Staten Island

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: March 5, 2013

Enterprise car is involved in an accident which causes injuries

by Stephen Bilkis

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff when her vehicle was struck by a vehicle owned and leased by the defendant Enterprise, and operated by the defendant Driver. The accident occurred on South Edgemere at or near its intersection with South Elmwood in the Town of East Hampton, Suffolk County, New York. By her bill of particulars, a rep said that the plaintiff alleges that as a result of said accident she sustained serious injuries including central posterior protruded disc herniation at C2-3, C3-4, C4-5; left paramedian posterior protruded disc herniation at C5-6 and C6-7; acute cervical sprain and strain with radiculitis; bilateral C5-6 cervical radiculopathy; aggravation of pre-existing spine injury to the lumbar spine; disc bulge at L3-4; disc bulge at L4-5 contacting left L4 nerve roots within the neural foramen; supraspinatus tendinosis in right shoulder; brachial neuritis; and tinitus in right and left ears. In addition, the plaintiff alleges that she was confined to bed from July 4, 2009 until August 4, 2009, except to attend medical appointments, and was confined to home from July 4, 2009 until September 29, 2009 and intermittently thereafter except to attend medical appointments. The plaintiff also claims that following said accident she was incapacitated from her employment as a director of resident relations in a company, as an assisted living facility, in Massapequa, New York from July 4, 2009 until September 29, 2009, from December 5, 2009 until December 9, 2009, and from December 30, 2009 until January 6, 2010.

A source said that, the NYC defendant Enterprise now moves for dismissal of the claims against it for failure to state a cause of action as well as for summary judgment based on 49 USC § 30106 (the Graves Amendment). Defendant Enterprise submits a faxed copy of an affidavit of its employee, that lacks an original signature. The Court considers said affidavit despite its defect. The said employee indicates in his affidavit that he is a regional risk supervisor for defendant Enterprise, and that the day before the subject accident, defendant Enterprise rented its vehicle, a Chevy vehicle, to defendant Driver who signed a rental agreement. He also indicates that a search of records related to said vehicle revealed no pre-accident complaints or evidence of any performance or maintenance problems, and that defendant Driver was not employed by defendant Enterprise on the date of the accident.

On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), a comprehensive transportation bill that included the Graves Amendment, was signed into law. The Act is now codified at 49 USC § 30106. The section is entitled “Rented or leased motor vehicle safety and responsibility”. “The section applies to all actions commenced on or after August 10, 2005, and has been enforced as preempting the vicarious liability imposed on commercial lessors by Vehicle and Traffic Law § 388”.

Published on: March 2, 2013

Woman slips as she leaves a bus

by Stephen Bilkis

A woman took the bus. As she was about to go down from the bus, while walking down the aisle toward the exit, she slipped on something slippery on the floor. She had a slip and fallwhich landed her on her bottom. She sustained spinal injury, specifically in her lumbar spine and cervical spine.

The Staten Island woman sued the transit authority which operated the bus along with the city government which owned the bus. After the depositions were taken and discovery was closed, the transit authority filed a motion for summary procedure asking that the woman’s complaint be dismissed for failure to show that she sustained a serious injury.

The woman opposed the motion for summary judgment arguing that this is not the usual motor vehicle accident and that she was not suing merely under a “no fault” law. She claims to have raised issues of negligence. She claims that the transit authority and the city government did not exercise reasonable care in keeping the buses safe for passengers and clean enough so that passengers would avoid a slip and fall while riding on the bus.

Published on: February 27, 2013

A forty-seven year old warehouseman for a closet manufacturing company

by Stephen Bilkis

A forty-seven year old Staten Island warehouseman for a closet manufacturing company was operating a forklift at the workplace. This was his regular duty for the past three and a half years of employment there. Also as part of his regular job, he lifted boxes to and from the stocks. On May 16, 1996, the warehouseman was unloading a pallet of boxes. A box fell from the pile and hit him on the back of the head. He experienced pain and the weight and sudden impact of the box caused him to fall on his knee. After that incident at work, he began to experience backand neck pain.

He went to see a Westchester neurosurgeon to determine the injury he suffered and to get a diagnosis of what caused his pain. The employer and the servicing agent agreed to compensate the warehouseman and to pay him temporary disability benefits. Medical tests were conducted and the neurosurgeon discovered that the warehouseman had a preexisting medical condition called spinal stenosis. It is a kind of arthritis of the spine. It is congenital and degenerative. A traumatic injury is sometimes the first sign that a person suffers from spinal stenosis. Here, when the box fell on the warehouseman’s head, his back was twisted and the nerves in his lower spine bruised against his bone causing pain.

The neurosurgeon recommended treatment through physical therapy and restricted his lifting of heavy objects at work and in daily activities. The warehouseman’s back and neck pain was not resolved so the neurosurgeon recommended that he go on a diet to lose excess weight to relieve the weight carried by his spine but still the pain was not alleviated. In 1997, a year after the accident, the neurosurgeon recommended surgery to repair the damage to his spine.

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 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 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 30, 2012

This action was commenced to recover for personal injuries

by Stephen Bilkis

This action was commenced to recover for personal injuries allegedly sustained by a man as a result of a motor vehicle accident that occurred on or about October 20, 2004. On that date, the complainant man was riding his bicycle when a taxi cab owned and operated by the accused allegedly hit the rear tire of the complainant man’s bicycle.

The Suffolk driver and the taxi company have moved for summary judgment, arguing that the accused man has not met the serious injury threshold as set forth in Insurance Law. In support thereof, the accused driver and taxi company have submitted, among other things, an affirmation of the counsel, the complainant man’s verified bill of particulars, the complainant’s deposition testimony, a report from a radiologist who reviewed an MRI examination of the man, and a report from a neurologist who conducted an independent medical examination of the complainant man.

The complainant man served a verified bill of particulars which alleged that he suffered numerous personal injuries as a result of the. The spine injury claimed by the man was to be of a permanent nature.

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.