Spinal Injury Lawyer Blog 24/7

Published on: September 30, 2012

The question about what constitutes a severe injury

by Stephen Bilkis

The question about what constitutes a severe injury under the Insurance Laws of New York is one that is battled in court on a daily basis. The Insurance Laws of New York detail the guidelines that define a serious injury. Not every injury will qualify as serious under the statutes. In order for an injury to qualify as serious, the person must have lost a limb or the use of that limb. If the person is claiming that they lost partial use of the limb, they will have to provide objective evidence that shows exactly how much of a difference there is between what that person can do and what an uninjured person that person’s age is capable of doing with that limb. There must be an objective measurement of the difference. That measurement must be provided by a medical test that is performed by a medical doctor or chiropractor. If the test is subjective, it relies on the personal opinion of the doctor to interpret it. It will not be sufficient to keep the case from being dismissed. In fact, it can be so difficult to prove a serious injury, that it is routine for a defendant of a personal injury lawsuit to file a motion that the injury sustained by the complainant is not severe and requesting the dismissal of the case.

Anytime that a person is going to court for a personal injury, it is an emotional time. Most people who have sustained a serious injury have seen their lives completely altered overnight from the accident. They know that they were injured severely, and more often than not are offended by the suggestion that their injury is not severe. A court of law in Westchester is no place for sentiment. One of the advantages to having an attorney handle your case for you is that they are not offended by the suggestions or claims of the opposing side. It is critical to prove the injury objectively. Just saying that you are injured or even having a doctor say that you are injured is not sufficient to prove your case in a court of law.

The doctor that is seen will have to perform medical tests that clearly show the extent of the injury. That means that an MRI or CT Scan will not be sufficient on its own. In the case of spinal injuries, there are nerve conductivity tests that must be performed. These tests demonstrate the nerve damage that causes the pain. They are objective and there are numerical figures that are assigned to the amount of damage that is present. The doctor is then able to testify in court about a numerical figure provided by a test that was conducted without personal opinion input. Even then, the doctor’s testimony must be sworn or the report certified in order for the test results to be admissible.

Published on: September 27, 2012

Claimant, employed as a policeman by the Nassau County Police Department

by Stephen Bilkis

Claimant, employed as a policeman by the Nassau County Police Department, was accidently shot in the abdomen on November 8, 1953 as he was removing a shotgun from a police car. Compensation in the form of reimbursement to the employer was paid for intermittent periods of lost time, and the case was closed upon finding of no further disability. On November 1, 1962 claimant was in an automobile accident while on police duty and sustained injuries to his neck and back. Compensation in the 1962 case was paid for several weeks, and the case was eventually closed pending the outcome of a third-party action which was later settled without the consent of the employer. Thereafter, claimant was relieved of all police duties and went on sick leave and performed no work thereafter.

A Lawyer said that, Dr. Masoff, claimant’s physician, reported to the employer that he had examined claimant, that claimant had pain in his right side for about four months with no relief; and that claimant had pain in his right side radiating to his lower back and down his life lower extremity, and requested authorization by the employer to hospitalize claimant for x-rays and further treatment. Upon a C–4 medical reports by Dr. Masoff filed which indicated recurrent back pain necessitating x-rays and hospitalization, the Workmen’s Compensation Board on reopened the 1953 case upon the report of changed condition and directed that the Special Fund be placed on notice.

A Long Island source said that, claimant was admitted to the Smithtown General Hospital and placed in pelvic traction and bed rest. After consultation with Dr. Levitan and Dr. Stein, an operative procedure was done by Dr. Levitan and Dr. Stein to probe the 1953 shotgun wound. Claimant was fitted with a Knight Spinal Brace and was discharged from the hospital on August 17, 1965.

Published on: September 23, 2012

This is an action to recover damages for personal injuries

by Stephen Bilkis

This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident in 2008 within a private parking lot on route 107, near its intersection with Lewis Street, in the town of Oyster Bay, Nassau County, New York. In his bill of particulars, plaintiff alleges that he sustained the following spinal injury and other injuries which are alleged to be permanent: Cervical muscle spasm, cervical radiculopathy, neck pain with upper extremity weakness, lumbar radiculopathy, right and left shoulder pains with numbness and tingling decreased range of motion of the cervical spine, low back pain with lower extremity weakness, subluxation of the cervical spine and lumbar spine, headaches, muscle spasm of the lumbar spine, decreased range of motion of the cervical and lumbar spine, mid back pain, dizziness, inability to sit or stand for prolonged periods of time, difficulty performing everyday activities such as bending, lifting, and sitting, necessity for prescribed pain medications, necessity for physical therapy, sleep disturbances, cervical spine tenderness with restricted range of motion, lumbrosacral spine tenderness with restricted range of motion, necessity for extended physical therapy, unable to perform household chores, loss of enjoy of life.

A Nassau Lawyer said that, plaintiff was involved in a prior motor vehicle accident in 2002 whereby he injured his neck, lower back, and shoulders. Defendant claims that the spinal injuries plaintiff complains of in this accident are not causally related to the 2008 motor vehicle accident, but rather are permanent spine injuries resulting from the 2002 accident.

Defendant has presented objective medical testing from 2002 in order to establish the preexisting spine injuries at the time of the 2008 accident. The MRI report dated February 25, 2002 of Dr. Richard J. Rizzuti indicated posterior disc bulge at L3-L4 and at L5-S1 impinging on the spinal canal. The report indicated posterior disc bulges at C-5-6 and at C6-7 impinging on the anterior aspect of the spinal canal. Therefore, plaintiff had bulging discs with impingement six years prior to the subject accident. Dr. Spindler states that “any scores falling in the abnormal range recognize a possible entrapment of the nerves and indicate that a problem exists.” More recently, plaintiff’s treating chiropractor, issued a report dated March 16, 2010 in which she opined that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the 2002 accident. The Long Island Defendant claims that the evidence demonstrates that any permanent and consequential spine injuries and plaintiff’s inability to perform activities of daily living were a result of the prior accident in August 2002 and not the subject accident.

Published on: September 21, 2012

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in

by Stephen Bilkis

A Nassau lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in traffic waiting for the light to turn green when a Jeep hit her car from behind. The impact of the rear-end collision pushed her Honda Civic one car length away. Her Honda Civic struck the car in front of her.

The impact of the collision sent the lady driver of the Honda Civic in a lurching motion. She hit the steering wheel and was pulled back by gravity so that she hit her neck and back on the head rest. She claims that she twisted her neck and was in pain.

She claims that she sustained spinal injury in her cervical and lumbar spine. She claims to have discs that have been misaligned and resulted in swellings which brought about impingement of the nerves and great pain.

Published on: September 18, 2012

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in

by Stephen Bilkis

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in traffic waiting for the light to turn green when a Jeep hit her car from behind. The impact of the rear-end collision pushed her Honda Civic one car length away. Her Honda Civic struck the car in front of her.

The impact of the collision sent the lady driver of the Honda Civic in a lurching motion. She hit the steering wheel and was pulled back by gravity so that she hit her neck and back on the head rest. She claims that she twisted her neck and was in pain.

She claims that she sustained spinal injuryin her cervical and lumbar spine. She claims to have discs that have been misaligned and resulted in swellings which brought about impingement of the nerves and great pain.

Published on: September 15, 2012

Defendant argued that plaintiff’s medical records establish that plaintiff

by Stephen Bilkis

This involves a case wherein the Court ruled that plaintiff’s injuries did not suffer a “serious injury” in the accident as defined by New York State Insurance Law which led for an order granting defendant summary judgment.

Plaintiff commenced the action against defendant allegedly for personal injuries sustained by plaintiff as a result of a car accident with defendant which occurred on November 20, 2009, at approximately 7:51 p.m., at or near the intersection of Guinea Woods Road and Jericho Turnpike, Old Westbury, County of Nassau, State of New York. The accident involved a 2008 Chrysler owned and operated by plaintiff and a 2003 Volkswagen owned and operated by defendant. It is plaintiff’s contention that the car accident occurred when defendant’s vehicle struck plaintiff’s vehicle in the aforementioned intersection when, defendant’s vehicle, while speeding, made a left turn in the intersection and failed to yield the right of way.

Defendant argued that plaintiff’s medical records establish that plaintiff had a preexisting medical history of lower back pain that pre-dates and is unrelated to the subject accident. Defendant submits that, on January 22, 2004, almost six years prior to the subject accident, plaintiff went to a physician with complaints of back pain from the proceeding year and admitted that the condition originated five to six years earlier. Defendant added that the medical records of plaintiff’s treating physician, further showed that plaintiff had pre-existing spinal injury, lumbar stenosis and pain of his lumbar spine for which he was treating from 2004 through 2006 and again in 2009 prior to the subject accident.

Published on: September 13, 2012

Plaintiff alleged that a car accident occurred on September 15, 2002

by Stephen Bilkis

This involves a case where the court granted defendant’s motion for summary judgment dismissing the plaintiff’s complaint for failure to prove that the latter suffered serious injury threshold requirement of Insurance Law Sec. 5102 (d).

Plaintiff from The Bronx alleged that a car accident occurred on September 15, 2002 at approximately 5:15 p.m. at the intersection of Carman Avenue and Choir Lane in the Town of Hempstead, New York. Plaintiff claimed that as a result thereof, she suffered serious injuries. At her oral examination before trial, the Plaintiff testified that she had a preexisting spinal injury to her lower back from another car accident in 1988. After being treated for the injuries from that accident, the Plaintiff continued treating with a chiropractor for occasional discomfort to her back, “as needed,” rather than having a set schedule of appointments. Following the subject accident, it was suggested by multiple doctors that the Plaintiff undergo surgery and/or physical therapy, but she declined and chose to continue seeing the chiropractor instead. The Plaintiff also declined pain medication immediately following the accident, preferring over the counter medication. But plaintiff admitted she had her first doctor visit for medical expert opinion after 18 months from the accident. Following the accident, Plaintiff testified to having trouble bending over, walking long distances, participating in her children’s activities, dancing, hiking and brushing her teeth. Plaintiff claimed that she had some occasional discomfort in her back prior to the subject accident, and that the accident exacerbated that pain into a chronic condition.

The Court in Brooklyn held that Plaintiff’s claims that her injuries satisfy the 90/180 category of Insurance Law § 5102 (d) are unsupported and contradicted by her own testimony wherein she states that she only missed a week and a half of work and was confined to her home or bed for one week. Additionally, the Plaintiff does not provide any evidence that she was “medically” impaired from doing any daily activities as a result of this accident for 90 days within the first 180 days following the subject accident.

Published on: September 11, 2012

This involves a case where the court ruled that plaintiff did not sustain a “serious injury”

by Stephen Bilkis

This involves a case where the court ruled that plaintiff did not sustain a “serious injury” contemplated under New York State Insurance Law § 5102(d).

A car accident occurred on January 30, 2008, at approximately 8:15 a.m., at or near the intersection of Hempstead Turnpike and Locustwood Boulevard, Elmont, Nassau County, New York. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike. Plaintiff claimed that she looked before crossing and did not see any vehicles on Locustwood Boulevard making a turn onto Hempstead Turnpike. Plaintiff further claimed that, as she was crossing Hempstead Turnpike, she was struck in the rear, specifically her lower back, by the front of defendant’s vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced an action by the filing a Verified Complaint for spinal injuries sustained.

Defendant argued that the Suffolk plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendants vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment.

Published on: September 7, 2012

This involves a case where the court ruled that plaintiff failed to demonstrate a prima

by Stephen Bilkis

This involves a case where the court ruled that the Westchester plaintiff failed to demonstrate a prima facie case that he suffered serious spinal injury within the meaning of Insurance Law Section 5102 (d).

Plaintiff, age 24, alleged that on August 21, 2006, at approximately 11:20 a.m., a motor vehicle owned and operated by him came into contact with a vehicle owned by defendant owner and operated by defendant driver. The car accident occurred on Old Country Road, at its intersection with Frost Street, County of Nassau. Defendants moved for an order dismissing plaintiffs complaint pursuant to CPLR §3212, on grounds that plaintiff failed to sustain a “serious injury” within the meaning of Insurance Law §5102(d).

Insurance Law §5102(d) provides that a “serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) 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 constitute 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” (numbered by the Court). The Court’s consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body function or system.

Published on: September 5, 2012

A complainant woman commenced an action for her claimed of personal injuries

by Stephen Bilkis

A complainant woman commenced an action for her claimed of personal injuries resulting from a motor vehicle accident.

According to the woman’s statement, after the accident the police responded to the scene but an ambulance did not arrive. The woman then exited her vehicle unassisted, without any pain in any part of her body and was capable of driving her vehicle from the scene to her workplace. The woman testified that she first sought medical attention when she felt some pain in her lower back and headaches. X-ray examinations were taken and chiropractic treatment was rendered by a physician. She further testified that she was treated by the same physician regularly until the winter and eventually discontinued the treatment. Thereafter, she received physical therapy two or three times per week for a few months. She also testified that she visited an orthopedist on three or four occasions.

The woman no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does have any future medical appointments scheduled. She testified that she was confined to her bed for one day as a result of the accident and missed less than one week of work. The court notes that the testimony contradicts the woman’s bill of particulars.