Car Accident Injury

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: November 27, 2012

This involves a case where the court denied the petition

by Stephen Bilkis

This involves a case where the court denied the petition stating that petitioner was not eligible for an RSSL Sec. 607-b pension when she applied for pension for benefits.

Petitioner began working as an EmergencyMedical Technician (EMT) with the FDNY in 1992. She is a Tier 4 Member of NYCERS pension fund. In 1995, petitioner was involved in a line of duty ambulance accident, sustaining spinal injuries. As a result, petitioner was out of work on paid sick leave for approximately 18 months. When she returned to work, it was determined that she could no longer work on an ambulance because of her injuries. She was assigned to work as a dispatcher. Over time, her condition worsened and she developed severe pain and locking of her hands. Petitioner, on May 10, 2006, was diagnosed with bilateral carpal tunnel syndrome, disc herniations at C5-6 and L5-S1, left radiculopathy, tendinitis, fluid in the distal ulnar joint and bi-lateral ulnar neuropathy. Accordingly, on that day, petitioner stopped working for medical reasons and remained on an unpaid medical leave of absence. Then, on August 10, 2006 and September 28, 2006, petitioner underwent carpal tunnel release surgeries.

FDNY, by letter dated July 30, 2008, advised petitioner CARTER that because she had been absent and unable to perform her job since April 2, 2007, her employment was subject to be terminated on August 11, 2008.

Published on: November 22, 2012

On March 16, 2003, two cars were involved in a head-on collision

by Stephen Bilkis

On March 16, 2003, two cars were involved in a head-on collision in an expressway in Brooklyn, New York. Both the drivers of the two cars claimed damages for serious spinal injuries they allegedly sustained. Both claim that they lost the function of their lumbar or cervical spine. Both claimed bulging discs at the cervical spine, herniated discs at the lumbar spine, sprain and nerve damage. The drivers sued each other as well as their insurers for damages.

Both submitted magnetic resonance imaging scans which their medical experts used as basis to find that there were degenerative changes in the cervical and lumbar spine which show herniation (swelling).

However, the medical reports issued by the examining neurologist at the time of the accident only found the two drivers to be suffering from cervical and thoracic spinal sprain and right shoulder sprain. In the weeks that followed the accident, the same attending neurologist made follow-up reports of the development of the injuries sustained by both the drivers and reported that the spinal sprains have resolved themselves. Even the sprain in the right shoulder and right arm were also resolved. This is evidence, according to the insurers, that neither driver sustained serious injury such that they can be compensated under the Insurance Law. There is no evidence that links their injuries as caused by accident.

Published on: November 13, 2012

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus

by Stephen Bilkis

This involves a case where the court denied the motion of the defendants for summary judgment to dismiss the case against them.

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus driven by its employee made contact with a motor vehicle driven by defendant driver and owned by owner. Plaintiff was a passenger in defendant driver’s vehicle. By decision and order dated September 16, 2008, the court granted defendant owner’s motion to dismiss the complaint and any cross claims in this action as against it. (Martorella Affirm, dated 3/18/11, Ex E.)

The bill of particulars alleges that, as a result of this alleged car accident, plaintiff sustained herniated discs at C4-C7, and L5-S1, and injuries to his right hip, right arm, right shoulder, neck and back, some of which are believed or may be permanent in nature. (Martorella Affirm, dated 3/18/11, Ex C [Bill of Particulars ¶ 6].) In August 2008, plaintiff, who was represented by a law firm, apparently decided to represent himself. (Martorella Affirm, dated 3/18/11, Ex D.) Plaintiff testified at his deposition that, at the time of the accident, he was employed by Gotham Registry, a nursing agency, working per diem as a licensed nursing assistant.

Published on: November 9, 2012

According to the court, a defendant seeking summary judgment

by Stephen Bilkis

This involves a motion where the court denied defendant’s prayer for summary judgment to dismiss the claim of plaintiff.

Plaintiff Bianca and her mother commenced an action to recover damages for personal injuries allegedly sustained in a car accident that occurred on Prospect Street in Kings County on October 25, 1996. The accident allegedly happened when a vehicle driven by defendant struck the rear of a vehicle operated by plaintiff, which was stopped due to traffic conditions on Prospect Street. The bill of particulars alleges that plaintiff sustained various injuries as a result of the collision, including a bulging disc at level L5-S1 of the lumbosacral spine; lumbar radiculopathy; right knee sprain/strain; cervical and lumbosacralsprains/strains; and “cervical paraspinal myofascitis with discogenic radiculopathy.” It further alleges that plaintiff, who sought treatment at the emergency department of Brooklyn Hospital Center immediately after the accident, was confined to home for approximately six months due to her injuries.

Defendant moves for summary judgment dismissing the claim of plaintiff on the ground that she is precluded by Insurance Law §5104 from recovering for non-economic loss, as she did not sustained a “serious injury” within the meaning of Insurance Law §5102 (d).

Published on: October 28, 2012

The ability to prove that an injury that has been sustained in an automobile accident

by Stephen Bilkis

The ability to prove that an injury that has been sustained in an automobile accident is serious under the essential elements of the laws of New York can be a daunting experience. The law is clear on what is considered a serious personal injury. In order for a person to recover damages associated with an accidental injury, the person must be able to present medical evidence that demonstrates that the person has a loss of use of a limb, a serious spinal injury, or a serious brain injury. The mere contention that an injury is serious and painful does not constitute a serious injury under the law. There must be some corroborating medical evidence of the injury. It is not even sufficient to bring in a doctor who is willing to testify that the person has experienced a serious injury that is life changing. That doctor must be able to show that he performed or administrated accepted medical tests that demonstrate that the injury is severe enough to be life altering.

That means that the injury that is sustained must be so severe that the person injured is not able to do the things in life that they did for enjoyment or work before the accident. The problem is that many doctors do not agree on diagnoses. Anyone who has gone to numerous doctors and had each one give them a different diagnoses understands this problem. It is frustrating when it is not something that will be presented in court. It is unnerving when it is. That is a major problem for anyone who has suffered a life changing accident only to have to find a doctor who is willing to interpret the test results to a court in verification of what the patient already knows to be true. One case of this nature was commenced on December 16, 2008.

That was the date that an injured man filed his personal injury lawsuit in New York. He was injured in a motor vehicle accident on January 9, 2008. His car was stopped at a traffic light when another car struck it with enough force to knock it off of the roadway and into a fire hydrant. The man maintained that he sustained serious spinal injury, and injury to his right knee that has resulted in an altered gait and a limp. He also maintained that he received a head injury that has left him with headaches, dizziness and post-concussion syndrome. He presented numerous medical records, x-rays and MRI reports to support his allegations.

Published on: October 26, 2012

In this case, the driver of the other car filed a motion for summary judgment

by Stephen Bilkis

On July 23, 2007, a man was sitting at the traffic control light located at Greenwich Street and Jerusalem Avenue in Nassau County, New York when another vehicle hit his. The other vehicle made contact with his vehicle in a same direction side swipe manner. As the vehicle was driving past his in the same direction, it swerved and the offending vehicle swept up the passenger side of the man’s car from the rear passenger side area to the front. The man filed a personal injury and 90/180 case against the driver of the other vehicle.

In order for a person to claim a serious person injury under the auspices of the New York Insurance Law, they must be able to prove that they suffered an injury that was invasive enough to alter their normal everyday lifestyle. In order to make that statement, the injured person must be able to demonstrate through medical records that they have sustained either a permanent loss of use, or partial percentage loss of use of a member of their body.

Alternatively, they can show a brain injury or spinal injury that is severe enough to have altered their lives and receives treatment. They may also file a 90/180 claim that contends that although they recovered from their injuries, they were incapacitated by them for 90 out of the 180 days that immediately followed the accident. It is important that the injured person is able to demonstrate that they have been continually under the care of a doctor from the time of the accident until the time that they filed their suit. The court has been known to dismiss a gap in treatment for legitimate reasons if it can be properly documented.

Published on: October 23, 2012

When a person decides that they want to file a personal injury lawsuit in New York

by Stephen Bilkis

When a person decides that they want to file a personal injury lawsuit in New York, they are required to submit proof to the courts that their injury is a severe injury as defined by the requirements of Insurance Law § 5102. That means that they must also show that they meet the requirements of Insurance Law § 5104 as it regards non-economic loss. When the elements of the injury are not in compliance with these codes, then the person will not be allowed to file the suit. A lawsuit in New York, alleging a personal injury may not be filed if the injury is merely an inconvenience. In order for an injury to be determined severe it must render that person unable to work for a substantial amount of time and/or prevent that person from continuing to work in their chosen career field.

The injuries that are defined as serious injuries are spelled out in the law. They are defined as injuries that deprive a person of the use of a limb, or actually results in the amputation of a limb. Some spinal injuries and brain injuries may also qualify as severe. In order for the spine injuryor brain injury to be categorized as serious, it must be so pervasive of an injury as to render the person unable to function on a daily basis as they were accustomed to performing. The ability to continue participating in daily activities that they were able to participate in prior to the injury would mean that the injury will not be considered a severe injury under the law.

In October of 2009, a woman was involved in a traffic accident at the intersection of Bellmore Avenue and Sunrise Highway. The accident occurred in Nassau County in the State of New York. At the time of the accident, the police determined that the vehicle that hit hers was at fault in the accident. At the accident scene, the woman left her car, walked around the scene, and was able to drive her vehicle to work after the accident. She later went home and stayed out of work for one day. She started to see a chiropractor following the accident because she claimed that she was having headaches and pain from personal injury that she incurred as a result of the accident. She was x-rayed by the chiropractor and went to see him two to three times a week for several months into the winter of 2010.

Published on: October 15, 2012

When a person is hit by a car, the injuries that they incur are likely to be serious

by Stephen Bilkis

When a person is hit by a car, the spinal injuries that they incur are likely to be serious in nature. However, pursuant to New York State Insurance Law § 5102, in order for an injury to be considered serious, it must be so pervasive that it required that person to restrict their lifestyle for 90 of the first 180 days following the injury. That means that the burden to show that they have incurred a serious bodily injury falls to the complainant. The only way to demonstrate a serious bodily injury is to have a board certified doctor perform tests that show definite results. These results must demonstrate that the person has incurred an injury that is both severe and invasive enough to limit the use of a limb. Alternately, in the case of brain or spine injuries, the complainant must be able to show that the injury has rendered them unable to perform tasks that they considered day to day activities prior to the accident.

This became the goal of a man who worked in New York State as a security guard for a school. One day while he was directing traffic for parents who were dropping off and picking up their children, he observed a woman driving a car in the bus lane. When she pulled in, a bus had pulled behind her preventing her from backing up. The Bronx security guard approached her vehicle to help guide her out of the driveway. As he approached, she suddenly put the car in forward gear and struck him. He contends that the force of the impact propelled him up onto the hood of her car and that he sustained serious bodily injury as a result of the accident. This accident occurred on March 12, 2012 at around nine in the morning.

As it turned out, the woman who was driving the car, had borrowed it from her long term boyfriend. The Manhattan boyfriend had rented the car from ELRAC. ELRAC is in the business of leasing automobiles. During the course of the investigation into this case, the security guard determined that the boyfriend had a restricted license at the time that he had rented the car from ELRAC. He contends that if ELRAC had not rented the car to a person that had demonstrated that they were likely to operate the vehicle in a manner that would cause harm to another, that he would not have been injured by the car. He contends that ELRAC had a responsibility to ensure that the persons who rented cars from them would operate those vehicles in a safe manner. The fact that the man’s license was restricted should have been an indicator to them that the man was a less safe driver.

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.