Walsh v Henry

[*1] Walsh v Henry 2005 NY Slip Op 52389(U) [21 Misc 3d 1131(A)] Decided on May 3, 2005 Supreme Court, Onondaga County Carni, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2005
Supreme Court, Onondaga County

Jane D. Walsh and JAMES WALSH, Individually and as Husband and Wife, Plaintiffs,

against

Stephen M. Henry and JANET M. OURS, Defendants.



03-3668



For the Plaintiffs:

Lynn Law Firm

By: Thomas F. Shannon, Esq.

Of Counsel

For the Defendants:

Bond, Schoeneck & King

By: Suzanne O. Galbato, Esq.

Of Counsel

Edward D. Carni, J.

Defendants Janet M. Ours and Stephen M. Henry bring this motion for summary judgment pursuant to CPLR § 3212 seeking an order dismissing plaintiffs Jane D. Walsh's and James Walsh's complaint as a matter of law on the ground that plaintiff Jane D. Walsh did not sustain a "serious injury" as that term is defined in the Insurance Law. Plaintiff's oppose the motion and assert that there are triable issues of fact on the "serious injury" threshold which preclude the granting of summary judgment at this juncture.

Factual Background

Plaintiff Jane D. Walsh alleges that she sustained personal injuries in a motor vehicle accident which occurred on November 25, 2002 at approximately 8:05 p.m. According to plaintiffs' bill of particulars, defendant Stephen Henry was traveling north on Route 57 when he lost control of his vehicle, crossed a center turn lane and struck a southbound vehicle operated by defendant David E. Recore. Plaintiffs further allege that Mr. Recore then lost control of his vehicle and collided with plaintiff Jane Walsh's vehicle which was being operated by Jane Walsh in a southerly direction on Route 57.

The issues of negligence and causation of the motor vehicle collision are not at issue in this motion. [FN1] Defendants have limited the grounds for this motion to the threshold issue of "serious injury." The issue of whether a plaintiff has sustained a "serious injury" within the meaning of Insurance Law § 5102 [d] is a threshold question for the court to determine as a matter of law (See, Licari v Elliot, 57 NY2d 230, 235 [1982]).

Plaintiff's Medical Care and Treatment

Immediately following the accident, plaintiff was treated at the emergency room at University Hospital in Syracuse. X-rays of her cervical spine showed a minimal anterior subluxation of C2 and C3 and of C3 and C4. A CT Reconstruction of the neck showed no acute abnormalities, but showed degenerative changes at multiple levels, with the most prominent being at C5-C6. A CT scan of plaintiff's cervical spine showed no acute abnormalities. However, the CT Scan showed broad-based posterior disc bulging at C2-C3, C3-C4, C5-C6 and C6-C7. There was mild spinal canal stenosis at C5-C6 due to hypertrophy of the facet joints and broad-based disc bulge posteriorly. There was no evidence of fracture or subluxation in the cervical spine.

Plaintiff was released from the emergency room and followed up with her family physician, Dr. McMinn on December 4, 2002. Dr. McMinn's diagnosis was:

"Cervical strain with bilateral upper extremity radiculopathy and parethesis." [*2]

Plaintiff returned to Dr. McMinn on December 31, 2002 and he noted that she was doing "much better" and had resumed driving. Dr. McMinn noted:

"Minimally limited range of motion in flexion and extension. Greater range of motion disturbance in ear-to-shoulder and head rotation bilaterally."

Dr. McMinn returned plaintiff to work and discharged plaintiff to follow-up on an as-needed basis.

Four days later, on January 3, 2003, plaintiff was examined by John J. Cambareri, M.D. [FN2] Dr. Cambareri is an Orthopedic Surgeon. Dr. Cambareri found: "Limitation of the neck to 30 degrees with 20 degrees extension. Right and left lateral rotation to 45 degrees each way. Motor, sensory, vascular and DTR's are grossly within normal limits with the exception of subjective paresthesias in the hand."

Plaintiff was referred by Dr. Cambareri for an MRI scan and continued on "limited duty" in her return to work.

Plaintiff's MRI on January 13, 2003 revealed disc herniation at C5-C6 centrally and into the left paracentral region, causing thecal sac encroachment, but no other abnormalities.

On January 31, 2003, plaintiff returned to Dr. Cambareri complaining of numbness and tingling in the upper extremities up into her head, down into her legs, feet and fingertips. On this date Dr. Cambareri noted that plaintiff had returned to work at regular duty. Dr. Cambareri's notes of this visit do not indicate any diminished range of motion findings and the diagnosis is listed as:

"(herniated disc) Cervical - no Myelopathy."

On February 26, 2003 plaintiff again presented to Dr. Cambareri's office and was examined. The office notes from this visit indicate the following: "Muscle spasm is present.[*3]

Range of motion -

Flexion (0-50) 40

Extension (0-50) 20

Right rotation (0-80) 40

Left rotation (0-80) 40"

Because plaintiff continued to complain of neurological symptoms in her upper and lower extremities, on February 26, 2003 Dr. Cambareri's office referred her for electrodiagnostic studies of both upper and lower extremities. It was noted that plaintiff remained at full work duty.

Electronic diagnostic testing of plaintiff's upper and lower extremities was conducted on March 31, 2003 and the results were:

"Within normal limits electrodiagnostic testing. There was no electrodiagnostic evidence seen indicative of a peripheral nerve compression, polyneuropathy or cervical neuropathy."

On April 11, 2003 plaintiff saw Dr. Cambareri who noted: "She has tenderness over the neck musculature. There is mild spasm in both areas. Motion of the neck is full but painful in the extremes." Plaintiff was noted as working at regular duty.

On August 22, 2003 plaintiff again saw Dr. Cambareri who noted: "There is tenderness and spasm of the neck musculature bilaterally. Flexion is limited to 30 degrees with 20 degrees of extension. Right and left lateral rotation to 45 degrees, but painful each way."

Dr. Cambareri suggested massage therapy and a follow-up appointment in four months. He noted that plaintiff was working at regular duty.

On September 3, 2004, plaintiff underwent an Independent Medical Examination conducted by Daniel L. Carr, M.D., an Orthopedic Surgeon. Dr. Carr issued an opinion regarding plaintiff's medical condition as follows: "The patient's current condition is degenerative disc disease, particularly at the C5-C6 level and in my opinion, she has no disability. My opinion is that the degenerative herniated disc at the C5/6 level is not likely related to the 11/25/02 motor vehicle accident and the motor vehicle accident resulted in a mild cervical strain, [*4]which resolved within the first 4-8 weeks after the accident. This cervical strain leads to no disability or permanency."

Plaintiff did not return to Dr. Cambareri (or any other physician ) for any form of treatment between the date of her last visit (August 22, 2003) and August 27, 2004 when she returned to see Dr. Cambareri. On this recent visit, one year after her last visit, Dr. Cambareri's assessment noted:

"Mild spasm of the neck musculature. Good motion of the shoulders, wrists. Motor 5/5 in the upper extremities. Sensory exam intact to touch in the upper extremities. DTR's are physiologic and equal in the upper extremities. There is no lymphadenopathy. Good radial pulses."

In the "Additional Comments/Specifics" portion of this note, Dr. Cambareri stated: "MRI is consistent with a herniated disc of the cervical spine. Electrodiagnostic studies were unrevealing for cervical radiculopathy or peripheral neuropathy. I discussed these issues with the patient."

Dr. Cambareri's Affidavit

In opposition to defendants' motion, plaintiffs submitted a sworn affidavit from Dr. Cambareri which contains the following opinions on the serious injury issue: ".... Mrs. Walsh has suffered permanent damage to her cervical spine as a result of this accident that she will either have to live with her condition or possibly consider some type of surgery in the future. Furthermore, based upon deponent's education and experience, his examination of the medical records and diagnostic studies, and his medical care and treatment of Mrs. Walsh's injuries, it is deponent's opinion, within a reasonable degree of medical certainty, that Mrs. Walsh suffered a permanent consequential limitation of a body organ or member, a significant limitation of use of a body function or system and/or a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period in excess of ninety days during the one hundred eighty days immediately following this accident by reason of the injuries to her cervical/lumbar spine and upper/lower extremities [*5]with resultant consequential limitation, as particularized herein and in the exhibits attached hereto." (Cambareri Affidavit at ¶ 16).

Legal Analysis

To the extent it pertains to this action, Insurance Law § 5104 [a] provides that in an action arising out of negligence in the use of a motor vehicle in this state, there is no right of recovery for non-economic loss (i.e., pain and suffering) except in the case of "serious injury," or for basic economic loss.

Insurance Law § 5102 [d] defines the types of injuries or impairments that qualify as "serious injuries" under Insurance Law § 5104 [a]. Plaintiff at trial has the burden of establishing a prima facie case of "serious injury" (See, Mulhauser v Wood, 107 AD2d 1019 [4th Dept 1985]). However, where defendants advance a summary judgment motion, defendants have the burden to make an evidentiary showing that plaintiff has not sustained a "serious injury" as a matter of law, and it is only after defendants have met their burden that plaintiff must go forward and submit evidence to raise a question of fact (Id.).

Plaintiffs do not argue that defendants have failed to make out a prima facie case of entitlement to summary judgment. The court finds that the IME report of Dr. Carr, properly affirmed under the penalties of perjury, shifts the burden to plaintiffs to raise a material question of fact sufficient to warrant a trial on the issue of whether plaintiff Jane Walsh sustained a "serious injury" (See, Gaddy v Eyler, 79 NY2d 955, 956-957 [1992] citing Licari v Elliot, 57 NY2d 230, 235 [1982]).

Permanent Consequential Limitation and Significant Limitation

In a recent opinion which dealt with three separate cases, the Court of Appeals in Toure v Avis Rent A Car Systems, Inc, 98 NY2d 345 [2002], clarified and expanded upon the existing decisional law relating to the question of the quantum and quality of proof required for a plaintiff to make out a prima facie case of a "serious injury" under Insurance Law § 5102[d].

Subjective complaints alone are not enough (See, e.g., Gaddy v Eyler, 79 NY2d 955 [1992]). In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury (Toure, 98 NY2d at [*6]350 citing Dufel v Green, 84 NY2d 795 [1995]).

An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (Toure, 98 NY2d at 350 citing Dufel, 85 NY2d at 798). When supported by objective evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact. By contrast, an expert's opinion unsupported by an objective basis may be wholly speculative, thereby frustrating the legislative intent of the No-Fault law to eliminate statutorily insignificant injuries or frivolous claims (Id. at 350-351).

In reference to the statutory categories of "serious injury" known as"significant limitation of use of a body function or system" or "permanent consequential limitation of use of a body organ or member," the Court of Appeals has held that: "Whether a limitation of use or function is significant' or consequential' (i.e., important ***) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel, 84 NY2d at 798) (emphasis supplied). It is not necessary that plaintiff's medical expert ascribe a specific percentage to the loss of range of motion within a plaintiff's spine so long as the expert sufficiently describes the "qualitative nature" of plaintiff's limitations "based on the normal function, purpose and use of the body part" (Toure, 98 NY2d at 353 citing Dufel, 84 NY2d at 798).

In reference to plaintiff's central disc herniation at C5-C6, the court notes that it is well settled that proof of the existence of a disc herniation, without more, is insufficient as a matter of law to establish a "serious injury" (Cortez v Manhattan Bible Church, 14 AD3d 466 [1st Dept 2005]). In addition to demonstrating the disc herniation, plaintiff has the burden of presenting objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury (Id.; see also, Sainte-Aime v Ho, 274 AD2d 569,570; Rose v Furgerson, 281 AD2d 857; Pierre v Nanton, 279 AD2d 621; Noble v Ackerman, 252 AD2d 392, 394-395). A diagnosis of a disc bulge with radiculopathy, standing alone, is not sufficient as a matter of law to raise a triable issue of fact as to "serious injury." For a bulging disc or radiculopathy to constitute a "serious [*7]injury," there must also be objective evidence of the extent or degree of the alleged limitation resulting from the injury and its duration (See, Foley v Karvelis, 276 AD2d 666, 667 [2nd Dept 2000]).

Plaintiff cites various authorities is support of the proposition that plaintiff has raised a material question of fact as to the permanent consequential and significant limitation categories of "serious injury." Dixon v LaMorticella, 286 AD2d 951 [4th Dept 2001] differs significantly from this action in that the plaintiff's chiropractor in Dixon presented objective findings and measurements of extreme limits in lumbar spine range of motion in both flexion and extension. Mangano v Sherman, 273 AD2d 836 [4th Dept 2000] also contained specific quantitative measurements of permanent degrees of loss of range of motion in plaintiff's neck. Garwol v Bruch, 284 AD2d 940 [4th Dept 2001] also contained objective findings of limitation of movement.

Plaintiff also relies upon Testa v Allen, 289 AD2d 958 [4th Dept 2001]. Testa reversed the trial court's dismissal of plaintiff's complaint on the serious injury issue where plaintiff's physician opined that he found spasm and restricted movement in plaintiff's neck. Testa was subsequently criticized by two dissenting justices in the Fourth Department in Nitti v Clerrico, 291 AD2d 807 [4th Dept 2002] on the basis that Nitti's physician had not explained the objective tests that were performed, the precise location of a spasm was not identified and limitations were not objectively quantified. Because of the two dissents in Nitti, it was one of a trio of cases that were decided in what has come to be known as the Toure decision.

In Toure, the Court of Appeals adopted the view of the two dissenting justices in Nitti and dismissed plaintiff's complaint for lack of sufficient objective medical proof of a serious injury. Thus, Testa, as criticized by the dissenting justices in Nitti, and which criticism was the basis for the Court of Appeals' reversal of Nitti in Toure, no longer has any value as a precedent on the serious injury question.

Here, Dr. Cambareri's affidavit makes no mention of to what degree, if at all, the central disc herniation at C5-C6 results in physical limitations in plaintiff's cervical spine. Dr. McMinn's assessment of plaintiff shortly after the accident on December 31, 2002 found the range of motion in plaintiff's cervical spine to be minimally limited or disturbed but otherwise objectively unquantified. On January 31, 2003 Dr. Cambareri did not identify any loss of range of motion. On April 11, 2003, Dr. Cambareri found full range of motion in plaintiff's neck but "painful in the extremes." Indeed, Dr. Cambareri's most recent examination of the plaintiff on August 27, 2004, does not provide any contemporaneous range of motion [*8]restrictions at all. He does not provide a basis for determining the extent of physical limitation by designating a numeric percentage to range-of motion loss or by providing normal range-of-motion degrees in order to ascertain the percentage of plaintiff's restriction of movement (Bent v Jackson, 15 AD3d 46 [1st Dept 2005]).

In light of the Toure decision by the Court of Appeals, this court recognizes that plaintiff's medical expert does not have to offer specific degrees of limitation in a mathematical sense. However, plaintiff's medical expert must offer something in terms of the qualitative effect of the injury on the plaintiff's functionality beyond a mere diagnosis or denomination of the injury. Conclusory assertions tailored to meet the statutory requirements are insufficient to defeat summary judgment (Lopez v Senatore, 65 NY2d 1017, 1019; Grossman v Wright, 268 AD2d 79, 83 [2nd Dept 2000]).

While there is no question that the herniated disc identified on the MRI is a sufficiently objective test upon which to base a quantitative or qualitative description of the nature and seriousness of plaintiff's injury, the question becomes whether Dr. Cambareri's affidavit provides a sufficient description of the qualitative nature of plaintiff's limitations based on the normal function, purpose and use of her body parts or correlate plaintiff's herniated disc with her inability to perform certain normal, daily tasks (Toure, 98 NY2d at 355). [FN3] The only mention of a qualitative assessment of the nature of plaintiff's injuries in Dr. Cambareri's affidavit is found in paragraph "14" where he states: "Generally speaking, a herniated disc in the cervical spine can cause significant limitations and pain. Mrs. Walsh has exhibited signs of such limitations and pain, both objective and subjective. Although she was able to return to her employment in early January 2003, her cervical spine condition is disabling even through today. She continues to complain of tingling in both arms, impact exercise is painful, and therefore she limits herself in her physical activities. Activities such as lifting, jogging, swinging a golf club or pushing and pulling can cause her significant pain."

In evaluating this qualitative assessment, the court notes that there is no objective finding of radiculopathy and all of the electrodiagnostic testing was [*9]negative for neurological injury. To the extent that this assessment is based upon plaintiff's complaints of pain, it is insufficient in that it is well settled that a plaintiff's report of pain is a subjective finding (Gaddy v Eyler, 167 AD2d2d 67 [3rd Dept 1991], aff'd 79 NY2d 955 [1992]). However, subjective complaints of pain, together with an MRI finding of herniated disc and a 50% loss of range of motion in the cervical spine has been held sufficient to defeat summary judgment (Durham v New York East Travel, Inc. 2 AD3d 1113 [3rd Dept 2003]). On the other hand, when an MRI film shows a herniated disc and plaintiff's physician does not offer any objective evidence of the extent or degree of the alleged physical limitations and simply states that the plaintiff will have permanent problems in "standing, sitting, bending and lifting", plaintiff fails to establish a prima facie case of serious injury and the complaint must be dismissed (Arjona v Calcano, 7 AD3d 279 [1st Dept 2004] [minor, mild or slight limitation of use is insufficient to constitute a serious injury]).

However, this case is similar to a recent Third Department case entitled Armstrong v Morris, 301 AD2d 931 [3rd Dept 2003]. In Armstrong, plaintiff failed to submit any evidence which quantified her loss of range of motion, if any. Following Toure's analysis, the Armstrong court stated: "We therefore examine her chiropractor's reports to determine if the qualitative evaluation of her condition has an objective basis and a comparison has been made between plaintiff's condition and a normal condition of her neck and back. In this regard, plaintiff's treating chiropractor opined that plaintiff suffers from spinal curvature, spinal misalignment and chronic cervical and thoracic strain, cause by an overextension of muscles and ligaments during the motor vehicle accident. These conditions have caused plaintiff great neck pain and have impaired her daily activities, including athletic activities, gardening, picking up her daughter, working with her arms over her head and sitting or standing for an extended period of time. He further stated that plaintiff's injuries, and their limitation on her daily activities, are permanent in nature."

****

"Moreover, the doctor's report makes a comparison between plaintiff's condition and a normal functioning neck by opining that her pain will continue to impair her performance of ordinary daily activities which she will either avoid or [*10]accomplish only with pain." (Armstrong, 301 AD2d at 932-933).[FN4]

Viewing this evidence in the light most favorable to plaintiff as the nonmoving party, the Armstrong court found that issues of fact existed as to whether plaintiff's neck injuries amount to a "permanent consequential limitation" or a "significant limitation of use," since plaintiff had at least raised a factual issue that her injuries were " more than a mild, minor or slight limitation of use'" (Armstrong at 933, citing Mikl v Shufelt, 285 AD2d 949, 950, quoting King v Johnston, 211 AD2d 907, 907).

In recent post-Toure decisions, the Fourth Department has found qualitative assessments to be sufficient to defeat summary judgment where the physician, based upon objective findings, compared the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system, and opined that the injuries were permanent and significant (Leahey v Fitzgerald, 1 AD3d 924 [4th Dept 2003]; Parkhill v Cleary, 305 AD2d 1088 [4th Dept 2003]).

Turning to the case at hand, there is no question that Dr. Cambareri's opinions are based upon the objective findings in plaintiff's cervical MRI. Dr. Cambareri's affidavit states that plaintiff's injuries are permanent and significant. He correlates her pain to the herniated discs and opines that such pain will continue to impair her daily activities such as lifting, jogging, swinging a golf club or pushing and pulling.

Viewing this evidence in a light most favorable to plaintiff as the nonmoving party, this court finds that issues of fact exist as to whether plaintiff has sustained a "permanent consequential limitation" or "significant limitation of use" of plaintiff's cervical spine since plaintiff has at least raised a factual issue that her injuries were more than a "mild, minor or slight limitation of use" (See, Armstrong v Morris, 301 AD2d 931; Mrozinski v St. John, 304 AD2d 950, 952-953 [3rd Dept 2003]; Leahey v Fitzgerald, 1 AD3d 924 [4th Dept 2003]).

Accordingly, defendants' motion for summary judgment seeking dismissal of plaintiffs' complaint to the extent it advances a claim of serious injury under the "permanent consequential limitation" or "significant limitation of use" categories is denied in its entirety.

Plaintiffs' 90 out of 180 Day Medically Determined Non-Permanent Injury Claim

It is well settled that with respect to the 90/180 category of serious injury, there must be evidence that plaintiff's activities were curtailed to a great extent (Parkhill v Cleary, 305 AD2d 1088 [4th Dept 2003][plaintiff missed only six weeks of work after the accident). Here, Dr. Cambareri's affidavit concedes that plaintiff returned to work in early January 2003, or approximately six weeks after the accident. [FN5] Although plaintiff's testimony was unclear on the exact date, there is no question that plaintiff resumed driving her automobile no later than January 6, 2003. Dr. McMinn's notes of December 31, 2002 indicate that plaintiff had resumed driving. There is no medical opinion or evidence that plaintiff was confined to her bed or to home following the accident. There is no evidence, medical or otherwise, that plaintiff was prevented from performing the usual daily tasks of eating, dressing or bathing (Hezekiah v Williams, 81 AD2d 262 [2nd Dept 1981]).

Dr. Cambareri's affidavit does not state, other than in a conclusion tailored to meet the statutory criteria, that plaintiff was unable to work or engage in normal activities during the statutory period (See, Blanchard v Wilcox, 283 AD2d 821, 825 [3rd Dept 2001]). Indeed, Dr. Cambareri's initial office visit note of January 3, 2003 indicates that plaintiff "is working at this time at regular duty." On January 31, 2003 Dr. Cambareri restricted plaintiff to "no strenuous activities, heavy lifting or strenuous sports" but there is no evidence that this restriction impaired plaintiff's performance of her usual and customary activities to a great extent. On February 26, 2003, Dr. Cambareri's notes indicate that plaintiff "remains at FULL work duty" (Emphasis in original). However, on April 11, 2003 Dr.Cambareri noted that plaintiff was working at "limited duty."

The mere fact that plaintiff was able to return to work in some capacity, approximately one month after the accident, is not necessarily fatal to her claim of serious injury (Vasquez v Weiss, 234 AD2d 658 [3rd 1996]). But it must be shown that plaintiff was curtailed from performing her usual activities to a great extent, rather than some slight curtailment (Gaddy v Eyler, 79 NY2d 955).

Although, plaintiff testified that she has been unable to do various forms of yard work, play in a "parents vs. kids" soccer game, and needs assistance with [*11]lifting heavy objects, the court finds that plaintiff has failed to raise a question of fact on the issue of whether plaintiff sustained a medically determined injury of a non-permanent nature which prevented her from performing all of her usual and customary daily activities for 90 days during the 180 days following the accident.[FN6]

Accordingly, defendants' motion for summary judgment on the issue of whether plaintiff sustained a medically determined injury of a non-permanent nature which prevented her from performing all of her usual and customary daily activities for 90 days out of the 180 days following the accident is granted.

This constitutes the decision of the Court. Defendants' counsel to submit proposed order on notice.

ENTER

DATED: May ___, 2005___________________________

Hon. Edward D. Carni, J.S.C. Footnotes

Footnote 1: On October 15, 2004, the parties filed a stipulation of discontinuance as to both Recore defendants and thus defendants Henry and Ours remain the sole defendants in this action.

Footnote 2: The record is not clear on the question of how plaintiff came to be examined by Dr. Cambareri. There is no indication in Dr. McMinn's notes that she referred plaintiff to Dr. Cambareri for a consultation.

Footnote 3: It is worth mentioning that Dr. Cambareri was the physician in Toure that gave a qualitative analysis based upon an MRI finding of herniated discs that the Court of Appeals found sufficient to support a jury verdict

Footnote 4: It should be noted that the chiropractor in Armstrong based his diagnosis on an X ray, objective findings of muscle spasm and the objective audible pop or snap which occurred upon realignment of vertebrae misalignment.

Footnote 5: The deposition testimony of Jane Walsh establishes that she returned to work on January 6, 2003 (Walsh EBT Tr at 112).

Footnote 6: Defendants, citing Wymer v National Fuel Gas Distribution Corp., 217 AD2d 920 [4th Dept 1995] argue that because plaintiff's physician has opined that plaintiff's injuries are "permanent," plaintiff may not qualify under the "medically determined injury of a non-permanent nature." This is not the holding of Wymer. In Wymer, the Fourth Department held that if a jury limited plaintiff's serious injury threshold to the "medically determined injury or impairment of a non-permanent nature" ground, then in that case, it would be inconsistent for the jury to award damages for future permanency of the injury or impairment. Wymer does not stand for the proposition that an injured plaintiff alleging multiple grounds for establishing a serious injury is precluded from asserting a 90/180 theory because the injury is permanent.