ADDITIONAL CASES Gregory R. Kowalski, Claimant, v. The State Of New York, Defendant; 130273 DECISION Claim Nos. 130272 and 130273 involve a motor vehicle accident that occurred on August 4, 2017, when claimant Kowalski’s vehicle was struck by a New York State Police vehicle operated by David Douglas. Claimant Chung was a passenger in Kowalski’s vehicle. The accident occurred near exit 11 on Interstate 678 in Queens County. A liability-only trial was held jointly for claims 130272 and 130273 on December 16, 2019. In an Order dated December 17, 2019, the Court found the defendant one hundred percent (100 percent ) liable for negligence. A trial on damages was held jointly on February 4, 2020 and February 5, 2020. Both claimants testified in support of their respective claims. The Court heard testimony from claimants’ surgeon, Dr. David Adin, and Dr. David Payne, an expert neuroradiologist. The Court also heard the expert testimony of Dr. John Olsewski, an orthopedic surgeon, and Dr. Devon Klein, a radiologist; both of whom were called as defense witnesses. The two main issues before the Court are (1) whether claimants sustained a serious injury as defined by Insurance Law §5102(d); and (2) whether damages are warranted. In reviewing these two issues, the Court considered the trial evidence and the parties post-trial letter briefs. The Court finds that claimants did not sustain a serious injury under Insurance Law §5102(d). TESTIMONY Jiang Chung, a 59-year-old spa therapist, testified that until August 4, 2017, the day of the accident, she lived an active life without any pain or injuries. On that day, she was a front seat passenger in Kowalski’s vehicle at the time of the accident. She was restrained by a seatbelt and airbags deployed when the accident occurred. Her head, chest, and face were impacted by the collision and she injured her head, shoulders, stomach, and knees. She was taken to Queens Hospital where various images were taken of her chest and back. She was given an injection for pain, an ice pack, and released. On August 9, 2017 she began treating at Apple Pain Clinic. For the next eight months she was treated by a chiropractor, physical therapist, and acupuncturist at the Clinic. From August to November that year she felt pain in her back and shoulders, couldn’t lift heavy objects, and laid in bed for three weeks primarily because of lower back pain. She testified that she couldn’t turn her neck and couldn’t bear the pain any longer so she began treating with Dr. Adin at the end of August 2017. He performed surgery on her neck in January 2018, which helped alleviate her neck pain. He also administered an injection to her lower back, which helped reduce pain in that area. Chung worked at a spa in Manhattan, which she owned and managed, and performed facial cosmetology as part of her usual responsibilities. Before the accident, she worked five days a week and eight hours per day. She was out of work for four months because of her injuries in the accident. When she returned to work, she worked three days per week and four to five hours per shift. She had to pare down her work because of residual pain to her elbow and neck. Other than at work, Chung testified that her injuries negatively impacted her other normal activities. She cannot do many things now, including lifting anything over two pounds; bend down; turn her head abruptly; walk for more than twenty minutes; sit for a long time; and do household chores. Gregory Kowalski, a 53 year old construction worker, testified that he did not have any injuries or physical limitation of his normal activities before the subject accident. On the day of the accident, Kowalski was driving a compact pickup that was struck on the front driver side by defendant’s vehicle. He was wearing a seatbelt during the accident. Airbags deployed and struck his right hand causing pain and bruising, which he complained about to medics. He was taken to Queens Hospital where he complained of a headache and pain in his hand. Images were taken of his hand and head. He felt pain in his neck and back at the hospital but didn’t complain about it. During cross-examination, Kowalski admitted that he did not complain of back pain and did not have any dizziness, nausea, or fever. He also admitted that he had a normal range of motion in his neck. He was released from the hospital the same day. Five days after the accident, Kowalski began treating at Apple Pain Clinic where he was treated by a chiropractor, physical therapist, and acupuncturist. After two weeks of treatment, he was unsatisfied with the progress and was referred to Dr. David Adin for an evaluation. Dr. Adin treated him for upper back pain (around his shoulders) and lower back pain and sent Kowalski for additional imaging studies. Dr. Adin performed surgery on December 13, 2017 on his lower back, which made his back feel stronger and better. For approximately fifteen years before the accident, Kowalski worked as a carpenter and general contractor. He owned his own construction company. Most of his work was in New York City so he maintained an apartment in Queens, which he shared with claimant Jiang Chung. He would drive to his primary residence in Pennsylvania when he was not staying in New York for work. His company was involved in interior construction remodeling projects and roof renovation. His work entailed some hands-on carpentry and, otherwise, supervising employees and subcontractors. Prior to launching his own business, he worked as a carpenter, manager, and foreman in the construction industry. Around the date of the accident, Kowalski’s company was at the finishing stages of two construction projects. Following the accident, but before surgery, he monitored the projects remotely and returned to work once a week for a couple of hours per visit. Physical therapy helped him get back to driving to work. After surgery, around January 2018, he started spending more time on the job. He was unable to be the lead carpenter, but he was able to set up and supervise projects. On cross-examination, Kowalski admitted that before the accident he employed a carpenter and three laborers who were responsible for most of the physical work on each construction job and he was primarily supervising the workers and managing his business. As for lifting heavy objects, Kowalski testified that he avoids lifting fifty-pound buckets, but he can do so with pain. He stopped treating for his injuries in March 2018. Kowalski testified that he is unable to perform some of his other usual activities as a consequence of the accident. For example, he is unable to go bicycling, which he would do a couple of times a week before the accident. He used to take his boat once a week in the summer, but following the accident he was unable to sail his boat as much as he preferred. He also limited his hobby of welding. Before the accident he welded a heavy staircase, but since the accident he had difficulty moving his heavy welding wheel. He also complained that he had trouble sitting for a long period of time since the accident. During cross-examination, he testified that he was never confined to his home. Though he said he was unable to go grocery shopping following the accident, he testified at his deposition that he was able to go shopping shortly after the accident. He also admitted that he was able to maintain his house in Pennsylvania after the accident, which he was able to drive to on a weekly basis. Additionally, he admitted that he did not mention any limits regarding being able to go sailing after the accident at his deposition. Lastly, on cross-examination, he admitted that he was never told by any of the medical professionals who cared for him that he is disabled, couldn’t return to work, or must restrict his physical activities at any time. Dr. David Adin is a physician who treated, examined, and performed surgery on both claimants. He is Board Certified in two areas: (1) Physical Medicine and Rehabilitation and (2) Pain Management. He met with each claimant several times beginning August 31, 2017, roughly three weeks after the accident. He testified that as part of his initial evaluation of both claimants, he asked them for a history of their present illness and conducted a clinical exam which included diagnostic testing. The clinic exam entailed a visual check of their movement and testing for whether movement and sensation were restricted or caused pain. His examination included subjective and objective testing. He defined subjective results as those that the patient had control over such as range of motion (“ROM”) testing, where patients voluntarily report when they feel pain as they move. He added that a person’s ROM varies by person depending on whether they are generally flexible. Objective results, by contrast, are involuntary and include radiological exams including MRI scans. As for ROM testing, he said that normal movement in the cervical spine consists of flexion of 50°; extension of 60°; lateral rotation of 80°; and side bending of 45°. Regarding the lumbar spine, normal movement consists of flexion of 60°; extension of 25°; and side bending of 25°. Chung’s Medical Treatment On Chung’s first visit, she reported pain in her neck and lower back. Her physical exam revealed limited ROM in her cervical and lumbar regions. Her cervical spine ROM results included flexion of 40°; extension of 40°; lateral rotation of 60°; and side bending of 20°. A basic nerve test indicated irritation to her right cervical spine. Dr. Adin noted that she had tenderness in her neck and shoulders. Her lumbar spine results showed flexion of 40°; extension of 10°; and side bending of 10°. Dr. Adin also found evidence of nerve pain to her lower back. He suspected pain in the neck and lower back stemming from discs in her spine with inflammation of the facet joints and derangement of her right hip. He recommended conservative treatment. Dr. Adin had Chung continue conservative treatment and when her symptoms continued, he ordered MRIs of her cervical and lumbar spine and an electromyograph (“EMG”). The MRI of her cervical spine revealed a herniated disc at level C4-C5 that was protruding on the left side and correlated with her complaints of pain. On January 10, 2018, Dr. Adin performed a percutaneous discectomy at the C4-C5 segment, which resulted in decompressing her nerves and alleviating much of her symptoms. With respect to her lower back pain, Dr. Adin administered a caudal epidural injection containing anti-inflammatory medication that helped with her left leg symptoms. When her right leg symptoms continued, Dr. Adin’s colleague recommended another epidural injection. While acknowledging that Chung had preexisting degenerative changes in her spine, Dr. Adin opined that Chung’s injuries were caused by the motor vehicle accident, and not by degeneration, because degeneration does not cause radiculopathy. He added that the degenerated condition of her spine predisposed her to trauma that a normal, healthy spine would have avoided. He also based his opinion on Chung’s history of having no symptoms before the crash. During cross-examination, Dr. Adin admitted that Chung did not sustain any soft tissue contusions or ligament injuries and that her MRI did not show any evidence of trauma. He also admitted that the conditions in her spine at the C4-C5 level were degenerative conditions. He explained that he based his conclusion on causation based on Chung’s complaints, his clinical exam, and her positive response to surgery. Dr. Adin also opined that Chung’s injuries resulted in a permanent disability and significant limitations because disc herniation is a permanent condition that cannot be reversed. He added that her ROM limits were significant. He also said that she had reached maximum medical treatment. Lastly, he opined that Chung’s injuries kept her from performing substantially all her usual activities for at least ninety days of the first one hundred eighty days immediately after the accident. Dr. Adin admitted during cross-examination that he did not note in his records that Chung complained about her inability to work or perform her usual daily activities or that he asked her to restrict those activities in any way. Kowalski’s Medical Treatment On Kowalski’s first visit, he reported problems with his neck, lower back, and right wrist. A ROM test showed that he had limits in both his cervical and lumbar spine. His cervical spine results included flexion of 40°; extension of 45°; lateral rotation of 65°; and side bending of 25°. His lumbar spine results showed flexion of 40°; extension of 15°; and side bending of 15°. Dr. Adin suspected pain in the neck and lower back stemming from discs in his spine with inflammation of the facet joints and bruising in his right wrist. He recommended conservative treatment. At his second visit to Dr. Adin on September 28, 2017, Kowalski continued to complain of pain in his spine, but his wrist pain was going away. Dr. Adin found tenderness and spasms in Kowalski’s cervical and lumbar spine. He was concerned about pain emanating from nerves that were irritated at these areas of the spine. Kowalski’s ROM was checked but no measurements were reported in Dr. Adin’s notes. Dr. Adin again recommended conservative treatment and ordered MRIs of Kowalski’s cervical and lumbar spine and an EMG of his upper extremities. By Kowalski’s third visit with Dr. Adin on October 26, 2017, he continued to complain about neck, lower back, and wrist pain. No ROM measurements were reported in Dr. Adin’s notes but he noted deficits in the cervical and lumbar spine. He reviewed the MRI films and found herniations throughout the cervical and lumbar spine. After reviewing the MRIs, examining Kowalski, and speaking to him, Dr. Adin determined that he had radiculopathy (compressed and irritated nerves) in his lower back. Dr. Adin recommended a percutaneous discectomy (a surgical procedure that removes disc tissue that is compressing the nerves) of the disc between the L5-S1 vertebrae. Dr. Adin performed the surgery on December 13, 2017. At a follow up visit on December 28, 2017, Dr. Adin found that Kowalski’s symptoms were tolerable. His neck got better with conservative treatment and his symptoms related to his lower back improved moderately. Dr. Adin testified that the subject motor vehicle accident caused Kowalski’s injuries because Kowalski told him that he did not have any pain before the accident. While acknowledging that Kowalski had preexisting degenerative changes in his spine, Dr. Adin said that degenerative changes did not cause the injuries because it’s rare for someone to have a disc herniation with radiculopathy and be asymptomatic. He also testified that the outcome of the surgery indicated to him that Kowalski had an acute tear with herniation that impacted the nerve that ran along his left leg. Dr. Adin also testified that Kowalski’s injuries evidenced a permanent disability and significant limitations because a disc herniation is a permanent injury so his spine will never function as it did previously. He added that Kowalski would not benefit from additional treatment. Lastly, he testified that Kowalski’s injuries prevented him from performing substantially all his usual activities for at least ninety days of the first one hundred eighty days immediately after the accident. On cross-examination, however, he admitted that Kowalski never complained that he couldn’t perform his daily activities, including work and household chores. He also admitted that people commonly perform their daily activities even if they have pain. Although Dr. Adin testified that he told Kowalski to avoid work and other activities, he admitted that he never made a note of it in any of his records. Dr. David Payne, a radioneurologist who is Board Certified in Diagnostic Radiology, testified about the MRI films and narrative reports for Kowalski’s lumbar spine and Chung’s cervical spine and their respective medical records. He found evidence of degeneration through much of Chung’s cervical spine. He testified that at the C4-C5 level, there was a paracentral herniation that extended backward causing spinal cord compression and there also was a broad herniation at that level. He opined that the accident caused the herniated disc at the C4-C5 level. He further opined that any pre-existing degenerative changes at that level did not cause any pain until the accident occurred because there were no symptoms prior to the accident. During cross-examination, he said that there was no independent findings on Chung’s MRI that would allow him to determine when herniations occurred and that there was no indication of trauma on the MRI. He added that the only way to conclude that the herniation at the C4-C5 level was caused by accident is by relating the MRI findings to symptoms reported by Chung. He also testified that he did not interpret the MRI based on anything other than what was shown in the films. In other words he did not use Chung’s surgical or clinical records to help him interpret the MRI. Dr. Payne testified that Kowalski had a bulging disc at the L5-S1 level that was impinging on the L5 exiting nerve roots. Kowalski also had a herniation that was superimposed on a bulging disc at the L4-L5 level that was impinging upon the L4 exiting nerve roots. He opined that the new onset of symptoms were caused by traumatic changes to L4-L5 and L5-S1 levels. On cross-examination, he was asked why he couldn’t determine whether the bulging disc at the L2-L3 level that impinged on the L2 nerve root was caused by degeneration or trauma, but he could determine that the similar changes in L5-S1 were caused by trauma. He responded by saying that his conclusion was different for these two areas because of Kowalski’s complaints of pain at the L5-S1 levels and not on what was shown on the MRI. Dr. John Olsewski, an orthopedic surgeon who is Board Certified in orthopedic surgery, reviewed claimants’ medical records, including imaging scans, conducted a physical examination, and formed opinions about each claimant’s alleged injuries. Dr. Olsewski conducted an independent medical exam (“IME”) of Chung on August 30, 2019. He found that she walked with a normal gait and was able to get on or off the examining table without difficulty. He found ROM deficiencies in both her lumbar and cervical spine, but determined that the cervical spine limitations, which he said were diminished by 50 percent, were more significant. He conducted a motor exam and found that Chung had full muscle strength in all muscle groups. After reviewing the MRI of Chung’s cervical spine, he determined that she had significant degenerative changes throughout the cervical spine, including osteophytes (i.e., bone spurs) that impacted the disc spaces at C4-C5, C5-C6, C6-C7 and desiccation (i.e., loss of spinal fluid in the disc) at C4-C5 and C6-C7. Chung reported that her cervical spine felt better following surgery, but the improvement didn’t last. He opined that the subject accident did not cause Chung’s injuries because he did not find any of the essential indicators of spinal trauma. He described the sine qua non of spinal trauma as including either a fracture of the spine or evidence of traumatic disc herniation, such as a “high intensity zone” of edema in the posterior wall of a disc that would be a setup for a disc herniation. Chung did not appear to have any evidence of acute trauma, not even at the C4-C5 levels; just degenerative disc herniation. Dr. Olsewski conducted an IME of Kowalski on September 6, 2019. As with Chung, he did not find any indication of an antalgic gait. As for subjective indicators of limitation, he found Kowalski had diminished ROM in his lumbar spine. A motor exam showed that Kowalski had full muscle strength in all muscle groups. Regarding Kowalski’s percutaneous discectomy at L5-S1, a procedure which Dr. Olsewski described as a minimally invasive procedure, Kowalski reported that he had an excellent result in terms of decreasing pain. As with Chung, Dr. Olsewski opined that Kowalski’s spinal injuries were not caused by the subject accident; rather, they were caused by substantial degeneration in his spine. He based his opinion on a lack of evidence of acute trauma that would correlate radiographic findings with the motor vehicle accident. Dr. Olsewski further opined that the claimants’ failure to seek additional treatment after March 2018 indicated that they either noticed improvement that didn’t warrant further treatment or that the lack of treatment caused them no discomfort. As for permanence of the injuries, he testified, on cross-examination, that both claimants’ injuries are permanent. Dr. Devon Klein, a radiologist who is Board Certified in radiology, testified about his review of claimants’ MRIs. With respect to Chung’s cervical spine, Dr. Klein found degenerative disc disease throughout that area of the spine, including disc desiccation, loss of disc height, and osteophytes (which is a typical finding in arthritis). He testified that the conditions of Chung’s cervical spine, including at the C4-C5 level, showed no evidence of acute trauma, such as would occur after an accident. The MRI did not show any of the typical indicators of acute trauma, such as edema, hemorrhaging, bone contusion or other bone injuries. On cross-examination, Dr. Klein admitted that edema may not appear on the MRI because anti-inflammatory medication would have reduced swelling by the time the MRI was taken. As for Kowalski’s lumbar spine, Dr. Klein testified that the vertebral bodies were normal in height and alignment — that is, no bones shifted relative to the other and there was no compression, fracture, or bone contusion. There also was no ligament or muscle injury present. He found signs of degenerative disc disease throughout the lumbar spine, including desiccation and arthritis. There was a disc bulge at the L5-S1 level with mild-to-moderate swelling of the facet joint (the joint that connects the bones of the spine) that contributed to the narrowing of the intervertebral foramen (the area between the vertebrae where the nerve exits). He averred that this swelling was caused by arthritis. Overall, he did not find any evidence of acute trauma in Kowalski’s lumbar spine. ANALYSIS The subject accident arose from “the use or operation” of a motor vehicle, thereby implicating the No-Fault Law. See Insurance Law §5102 [j] and §5104 [a]. The legislative intent of the No-Fault Law was to “significantly reduce the number of automobile personal injury accident cases litigated in the courts,” (Licari v. Elliott, 57 NY2d 230, 236 [1982]) and to “weed out frivolous claims and limit recovery to significant injuries” (Dufel v. Green, 84 NY2d 795 [1995]). Under Insurance Law §5104 (a), a claimant has “no right of recovery for noneconomic loss, except in the case of a serious injury, or for basic economic loss.” If a claimant can satisfy at least one of the serious injury thresholds, then the claimant is permitted to recover for all damages proximately caused by the accident, even those that are not considered “serious.” See Rubin v. SMS Taxi Corp., 71 AD3d 548, 550 [1st Dept 2010]. Insurance Law §5102 (d) defines “serious injury” as, “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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.” Claimants must submit objective expert evidence showing that their injuries satisfy the serious injury threshold; medical opinions based upon a claimant’s subjective complaints alone are not enough. See Diaz v. Anasco, 38 AD3d 295, 295-296 [1st Dept 2007]; Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]. Additionally, claimants are required to produce nonconclusory expert evidence that the injury was causally related to the motor vehicle accident, rather than some other cause or a preexisting condition. See Diaz, 38 AD3d at 295-296. If there is another plausible cause of the injury, such as a prior accident or a naturally occurring degenerative condition, it is claimant’s burden to show that the accident was a substantial factor in causing the injury. See Gayle v. City of New York, 92 NY2d 936, 937 [1998]. This must be done through proof rendering those other causes “sufficiently remote or technical to enable the [trier of fact] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.” Id. [Citations and internal quotation marks omitted]. Here, claimants contend that they sustained at least one of three1 serious injuries defined by Insurance Law §5102 (d) as a result of the subject accident: (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function or system; and/or (3) 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 (hereinafter, the “90/180 day” category). The analysis on whether an injury qualifies as a permanent consequential limitation or a significant limitation is similar. In both categories, the question is whether the limitation of use “relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part.” See Toure, 98 NY2d at 353. An expert can establish the degree of an injury quantitatively by measuring a numeric percentage of a claimant’s diminished ROM to show the extent or degree of physical limitation. Id. at 350. Alternatively, the expert can provide a qualitative assessment of the claimant’s condition, provided there is an objective basis for the evaluation that compares the claimant’s limitations to the normal function, purpose, and use of the affected body organ, member, function or system. Id. Moreover, the limitation of use must be shown to be more than “minor, mild or slight.” Licari, 57 NY2d at 236. To prove a serious injury under the 90/180 day category, “substantially all” daily activities means that claimants were “curtailed from performing [their] usual activities to a great extent rather than some slight curtailment.” Id. Claimants must show by objective evidence that a medically determined injury caused the alleged limitation of activities; self-serving testimony won’t do. See Jackson v. New York City Tr. Auth., 273 AD2d 200, 201 [2d Dept 2000]. Claimants’ expert’s conclusory assertions that are tailor made to meet the 90/180 day category also are inadequate. See Lopez v. Senatore, 65 NY2d 1017, 1019 [1985]. Instead, the expert must show that claimants were limited in some serious way using test results or other objective medical data. See Lincoln v. Johnson, 225 AD2d 593, 593-594 [2d Dept 1996]. When reviewing No-Fault claims, courts have struggled to figure out whether an injury is substantial enough to satisfy the serious injury threshold. To complicate matters, it is expected that when someone has an accident, they will deal with injuries of some severity following the accident. Some people recover from traumatic injuries after treatment while others sustain more medically substantial impairments. The Court of Appeals found these complexities to be so vexing it acknowledged that trial courts approach spinal injury cases with “well-deserved skepticism” (Pommells v. Perez, 4 NY3d 566, 571 [2005]) — especially on issues of causation. Inevitably, a severe injury that is nevertheless not a “serious injury” can be confused as one. To help lower courts reviewing summary judgment motions decide whether to dismiss a serious injury claim avoid confusion, the Court of Appeals in Pommells held that dismissal is warranted when contributing factors, such as gaps in treatment, intervening medical problems, or preexisting conditions, interrupt the chain of causation between the accident and the claimed injury. Id. at 572. In these cases, courts should dismiss the complaint notwithstanding ample objective evidence of spinal injury (including proof of a herniated disc, MRIs, and clinical findings). Id. Some six years after Pommells, the Court of Appeals complained that abuse persists in No-Fault claims alleging soft tissue injuries. See Perl v. Meher, 18 NY3d 208, 214 [2011]. Still, the Court relaxed its ruling in Pommells and held that, even with bona fide evidence of considerable preexisting degenerative conditions, courts should defer to the skeptical eye of a fact finder if credibility issues exist regarding the etiology of a claimant’s spinal injury. Id. at 215, 219. In this case, the question of whether claimants met their burden of proof comes down to an assessment of the relative merits of claimants’ testimony and the testimony of the expert witnesses. See Wester v. State of New York, 247 AD2d 468, 468 [2d Dept 1998] (“Great weight should be accorded to a trial court’s determinations, particularly where, as here, they rest upon the resolution of issues of credibility and assessment of the weight of the evidence.”) The core of claimants’ serious injury claim centers on soft tissue injuries to their spines. They contend that preexisting degeneration in their spines made them more susceptible to injury from the August 4, 2017 accident, which they argue caused serious injuries. A thorough assessment of the impact of degeneration on claimants’ spines is crucial to resolving the issue of causation in this case. I. Causation Dr. Adin’s testimony regarding the general impact of spinal cord degeneration on a person’s ability to function is helpful on this point. He said that degeneration is part of the normal aging process. As people age, they lose water content in their discs (i.e., disc dessication), which leads to shortening of disc height. This, in turn, limits the spine’s ability to absorb and dissipate forces brought on by stress from normal movement. Degeneration of this type impairs the facet joints, which allow the spine to bend and twist, causing them to move closer together, rub, and enlarge. Thus, these degenerative changes restrict movement and cause pain. Dr. Payne added that disc degeneration also impacts how quickly a person recovers from trauma, such as a car crash. A disc that does not have any signs of degeneration will flatten when loading forces are added from a traumatic incident then bounce back afterwards. The compression of the disc caused by the incident puts pressure on the nucleus of the disc and the annular fibers, which keep the nucleus tissue in place. However, if the annular fibers are weak due to degeneration, the nuclear material pushes against the weak fibers and can cause the fibers to tear or cause the nuclear material to escape into the periphery. It is undisputed that claimants have advanced degenerative conditions in their cervical and lumbar spines. Dr. Adin testified that the MRI he took of Chung’s cervical spine on October 11, 2017 revealed degenerative changes throughout her cervical spine. Specifically, he observed loss of disc height and osteophyte growth. His reports dated October 11, 2017 and October 26, 2017 indicate that he found broad-based central disc herniations at C3-C4, C4-C5, C5-C6, and C6-C7, though, at trial, he only related the herniated disc at the C4-C5 level to the car crash. See Cl. Ex. 11. During cross-examination he conceded that the C4-C5 disc was worn and fluid had dried out as part of the degenerative process. Dr. Payne also found significant degeneration in Chung’s cervical spine. He testified that there was desiccation at C3-C4, C4-C5, C5-C6, and C6-C7; substantial disc shortening at C5-C6 and C6-C7; and indenting of the endplates on either side of C5-C6 and C6-C7. He also identified disc herniations at C3-C4, C4-C5, and C7-T1. However, he only related the C4-C5 herniation to the accident. Dr. Olsewski and Dr. Klein, defendant’s experts, reviewed Chung’s cervical spine MRI and also found substantial degenerative changes. In particular, Dr. Olsewski found evidence of significant bone spurs at the C4-C5, C5-C6, and C6-C7 disc spaces. He identified disc herniations at C4-C5 and C6-C7, which he said resulted from the degenerative process because he saw evidence of dehydration and potential collapse of disc space. In addition to other evidence of degeneration, Dr. Klein found osteophytes, which he said were typical signs of arthritis, at C4-C5 and C5-C6. The experts likewise found substantial degenerative changes in Kowalski’s lumbar spine after reviewing MRIs taken on October 11, 2017. Dr. Adin mainly focused on the herniated disc at L5-S1, but he testified on cross-examination that the discs in Kowalski’s lumbar spine were generally dry and worn. Dr. Payne specified that discs at levels L3-L4 and L4-L5 were desiccated and that discs at L3-L4, L4-L5, and L5-S1 were narrowed. Thus, he determined that Kowalski’s lumbar spine showed two cardinal signs of degeneration: desiccation and joint space narrowing. He identified bulging discs which were impinging on nerve roots at L2-L3, L3-L4, L4-L5, and L5-S1. He also found herniations that were superimposed on disc bulges at L3-L4 and L4-L5. However, he only related the bulging discs at L4-L5 and L5-S1 to the accident because of Kowalski’s complaints and not because of information he gathered from the MRI. Dr. Olsewski and Dr. Klein also detected degenerative changes in the MRI of Kowalski’s lumbar spine. Dr. Olsewski testified that Kowalski’s discs at L4-L5 and L5-S1 were desiccated and he had a herniation at L5-S1. Dr. Klein found disc desiccation and arthritis at L3-L4. He also found a bulging disc and mild-to-moderate swelling of the facet joint, which he related to arthritis, at L5-S1. Overall, Dr. Klein found disc desiccation and osteophytes throughout Kowalski’s lumbar spine. The reason claimants’ degenerative spinal issues are so concerning is that the degree of the degenerative changes makes it difficult to discern the true extent of claimants’ movement and functional abilities before the accident. There is no reliable, objective baseline for a factfinder to compare the before and after pictures. Based on the experts’ testimony though it is unquestionable that degeneration in claimants’ spines was significant before the accident. Thus, claimants’ contention that they were symptom free before the accident strains credibility in the face of the expert testimony and other factors. For example, the evidence showed that claimants’ complaints of pain relate to discs that are most prone to degeneration in adults. Additionally, the degree of degeneration in those discs (and nearby discs) is consistent with the types of symptoms caused by degeneration: inflammation, pain, stiffness, tingling, and restriction in movement. Yet, these were all symptoms that claimants allege were caused by the subject accident rather than by degeneration. Given the strong evidence of degenerative changes as a likely cause of their symptoms, claimants were required to come forward with evidence that the accident was a substantial factor in causing their injuries. See Gayle, 92 NY2d at 937; Thompson v. Bronx Merchant Funding Servs., LLC, 166 AD3d 542, 544 [1st Dept 2018]. However, claimants were unable to meet their burden on causation for two reasons: there was no objective evidence of trauma; and claimants’ self-serving, subjective reports of being asymptomatic before the accident were not credible. A. No Objective Evidence of Substantial Traumatic Injury Neither Dr. Adin nor Dr. Payne produced a single driblet of objective evidence that claimants sustained substantial traumatic injuries in their spines. Indeed, neither expert specified what they believe constitutes objective evidence of trauma. Dr. Olsewski, by contrast, explained that fractures and a “high intensity zone” of edema in the posterior wall of a disc were classic indicia of trauma. Dr. Klein added that he looks for soft tissue edema, hemorrhages, bone contusions or fractures, shifts in bones from one relative to the other, and ligament or muscle injuries. None of these conditions were found in either claimants’ MRIs or other medical records. Dr. Olsewski credibly testified that in the absence of a fracture or acute disc herniation, he could not correlate changes to the spine (as shown on the MRIs) with the accident. Tellingly, after reviewing claimants’ MRI films, none of claimants’ experts could point to a finding of acute trauma in any of the MRIs. Dr. Payne based his conclusions on a process of elimination and, like Dr. Adin, on subjective complaints of pain. Dr. Payne’s repeated admissions during cross-examination that he could not determine if various bulges and herniations were caused by degeneration or trauma did not inspire much confidence in his testimony. Notably, after reviewing the MRI of Chung’s cervical spine, Dr. Payne flatly admitted that there was no way to tell if the herniation at the C4-C5 level was caused by the accident. Claimants’ tried to cover for the lack of objective evidence showing trauma in the MRI by contending that edema and other signs of inflammation may not have appeared on the MRIs because these ailments were likely alleviated with medications before the MRIs were taken. However, this argument conflicts with Dr. Adin’s testimony explaining why he treated Chung with an epidural injection. He testified that the spine tends to be poorly vascularized, so oral antiinflammation medication tends to be ineffective because the medication doesn’t reach the spine. Consequently, inflammation tends to linger in the spine. Claimants MRIs were taken on October 11, 2017, roughly two months and a week following the accident, yet Chung underwent an epidural injection to combat inflammation in her lumbar spine on January 24, 2018, approximately three months and a week after the MRIs were taken. Thus, based on Dr. Adin’s testimony, if there were signs of edema or other signs of swelling or inflammation in Chung’s cervical spine or Kowalski’s lumbar spine, it would have appeared on the October 11, 2017 MRIs. Additionally, claimants were unable to point to any other objective signs of trauma, such as hemorrhages, fractures, contusions, etc. Dr. Adin testified that his opinions on causation were partially based on clinical findings, which he says corroborated claimants’ subjective complaints of trauma-induced pain, even if there were no obvious signs of trauma in the MRIs. However, claimants’ medical records, including their visits with Dr. Adin, were inconclusive as to whether their injuries were caused by the accident or were manifestations of ongoing degeneration. For example, Dr. Adin’s ROM testing showed widespread limitations in the cervical and lumbar spines of both Chung and Kowalski. While ROM measurements showing restricted movement are generally viewed as evidence of a serious injury (see Toure, 98 NY2d at 350), the results reported by Dr. Adin are not probative in this case for at least two reasons. First, Dr. Adin admitted that they are subjective indicators of limited motion and, therefore, unpersuasive evidence of serious injury2. Second, and more importantly, the ROM tests results were consistent with the pervasive degenerative changes shown in claimants’ MRIs for both their lumbar and cervical spines. See Pommells, 4 NY3d at 580 (Holding that plaintiff’s doctor’s affidavit stating that the pain and loss of range of motion in plaintiff’s cervical spine, which he averred were caused by the accident, were consistent with degenerative findings in the MRI and, therefore, did not refute defendant’s claim of no causation). This latter point is supported by Dr. Adin’s testimony that the ROM limits were significant because they implied an underlying problem limiting mobility. Claimants also argued that the positive results of their percutaneous discectomy surgeries proved that their injuries were caused by trauma. Dr. Adin went so far as to say that the outcome of surgery proved that Kowalski had radiculopathy and an acute tear at the L5-S1 level (though he never testified to seeing any tears during surgery or in an MRI). However, this argument is flawed. The general problem with this type of hindsight analysis is that it strongly indicates a confirmation bias is at play. While this approach can be useful to determine whether a mode of treatment was effective in alleviating a patient’s pain, it is misleading here because, as will be discussed in more detail below, claimants had positive outcomes from much of the treatment they received. Thus, it begs the question whether one type of treatment was better than another — a question that is irrelevant here. B. Claimants’ Subjective Reports of Pain Were Unreliable Dr. Adin and Dr. Payne’s opinions regarding causation depended too heavily on claimants’ subjective reports of pain. They also accepted, without question, claimants’ assertions of being asymptomatic before the accident despite several red flags. While their practices may be acceptable for purposes of diagnosis and treatment, it doesn’t satisfy claimants’ burden of proof on causation. See Varveris v. Franco, 71 AD3d 1128, 1128-1129 [2d Dept 2010] (Plaintiff’s doctor’s opinions “relied upon the plaintiff’s subjective representation that her neck and back injuries from a 2004 accident were asymptomatic at the time of the instant accident, rendering his opinions of cervical and lumbar limitations speculative.”). If claimants were credible, then Dr. Adin and Dr. Payne’s reliance on their reports of being asymptomatic before the accident would not be as problematic. However, given that claimants were contending with appreciable symptoms of advanced degeneration (as shown in ROM testing), their claims of being symptom free were not believable. Additional factors, including age, work history, and medical history, indicate that their claims of being asymptomatic were inaccurate. As of the date of the accident, both claimants were in their 50s and it can reasonably be inferred that they were at an age where degenerative changes impacted their lives. See De La Cruz v. Hernandez, 84 AD3d 652, 652 [1st Dept 2011] (Age can be a reliable indicator of the impact of degeneration without further elaboration, provided that a claimant is not young.). All the medical evidence confirms that they were impacted by age-related degeneration. Additionally, claimants’ personal histories before the accident further support the inference that they were not symptom free before the accident. For example, Kowalski’s employment history indicates that the nature of his pre-accident activities likely wore his body down over time more so than if he were engaged in less physically straining work. Specifically, he testified that he worked in construction for over fifteen years and his work always involved significant hands-on labor. Even his recreational activities, which included welding using heavy equipment, were physically taxing. As for Chung, her medical history indicates that she had health problems in the area of her cervical spine. She reported having her thyroid removed in 2007 at her initial visit to Apple Pain Clinic on August 9, 2017 and, according to records of her initial consultation with Dr. Adin on August 31, 2017, she continues to take medication for thyroid disease. See Cl. Exs. 9A and 11. Dr. Adin never explained what impact, if any, Chung’s thyroid surgery and ongoing care had on her cervical spine. At the very least, this condition was superimposed on her degenerated spine. Even more concerning, though, was the issue raised by claimants’ counsel during Dr. Adin’s direct examination when Dr. Adin was asked to opine on causation. Dr. Adin was asked to assume that some ten years before the accident, Chung was involved in another traumatic incident; complained of and was treated for spinal pain; discontinued treatment; and was asymptomatic as of 2017. Strikingly, this was the first time the fact of a prior injury to Chung’s spine was divulged — it was never mentioned in any of the documentary evidence or in Chung’s own testimony. According to Dr. Adin’s initial evaluation report dated August 31, 2017, Chung denied any “past spine history.” See Cl. Ex. 11. The spinal conditions, as with the impact of her thyroid condition, were never discussed in detail, nor did Chung or any of her expert witnesses explain the impact of those prior injuries on the health of her spine as of the 2017 accident. Thus, Chung failed to meet her burden to explain away an alternative cause of her injury. See Gayle, 92 NY2d at 937. Moreover, this egregious omission raised numerous questions about the condition of Chung’s spine: Which parts of her spine were impacted by the prior incident? What records of prior treatment, if any, did Dr. Adin review before forming his opinion? When did Chung cease treatment from the prior incident? Unfortunately, these questions went unanswered, which, in turn, raised bigger questions about the reliability of Dr. Adin’s opinions. At the very least, this information should have caused Dr. Adin to investigate Chung’s statements of having no prior spinal injuries before making conclusions about causation. Unfortunately, whether claimants were truly asymptomatic before the accident remained an open question at the close of trial. Given the advanced and widespread nature of the degenerative changes in their spines, their age, Kowalski’s professional and personal activities, and Chung’s medical history, the evidence strongly supports the inference that they were not symptom free before the accident. The evidence further showed that claimants’ experts did not fully examine the possibility that claimants’ pain was caused by degeneration or temporary trauma. Instead, they let claimants’ subjective complaints of pain direct their opinions and cloud their judgment. Their testimony was not based on objective evidence or sound reasoning, nor was it sufficiently reliable for purposes of resolving the question of causation. Therefore, the Court finds that claimants failed to prove that the accident was a substantial factor in causing their injuries, as opposed to degeneration or some other cause. See Diaz, 38 AD3d at 295-296. II. Claimants’ Did Not Prove “Permanent” or “Significant” Injuries Even if they were able to prove that their injuries were caused by the subject accident, claimants failed to prove that their injuries were permanent or significant in nature by either quantitative or qualitative measures. Dr. Adin opined that the accident caused significant and permanent limitations in how they function based on injuries to their spines. A. No Proven Permanent Consequential Limitation As to permanence, Dr. Adin opined that the disc herniations caused by the accident resulted in permanent loss of bodily function because disc herniations are a permanent injury that cannot be fixed. The record showed, however, that disc herniation can be caused by degeneration or trauma. As previously discussed, Dr. Adin’s testimony did not objectively show that the accident caused any specific disc herniations. Moreover, the expert testimony showed that degenerative conditions (including disc herniation) and the limitations they cause also are permanent. The record did not show that the accident caused any permanent functional limitations that were separate and distinct from the limits that degeneration already caused. For example, while both claimants felt less pain after surgery, their ROM limitations, which correlated with the degenerative changes in their spine, remained relatively the same before and after surgery. Thus, there is no objective basis to believe that the present physical limitations are attributable to the subject accident rather than to the preexisting degenerative conditions. Since claimants’ experts failed to explain why degeneration could be ruled out as the cause of their injuries, they could not meet their burden on either permanence or significant limitation categories of serious injury. See Arroyo v. Morris, 85 AD3d 679, 680 [1st Dept 2011]. Even if claimants proved that the accident caused traumatic injuries, Dr. Adin failed to rule out how claimants did not merely sustain temporary soft tissue injuries that were superimposed on discs that were impacted by degeneration. See Rickert v. Diaz, 112 AD3d 451, 452 [1st Dept 2013]. The heart of Dr. Adin’s causation theory was that claimants complained of specific pain that they said did not exist before the accident. However, the record shows that, by and large, their pain was ameliorated through conservative treatment, including surgery. Dr. Adin was aware that claimants were receiving conservative care from a chiropractor, physical therapist, and acupuncturist at Apple Pain Clinic, yet his testimony showed that he was unaware of the progress claimants made at the Clinic. Had Dr. Adin reviewed claimants’ Apple Pain Clinic records, he would have had a more complete understanding of how claimants steadily improved with conservative care. Chung’s Apple Pain Clinic records show that she received regular chiropractic treatments from August 9, 2017 through March 12, 2018. See Cl. Ex. 9A. On a pain scale of 1 to 10 (10 being intense pain), Chung started off at 7 out of 10 and gradually improved to 3 out of 10 where it remained before her surgery on January 10, 2018 and at her last visit on March 12, 2018. Id. Chung’s physical therapy records corroborate these findings. The physical therapist evaluated her muscle strength using three computerized tests (on August 9, 2017; October 18, 2017; and November 22, 2017). See Cl. Ex. 9B. The studies showed continual improvement in virtually all movement categories, including her cervical and lumbar spine. Chung’s physical therapy records also indicate improvement in her subjective complaints of pain for six months from August 2017 through January 2018 and one last visit on March 12, 2018. Id. Likewise, Chung’s acupuncture records from August 9, 2017 through March 12, 2018 indicate that her symptoms steadily decreased and her condition improved over time. See Cl. Ex. 9D. Kowalski’s Apple Pain Clinic records show similar, gradual improvements. Kowalski was under the care of a chiropractor from August 9, 2017 through March 2018. See Cl. Ex. 8C. The intensity of his overall pain dropped from 7 out of 10 in August 2017 to around 4 out of 10 before his surgery on December 13, 2017. Id. It dropped even further to 3 out of 10 by end of March 2018. Id. The chiropractor indicated that Kowalski was progressing as expected. Kowalski’s physical therapy records also indicate decreasing complaints of pain over the course of seven months of treatment. See Cl. Ex. 8D. The Apple Pain Clinic physical therapist tested Kowalski’s muscle strength three times (on August 9, 2017; September 11, 2017; and November 20, 2017). The results showed steady improvements in his cervical and lumbar spine in all movement categories. Id. Kowalski also received regular acupuncture treatments from August 9, 2017 through March 27, 2018 at Apple Pain Clinic. See Cl. Ex. 8B. Although the treatment showed mixed results, he was evaluated twice (on August 9, 2017 and February 26, 2018) and the range of motion and functional abilities in his cervical and lumbar spine significantly improved. See Cl. Exs. 8B, 8E. Claimants’ own experts explained why slow and steady improvement were likely to occur in claimants’ spines. Dr. Payne testified that disc degeneration slows recovery from trauma. Dr. Adin’s point about how the spine is poorly vascularized also explains why symptoms, such as inflammation and the resulting pain, take longer to dissipate in the spine (independent of degeneration). Given the condition of claimants’ spines before the accident, it is entirely possible that the trauma they experienced from the accident took longer to alleviate than a normal, healthy spine. Thus, the record supports the inference that claimants’ pain was a result of temporary soft tissue injuries that was superimposed on their already degenerated discs. B. No Significant Limitation Shown Dr. Adin testified that claimants sustained significant limitation from spinal injuries caused by the accident. To support this point, he referred to ROM measurements showing that claimants’ limitations were significant. As previously discussed, the ROM measurements are poor indicators of motion deficits because they are subjective tests. In this case, ROM measurements are especially unreliable because the limitations closely align with the degenerative changes in claimants’ spines. Therefore, it would be speculative to say that claimants’ ROM deficits were caused by the accident instead of preexisting degenerative conditions. The weight of the overall evidence indicates that the pain claimants experienced from the accident was a temporary, expected response to trauma from the accident. Therefore, the Court finds that claimants failed to prove that the accident caused limitations that were permanent or significant in nature. III. Claimants Failed to Meet the Requirements of the 90/180 Day Category Claimants contend that they sustained a serious injury under the 90/180 day category and were unable to perform their usual activities to a significant extent. Chung testified that she was out of work for four months following her accident and that she was unable to do the majority of her typical household chores and recreational activities. Kowalski testified that from the date of the accident until surgery (roughly four months) he went to work approximately one day per week for a couple of hours. He was still involved in two construction projects that were at the finishing stages but avoided hands on work at the jobsite. He also was able to drive to his work on his own and was able to function but with pain. Additionally, he said that he was able to maintain his home in Pennsylvania, go grocery shopping, and drive regularly after the accident. Dr. Adin testified, without going into any specifics, that both claimants were disabled for 90 out of 180 days after the accident. Claimants failed to prove their 90/180 day serious injury claim for several reasons. First, neither claimant supported their claim with objective proof that their inability to perform substantially all their daily activities was based on a medically determined limitation. See Ryan v. Xuda, 243 AD2d 457, 457-458 [2d Dept 1997]. While Dr. Adin’s records show that both claimants were injured, the records do not indicate that Dr. Adin restricted their activities in a way that substantially curtailed their activities. To the contrary, when Kowalski met with Dr. Adin for the first time on August 31, 2017, according to a notation in Dr. Adin’s record, he apparently told Dr. Adin that he “currently works full time and full duty in construction…” See Cl. Ex. 10. This raises questions about whether Kowalski was being honest when he testified that he had to limit his activities at work. In either case, he was able to do some work with restrictions during the relevant time period and, thus, he does not meet the 90/180 day threshold. See Perl, 18 NY3d at 220. Second, courts have been unwilling to find a serious injury under the 90/180 day limitations where the claimant’s treating physician placed no restrictions on claimant’s activities. See Gonzalez v. Green, 24 AD3d 939 [3d Dept 2005]. Here, claimants’ medical records are devoid of any indication that they either complained to any of their medical providers that they were unable to perform certain activities or were instructed to avoid any type of work or activities. Third, claimants’ purported inability to work was not substantiated by any documentation from their employers or other sources (such as tax records, business records, bank statements, witness statements, etc.). See Brand v. Evangelista, 103 AD3d 539, 540 [1st Dept 2013]. Claimants’ self-serving testimony was insufficient. See Jackson, 273 AD2d at 201. Lastly, Dr. Adin’s conclusory statements at trial that claimants were temporarily disabled is insufficient because they were nothing more than conclusory statements tailored to meet the 90/180 day statutory requirements. See Sainte-Aime v. Ho, 274 AD2d 569, 570 [2d Dept 2000]. Therefore, the Court finds that claimants failed to prove that they sustained a serious injury under the 90/180 day category. Accordingly, claimants failed to prove that they sustained a serious injury as defined by Insurance Law §5102(d) and, therefore, damages are not warranted. Claim Nos. 130272 and 130273 are hereby DISMISSED. Let judgments be entered accordingly. Dated: November 20, 2020
