Bicycle Accident Injury

Published on: February 14, 2013

Defendant moves, pursuant to CPLR § 3212

by Stephen Bilkis

Defendant moves, pursuant to CPLR § 3212, for an order granting summary judgment due to plaintiff’s failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104. Plaintiff opposes defendant’s motion. A Lawyer said that, the action arises from a motor vehicle accident involving a collision between a motor vehicle operated by plaintiff and a motor vehicle owned and operated by defendant. The accident occurred at approximately 4:00 p.m. on August 21, 2007, on West Merrick Road at its intersection with Rockaway Avenue, Valley Stream, Long Island. On or about May 21, 2008, plaintiff commenced this action by service of a Summons and Verified Complaint. Issue was joined on June 19, 2008.

The issue in this case is whether The Bronx defendant is entitled to his motion for summary judgment on the ground that plaintiff did not sustained serious injury as defined under the Insurance law.

The Court held that, 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. 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. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation. 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. 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.

Published on: February 12, 2013

The plaintiff sustained serious and catastrophic injuries

by Stephen Bilkis

The plaintiff sustained serious and catastrophic injuries when he fell while traversing a trench at a construction site in the Bronx. As a result of plaintiff’s fall into a trench at the job site he became impaled on a reinforcement bar (rebar) that was surgically removed several hours after his admission to the hospital. It is in this setting that the jury, after a trial and after hearing testimony from plaintiff’s physicians and other experts regarding the devastating and traumatic nature of the personal injuries he sustained, rendered a verdict in the sum of $86 million including $20 million for past pain and suffering and $55 million for future pain and suffering.

A Lawyer said that, plaintiff’s treating physician, the Director of Spinal Cord Services at Helen Hayes Hospital, described in explicit detail the nature and effect of the spinal injuries plaintiff incurred. The Doctor provided the court and jury, inter alia, with a graphic picture of plaintiff’s suffering, stating in part, that the pain plaintiff continues to experience “is of two types. He has nerve pain in his legs, and that nerve pain is perhaps one of the worst pains that you could think of. Imagine somebody stabbing you with a knife, a gazillion times, or with a pin all over the place. That numbness, that tingling, that stabbing sensation” is “present all the time, but it is a constant pain and that pain will not go away.” He depicted plaintiff’s chronic pain by providing the jury with a vivid description of the damage to plaintiff’s spinal column when the rebar went into the area of his spinal cord and the compression fracture also caused by the pipe entering his body. He described the emotional pain sustained by the plaintiff caused by the distress of no longer having the ability to walk and the nerve pain emanating from his legs which he testified was permanent. The jury also heard testimony regarding plaintiff’s chronic bed sores, his cauterization in order to urinate, his inability to control bowel movements, constant urinary tract infections and repeated hospitalization for the conditions described by the Brooklyn Doctor.

A Lawyer said that, the defendant moves pursuant to CPLR §4404 and §5501, to reduce the damages awarded to the plaintiff, after a jury trial, contending that the award is excessive and materially deviates from fair and reasonable compensation.

Published on: February 9, 2013

One Sunday, plaintiff, then twenty-seven years of age

by Stephen Bilkis

One Sunday, plaintiff, then twenty-seven years of age, was returning home from church services with her two children, a daughter then, 3 1/2 years of age and son, then 2 1/2 years of age, accompanied by her mother, then 62 years of age. The group proceeded along Buhrem Avenue in Bronx County and came abreast of defendants’ one-story taxpayer building. At this point, the infant daughter walked ahead, necessitating her mother’s ‘catching up’ to ensure that she did not go near the street. On the top of defendant’s building was a brick parapet approximately seven feet in height and one hundred feet long. This parapet had been observed to be leaning outward toward the sidewalk for a period of at least six months prior to the accident. The falling of this parapet wall occasioned the accident.

A doctor said that, plaintiff testified that she turned around to see how far her mother and son were behind, and heard her son asking for a cookie. Her mother stopped and reached into her bag to get him a cookie. Then plaintiff turned back to her daughter and heard a loud roar. When she turned around, she saw bricks were falling and hit the side of her body. She ran over and saw her mother and son under the bricks. A bystander rushed to aid plaintiff and the fallen victims and through his intervention plaintiff was able to remove her son, who was moaning, from the debris. He took plaintiff and her son to the hospital. Plaintiff, holding her injured son on her lap in the back seat of the vehicle, had for the first time a chance to look at his body. She testified that ‘his legs were hanging off at the sides. He had a little sun suit on, so it was very clear to me what I saw. I went to push his legs back on but I was afraid they would fall off. And as I did so I grabbed his shoes and saw that his ankles were the same way his thighs were’. Plaintiff’s son died on the evening of the same day from cardiac arrest following surgery necessitated by the previous personal injuries he sustained. The personal injuries sustained by plaintiff’s mother were severe, including comminuted compound fractures of the legs, pelvis, and ribs, a severe avulsion laceration of the scalp, and a spinal cord trans-section at about the middle of her back which paralyzed her from that point down. She was conscious with some intermittent periods of unconsciousness, and underwent two operations not under anesthesia. Plaintiff’s mother died as a consequence of her spinal injuries on May 19, 1970.

A Lawyer said that, after trial the jury returned a verdict in favor of plaintiff’s son’s father as administrator of the deceased infant in the amount of $150,000 for wrongful death and $25,000 for conscious pain and suffering. The trial court reduced the award for wrongful death to $40,000 and for conscious pain and suffering to $5,000. The jury verdict in favor of plaintiff’s father, the surviving spouse o plaintiff’s mother, in his capacity as administrator of her estate in the amount of $75,000 for wrongful death and $25,000 for conscious pain and suffering was not disturbed.

Published on: February 4, 2013

A man working as a millwright for a saw mill in Florida had been working at the same saw mill

by Stephen Bilkis

A man working as a millwright for a saw mill in Florida had been working at the same saw mill for the past twenty-four years. His job required him to do heavy manual labor consisting of bending from the waist to lift heavy objects and carrying the heavy objects. As time went on, the millwright gradually experienced pain in his right leg and hip. There was no specific incident that caused any spinal injury to the millwright during the course of his employment. The pain soon interfered with his duties at the saw mill and this prompted him to consult an orthopedic surgeon who immediately placed him on no-work status and referred him to a neurologist for testing.

The Long Island neurologist ran medical tests and scans on the man’s spine. The tests showed that the man had stenosis or a narrowing or choking of the spinal nerve roots in his neck and lower back. The compression of the spinal nerve roots cause the shooting pain in his hip and right leg. Spinal stenosis is a degenerative disease that occurs from repetitive bending and lifting of heavy objects.

The neurologist and the orthopedic surgeon both found that the man suffered from a degenerative disk disease and L3-4 herniated disk. They advised the millwright to take medication, sufficient rest and physical therapy to stop the pain and to arrest the further damage to his spine. The employer refused to pay the millwright’s claim for compensation and filed a complaint with the Compensation Commission.

Published on: February 2, 2013

Petitioner, a sergeant with the Suffolk County Police Department

by Stephen Bilkis

Petitioner, a sergeant with the Suffolk County Police Department, injured his back at the scene of a motor vehicle accident in February 2004 when he slipped while moving the door of the vehicle-which had been removed by the fire department-so that rescue personnel would have better access to the accident victim. Petitioner’s application for performance of duty disability retirement benefits was denied by respondent New York State and Local Police and Fire Retirement System on the ground that petitioner was not permanently incapacitated from the performance of his duties. A Hearing Officer affirmed the denial of benefits following a hearing, and respondent Comptroller upheld this determination upon administrative review.

A board-certified orthopedic surgeon, testified that petitioner’s MRI showed “significant damage to the spinal column with multiple level herniations.” An EMG study revealed damage and irritation not only to the spinal cord, but to the nerves of the spinal cord. The orthopedic surgeon, who started treating petitioner eight months after his injury and continues to see petitioner every six weeks, concluded that the findings on these two objective tests were compatible with petitioner’s subjective complaints. The Queens orthopedic surgeon diagnosed petitioner with lumbosacral herniated discs, sciatica and back pain, and he testified that petitioner’s injury was permanent. Reports were also put into evidence on petitioner’s behalf by an osteopath who treats petitioner three times a week, by an orthopedist who conducted an independent medical exam on behalf of petitioner’s employer, by another orthopedic surgeon who performed an independent medical exam on behalf of the Workers’ Compensation Board, and by a neurologist. Each physician concurred with the orthopedic’s finding of disc herniation and they also noted various levels of muscle spasm, and the degree of permanency noted in their reports ranged from “[p]artial moderate permanent” to total disability.

A report was also submitted into evidence by an orthopedic surgeon who examined petitioner on behalf of the Retirement System. The orthopedic surgeon diagnosed petitioner, after an exceedingly brief examination, with “resolved low back strain,” finding no muscle spasm and no evidence of disability. The surgeon testified, however, that if petitioner merely had a low back strain, the EMG and MRI would not have shown the nerve damage and disc herniation. Testimony further revealed that as a result of the herniation and radiculopathy, petitioner’s ability to sit, stand and lift are limited such that he cannot go into the field as he did prior to this incident, he continues to experience severe pain requiring continued Medication and, even though on light duty, he has missed over 130 days of work as a result of this incident compared to only 14 days missed due to injury in the 19 years prior thereto.

Published on: January 29, 2013

In New York, to establish a prima facie case of negligence

by Stephen Bilkis

In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant’s negligence were a substantial factor, it is considered to be a “proximate cause” even though other substantial factors may also have contributed to plaintiffs. In order to establish the third element, proximate cause, the plaintiff must show that defendant’s negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. Summary judgment is rarely appropriate in a negligence action because the issue of whether a plaintiff or defendant acted reasonably under the circumstance could rarely be resolved as a matter of law.

If it cannot be determined who the parties are who owed a duty to the plaintiff and what the defendants’ respective roles and responsibilities were, no determination as to negligence can be made based upon the evidentiary submissions and adduced testimonies.

Labor Law §200 provides in pertinent part that “All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places…. (Trbaci v AJS Construction Project Management, Inc, et al, 2009 NY Slip Op 50153U; 22 Misc3d 1116A [Supreme Court of New York, Kings County 2009). “New York State Labor Law §200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 880 NYS2d 227 [2000]). In order to prevail on a claim under Labor law §200, a plaintiff is required to establish that a defendant exercised some supervisory control over the operation (Mendoza v Cornwall Hill Estates, Inc., 199 AD2d 368, 605 NYS2d 308 [2nd Dept 1993]). Labor Law §200 governs general safety in the workplace, imposes upon employers, owners, and contractors the affirmative duty to exercise reasonable care to provide and maintain a safe place to work and is a reiteration of common-law negligence standards. Therefore, a Staten Island party charged with liability must be shown to have notice, actual or constructive, of the unsafe condition and to exercise sufficient control over the work being performed to correct or avoid the unsafe condition (Leon v J&M Pepe Realty Corp. et al, 190 Ad2d 400, 596 NYS2d 380 [1st Dept 1993]).

Published on: January 27, 2013

MD2 seeks an order granting summary judgment dismissing the complaint

by Stephen Bilkis

The Manhattan plaintiff alleges that on or about November 29, 2001 through December 13, 2001 he came under the medical care and treatment of MD, a physician specializing in the field of transplant surgery. On or about May 2001 through June 13, 2002, the plaintiff came under the care of MD2., a physician specializing in the field of internal medicine. He also came under the care of the defendant MD3, M.D. who holds himself out as a Long Island physician specializing in surgery. From about November 28, 2001 through December 13, 2001, the plaintiff came under the care of a Memorial Hospital located in Rochester, New York where he had his kidney donor surgery performed. The plaintiff claims, inter alia, that the defendants were negligent in his care and treatment in failing to properly perform a laparoscopic donor nephrectomy; prematurely discharging him after the surgery with a retroperitoneal hematoma; causing the pancreas injury and failure; causing an inflammatory nidus and pancreatic pseudocyst; in causing a pancreaticocolenic fistula; causing the plaintiff to undergo exploratory laporatomy and drainage of a large intra abdominal abscess and closure of a colonic fistula, and causing the plaintiff to undergo a colosotomy and colostomy take-down surgical procedure to the pancreas.

MD2 seeks an order granting summary judgment dismissing the complaint asserted against him on the basis that he did not depart from good and accepted medical practice during his care and treatment of the plaintiff and that the action is time barred as although the plaintiff saw MD2 on four occasions following his surgery, all MD2 did was order laboratory tests and CT scans and then refer the plaintiff for surgical management. MD2 claims his last involvement with the plaintiff was on January 2002 and the action was not commenced until September 2004.

MD3, who is represented by the same attorneys as MD2 seeks summary judgment dismissing the complaint on the basis that there were no departures by him that proximately caused the plaintiffs spinal injuries.

Published on: January 25, 2013

Claimant sustained injuries arising out of and in the course of her employment

by Stephen Bilkis

Brooklyn Claimant sustained injuries arising out of and in the course of her employment on two occasions. First was in December 1988, when claimant injured her neck, back, shoulders, knee and left elbow, and the second was in September 1989, after claimant had been released to return to full-duty work, when claimant injured her fingers. Since her first injuries, claimant has been treated by a doctor, doctor-one, who is a board-certified orthopedic surgeon. Doctor-one diagnosed claimant as suffering from cervical and lumbar spondylosis or arthritis.

According to doctor-one, claimant had suffered from a pre-existing arthritic condition which was exacerbated by her work related injury; that, because of claimant’s arthritis, she was not going to get better, that is, she would continue to experience good periods and bad periods, as she had for some time; that there was little that he could offer claimant in the way of new treatment. Doctor-one prescribed physical therapy which had included traction, heat, ultrasound and electrical stimulation for some time, for temporary relief of claimant’s symptoms; and recommended that claimant continue to receive physical therapy as needed. However, according to the claimant, the physical therapy prescribed by doctor-one provided only temporary relief from her symptoms. Thus, she wanted to be treated by doctor-two, a chiropractor, by reason of the fact that her husband had been treated successfully by the said doctor, and she felt that doctor-two could achieve similar results with her. Claimant then filed a claim seeking authorization for a chiropractic treatment to be conducted by doctor-two.

Consequently, doctor-two was called to testify. According to doctor-two who is a chiropractic physician, claimant is suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar strain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, doctor-two concluded that claimant was a candidate for chiropractic therapy which basically consists of adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints; that he would use traction in the low back, exercises and some electrical stimulation. Doctor-two opined that chiropractic treatment would be beneficial to the claimant because the key thing is to get the vertebrae that are out of place, or the subluxated, back into their proper respective position and functioning again, and he saw nothing about claimant’s condition to suggest that it would be inappropriate to treat her in such a way.

Published on: January 22, 2013

Claimant was employed as a housekeeper at a Mental Health Center

by Stephen Bilkis

Claimant was employed as a housekeeper at a Mental Health Center. She held the job for approximately three years until she was injured on 27 January 1993. While at work and engaged in the duties of her job on the premises of her employer, claimant suffered a knee injury. She squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. It turns out that she sustained a tear of the lateral meniscus in that knee. Thereafter, the Judge of Compensation Claims ruled that the injury was idiopathic and not compensable because the claimant failed to prove that her employment involved an exertion greater than that performed during her daily life. The Suffolk Judge issued a worker’s compensation order denying compensation. According to the order, the claimant did not fall, twist, lose her balance or experience any other unusual movement, and the claimant’s injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed. The claimant then filed an appeal from the said order.

Under the law, for an injury to be compensable it must arise out of one’s employment and must occur in the course and scope of that employment. Here, the employer and carrier have conceded that the spinal injury to the claimant occurred in the course and scope of her employment, while performing her job duties on the employer’s premises. The question now is whether the injury arose out of the claimant’s employment.

As a rule, an unexpected injury sustained during the ordinary performance of one’s duties in the usual manner is a compensable accident and it is not necessary for the claimant to demonstrate that there was a slip and fall accident or other mishap. The term “accident” includes an internal failure such as a ruptured disc or a snapped knee cap. Here, the court finds that it was sufficient for the claimant to prove that her spinal injury occurred in the period of her employment and at a place where she would reasonably be, while fulfilling her duties, to establish that her accident arose out of, and occurred in the course and scope of her employment,. The “arising out of” prong of this test is satisfied by evidence that the injury originated in some work connected with the employment, that is, the claimant must show that his injury can be attributed to some event or circumstances connected with his work. Based on the facts and evidence presented, the claimant has done this. Staten Island Claimant produced evidence that she was squatting to pick up a bag of laundry which is one of her job duties.

Published on: January 18, 2013

Claimant, 49 years of age, worked in various positions

by Stephen Bilkis

Claimant, 49 years of age, worked in various positions at the employer’s saw mill, most recently as a millwright. Every position he held during his 24-year career involved arduous physical labor, including heavy lifting on a daily basis. Sometime in March 1998, claimant began experiencing pain in his hip and leg. He did not identify any specific incident that caused the pain, but pointed to a number of his job duties that involved heavy physical labor. According to the Queens claimant, the pain developed gradually. After learning from his family physician that the pain related to a back condition or back injury, claimant sought compensation benefits. The employer and carrier or E/C completely denied the claim, including the request for a medical treatment. On 29 April 1998, claimant came under the care of doctor-A, who is an orthopedic surgeon, who placed him on a no-work status. After testing, physical therapy, and consultation with another doctor, doctor-B who is a neurosurgeon, doctor-A diagnosed lateral recess stenosis with degenerative disk disease and L3-4 herniated disk. Thus, claimant filed a claim under the worker’s compensation for compensation benefits. Thereafter, the judge of compensation claims or the JCC, in resolving the claim for compensation benefits, found the stenosis compensable under a repetitive trauma theory based on claimant’s and doctor-A’s testimony, and concluded that claimant’s heavy lifting and repetitive bending while working for the employer over the course of more than 20 years ca

There are two issues raised by the E/C on appeal, viz: first, that the judge of compensation claims (JCC) erred in deciding that claimant provided timely notice of his work injury; and, second, that claimant suffered a compensable accident under a repeated trauma theory. On the second issue, E/C contends that the only competent, substantial evidence (CSE) established that claimant’s non-compensable herniated disk combined with his preexisting lateral recess stenosis to cause his disability and need for treatment, and no evidence was presented that the employment was the major contributing cause of same.

The court finds that CSE supports the JCC’s determination of the first issue. And, on the second issue, after applying the limited standard of review of CSE, the court finds it proper but not for all of the reasons mentioned. First, there was no burden on claimant to prove that the stenosis was the major contributing cause of the disability. The stenosis is not a preexisting condition and there was only one cause, rather than multiple causes, of claimant’s disability and need for treatment. Second, a combination of the evidence, both lay and medical, supports the JCC’s determination that the employment caused claimant’s disability and need for treatment.