The defendant is not required to disprove any category of “serious injury” that has not been pled by the plaintiff. Whether the plaintiff can demonstrate the existence of a compensable “serious injury” depends upon the quality, quantity, and credibility of admissable evidence. Essentially, in order to satisfy the statutory “serious injury” threshold, objective proof of the plaintiff’s injury is required.
Conversely, even where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiffs complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem, or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.
While a herniated or bulging disc, or the presence of radiculopathy may constitute a “serious injury” within the ambit of Insurance Law §5102(d), a plaintiff is required to provide, inter alia, objective medical evidence, which demonstrates the extent and degree of the alleged physical limitation resulting from the disc injury and its duration. When examining medical evidence offered by a plaintiff on a threshold motion, the court must ensure that the evidence is objective in nature and that a plaintiff’s subjective claims as to pain or limitation of motion are sustained by verified objective medical findings. Further, the plaintiff must provide competent medical evidence containing verified objective findings based upon a recent examination wherein the expert must provide an opinion as to the significance of the injury.
To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild, or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A claim raised under the “permanent consequential limitation of use or a body organ or member” or “significant limitation of use of a body function or system” categories can be made by an expert’s designation of a numeric percentage of a plaintiff’s loss of motion in order to prove the extent or degree of the physical limitation. In addition, an expert’s qualitative assessment of a plaintiff’s condition is also probative, provided: (1) the evaluation has an objective basis; and (2) the evaluation compares the plaintiff’s limitation to the normal function, purpose, and use of the affected body organ, member, function, or system.
In applying the foregoing standards and principles to the instant matter the Court finds that Defendant has met his initial burden of establishing a prima facie case that Plaintiffs’ injuries do not satisfy the threshold requirements of Insurance Law §5102(d). In response, Plaintiffs have failed to submit sufficient evidence to raise a triable question of fact on the issue. As such, summary judgment in favor of Defendant against Plaintiffs is warranted.
Upon the submission of the affirmed reports of an orthopedist, Defendant has met his initial burden of establishing a prima facie case that Plaintiffs have failed to meet the statutory threshold of a “serious injury” under categories “7” and “8”.
According to the report, after reviewing plaintiff’s medical records, he conducted a physical examination on February 1, 2011. His examination found normal ranges of motion in the thoracolumbar spine, right hip, and right ankle. He concluded that there was no evidence of an orthopedic disability.
In opposition, Plaintiffs have submitted their own affidavits, affirmations from treating physicians, and medical reports. There is nothing contained in either Plaintiffs-affidavits that would demonstrate that they have sustained a “serious injury”.
According to the doctor’s affirmation after examination of plaintiff on November 7, 2011, range of motion was found to be normal, other than a minor 20% loss of lumbar extension. His impression was that he has lumbar radiculitis, which is likely the source of his pain; and distal right leg/foot pain following contusion. These findings demonstrate that plaintiff’s condition does not meet the “serious injury” threshold. According to the doctors affirmation after examination of Jean on November 7, 2011, range of motion was found to be normal, other than a minor 17% loss of lumbar flexion and a 20% loss of lumbar extension. His impression was that the other plaintiff has a lumbar strain with disc bulges and right knee pain. These findings demonstrate that Jean’s condition does not meet the “serious injury” threshold.
Accordingly, Defendant’s motion is granted, and Plaintiffs’ complaint is dismissed as to Defendant.