TRIAL DECISION This matter came on for a non-jury trial before the undersigned on November 30, 2020. Plaintiff claims she sustained serious personal injuries as defined by Insurance Law §5102(d) in a motor vehicle accident which occurred on June 8, 2017. Defendant conceded liability for the accident. The issue before the court was the amount of damages, if any, to be awarded to plaintiff for personal injuries and medical expenses. At the outset, the court declines to award compensation for out-of-pocket medical expenses. Plaintiff is entitled to payment of medical expenses from her no-fault carrier for treatment found to be medically necessary for personal injuries sustained in the motor vehicle accident. If her insurer denies payment, plaintiff’s sole remedy is to pursue these claims either in a plenary action against her insurer or no-fault arbitration as she may elect. These remedies are unaffected by this decision. Since plaintiff claims that her medical treatment was for personal injuries sustained in this motor vehicle accident, she is precluded from recovery in this forum. There is no dispute that plaintiff’s vehicle was struck in the right rear by defendant’s vehicle, pushing it into the median which impacted on the passenger side of her vehicle. The plaintiff described the two impacts as heavy. The cost to repair her vehicle was approximately $15,000. Plaintiff was utilizing a shoulder harness/seat belt at the time of the accident. Her head hit the interior roof. After the accident she complained of a headache, back pain, left ankle pain, left wrist pain and rib pain. An ambulance arrived at the scene. She was examined and advised to go to the hospital. She declined to take the ambulance, preferring to go with her husband who took her from the scene of the accident to the hospital where plaintiff was treated and released from the emergency room on the date of the accident. The emergency room discharge diagnosis was cervical sprain, and musco-skeletal pain. The physical exam reported findings of soft tissue swelling left anterior scalp line, pain left side of neck, tenderness left ribs, left shoulder range of motion deficits and tenderness, left wrist with decreased range of motion with tissue and bony tenderness. With respect to her left wrist, plaintiff was treated by Dr. Ellerstein who diagnosed her condition as a contusion of left wrist and sprain of radiocarpal joint of left wrist and prescribed physical therapy. Dr. Ellerstein applied a removable wrist brace which plaintiff wore full time for approximately five weeks during which time her wrist motion improved but the pain persisted. Plaintiff testified that she had experienced weakness and inability to lift objects with her left hand following the accident but that this condition resolved within six months or so following the accident, during which time she received the prescribed physical therapy… She still feels intermittent pain in her left wrist. Plaintiff also complained of left ankle pain and saw Dr. Jacob for this condition with an initial visit on July 25, 2017. Dr. Jacob diagnosed her condition as a left ankle sprain and prescribed physical therapy. Plaintiff reported that this pain persisted and prevented her from walking distances without pain and, to this day, prevents her from running or jogging. She testified that she can walk fast but cannot run. Plaintiff was an athlete in high school and college, playing basketball and running track in high school and running track in college. Plaintiff commenced physical therapy for her left ankle on August 10, 2017 with Dereck Silverman, DPT. She received on-going treatments with DPT Silverman through September 21, 2017. She also was seen once by DPT Raffaele Taddeo for her left ankle. On March 20, 2018, she began treatment at Kings Park Physical Therapy for her persistent left ankle pain. This treatment continued through October 6, 2018. Her treatment response was reported on the last visit as “fair”. She continued to suffer from difficulty walking, weakness and pain in left ankle and joints of left foot, according to the notes by the physical therapist at the last visit on October 6, 2018, Plaintiff also testified to neck and back pain. She saw Dr. Block, a chiropractor shortly after the accident and received treatment 2-3 times per week from June 13, 2017 through September 30, 2017 for neck and back pain. After initial consultation and examination, Dr. Block diagnosed plaintiff as suffering from acute traumatic cervical/thoracic/lumbar sprain/strain injuries with segmental and somatic dysfunction and muscle spasms and headaches. He opined that plaintiff was unable to lift, bend or stand for extended periods of time and required help in caring for her child and performing household chores. As of his last examination of plaintiff on September 30, 2017, he found restrictions of range of motion and limitations of activities as noted. He opined that these injuries were permanent. Plaintiff resumed chiropractic treatment with Dr. Nadine O’Neill on January 20, 2018. On her initial visit, she complained of neck, back, left wrist and left ankle pain and occasional headaches. Dr. O’Neill treated plaintiff 44 times between January 20, 2018 and March 31, 2019. Dr. O’Neill reported symptomatic relief with improvement of ranges of motion and decreased pain, “but only to a limited extent.” Dr. O’Neill found that while plaintiff had responded to the chiropractic treatments, she was still experiencing pain and exacerbation when attempting to lift her son and heavy objects. She opines that as a result of adhesions in the adjacent soft tissues in areas where she was injured, plaintiff has sustained a permanent injury. Plaintiff commenced chiropractic treatment with Alan P. Sherr, D.C. on March 30, 2019. She continues to see Dr. Sherr to this day. She saw Dr. Sherr last week and has a visit scheduled for this coming week. On the initial examination, Dr. Sherr reported plaintiff’s chief complaint as chronic cervical complaint with a secondary complaint of chronic lumbar complaint. Dr. Sherr found limitations on range of motion with pain and reported other positive findings. As of the last treatment note submitted for August 28, 2020, Dr. Sherr diagnosed plaintiff with radiculopathy, lumbar region, low back pain and myalgia, other site. Plaintiff testified that she returned to work in great pain approximately five days after the accident. She works as head of Human Resources in an executive position with her company. She testified that she had returned from maternity leave in January of 2017 and received a promotion to Vice President upon her return. She testified that she was in good health prior to the accident and had never injured or received injury-related treatment to any of the body parts she claims were injured in this accident. She also testified that she is the “breadwinner” and that her salary was substantial which her family needed to pay bills. This was offered as an explanation for why she returned to work shortly after the accident despite the recommendation of Dr. Block that she not return to work due to the severity of the injuries she sustained in this accident. Also, that her job did not include manual labor. Plaintiff testified that her pain and physical limitations persisted for 6-8 months following the accident. After that the pain and limitations continued but were not as severe. Her overall condition had improved somewhat. Her left wrist injury appears to have mostly abated while her neck, back and left knee pain and restrictions on activities persisted and continue to this day. During the 6-8 month period following the accident, plaintiff went to work and then went home and was very limited on what she could do at home. Her husband and parents had to help out with child care and house chores. Thereafter, she was able to resume these activities partially, still claiming to suffer restrictions and relapses. For example, plaintiff claims she cannot run; she can walk and walk fast but not for long periods. In short, she partially regained her ability to resume normal activities. She states she continues to receive treatment as she hopes for more improvement and that she experiences continuing pain in the injured parts of her body, particularly the left ankle, back and neck, with occasional headaches. Defendant submitted reports of independent medical examinations performed for purposes of no-fault benefits (two chiropractic and one orthopedic) and another report of an examination for litigation purposes (one orthopedic). All of these doctors causally connect the claimed injuries to the motor vehicle accident. An initial chiropractic examination by Dr. Rory Ciuffo on September 8, 2017 found the need for continued chiropractic treatment for six weeks. Upon re-examination on October 20, 2017, Dr. Ciuffo found that her cervical and lumbar strains had resolved, apparently as a result of the continued treatment he had recommended. Dr. Ciuffo failed to explain how this could have occurred. Dr. Ciuffo made these specific findings in his first examination: biomechanical dysfunction at the level of C5-6 and joint dysfunction at the level of L4-5. However, he failed to mention or discuss these findings in his followup report only six weeks later. In fact, he makes no mention of his first report in his second report. The court attaches little weight to these reports due to these omissions. Both orthopedic examinations were negative for any restrictions of range of motion or other objective findings and concluded that the injuries sustained by plaintiff had resolved from an orthopedic perspective. Dr. Dorothy Scarpinato performed a no-fault examination on September 30, 2017 and concluded that plaintiff’s cervical strain, lumbar strain, left shoulder sprain, left wrist/hand sprain and left ankle sprain had all resolved. While noting plaintiff’s complaint of pain to those areas, Dr. Scarpinato discounted these complaints and based her conclusions on the lack of objective findings. Dr. Edward Toriello performed an independent orthopedic examination on October 8, 2018 and found that evidence of resolved cervical strain, low back strain, left wrist contusion, left ankle sprain and left rib contusion. Dr. Toriello found that plaintiff’s “subjective complaints are not consistent with the objective findings or my physical examination.” Defendant further refers to the lack of objective findings in the numerous x-rays and the MRI of her cervical spine or any other radiological tests to support the existence of a serious injury. While the court has concluded that plaintiff cannot recover for her out-of-pocket medical expenses in this forum, the fact that plaintiff has continued to treat, costing her significant expense, is evidence to support the conclusion that her subjective complaints are not fabricated or exaggerated as suggested by the independent medical examinations. No independent chiropractic examination was performed for litigation purposes. The only evidence regarding plaintiff’s condition from a chiropractic perspective after October of 2017 is from plaintiff’s treating chiropractors. These reports and records document substantial treatment for injuries causally related to this accident, treatment which is ongoing as of the date of the trial. Plaintiff also received substantial physical therapy for an extended period following the accident. After due consideration of the foregoing evidence and testimony of plaintiff, the court concludes that plaintiff sustained a “serious injury” as defined in the no-fault law in that she sustained a significant limitation of use of a bodily function or system, in this case her persistent back, neck and left ankle injuries which have significantly affected her activities and functionality from the time of the accident, persisting to a lesser degree today. The court found plaintiff to be a credible witness who testified that she remains unable to run or jug as she had been able to before the accident. Based upon her activity level prior to the accident, this constitutes a significant limitation of functionality. Based on the evidence, the court, however, cannot conclude by a preponderance of the evidence that plaintiff has sustained permanent injuries. Her condition has improved and plaintiff herself continues treatment based upon her belief that she can further improve her condition. She candidly acknowledged that her condition has improved over time as a result of her treatments. There is insufficient evidence upon which the court can conclude that plaintiff sustained a permanent injury. As discussed, the court finds that plaintiff sustained a serious injury because she has suffered a significant limitation of a bodily function or system. Also as noted, defendant has not submitted credible evidence to rebut the necessity of the substantial chiropractic treatment and the evaluations and conclusions of the treating chiropractors regarding plaintiff’s physical condition and functional limitations. Based upon all of the evidence as carefully considered, the court awards plaintiff the total sum of twenty five thousand dollars ($25,000.00) for her pain and suffering. Plaintiff may submit a proposed judgment to the clerk if payment of this award is not made within thirty (30) days of service of a copy of this trial decision on defense counsel. X FINAL DISPOSITION NON-FINAL DISPOSITION Dated: December 3, 2020
