“Serious Injury” Found Based on Cervical and Lumbar Spine injuries

In Angeles v. American United Transp., Inc., a car accident case, the Appellate Division, First Department, affirmed the trial court’s (Supreme Court, Bronx County) denial of defendants’ motion for summary judgment on the “serious injury” threshold issue.

The “serious injury” threshold frequently arises in automobile accident cases. Section 5104(a) of the New York Insurance Law says that

in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss [i.e, pain and suffering and similar non-monetary detriment], except in the case of a serious injury, or for basic economic loss.  (Emphasis added.)

Section 5102(d) of the Insurance Law, in turn, defines “serious injury” as a personal injury which results in any of nine categories of injury, namely,

[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.

In the Angeles case, the trial court denied defendants’ motion for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff did not suffer a “serious injury” under the “permanent consequential” and “significant limitation” serious injury categories.

Initially, it determined that defendants made a prima facie showing of entitlement to summary judgment

as to plaintiff’s claims of permanent consequential, or significant, limitation of use of his cervical spine, lumbar spine and shoulders by submitting expert medical reports of a neurologist and orthopedist who found full range of motion in those parts upon examination, and of a radiologist who found that the MRIs of plaintiff’s cervical and lumbar spine taken shortly after the accident showed no evidence of disc bulges or herniations.  To the extent the radiologist opined, without any elaboration, that any discogenic changes were either age-related or a co-morbidity of “increased body habitus/obesity,” the opinion is insufficient, in light of the fact that plaintiff was 29 years old at the time of the accident, to shift the burden on the issue of causation of the spinal injuries.

However, the court held that:

In opposition, plaintiff raised a triable issue of fact with respect to whether he sustained serious injuries in his cervical and lumbar spine by submitting affirmed reports of a radiologist and physician who found bulging and/or herniated discs shown in the MRIs taken shortly after the accident, and continuing range-of-motion deficits of those body parts (see Duran v Kabir, 93 AD3d 566 [1st Dept 2012]; Seck v Balla, 92 AD3d 543 [1st Dept 2012]). Although the report of the osteopath who treated plaintiff after the accident is unaffirmed, plaintiff is not required to present contemporaneous range of motion findings in order to establish serious injury, and his testimony, together with the osteopath’s report and the MRIs taken shortly after the accident, was sufficient to demonstrate a causal link between his claimed spinal injuries and the accident (see Perl v Meher, 18 NY3d 208 [2011]; Biascochea v Boves, 93 AD3d 548, 549 [1st Dept 2012]. Further, his expert treating physician opined, after examination, that his injuries were causally related to the accident (see June v Akhtar, 62 AD3d 427 [1st Dept 2009]).

In light of this determination, the court did not need to assess the impact, if any, of plaintiff’s other claimed injuries.

Going forward, if a jury “determines that plaintiff sustained a serious injury, it may award damages for all injuries causally related to the accident, even those that do not meet the threshold.”

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