Whiplash Lawyer Gets a Previous Ruling Dismissing Plaintiff´s Case Overturned*

This is an appeal from a lower court that dismissed the complaint and granted the defendants' motion for summary judgment. The appeal was unanimously dismissed, without costs.

The plaintiff´s whiplash lawyer stated Herm Rose was involved in a vehicular accident on November 3, 1998. He alleges that the impact caused him to hit his head and left shoulder against the car door and his knee against the dashboard.

As a consequence, he sustained a "possible tear of the anterior cruciate ligament in his right knee, a herniation of the cervical spine at the C5-C6 level with a C5-C6 radiculopathy, a paracentral disc herniation of the lumbar spine at the L5-S1 level, a rotator cuff impingement of the left shoulder and injuries to the surrounding soft tissue."

The plaintiff´s whiplash lawyer presented medical records indicating the plaintiff saw a doctor. At that time, "whiplash injury" was diagnosed with numerous manifestations of injuries. Physical therapy was prescribed and an MRI ordered. The doctor treated the plaintiff for several months, until August 1999. The plaintiff subsequently sought counsel from a whiplash lawyer.

The doctor re-examined the plaintiff in August 2001. The physician diagnosed spinal sprains, cervical myofascitis, sprains of the left shoulder and right knee, lumbargia, lumbar myofascitis, lumbar disc herniation, lumbar disc syndrome, lumbosacral radiculopathy, cervical radiculopathy, cervical disc herniation, contusions of the ribs, sternum and head, postconcussion syndrome, headache and dizziness. The plaintiff was referred to a chiropractor and an orthopedist, but failed to follow up.

The lower court granted summary judgment dismissing the complaint against the defendant Uni Truck & Trailer Service, finding that it did not own the truck involved in the accident, and against both defendants, finding that the plaintiff did not suffer a serious injury as defined by Insurance Law. The current court disagrees with that judgment.

The plaintiff's doctor stated that predicated on the plaintiff's pain-free range of motion, the plaintiff suffered deficits from a loss of range of motion of 33% in forward flexion, 30% in extension, and 20% in right and left rotation of the cervical spine.

With regard to the lumbar spine, the plaintiff suffered deficits from a loss of range of motion of 44% in forward flexion, 16% in extension, 25% in lateral flexion, 33% in right rotation and 16% in left rotation.

Based on the MRI report the plaintiff suffered a C5-C6 anterior disc herniation of two to three millimeters and that the MRI report confirmed his clinical diagnosis of a disc injury to the cervical spine. There was also an L5-S1 paracentral and left lateral disc herniation with lateral recess and left neural canal stenosis, confirming a disc injury to the lumbar spine.

The issue under review is whether plaintiff's whiplash lawyer's allegations are sufficiently supported by competent medical evidence so as to establish the "serious injury" threshold required by Insurance Law. The court concluded that the minimal requirements were satisfied.

It is well established that "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 to substantiate a claim of serious injury."

The court found that a physician's affirmation that "correlates the plaintiff's neck and back pain to quantified range of motion limitations found on physical examination, and bulging and herniated discs described in MRI reports, and opines that plaintiff's symptoms are permanent" is sufficient to raise an issue of fact precluding the granting of summary judgment in favor of the defendant.

The appropriate weight to be accorded this affirmation is a matter of credibility for the jury to assess, as is the lapse of two years before the August 21, 2001 examination. The motion seeking to dismiss the action for the plaintiff's failure to establish serious injuries as required by Insurance Law was therefore denied.

The court re-instated the action against the defendant Ward. The action against Uni was correctly dismissed based on its lack of ownership.