Riddell v Visker
Annotate this CaseDecided on December 17, 2009
Supreme Court, Cattaraugus County
Charles Riddell, Plaintiff
against
Daniel D. Visker, Defendant
74465
MARY SPEEDY HADJU, ESQ.
P. O. Box 3090
Jamestown, New York 14702
For the Plaintiff
PHYLISS A. HAFNER, ESQ.
20 Lawrence Bell Drive, Suite 300
Williamsville, New York 14221
For the Defendant
Larry M. Himelein, J.
On June 21, 2006, plaintiff Charless Riddell was a passenger in a vehicle operated by defendant Daniel Visker. While traveling at a high rate of speed, defendant lost control of the vehicle, which left the roadway and rolled over several times. Plaintiff commenced this lawsuit and defendant now moves for summary judgment dismissing the complaint on the grounds that plaintiff failed to meet any of the "serious injury" thresholds under the Insurance Law. At oral argument, plaintiff conceded that there was no fracture and that he does not meet the 90/180 category but contends that he has met the criteria for the "permanent consequential limitation" and "signification limitation" categories.
Complicating this case are a series of other incidents plaintiff was involved in. He was treated for an arm fracture in 1997, a metacarpal fracture in 2000, fractures of the radius and ulna in 2002, had arthroscopic shoulder surgery in 2003 and was treated for a rib injury in 2005. In March of 2005, after a fall on his tail bone, plaintiff treated with a chiropractor for lower back [*2]and shoulder pain, and missed at least two months of work. At that time, plaintiff claimed that his pain was "constant", defined as occurring between 75 and 100% of the time, and was he ultimately treated on 12 occasions by the chiropractor.
When plaintiff was treated at WCA Hospital after the instant accident, he complained only of a head injury and the CT scans and x-rays showed no trauma or fractures, although plaintiff returned to the chiropractor for two treatments three and five weeks after the accident. However, plaintiff missed only three days of work. Plaintiff was next treated at WCA on December 4, 2006, complaining of ankle, knee and elbow abrasions after losing control of his motorcycle while doing tricks with it. He reappeared at WCA on January 11, 2007, complaining of shoulder pain after he was struck in the head by a hydraulic press, and again on January 22, 2007 after he drove his four-wheeler into a ditch.
On April 28, 2007, an MRI done at WCA revealed a disc protrusion at L 4-5, "in close proximity to the nerve roots." On August 7, 2007, plaintiff presented at WCA for lower back pain which the treating physician noted could be attributable to his employment. He was given naproxen and told to follow up with his physician. A repeat MRI on November 9, 2007 showed that the disc protrusion now produced "a very slight impingement against the left L5 nerve root".
The Court of Appeals requires objective proof of an injury to meet the serious injury threshold (Toure v. Avis Rent A Car Sys., Inc., 98 NY2d 345, 746 NYS2d 865 [2002]; Dufel v. Green, 84 NY2d 795, 622 NYS2d 900 [1995]; Lopez v. Senatore, 65 NY2d 1017, 494 NYS2d 101 [1985]). Subjective complaints on the part of a plaintiff are insufficient (Toure; Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]; Scheer v. Koubek, 70 NY2d 678, 518 NYS2d 788 [1987]). An expert opinion of a certain percentage of loss of range of motion will suffice (Toure; Dufel; Lopez) as will an expert's "qualitative assessment" of a plaintiff's condition, as long as the expert has an objective basis for the opinion and compared the limitation to the normal use of the affected body part (Toure; Dufel).
Nonetheless, in Pommells v. Perez (4 NY3d 566, 797 NYS2d 380 [2005]), the Court, expressing skepticism at the multitude of soft tissue injuries such as disc herniations, concluded that even when objective medical proof is presented, dismissal may still be appropriate "when additional contributory factors interrupt the chain of causation between the accident and claimed injury - such as a gap in treatment, an intervening medical problem or a pre-existing condition." In Pommells, the court found that plaintiff's failure to address the two year gap in treatment and the effect of a kidney disorder on his claimed injuries, required a dismissal. In Carrasco v. Mendez, decided with Pommells, the case was also dismissed because the plaintiff failued to sufficiently rebut defendant's evidence that a pre-existing degenerative disc condition caused plaintiff's injuries.
A defendant moving for summary judgment on the grounds that a plaintiff has not met the no-fault threshold has the initial burden of establishing that the plaintiff did not suffer a serious injury (Baez v. Rahamatali, 6 NY3d 868, 817 NYS2d 204 [2006]; Knoll v. Seafood Exp., 5 NY3d 817, 803 NYS2d 25 [2005]; Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]; Chmiel v. Figueroa, 53 AD3d 1092, 863 NYS2d 316 [4th Dept 2008]). The moving defendant may rely on unsworn reports prepared by a plaintiff's treating physician and is not required to offer expert affidavits, provided that the reports relied on demonstrate the lack of a qualifying injury (McElroy v. Sivasubramaniam, 305 AD2d 944, 761 NYS2d 688 [3d Dept 2003]; Seymour [*3]v. Roe, 301 AD2d 991, 755 NYS2d 452 [3d Dept 2003]; Cody v. Parker, 263 AD2d 866, 693 NYS2d 769 [3d Dept 1999]).
Here, defendant contends that plaintiff has not suffered a significant limitation or a permanent consequential limitation, and even if he did, he cannot establish that either result is causally related to the accident. However, Dr. Swanson's affidavit, which is based in part on information he received from two neurosurgeons, establishes the requisite threshold and relates the injuries to the accident. Dr. Hedin, who began treating plaintiff three weeks after the accident, provides limitations on plaintiff's range of motion and also relates the injuries to the accident, as does Dr. Rogers. Defendant's objections to their opinions is a matter for cross-examination at trial; these uncontradicted affidavits are sufficient to establish that plaintiff suffered a qualifying injury.
Defendant also contends that the gap in plaintiff's treatment and intervening medical issues has been insufficiently explained to avoid summary judgment on those bases (see Pommells, 4 NY3d 566, 797 NYS2d 380 [2005]). In Spanos v. Fanto (63 AD3d 1665, 879 NYS2d 878 [4th Dept 2009]), the defense raised "persuasive evidence" that plaintiff's pain and injuries were related to pre-existing issues and plaintiff's failure to raise a triable issue of fact on that claim required dismissal (see also Wolff v. Schweitzer, 56 AD3d 859, 866 NYS2d 833 [3d Dept 2008]; Lux v. Jakson, 52 AD3d 1253, 859 NYS2d 813 [4th Dept 2008]; McConnell v. Freeman, 52 AD3d 1190, 859 NYS2d 831 [4th Dept 2008]; McCarthy v. Bellamy, 39 AD3d 1116, 834 NYS2d 800 [4th Dept 2007]); Smith v. Besanceney, 61 AD3d 1336, 877 NYS2d 538 [4th Dept 2009]; Anania v. Verdeline, 45 AD3d 1473, 846 NYS2d 831 [4th Dept 2007]).
In Jaromin v. Northrup (39 AD3d 1264, 833 NYS2d 813 [4th Dept 2007]), summary judgment was also granted to the defendant when the plaintiff's expert failed to address a gap in treatment (see also McCarthy v. Bellamy, 39 AD3d 1166, 834 NYS2d 800 [4th Dept 2007]; McConnell v. Freeman, 52 AD3d 1190, 859 NYS2d 831 [4th Dept 2008]; Whisenant v. Farazi, 2009 WL 3818366 [1st Dept 2009]; Rivera v. Bushwick Ridgewood Prop., Inc., 63 AD3d 712, 880 NYS2d 149 [2d Dept 2009]).
Here, defendant, utilizing plaintiff's own medical records, met his initial burden of relating the injuries to other incidents and by demonstrating a gap in treatment (Anania, 45 AD3d 1473, 846 NYS2d 831 [4th Dept 2007]; Smith, 61 AD3d 1336, 877 NYS2d 538 [4th Dept 2009]; Jaromin, 39 AD3d 1264, 833 NYS2d 813 [4th Dept 2007]). Therefore, plaintiff must raise a triable issue of fact whether his injuries were causally related to the instant accident rather than any of the other incidents (Spanos, 63 AD3d 1665, 879 NYS2d 878 [4th Dept 2009]; Anania, 45 AD3d 1473, 846 NYS2d 831 [4th Dept 2007]; Clark v. Perry, 21 AD3d 1373, 801 NYS2d 645 [4th Dept 2005]). Further, plaintiff must explain the gap in treatment (McConnell, 52 AD3d 1190, 859 NYS2d 831 [4th Dept 2008]; McCarthy, 39 AD3d 1166, 834 NYS2d 800 [4th Dept 2007]; Black v. Regalado, 36 AD3d 437, 828 NYS2d 29 [1st Dept 2007]; Caracci v. Miller, 34 AD3d 515, 823 NYS2d 681 [2d Dept 2006]).
After the accident, plaintiff did not complain of back pain in the ambulance or at the
hospital. X-rays of defendant's cervical spine were negative. Dr. Hedin, a
chiropractor, first treated plaintiff on three occasions for lower back problems in 2005 after
plaintiff fell. Dr. Hedin said he saw no evidence of a disc bulge or herniation at that time and
plaintiff would "likely" have regained most of his normal range of motion prior to the instant
accident. He also treated [*4]defendant on July 12, 2006, three
weeks after the accident and again on July 17, 2006. However, Dr. Hedin does not address any of
plaintiff's other accidents or injuries and does not explain why he did not see plaintiff between
July 17, 2006 and May 8, 2008, a period of almost 22 months.
Dr. Swanson, an orthopedic surgeon, treated plaintiff for five separate injuries or accidents between 1997 and 2005. He evaluated plaintiff on April 26, 2007, ten months after the instant accident. An MRI done on April 28, 2007 showed a disc protrusion and another done on November 9, 2007 showed a "stable" disc bulge. Dr. Swanson, relying on his examination of plaintiff, the MRI reports, and the findings of a neurosurgeon and a spine surgeon, opines that the "most likely" cause of the disc protrusion is the subject accident. However, Dr. Swanson does not address either the delay in treatment or the other injuries plaintiff suffered.
The court believes that the unexplained gap in treatment is fatal to plaintiff's case. Further, even if the court could conclude that there was no delay in treatment, or at least no significant delay, the lack of any proof that plaintiff's other multiple injuries and accidents played no role in his present condition, leaves this court no choice but to grant defendant's summary judgment motion.
Submit order on notice.
Dated: Little Valley, New York
December 17, 2009
_________________________
HON. LARRY M. HIMELEIN
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