury which result in . . . 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 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.
Whether a plaintiff has sustained a serious injury is initially a question of law for the Court ( Licari v Elliott, 57 NY2d 230). Initially it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim ( Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Grossman v Wright, 268 AD2d 79). If the defendants' motion raises the issue as to whether the plaintiff has sustained a "serious injury" the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury ( Gaddy v Eyler, 79 NY2d 955; Bryan v Brancato, 213 AD2d 577).
Insurance Law § 5102 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries" ( Toure v Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350).
The defendants seek to demonstrate the plaintiff has not sustained a serious injury and accordingly submit affidavits in support of their position.
Dr. Ignatius D. Roger, M.D., a Board Certified Plastic Surgeon, affirmed that on February 9, 2009 he saw the plaintiff that day and examined her forehead and saw "One centimeter superior to the left mid-eyebrow is 2.4 by 1 centimeter area of subtle hyperpigmentation with irregular borders." "There is flattening of the frontalis muscle at both the right and left lateral aspects of the forehead extending laterally from approximately the medial most third of the eyebrows."
Dr. Edward M. Weiland, M.D., a Board Certified Neurologist and Psychiatrist, affirmed on May 28, 2009 he saw the plaintiff the same day and saw the plaintiff in a Neurologic Consultation regarding the injuries she sustained. He notes that the plaintiff may have lost consciousness after the impact and "several months after this accident she then developed lower back discomfort." He notes that the plaintiff was treated by a neurologist, and has undergone MRI studies as well as electrodiagnostic testing at the direction of her neurologist, Dr. Vilceus. She has undergone physical therapy and chiropractic treatment. Dr. Wieland found no evidence of "lateralizing neurological deficit".
Here the defendants have come forward with sufficient evidence to support their claim that the plaintiff has not sustained a "serious injury" with sufficient evidentiary proof requiring the plaintiff to respond ( Gaddy v Eyler, 79 NY2d 955).
The plaintiff submits an affirmation of Dr. Antenor P. Vilceus, M.D., Board Certified in Psychiatry and Neurology, dated December 30, 2009. Dr. Vilceus first saw the plaintiff on February 14, 2005. His examination of the plaintiff revealed "multiple lacerations on her face". She complained of "severe neck pain" and "was complaining of confusion, disorientation, memory impairment, mood swing and sleeping." He found that the plaintiff suffered "post-traumatic stress disorder" and an MRI was therefore required. Dr. Lewis Marshall, her primary care physician had prescribed Naprosyn, an "anti-inflamatory pain killer" which Dr. Vilceus continued with Robaxin, a muscle relaxant, and told the plaintiff to start physical therapy.
On March 7, 2005 Dr. Vilceus examined the MRI and determined that it was normal. "The EEG revealed diffuse Beta activity." The plaintiff was taking Klonopin, for her anxiety. She had difficulty sleeping and Ambien was prescribed. She was also prescribed Midrin for her headaches. Dr. Vilceus again saw the plaintiff on July 11, 2005 at which time she continued to complain of "terrible headaches". She had "memory and concentration problems". Dr. Vilceus saw the plaintiff again on August 17, 2007 and she complained of lower back pain which radiated down her leg. She continued to experience "headaches and insomnia". "Mechanical examination" on July 11, 2005 and August 17, 2007 of the plaintiff revealed diminished range of motion in lumbosacral flexion and extension. He diagnosed the plaintiff with "Low back pain syndrome". Accordingly, he prescribed Flexeril three times a day as a muscle relaxant and Ambien. He again saw the plaintiff on January 7, 2008 and she complained of "difficulty sleeping, headaches and lower back pain." Mechanical examination revealed diminished range of motion in her lumbosacral flexion and extension. He saw the plaintiff on July 25, 2008 and she still had difficulty sleeping and headaches which resulted in throbbing pain. Medication was proscribed. He saw the plaintiff on August 26, 2008 and the plaintiff continued to experience similar disorders and because of her "persistent neck pain" and numbness, involving her right arm, he recommended EMG/NCV which revealed "electrical evidence of right C6-C7 radiculopathy" and "permanent nerve damage involving the C6-C7 level 3 years after the accident." Dr. Vilceus examined these studies and independently made a similar determination. This study is consistent with the plaintiff's complaints of neck pain, numbness and parathesia of the right arm and forearm. On October 31, 2008 he saw the plaintiff again and found that her pain had gotten worse and she continued to have difficulty sleeping. He saw the plaintiff again on December 22, 2008, February 13, 2009, March 18, and on June 5, 2009 when he "personally conducted EMG/NCV studies of the patient's lower extremities which revealed electrical evidence of right L5-S1 radiculopathy". He found "permanent nerve damage involving the L-S1". He examined the plaintiff again on August 12, 2009 and October 9, 2009 and the plaintiff continued to complain about headaches such that "she has been unable to function." Medication was continued. His last examination was performed on December 4, 2009 and the plaintiff continued to complain of headaches and the plaintiff "remains anxious, panicky, irritable and she continues to have difficulty sleeping." Dr. Vilceus writes "She has suffered facial laceration and facial pain, headache, on-going neck pain and lower back pain. Despite time she remains symptomatic and her chronic pain syndrome is definitely and absolutely related to the motor vehicle accident of February 3, 2005". He finds her injuries to be "permanent" and the plaintiff requires "constant monitoring and care" She will continue to require pain management and take medication for her chronic headaches. "Because of her facial scar and disfigurement, she will always require psychotherapy for reassurance." Her lower back pain are "natural and expected consequences" of her injuries and are causally related to the motor vehicle accident. She is currently taking medication and the plaintiff's prognosis "remains guarded to poor."
There is a photograph of the plaintiff's injury attached [Plaintiff's Exhibit "A" and "B" ] which reveals that the plaintiff has sustained an injury to her face.
Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.
To establish that the plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration ( Booker v Miller, 258 AD2d 783; Burnett v Miller, 255 AD2d 541). Resolution of the issue of whether "serious injury" has been sustained 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 ( Dufel v Green, 84 NY2d 795). Upon examination of the papers and exhibits submitted this Court finds that the plaintiff has raised triable factual issues as to whether the plaintiff has "permanent consequential" and "significant limitation" categories.
The question presented as to the difference between the measurements taken by the plaintiff and defendant create an issue of fact for the jury (Martinez v Pioneer Transportation Corp.,48 AD3d 306).
Generally, an unexplained cessation of medical treatment may be fatal to the plaintiff's claim of a significant or permanent consequential limitation (Baez v Rahamatali,24 AD3d 256 aff'd 6 NY2d 868) Adiagnosis of permanency having been sustained by the plaintiff obviates the need for further treatment and, therefore, there is no "gap" in treatment (Pommells v Perez, 4 NY3d 566). Also, a finding by the treating physician that continued treatment would be merely palliative can be considered a sufficient explanation for cessation of treatment ( Toure v Avis Rent A Car Systems, 98 NY2d 345; Turner-Brewster v Arce,17 AD3d 189). Further, a statement by the plaintiff that he stopped treatment after no-fault benefits were terminated because of his penury is not, but itself, grounds for dismissal (Delorbe vPerez, 59 AD3d 491).
With regard to the 90/180 rule, the defendant's medical expert must relate specifically to the 90/180 claim made by the plaintiff before dismissal is appropriate (See, Scinto v Hoyte,57 AD3d 646; Faun Thau v Butt,34 AD3d 447; Lowell v Peters,3 AD3d 778). This is particularly so when the defendant's medical reports are conducted after a substantial time since the accident (Miller v Bah, 58 AD3d 815; Carr v KMP Transportation, Inc, 58 AD3d 783). In the instant matter the medical affirmations were three years after the accident.
Regarding the "permanent loss of use" of a body organ, member or system the plaintiff must demonstrate a total and complete disability which will continue without recovery, or with intermittent disability for the duration of the plaintiff's life ( Oberly v Bangs Ambulance, Inc., 96 NY2d 295). The finding of "Permanency" is established by submission of a recent examination ( Melino v Lauster, 195 AD2d 653 aff'd 82 NY2d 828). The nature of the plaintiff's injuries must be viewed in their totality. The deep facial scaring is permanent and has emotionally affected the plaintiff and will affect her throughout her life.
Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that he has sustained such permanent limitation ( Mickelson v Padang, 237 AD2d 495). The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential" ( Gaddy v Eyler, 79 NY2d 955). The plaintiff has demonstrated through her medical reports that she has sustained a permanent limitation.
The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration ( Dufel v Green, 84 NY2d 795; Fung v Uddin,60 AD3d 992; Hoxha v McEachern,42 AD3d 433; Barrett v Howland, 202 AD2d 383). An examination of the plaintiff's photographs clearly display that she has suffered a significant limitation and continues to suffer.
Accordingly, defendants' motion to dismiss because the plaintiff has failed to demonstrate that she has sustained "serious injury" is denied in all aspects.
So Ordered.