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A Kings Car Accident Lawyer…cont

Where a motion for summary judgment is predicated on a determination of “serious injury “the moving party has the initial burden of submitting sufficient evidentiary proof in admissible form to warrant a finding that the plaintiff has not suffered a “serious injury “. Defendants’ evidence, comprised of experts’ affirmations, supports the conclusion that plaintiff did not sustain a “serious” injury, and thus defendants have met their prima facie burden of proof.
The Plaintiff then has the burden of overcoming the motion. Plaintiff opposes the motion. In his affidavit (Exhibit E), plaintiff states that as a result of the accident he still has pain in his neck, lower back and left knee. He does not mention his shoulder. He states that he began treating with his doctor shortly after the accident, and received treatment approximately two or three times a week for approximately three or four months. He also treated with an orthopedist, and his personal physician. He was referred for MRIs. He states that he stopped consistent treatment after four months because his mother was ill and he needed to care for her. However, he states that he continued to treat with them every month or two. He says that as a result of the accident, he can no longer play basketball or run and has difficulty walking, driving, sitting, sleeping, standing up, and Lifting his client’s luggage. Plaintiff states he missed approximately seven to eight weeks of work as the result of the accident.

The affirmation of the doctor’s, dated June 7, 2010, states he first evaluated the plaintiff on March 17, 2009, four days after the accident. Range of motion testing of the cervical spine revealed flexion to 20 degrees (45 normal); extension to 25 degrees (40 normal); left rotation to 35 degrees (40 normal); right rotation to 25 degrees (40 normal); left lateral flexion to 25 degrees (40 normal); right lateral flexion to 20 degrees (40 normal). Range of motion testing of the lumbosacral spine revealed flexion to 50 degrees (90 normal); extension to 15 degrees (30 normal); left rotation to 10 degrees (30 normal); right rotation to 15 degrees (30 normal); left lateral flexion to 20 degrees (30 normal); right lateral flexion to 25 degrees (30 normal). Examination and range of motion testing of the left knee revealed flexion to 95 degrees (normal is 120) and extension to-10 degrees (normal is 0).

The doctor states he conducted EMGs of plaintiff on 4/20/09 and the findings were consistent with C5-7 cervical radiculopathy. He conducted EMGs on 5/7/09, with findings consistent with L5-S1 lumbar radiculopathy. He states he also treated plaintiff after an accident in a department store (Macy’s) in October, 2007, when his right knee struck a sharp corner of a table. Plaintiff was treated primarily for his right knee, though there was also slight neck and lower back pain. Plaintiff’s left knee was unaffected by that accident. He states that at his last examination of plaintiff related to that accident, on January 7, 2008, plaintiff had a full range of motion in his cervical and lumbar spine. Specifically, his reports that range of motion testing of the cervical spine revealed flexion to 45 degrees (45 normal); extension to 40 degrees (40 normal); left rotation to 40 degrees (40 normal); right rotation to 40 degrees (40 normal); left lateral flexion to 40 degrees (40 normal); right lateral flexion to 40 degrees (40 normal). Range of motion testing of the lumbosacral spine revealed flexion to 90 degrees (90 normal); extension to 30 degrees (30 normal); left rotation to 30 degrees (30 normal); right rotation to 30 degrees (30 normal); left lateral flexion to 30 degrees (30 normal); right lateral flexion to 30 degrees (30 normal). He avers that, to the extent that plaintiff had any limitations to his neck and lower bad after the October, 2007 Macy’s accident, or any prior accident, his neck and back were healed well before the March, 2009 auto accident. He states he never treated plaintiff for the other 2007 accident at Costco. Plaintiff says he went to the doctors for two months of chiropractic treatment for the Costco incident and three months for the Macy’s incident. Plaintiff then says in his affidavit that he was confused about this, and acknowledges he did not seek treatment for the Costco incident, although he brought lawsuits for both the Costco and the Macy’s accident.

The doctor avers that, as a result of the March 2009 accident, plaintiff sustained a permanent and significant limitation and restriction of the range of motion to his cervical spine, lumbar spine and left knee. He asserts that he reviewed the MRI reports (not the fi” ns) and the results are not degenerative in nature. However, his summary of the MRI reports is hearsay, and may not be considered by the Court. He never saw plaint ff before the accident. Further, defendant’s IME doctors do not allege that plaintiff has any degenerative condition. The affirmation of the orthopedist, dated June 21, 2010, states he first evaluated the plaintiff on August 4, 2009, and then again on September 2, 2009, October 13, 2009, and April 26, 2010. He too never saw plaintiff before the accident. He states his most recent examination of plaintiff was on April 26, 2010. On that date, range of motion testing of the cervical spine revealed flexion to 50 degrees (50 normal); extension to 60 degrees (60 normal); left gaze of 80 degrees (90 normal); right gaze of 80 degrees (90 normal); left lateral bending to 25 degrees (30 normal); right lateral to 25 degrees (30 normal). Range of motion testing of the lumbosacral spine revealed flexion to 50 degrees (90 normal); extension to 20 degrees (40 normal); left lateral bending to 25 degrees (30 normal); right lateral bending to 25 degrees (30 normal). Examination and range of motion testing of the left knee revealed flexion to 135 degrees (normal is 140). He opines that, as a result of the accident, plaintiff sustained a permanent and significant limitation and restriction of the range of motion to his cervical spine, lumbar spine and left knee.

To Be Cont…

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