Cabarris v. Knight Transportation, Inc. et al
Filing
73
DECISION AND ORDER denying 58 Motion for Summary Judgment. Signed by Hon. Mark W. Pedersen on 8/19/20. (KAP)
Case 6:17-cv-06259-MJP Document 73 Filed 08/19/20 Page 1 of 22
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DARRELL B. CABARRIS,
v.
Plaintiff,
KNIGHT TRANSPORTATION, INC.
and ETHAN B. DASHER,
DECISION & ORDER
17-CV-6259-MJP
Defendants.
INTRODUCTION
Pedersen, M.J. Plaintiff Darrell B. Cabarris (“Plaintiff”) commenced this
action in Supreme Court, New York State, on March 7, 2016, against defendants
Knight Transportation, Inc. and Ethan B. Dasher (“Dasher”) (collectively,
“Defendants”), alleging that he suffered a “serious injury” under New York State
Insurance Law section 5102(d) and that he sustained economic loss, as defined in
section 5102(a) of the New York State Insurance Law. (Compl., ECF No. 1-2.) The
case was removed to the Western District of New York on April 26, 2017, on the basis
of diversity. 1 (Notice of Removal, Apr. 26, 2017, ECF No. 1-1.) The parties have
consented to the disposition of this case by a United States magistrate judge. (Notice,
Plaintiff is a resident of New York State, Defendant Knight Transportation, Inc. is
incorporated and has a principal place of business in Arizona, and Dasher is a resident of
North Carolina. The accident occurred in New York. This Court has diversity jurisdiction
over this action pursuant to 28 U.S.C. § 1332. New York law governs. See Lee v. Bankers
Trust Co., 166 F.3d 540, 545 (2d Cir. 1999) (federal courts sitting in diversity apply choice of
law rules of the forum state); Padula v. Lilam Properties Corp., 84 N.Y.2d 519, 521 (N.Y.
1994) (in tort cases, such as the instant case applies the law of the forum with the most at
stake).
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Consent and Reference of a Civil Action to a Magistrate Judge, Jun. 12, 2017, ECF
No. 5.) The Court determines that Plaintiff has raised a material issue of fact that
precludes summary judgment.
BACKGROUND
On January 19, 2016, Plaintiff was involved in a car accident with Dasher, who
at the time was employed by defendant Knight Transportation, Inc. (Compl. ¶ 16.)
On April 26, 2017, Plaintiff sued Defendants, alleging that Dasher negligently
collided with Plaintiff’s vehicle, causing Plaintiff serious injuries. (Compl. at 5–6.) In
addition, Plaintiff has asserted a claim for economic losses. (Pl.’s Interrog. Resp. at
10, ECF No. 58-5.) On June 19, 2019, Defendants filed a motion for summary
judgment arguing that Plaintiff did not sustain a “serious injury” under New York
State Insurance Law sections 5102(d) and 5104 (“No Fault law”) as a result of the
accident and that Plaintiff failed to demonstrate economic losses. (Pl.’s Notice of Mot.
for Summ. J. at 1, ECF No. 58; Defs.’ Reply Mem. of Law at 5 & 13–15, ECF No. 65;
Defs.’ Sur-Reply Mem. of Law at 4–9, ECF No. 68.)
APPLICABLE LAW
Rule 56 of the Federal Rules of Civil Procedure provides that summary
judgment should be granted if the moving party establishes “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after
considering the evidence in the light most favorable to the nonmoving party, the court
finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S.
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372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986)).
The New York “No-Fault” law provides that in a personal injury or negligence
action between “covered person[s],” “there shall be no right of recovery for noneconomic loss, [e.g., pain and suffering,] except in the case of a serious injury, or for
basic economic loss.” N.Y. Ins. Law sections 5104(a), 5102(c). The No-Fault statute
defines “serious injury” as:
a personal injury which results in death; dismemberment; significant
disfigurement; a fracture; loss of a fetus; permanent loss of use of a body
organ, member, function or system; permanent consequential limitation
of use of a body organ or member; significant limitation of use of a body
function or system; or 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.
N.Y. Ins. Law § 5102(d).
When moving for summary judgment in a case involving the “No-Fault” law,
the defendant has the initial burden “to make an evidentiary showing that the
plaintiff has not sustained a serious injury as a matter of law.” Lawyer v. Albany, 142
A.D.2d 871, 872 (3d Dep’t 1988) (citation and internal brackets omitted); see also Yong
Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 2010) (“A defendant must establish a
prima facie case that plaintiff did not sustain a ‘serious injury’ within the meaning of
Insurance Law § 5102(d).”); Conley v. United States, No. 08-CV-820A, 2010 WL
6370542, at *4 (W.D.N.Y. Sept. 2, 2010), report and recommendation adopted by, No.
08–CV–820, 2011 WL 1156707 (W.D.N.Y. Mar. 28, 2011) (“Under this law, defendant
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has the initial burden of establishing a prima facie case that plaintiff has not
sustained any ‘serious injury’ under Insurance Law § 5104.”). “The defendant may
satisfy this initial burden with unsworn reports by the plaintiff’s physicians or with
sworn affidavits or affirmations by the defendant’s own retained physicians[.]” Evans
v. United States, 978 F. Supp. 2d 148, 162–63 (E.D.N.Y. 2013) (citations omitted).
Once the defendant has met his burden, the burden shifts to the plaintiff to
“overcome [the defendant’s] motion by demonstrating that [he] sustained a serious
injury.” Gaddy v. Eyler, 79 N.Y.2d 955, 957 (1992). In this regard, “a plaintiff must
offer objective proof of an injury.” Rivera v. United States, 10-CV-5767 (MHD), 2012
WL 3132667, at *10 (S.D.N.Y. Jul. 31, 2012). This evidence may be in the form of
sworn affidavits, reports by physicians, deposition testimony, or medical test records,
including MRI and X-ray results. Yonq Qin Luo, 625 F.3d at 777 (finding that the
plaintiff raised an issue of fact as to whether she sustained a “serious injury” by
submitting deposition testimony and medical records from her treating doctors);
Feggins v. Fagard, 52 A.D.3d 1221, 1223 (N.Y. App. Div. 4th Dep’t 2008) (Court can
consider unsworn reports and uncertified medical records submitted by a plaintiff in
opposition to a motion for summary judgment if those records were submitted by
defendant or were referenced in the reports of physicians who examined plaintiff on
their behalf, and submitted the reports of their experts.); Brown v. Achy, 9 A.D.3d 30,
32 (N.Y. App. Div. 1st Dep’t 2004) (finding that plaintiff raised a triable issue of fact
regarding whether she sustained a serious injury where she submitted an MRI
report, results of an electromyogram and nerve conduction velocity study, and records
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from her neurologist). “As long as the plaintiff adduces sufficient objective evidence
from which a jury could find that she sustained a serious injury, summary judgment
must be denied ‘notwithstanding some contrary probative evidence.’” Rivera, 2012
WL 3132667, at *10 (quoting Nasrallah v. Helio De, No. 96-CV-8727(SS), 1998 WL
152568, at *8 (S.D.N.Y. Apr. 2, 1998)).
Additionally, “[a]s with the question of whether a ‘serious injury’ occurred,
Defendant bears the initial burden of making a prima facie case based on medical
evidence that the injuries complained of are not causally linked to the accident in
question.” Zhang v. Alvarado, No. 15-CV-4373 (NGG) (JO), 2017 WL 6375732, at *9
(E.D.N.Y. Dec. 8, 2017). “If the Defendant meets this burden, the burden shifts to the
Plaintiff to come forward with evidence addressing the defendant’s claimed lack of
causation.” Evans v. United States, 978 F. Supp. 2d 148, 164 (E.D.N.Y. 2013)
(citations and internal quotation marks omitted).
ANALYSIS
Plaintiff’s Claimed Injuries
Plaintiff claims that his injuries fall under the following four of the New York
“No Fault” law “serious injury” categories:
(1) “permanent consequential limitation of use of a body organ or member;”
(2) “significant limitation of use of body function or system;”
(3) “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
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than ninety days during the one hundred and eighty days immediately following the
occurrence of the injury or impairment” (the “90/180” category); and
(4) “significant disfigurement.”
(Pl.’s Interrog. Resp. at 8.) Specifically, Plaintiff alleges that he sustained the
following injuries as a result of the subject accident:
a. Neck: cervicalgia; cervical radiculopathy, aggravation of cervical herniated
nucleus pulposus, activation/aggravation of degenerative changes of the cervical
spine;
b. Back: lumbago; sacrolitis [sic]; annular bulge at L4-5; annular bulge at L34 requiring transforaminal lumbar interbody decompression and fusion (TLIF) at L34); annular bulge at L2-3; activation/aggravation of degenerative changes of the
lumbar spine;
c.
Right
Shoulder:
tendinopathy;
tendinopathy
of
the
rotator
cuff;
activation/aggravation of right acromioclavicular joint arthropathy;
d. Left Shoulder: activation/aggravation of degenerative changes;
e. Chest contusion; and
f. Abdominal contusion.
(Id. at 7–8.)
Plaintiff also claims that he suffered a serious injury in the form of a significant
disfigurement as a consequence of the lumbar surgery performed after the 2016
collision. (Id. at 8.) Finally, Plaintiff asserts that he has suffered economic losses. (Id.
at 10; Pl.’s Mem. of Law at 5, ECF No. 62.)
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Admissibility
Prior to addressing the motion for summary judgment, the Court considers
Defendants’ challenges to the admissibility of numerous documents relied upon by
Plaintiff in opposition to Defendants’ motion. (Defs.’ Mem. of Law at 9, ECF No. 65.)
In particular, Defendants argue that the medical records from the following health
care providers are inadmissible because they are unaffirmed:
•
Buffalo Ergonomics OT Services, PLLC;
•
Rochester Chiropractic;
•
Upstate University Hospital;
•
Dr. Elfar/University of Rochester.
(Id.) In addition, Defendants assert that the copy of defense expert Dr. Leone’s
deposition transcript submitted by Plaintiff is uncertified and, therefore,
inadmissible. 2 (Id.) Finally, Defendant asserts that the police report relating to the
accident that is the subject of this lawsuit and submitted by Plaintiff is inadmissible
as it is purportedly unsworn. (Id.)
It is well established that “[m]aterials submitted in support of or in opposition
to a motion for summary judgment must be admissible themselves or must contain
evidence that will be presented in admissible form at trial.” Delaney v. Bank of Am.
Corp., 766 F.3d 163, 169–70 (2d Cir. 2014) (quotations omitted); see also Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not mean that the
In its Response to Defendants’ Objections to the Admissibility of Evidence submitted
by Plaintiff in opposition to Defendants’ motion for summary judgment (ECF No. 72),
Plaintiff submitted a certified copy of Dr. Leone’s deposition transcript, rendering this issue
moot.
2
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nonmoving party must produce evidence in a form that would be admissible at trial
in order to avoid summary judgment.”); Smith v. City of New York, 697 F. App’x 88,
89 (2d Cir. 2017) (summary order) (so long as the evidence in question “will be
presented in admissible form at trial,” it may be considered on summary judgment.).
Moreover, refusing to consider Plaintiff’s exhibits now would strip summary
judgment of “[o]ne of [its] principal purposes . . . to isolate and dispose of factually
unsupported claims or defenses.” Celotex Corp., 477 U.S. 317 at 323–324. In
Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 47 (2d Cir. 2015), Second Circuit
Judge Christopher F. Droney reiterated the Circuit’s “strong preference for resolution
of disputes on their merits.” (citations omitted). While in the Rodriguez case, the
Court noted that the plaintiffs were not given the opportunity to respond to
defendants’ challenges to the admissibility of certain evidence, including medical
records, and here Plaintiff was provided that opportunity, this Court follows the
Second Circuit’s maxim that “[b]ecause of the preference to have issues and claims
decided on their merits, rather than on the basis of a procedural shortcoming, the
exclusion of otherwise relevant evidence on technical grounds is generally not
favored.” Id. (citations omitted). It is for these reasons that the Court will consider
medical records from the four above-listed medical providers when deciding this
motion. 3 Having determined that it can consider Plaintiff’s evidence on this motion,
the Court will now discuss the merits of the motion.
The Court did not consider the police report when reaching its decision on this motion
and, therefore, it need not rule on its admissibility.
3
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“Serious Injury” under the
Consequential Limitation of Use
No-Fault
Law:
Significant/Permanent
The first two categories of serious injury alleged by Plaintiff, permanent
consequential and significant limitation of use, “are often analyzed together.”
Sanchez v. Travelers Cos., Inc., 658 F. Supp. 2d 499, 510 (W.D.N.Y. 2009).
In deciding whether a plaintiff has suffered a permanent consequential
limitation or significant limitation of use of a body function or system, a
court must determine the medical significance of plaintiff’s injury and
compare the degree or qualitative nature of an injury based on the
normal function, purpose and use of the body part.
A plaintiff sustains a permanent consequential limitation of use when
his or her injury is both permanent and results in a significant or
consequential physical limitation....
A significant limitation of a body function or system must be significant,
meaning more than minor, in both degree and duration.
Buccilli v. United States, No. 14-CV-166A (SR), 2016 WL 4940260, at *7 (W.D.N.Y.
Feb. 3, 2016) (internal citations and quotations omitted). “[S]ignificant limitation of
use of a body function does not require permanence, but instead requires a fact finding
on the issue of whether the dysfunction is important enough to reach the level of
significance.” Miller v. Miller, 100 A.D.2d 577, 578 (N.Y. App. Div. 2nd Dep’t 1984)
(emphasis in original). “The limitation of use need not [ ] be total.” Savage v. Delacruz,
100 A.D.2d 707, 707 (N.Y. App. Div. 3d Dep’t 1984). Further, “permanency of an
injury could refer to persistent pain, or operation of the organ, member or system in
some limited way, or only with pain.” Ottavio v. Moore, 141 A.D.2d 806, 807 (N.Y.
App. Div. 2d Dep’t 1988), appeal denied 73 N.Y.2d 704 (1989).
“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
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to substantiate a claim of serious injury.” Toure v. Avis Rent A Car Sys., 98 N.Y.2d
345, 350 (2002). Such findings of limited range of motion may nonetheless fail to
establish a serious injury where medical experts provide no details as to the findings
or how they were ascertained. Mikl v. Shufelt, 285 A.D.2d 949, 950 (N.Y. App. Div.
3d Dep’t 2001).
Plaintiff claims that he suffered significant limitations of use of body function
or system with respect to his cervical and lumbar spine and his right shoulder. (Pl.’s
Mem. of Law at 15–16.) He asserts that he sustained permanent consequential
limitations with respect to his cervical/neck and lumbar spine injuries. (Id. at 17.)
Plaintiff specifically indicates that he is not claiming any permanent consequential
limitation related to his abdominal or shoulder injuries. (Id.)
Defendants contend that Plaintiff did not sustain any “serious injury” as a
result of the January 19, 2016, collision. (Defs.’ Mem. of Law at 7.) They argue that
Plaintiff’s medical records prior to the accident demonstrate that he suffered from
pre-existing neck and back injuries. (Id. at 12.) Defendants further assert that “given
[Plaintiff’s] significant history of prior neck and back injuries, symptoms, and
treatments,” Plaintiff’s claimed injuries are not causally related to the subject
accident. (Id. at 13.)
In support of their argument that Plaintiff’s injuries do not meet the statutory
threshold for a “serious injury,” Defendants submit the affirmed report of Anthony
Leone, M.D., a board-certified orthopedic surgeon. (Leone Report (Sept. 16, 2018) &
Addendum (Jan. 1, 2019), Jun. 19, 2020, ECF No. 58-10.) Dr. Leone examined
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Plaintiff on May 8, 2018. (Id. at 1.) He submitted a report after conducting his
evaluation of Plaintiff and after reviewing Plaintiff’s medical file. He determined that
Plaintiff had “(1) [a] right shoulder sprain strain, (2) cervical sprain strain with disc
changes in the cervical spine, [and] (3) lumbar disc disease status post prior fusion at
L4-5 and L5-S1 before the injury and an additional fusion at L3-4 after the injury.”
(Id. at 1–2, 58.)
Lumbar Spine
With respect to Plaintiff’s lumbar spine, Defendants assert that a review of the
totality of evidence, and in particular the objective evidence amassed, does not
demonstrate that Plaintiff suffered a permanent consequential limitation or a
significant limitation resulting from the 2016 accident. (Defs.’ Mem. of Law at 26.)
Dr. Leone diagnosed Plaintiff with “Lumbar Disc Disease status post prior
fusion at L4-5 and L5-S1 before the injury and an additional fusion at L3–4 after the
injury.” (Leone Report at 58.) Dr. Leone opined that Plaintiff has a long history of low
back problems, dating back to X-rays taken in 2009, which showed abnormalities at
the L4-5 and L5-S1 regions of his back. (Id.) Dr. Leone stated that Plaintiff’s current
back complaints are about the same areas in which he was having trouble in 2012.
(Id. at 59.) He remarked that these were the same regions that were the subject of
Plaintiff’s 2012 spinal fusion, which occurred after Plaintiff was involved in a motor
vehicle accident that same year. (Id.) He stated that Plaintiff underwent a CT scan
in 2016, which demonstrated that the fusion at L4-5 and L5-S1 failed “because of
claimant’s ongoing smoking.” (Id. at 60.) Dr. Leone noted that Plaintiff continued to
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suffer back pain after the 2012 surgery into 2015, and was taking prescription pain
medication to address that pain prior to the 2016 collision. (Id.)
Based upon this evidence, the Court determines that Defendants have
established a prima facie case that Plaintiff did not suffer a serious back injury with
respect to his lumbar spine as a result of the January 19, 2016, crash.
However, Plaintiff has raised a triable issue of fact by relying on objective
medical evidence, including the medical records of Zair Fishkin, M.D., Ph.D., an
orthopedic surgeon who performed Plaintiff’s 2012 back surgery as well as his back
surgery after the 2016 collision. (Voltz Aff. at 6, ECF No. 63.) Plaintiff has provided
objective medical evidence which suggests that while there was imaging evidence
showing degenerative changes in the L3-4 region of his spine taken prior to the crash,
an MRI taken after the 2016 collision showed there was also disc herniation in that
same area and that a CT scan performed on Plaintiff demonstrated “a full thickness
annular tear/radial disruption” in the L3-L4 region. (Zair Fishkin, M.D., Ph.D., letter
to Workers’ Compensation Board (Aug. 31, 2016) at 48, ECF No. 63-2.)
More specifically, in reviewing Plaintiff’s August 14, 2016, lumbar MRI, Dr.
Fishkin noted that the “MRI demonstrates evidence of disc herniation at L3-4
superimposed on degenerative changes and a Schmorl’s node in the endplate of the
L3 vertebral body.” (Zair Fishkin, M.D., Ph.D., letter to Workers’ Compensation
Board (Jun. 8, 2016) at 55–59, ECF No. 63-2.) Dr. Fiskin then ordered a CT
discogram, which was conducted on August 16, 2016, and about which Dr. Fishkin
noted “demonstrates a concordant pain response at L3-4. The postoperative dye study
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demonstrates a full thickness annular tear/radial disruption.” (Zair Fishkin, M.D.,
Ph.D., letter to Workers’ Compensation Board (Aug. 31, 2016) at 45–49.) Dr. Fishkin
further indicated that the discogram was consistent with the findings of the August
16, 2016 MRI. (Id.) He informed Plaintiff that surgery was an option to address the
damage at L3-4, which Plaintiff chose to undergo. (Id.) In addition, Dr. Fishkin found
Plaintiff to be disabled from February 3, 2016 to February 2, 2018 for Workers’
Compensation purposes because of his back injuries. (Volz Aff. Ex. 2, ECF No. 63-2.)
Further, on February 14, 2018—over two years after the accident—Plaintiff
complained of “persistent low back pain” that he rated as “9/10 on average,”
describing the pain as “constant with persistent radiation, numbness and tingling
down [his] bilateral lower extremities.” (Zair Fishkin, M.D., Ph.D., letter to Workers’
Compensation Board (Feb. 14, 2018) at 1, ECF No. 63-3). Moreover, Plaintiff testified
that prior to the 2016 accident, he was able to perform certain chores around the
house but that the accident prevented him from doing those same chores. (Cabarris
Dep. at 227–9, ECF No. 58-6). For example, Plaintiff testified that he would stack
wood, cut the grass, ride the lawnmower, shovel the snow, and do the plumbing. (Id.
at 229:13–15) Further, Plaintiff indicated that he can no longer work outside in the
gardens, take the garbage out, do laundry, cook, clean, or perform indoor household
maintenance. (Pl.’s Interrog. Resp. at 2, ECF No. 58-5.) Plaintiff has not returned to
work since the accident.
Although Dr. Leone addressed Plaintiff’s degenerative changes at L3-4, which
he claims were caused by the 2012 fusion below it, he does not in any way address
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the new findings of a herniation and tear in the L3-4 region of Plaintiff’s lumbar spine
after the 2016 crash. Instead, Dr. Leone focuses on his assertion that Plaintiff still
continued to experience pain after his 2012 fusion and that the fusion failed, due at
least in part to Plaintiff’s smoking. (Dr. Leone’s Report at 59–60, ECF No. 58-10.)
Defendants do not dispute, however, that Dr. Fishkin could causally relate 33% of
Plaintiff’s lumbar pain symptoms to the subject accident. (Defs.’ Reply Mem. of Law
at 7, ECF No. 65; see also Zair Fishkin, M.D., Ph.D., letter to Workers’ Compensation
Board (Feb. 14, 2018) at 2, 4 ECF No. 63-3.)
Moreover, on November 29, 2017, Dr. Fishkin indicated that Plaintiff
“sustained a permanent lumbar spinal injury and has a permanent partial loss of use
of the lumbar spine.” (Zair Fishkin, M.D., Ph.D., letter to Workers’ Compensation
Board (Nov. 29, 2017) at 9, ECF No. 63-2.) This assessment was made after
Dr. Fishkin had been treating Plaintiff for his lumbar spine injuries for almost two
years after the 2016 collision, after having conducted numerous physical
examinations of Plaintiff over that time period, and after reviewing Plaintiff’s
imaging related to his lumbar spine.
On December 17, 2017, Dr. Fishkin sent Plaintiff for a Functional Capacity
Evaluation (“FCE”), which was completed by Buffalo Ergonomics OT Services, PLLC
(“Buffalo Ergonomics”). (FCE at 2, ECF No. 63-4.) The test found that Plaintiff had
“[m]oderate limitation in postural activities such as elevated work at 70″, rotation in
standing, forward bending in standing, low level postural activities such as the ½ and
The letter does not contain page numbers, but the Court’s CM-ECF system assigned
page numbers to the exhibit, and the CM/ECF-assigned page number is 7.
4
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tall kneel, and crawling.” (Id. at 3.) As part of the evaluation, Buffalo Ergonomics
included a grid noting each of Plaintiff’s limitations in terms of how frequently he
could perform the tested activities during an 8-hour day. (FCE Grid at 1–2, ECF No.
63-4.) On February 14, 2018, Dr. Fishkin completed a form titled “Doctor’s Report of
MMI/Permanent Impairment, EC-4.3,” in which he found that Plaintiff suffered
permanent impairments with respect to his lumbar spine. (¶ E, ECF No. 63-3.) Dr.
Fishkin found that Plaintiff was limited to lifting/carrying to 15 pounds occasionally,
7 pounds frequently, and 5 pounds constantly. (Id. ¶ F.) He further indicated that
Plaintiff’s pushing/pulling was limited to 50 pounds occasionally, 25 pounds
frequently, and 10 pounds constantly. (Id.) Finally, Dr. Fishkin noted that Plaintiff
could never kneel or bend/stoop/squat and only occasionally climb, reach overhead,
operate machinery, and be exposed to temperature extremes/high humidity. (Id.) In
support of these findings, Dr. Fishkin cited to his notes, dated February 14, 2018,
which indicated that his findings in the EC-4.3 form were reached based upon the
results of the FCE, Plaintiff’s history, a physical examination of Plaintiff, and a
review of the medical records and prior tests conducted to determine the nature of
Plaintiff’s injury. (Zair Fishkin, M.D., Ph.D., letter to Workers’ Compensation Board
(Feb. 14, 2018) at 1, 4 5, ECF No. 63-3.)
In addition, Plaintiff was treated by a chiropractor from February 12, 2016,
through June 13, 2016. (Chart Notes at 1–49, ECF No. 63-5.) A review of these records
demonstrates that the chiropractor repeatedly assessed Plaintiff with muscle spasms
5
The letter does not have page numbers. The CM/ECF-assigned numbers are 6 & 9.
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in his back. (Id. at 6, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29,
35, 37, 38, 39, 41, 42, 43, 44.) On May 2, 2016, the chiropractor conducted Range of
Motion (“ROM”) testing on Plaintiff’s lumbar spine with the following findings:
Lumbar Flexion: 90 is normal today is measured 60
Lumbar Extension: 20 is normal today is measured 5
Lumbar Left Lateral Flexion: 20 is normal today is measured 10
Lumbar Right Lateral Flexion: 20 is normal today is measured 10
Lumbar Left Rotation: 10 is normal today is measured 10
Lumbar Right Rotation: 10 is normal today is measured 10.
(Id. at 33.) The chiropractor also performed a Kemp’s Test on Plaintiff, which was
positive, meaning that Plaintiff’s test was “indicative of a disc protrusion or prolapse
. . . [a]n increase in pain was noted in the . . . lumbar . . . region that was rated as a
Grade 2: Moderate pain observed and reported.” (Id. at 34.) After the ROM testing,
the chiropractor concluded that Plaintiff “remains unable to function at work and
continues to struggle with his activities of daily living . . . He continues to suffer
significant limitations with ROM in both his cervical and lumbar spine. He remained
with radicular symptoms and moderate spinal muscle spasm.” (Id. at 34–35.) The
chiropractor also conducted a Yeoman’s Test, which resulted in an assessment of
“Grade 2: Moderate pain observed and reported” in connection with Plaintiff’s lumbar
spine. (Id. at 34–35.)
The ROM testing was repeated on June 13, 2016, with the following results:
Lumbar Flexion: 90 is normal today is measured 65
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Lumbar Extension: 20 is normal today is measured 5
Lumbar Left Lateral Flexion: 20 is normal today is measured 10
Lumbar Right Lateral Flexion: 20 is normal today is measured 10
Lumbar Left Rotation: 10 is normal today is measured 10
Lumbar Right Rotation: 10 is normal today is measured 10.
(Id. at 45–46.) Again the chiropractor conducted the Kemp’s and Yeoman’s tests,
which demonstrated the same results as the tests conducted on May 2, 2016. (Id. at
48–49.)
Plaintiff’s subjective evidence regarding his limitations as a result of the
accident coupled with the objective medical evidence is sufficient to raise a triable
issue of fact under the “permanent consequential limitation” and “significant
limitation” categories. See Toure, 98 N.Y.2d at 353 (finding that a plaintiff established
a serious injury under the permanent/significant consequential limitation categories
where plaintiff provided evidence that he suffered pain performing certain activities
and plaintiff’s doctor indicated that the MRI and CT-scan of the spine showed bulging
discs, that plaintiff had muscle spasms, and a decreased range of motion.); Sweeney
v. United States, No. 14-CV-402-A, 2018 WL 1428253 (W.D.N.Y. Mar. 22, 2018)
(finding plaintiff raised a triable issue of fact regarding whether she sustained a
serious injury under the significant/permanent consequential limitation of use
categories, noting that while “disc bulges and herniations alone do not constitute a
serious injury . . . Plaintiff [ ] submitted additional evidence relating to the extent or
degree of her limitations.”); Harris v. Carella 42 A.D.3d 915, 916–917 (N.Y. App. Div.
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4th Dep’t 2007) (plaintiff raised a triable issue of fact regarding a serious injury under
the permanent/significant consequential limitation categories where she submitted
evidence from her treating chiropractor who stated, in part, that plaintiff had a loss
of range of motion in his lumbar spine and where the chiropractor set forth tests used
to determine plaintiff’s limited range of motion as compared to a normal range of
motion).
Finally, “the conflicting opinions in this case raise an issue of fact regarding
whether Plaintiff’s injuries are permanent and/or whether they constitute significant
impairment.” Sweeney v. United States, No. 14-CV-402-A, 2018 WL 1428253, *7
(W.D.N.Y. March 22, 2018) (citing Cook v. Peterson, 137 A.D.3d 1594, 1596 (N.Y. App.
Div. 4th Dep’t 2016) (“conflicting expert opinions on the issue of serious injury create
triable issues of fact requiring a trial.”)).
Causation
Once a defendant has established, prima facie, that the alleged injuries were
not caused by the accident, a plaintiff must rebut the showing with “objective medical
proof of a serious injury causally related to the accident in order to survive summary
dismissal.” Mueller v. Seatainer Transp., Ltd., 816 F. Supp. 2d 206, 212 (W.D.N.Y.
2011) (citing Pommells v. Perez, 4 N.Y.3d 566 (2005)). The “issue of causation is
separate and distinct from the issue of whether [the plaintiff] suffered ‘serious injury’
as a matter of law” Heisler v. MPT New York, Inc., No. 02-CV-0351E(SR), 2003 WL
23350126, *4 (W.D.N.Y. Dec. 22, 2003).
With respect to Plaintiff’s claimed neck and back injuries, Defendants assert
that even if there is objective medical evidence that Plaintiff suffered an injury, there
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is lack of causation where “additional contributory factors interrupt the chain of
causation” between the time of the accident and the alleged injury “such as a
preexisting condition.” (Defs.’ Mem. of Law at 23.)
Defendants assert that Plaintiff has a history of injuries relating to the same
parts of his neck and back that he alleges were injured as a result of the January
2016 collision. (Id.) Defendants argue that Plaintiff admits that he was involved in a
motor vehicle accident in 2012, and which ultimately resulted in surgery to fuse the
L4-5 and L5-S1 regions of his back. (Id.) Defendants also note that X-rays revealed
degenerative disc disease in the L2-3 region prior to the subject crash. (Id.) Without
a citation, Defendants assert that Donovan Holder, M.D., testified that he diagnosed
Plaintiff with “failed back syndrome” in 2015, meaning that Plaintiff’s 2012 bone
fusion was unsuccessful. (Id.) Again, without providing a cite, Defendants assert that
Dr. Fishkin testified that prior to the 2016 accident, he was “worried about the risk
for adjacent level disease at L3-4.” (Id.)
Additionally, Defendants’ expert, Dr. Leone, concluded that he “believe[s] with
reasonable medical certainty the [Plaintiff’s] low back symptoms emanated from the
injury of 2012.” (Leone’s Report at 59, ECF No. 58-10.) Dr. Leone asserts that Plaintiff
continued to have lower back symptoms after his 2012 surgery up through 2015, and
was taking prescription pain medication to alleviate the symptoms. (Id. at 59–60.)
Further, Dr. Leone indicates that medical records show Plaintiff’s 2012 spinal fusion
at L4–5 and L5–S1 “did not succeed because of the claimant’s on-going smoking.” (Id.
at 60.) Dr. Leone wrote: “The degenerative changes at L3-4 are in all likelihood a
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result of the fusion below it,” by putting pressure on L3-4. (Id.) Finally, Dr. Leone
stated that he “believe(s) with reasonable medical certainty that [Plaintiff’s] ongoing
low back symptoms as well as the degenerative changes at L3-4 are NOT related to
the accident of January 19, 2016 and were clearly a result of the surgery in 2012 and
the symptoms that he had after that surgery.” (Id.) (emphasis in original.)
However, “even if Plaintiff had some amount of pre-existing degenerative disc
disease, that alone is not sufficient to show that there is no causal link between the
collision and an exacerbation of Plaintiff’s condition.” Burzynski v. United States, No.
13-CV-766S, 2016 WL 6298513, *7 (W.D.N.Y. Oct. 25, 2016); Croisdale v. Weed, 139
A.D.3d 1363, 1364 (4th Dep’t 2016) (“although defendants contended in support of the
motion that plaintiff’s left knee injuries were preexisting and the result of a
degenerative condition, they failed to submit evidence establishing as a matter of law
that the injuries were entirely preexisting and were not exacerbated by the accident
in question.”) (internal citation and punctuation omitted).
On April 6, 2016, Dr. Fishkin conducted a physical examination of Plaintiff for
a repeat spinal evaluation for Plaintiff’s Workers’ Compensation coverage. (Zair
Fishkin, M.D., Ph.D., letter to Workers’ Compensation Board (Apr. 6, 2016) at 2, ECF
No. 63-2 at 61.) In conducting the physical examination Dr. Fishkin found that
Plaintiff had lumbar flexion of 45°/0-60° and extension of 15°/0-25°. (ECF No. 63-2 at
63.) Under the “History” portion of the medical record, Dr. Fishkin also reviewed the
following:
•
Lumbar CT from January 19, 2016;
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•
Lumbar MRI from May 30, 2012;
•
Cervical MRI from May 30, 2012;
•
Cervical MRI from February 17, 2016; and
•
Thoracic MRI from February 17, 2016.
(ECF No. 63-2 at 62.) After conducting the physical examination and reviewing the
CT and MRIs, Dr. Fishkin concluded that Plaintiff “suffered significant injuries to
the spine as a result of the [2016] work related accident.” (ECF No. 63-2 at 64.)
Further, after reviewing the results of Plaintiff’s CT discogram conducted on
August 16, 2016, Dr. Fishkin stated that “[i]n [his] best medical opinion with a
reasonable amount of certainty, this injury is causally related to the work-related
accident.” (ECF No. 63-2 at 50.) Dr. Fishkin also bolstered this finding of causation
during his testimony:
Q.
Did you even render an opinion, to a reasonable degree of medical
certainty, whether or not [Plaintiff’s 2016] surgery was necessitated by
the accident of January 2016?
A.
Yes.
Q.
What was that opinion?
A.
That it was related to the accident described.
* * *
Q.
What are you basing that on?
A.
My treatment of that patient.
(Fishkin Dep. at 70–72, ECF No. 58-14.) This finding of causation is particularly
significant because Dr. Fishkin was Plaintiff’s treating orthopedic surgeon for his
2012 accident and subsequent surgery in 2016. Based upon the forgoing, Plaintiff has
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raised an issue of fact as to whether the accident caused and/or exacerbated an injury
to his lumbar spine.
For the reasons stated above, Plaintiff has demonstrated that there is a
genuine issue of material fact regarding whether his spinal injury qualifies as a
“serious injury” under New York’s No-Fault law and whether this injury was caused
by the January 19, 2016, collision. Because an issue of fact precludes summary
judgment, the Court need not address the remainder of Defendants’ arguments in
support of summary judgment.
CONCLUSION
For all of the above reasons, Defendants’ motion for summary judgment (ECF
No. 58) is DENIED.
SO ORDERED.
Dated: August 19, 2020
Rochester, New York
______________________
MARK W. PEDERSEN
United States Magistrate Judge
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