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The complainant also submits the affidavit of a chiropractor. The chiropractor conducted a computerized spinal range of motion exam and a computerized muscle strength test. The results of the tests indicated deviations from normal. The chiropractor states that in his opinion the complainant sustained spinal injuries and limitations to cervical range of motion. In addition, he opined that the herniated discs in complainant’s cervical spine, together with the resulting cervical radiculopathy and limitations to the cervical range of motion, are directly causally related to the automobile accident. He further states that it is possible that a pre-existing conditions, such as a degenerative conditions of the complainant’s spine related to his age, could be a factors which might have increased his vulnerable to the injury. However the factors by themselves would not be enough to explain the symptoms and limitations encountered during my examination and treatment of the complainant. Furthermore, it is his opinion that the injuries sustained by the complainant were such that they definitely and significantly reduced his functional capacity to perform his customary personal activities. The disabilities resulting from the complainant’s injuries manifested themselves following the accident and continued throughout the treatment of the complainant, and are likely to continue indefinitely.
The complainants also submitted the certified medical reports of another physician in support of their opposition to the opponent’s motion.
In reply to the complainants’ opposition, the opponent argue that in opposition, the complainant did not submit an affirmation from a treating physician, but rather came forward with the affirmation of the complainant’s treating chiropractor, which is insufficient to defeat the motion because he does not adequately address the complainant’s termination of treatment a year and half prior to chiropractor recent examination of the complainant, subsequent to the filing of the motion. The complainant’s chiropractor also does not address the two year gap in his treatment of the complainant which is less than two months after the spinal cord accident.
Finally, the complainant’s testimony does not establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Further, no where do the complainants claim that, as a result of the complainant’s alleged injuries, he was medically impaired from performing any of his daily activities or that he was shortened to a great extent rather than some slight restriction.
As a result, the court finds that the complainant failed to establish by competent medical proof that he sustained a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system or a medically determined 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 impairment.
Consequently, the opponent’s motion, for an order granting them to dismiss the complaint on the ground that the complainant did not sustain a serious personal injury in the accident is granted and the complainant’s verified complaint is dismissed.