Queens

Published on: March 7, 2013

Driver must prove serious injury to collect insurance

by Stephen Bilkis

Two Queens male drivers were involved in an automobile accident on July 5, 2007. One of the drivers filed a complaint for damages under the “no fault” Insurance Law. Under this law, in order to maintain a personal injury action, the injured party must prove that he sustained a serious injury.

One of the male drivers sued under the Insurance Law, a spinalinjury or a knee injury may be compensable if it is proved that the injured party has experienced a significant loss of use of the spine or knee that was injured.

In this action, the injured male driver presented the medical report prepared by his attending physician. His own Staten Island physician stated in his report that he suffered sprains and/or strains in his spine and in his right knee. He also opined that the prognosis for recovery of the injured male driver was excellent. That is, the injured male driver can look forward to full healing and full use without impairment of his spine and his right knee.

Published on: February 16, 2013

On 7 March 1991 and on 14 June 1991, the Family Court of New York County

by Stephen Bilkis

First Case:

On 7 March 1991 and on 14 June 1991, the Family Court of New York County made a finding of neglect against the subject parents and ordered a year of minimal supervision by the Child Welfare Administration, respectively. An appeal from the order followed.

The court finds that the orders must be are affirmed, without costs.

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 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.

Published on: January 8, 2013

This appeal from the lower tribunal’s order stemmed from a vehicular collision case

by Stephen Bilkis

This appeal from the lower tribunal’s order stemmed from a vehicular collision case. The complainant man stated that he was stopped at a traffic light when a car crash into his vehicle and pushed it into a third vehicle ahead. On impact, he went forward in the seat but was restrained by the seatbelt. He felt his neck snap and had a shooting pain down his arm. The man received medical attention at the emergency room for neck and back discomfort with weakness on his knees. The man was restricted from strenuous physical activity such as lifting. At the time of the incident, the man was only 25 years old.

A chiropractor treated the man six days after the car accident and received complaints of neck pain, headaches, discomfort of the shoulder and upper and lower back, dizziness, fatigue, and nausea. The Queens chiropractor subsequently explained that the man had suffered a permanent injury to the supportive structures of his spine. He also made an initial determination that the impairment was 5 percent, but after reviewing a subsequent myelogram and noting the presence of a lumbar fracture, he explained that the permanency would be significantly greater, 15 percent. While continuing the treatment, the chiropractor referred the man to a neurologist.

The complainant man worked as a technician in aircraft electronics. At about five weeks after the automobile collision, he and a co-worker lifted a 100-pound test station drawer from the floor to a workbench while performing a normal task at work, after which the man noticed back pain and stiffness. After three days of prescribed bed rest and heat packs, he returned to work, but the lifting restrictions were reinstated. Before and after the lifting incident, the man already received treatment from the chiropractor for his low back problems.

Published on: December 11, 2012

As described in the Appellate Court’s prior opinion,

by Stephen Bilkis

As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Staten Island Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Queens employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

Published on: December 4, 2012

On 1994, a man was admitted to a hospital for the treatment of his spinal injuries

by Stephen Bilkis

On 1994, a Queens man was admitted to a hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.

Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.

In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.

Published on: November 30, 2012

Claimant is a young woman who studied dancing most of her life

by Stephen Bilkis

Claimant is a young woman who studied dancing most of her life. She was employed as a dancer at a famous theme park owned by the appellant Company, for several years. She first injured her back during a dance routine on January 11, 1981. After a spinal injury operation, she went home to recuperate and eventually returned to work. She neither requested nor received any attendant care benefits while recuperating at home on this occasion.

An source said that, claimant sustained a second back spine injury when she was dropped by a fellow dancer. As a result of this spine injury, claimant underwent a low back spinal fusion operation, by an

Queens orthopedic surgeon approved by the appellant Company to provide medical treatment to claimant. Thereafter, claimant was discharged from the hospital to return home and recuperate. She was instructed to wear a full body cast, which greatly restricted her body movement, for one and one-half months following her discharge from the hospital. The cast, although described as “removable,” was to be worn at all times except while bathing and taking care of personal hygiene. Claimant was not advised that her worker’s compensation benefits would cover necessary attendant care during this period. Claimant normally lived alone in her own home, but she had made arrangements to temporarily reside with a friend who agreed to provide her care and assistance with such things as going to the bathroom, bathing, dressing, eating, cooking, changing her bed, and other necessary daily functions that claimant was unable to perform for herself while in the cast.

Published on: November 1, 2012

It is evident that to the extent that the accused man’s memory was clearer

by Stephen Bilkis

Judgment of the Supreme Court convicting the accused, following a jury trial, of manslaughter and sentencing him to an indeterminate term of imprisonment of from six to eighteen years, is reversed on the law and the matter remanded for a new trial.

The accused was indicted for murder in the second degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree as the result of a fatal shooting. The deceased was a physician who had purchased real property located in Bronx County. The accused was the seller of the parcel of land in question, and, following the transaction, the deceased and the accused became good friends. However, the relationship between the two men deteriorated rapidly after the accused first agreed to sell the deceased man’s one-half of a building but subsequently refused to go through with the deal. The deceased man thereupon instituted a lawsuit to compel specific performance, and, when the parties were unable to settle their differences, the matter proceeded to trial and judgment, the outcome of which was that the accused was directed to sell the property to the deceased. The accused filed a notice of appeal and moved for a stay, which was granted on condition that he files a bond and perfect his appeal by a specified date. All additional settlement discussions were unsuccessful, and, finally, on the day before the bond was due, the dispute erupted into violence. The accused and the deceased became embroiled in a heated altercation during which the accused was apparently punched by the deceased and then threatened by him with further physical injury. In response, the accused removed a loaded gun from the desk in his office and followed the accused downstairs to ascertain whether he had left the premises in which the accused man’s printing business was located. The two men exchanged some more words, and the accused fired three shots at the deceased, one of which struck the latter, fracturing his spine resulting to spinal injury and perforating the spinal cord. All efforts to revive the deceased failed.

At the ensuing trial, the arresting officers described the accused as being dazed and incoherent after the shooting, and, indeed, the accused man’s defense was that he lacked criminal responsibility by reason of mental disease or defect. The psychiatric expert who testified on the accused man’s behalf, stated that at the time of the incident, the accused was suffering from a severe adjustment disorder with anxiety and that this condition significantly impaired his ability to comprehend the consequences of his act or to distinguish the real from the unreal. In the opinion of the accused man’s psychiatric expert, because of a childhood eye injury and the attendant loss of his left eye, the accused lived in constant fear of losing the other eye and becoming totally blind. Therefore, when the deceased had beaten him so severely on the day of the shooting that his glass eye had fallen out and also promised to return and blind him, the accused became so petrified that he ceased to function in a rational manner. In rebuttal, the court called the psychiatrist who agreed that the accused had suffered from an adjustment disorder but, nonetheless, concluded that the accused had possessed the capacity to appreciate the nature and consequences of his act, as well as its wrongfulness. Both psychiatrists concurred that the accused was not psychotic.

Published on: October 7, 2012

On July 9, 2009 around noon, a traffic accident took place at the intersection

by Stephen Bilkis

On July 9, 2009 around noon, a traffic accident took place at the intersection of West Sunrise Highway and North Bayview Avenue in Freeport, New York in the County of Nassau.

Complicating this accident was the fact that it involved three vehicles actively and one vehicle in a more passive aspect. A 2005 Nissan which was involved in the accident was owned and operated by the person who was injured and who filed a personal injury lawsuit as a result of the accident. The injured party contends that a BMW which was owned and operated by the defendant in the personal injury suit did not stop at the traffic signal located at that location. Rather, they went through the red light and struck a U-Haul rental truck that was in the intersection. The U-Haul truck was pushed by the force of the impact into the complainants Nissan. The Nissan was then shoved backward into a fourth vehicle. As a result of the accident, the complainant who was the driver of the Nissan claims that he suffered from a serious bodily injury as defined in the New York State Insurance Law guidelines.

In order for an injury to be categorized as serious under the New York State Insurance Law guidelines, the person who is claiming the injury must be able to prove that they suffered from an injury that caused them to lose the use of a part of their body, a serious spinal injury, or a brain injury that was debilitating. Alternatively, they can show that as a result of the accident, they were unable to perform their usual daily activities or go to work for at least 90 days out of the 180 days that immediately followed the accident. That type of claim is referred to as a 90/180 claim. In order for a claimant to be able to prove that they suffered from a serious injury, they must have corroborating evidence in the form of court certified documentation from a licensed medical professional in the state of New York.