New York State Court of Claims

New York State Court of Claims
POOLE v. STATE OF NEW YORK, # 2020-040-027, Claim No. 119150, Motion No. M-89799

Synopsis

Following Trial, Court found Claimant failed to establish, by a preponderance of the credible evidence, that he sustained a serious injury under Insurance Law § 5102(d), and, therefore, further failed to establish his right of recovery for the damages he allegedly suffered in connection with a motor vehicle accident on March 29, 2010. The Claim fails, primarily on the issue of causation.

Case information

UID: 2020-040-027
Claimant(s): WILLIAM POOLE
Claimant short name: POOLE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 119150
Motion number(s): M-89799
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Edward P. Ryan, Esq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Anthony Rotondi, Esq., AAG
Joan Matalavage, Esq., AAG
Third-party defendant's attorney:
Signature date: June 24, 2020
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, William Poole, failed to establish, by a preponderance of the credible evidence, that he sustained a serious injury under Insurance Law § 5102 (d), and, therefore, further failed to establish his right of recovery for the damages he allegedly suffered in connection with a motor vehicle accident on March 29, 2010. The Claim fails, primarily on the issue of causation. A bifurcated trial was held on February 26-28, 2019 at the Court of Claims in Albany, New York, addressing damages issues only. There were seven witnesses at trial: Claimant; Virginia Cleary (Claimant's mother); Leon Price and Shawn M. Garrison (Claimant's friends); David Mahlstedt (Claimant's employer); Kevin Decker (Claimant's economist); and Dr. James Storey (Defendant's expert). In addition, recorded trial testimony was received from two witnesses: Dr. Jai Kim (Claimant's former primary care physician);(1) and Dr. John T. Whalen, Claimant's surgeon.(2)

Thereafter, the parties were granted additional time to order a trial transcript, and then to submit post-trial memoranda.

PROCEDURAL HISTORY/PRE-TRIAL MOTIONS The procedural history of this Claim was set forth by the Court, on the record, at the beginning of the Trial (Tr., pp. 9-10). By Decision and Order, dated September 27, 2012 (UID No. 2012-040-077), this Court granted summary judgment to Defendant, dismissing the Claim. By Decision and Order, dated April 3, 2013 (UID No. 2013-040-024), Claimant's motion seeking re-argument was denied. By Decision and Order, dated October 16, 2014 (121 AD3d 1224), the Appellate Division, Third Department, reversed this Court's determination, denied Defendant's motion for summary judgment, and granted Claimant's cross-motion for partial summary judgment on the issue of liability.

After additional discovery, a trial of this Claim, on the issue of damages only, was scheduled to commence on April 5, 2016 at the Court of Claims in Albany, New York and, after conferencing with the parties, adjourned to April 12, 2016. Upon request of Defendant and consent of Claimant, that trial date was adjourned. Then, on April 14, 2016, the Court was advised that Claimant was going to have additional surgery, and that additional discovery might be necessary.

A new date was scheduled for the trial to commence on January 31, 2017. On December 23, 2016, a Trial Preparation Conference was scheduled for January 20, 2017. On January 9, 2017, Defendant served upon Claimant a Notice to Admit certain photographs of Mr. Poole's car following the motor vehicle accident. On January 20, 2017, Claimant filed and served a Notice of Motion, in limine (M-89799), to preclude(3) Defendant from adducing any proof: (i) on the issue of Claimant's cause of action that he was unable to perform his usual daily activities for 90/180 days following his accident; (ii) that the accident was not the cause of his serious injury; and (iii) from any expert opining regarding the same, and further limiting such expert's testimony to matters concerning his physical examination of Claimant.

After consultation with counsel at the January 20, 2017 Trial Preparation Conference conducted by telephone, oral argument was heard, on the record, on January 25, 2017, with respect to Claimant's Motion M-89799, as well as Defendant's Notice to Admit, and Defendant's motion, made at the oral argument, to preclude testimony from certain of Claimant's fact witnesses identified at the Trial Preparation Conference. During the course of the oral argument, the Court reserved its decision on Claimant's motion, but noted that, since it was a motion to limit, rather than one to preclude, it would allow Dr. Storey to testify. Further, the Court indicated that it would rule at trial on the scope of any testimony by Dr. Storey concerning the report of another expert that the State had retained, depending upon the nature of that testimony and the purpose for which it was offered. The Court denies Defendant's oral motion to preclude some of Claimant's witnesses because the trial was adjourned at the oral argument, in part, in order to afford Defendant an opportunity to depose those witnesses and conduct further discovery. Finally, concerning Defendant's Notice to Admit, Claimant objected. The Court stated at oral argument that it would allow a proffer of the photographs and entertain any objections to them at the trial. One photograph of Mr. Poole's car was admitted into evidence at the trial, over Claimant's objection (see Tr., pp. 111-115; Ex. P).

After further discovery, a trial of this Claim, on the issue of damages only, was scheduled to commence on February 26, 2019 at the Court of Claims in Albany, New York.

FACTS

The Accident

In March 2010, Claimant was unemployed, waiting to be called back to his job at an auto body repair shop. Mr. Poole said that he had no physical complaints that would have impeded his ability to do that kind of work, but he had been evaluated for abdominal pain on several occasions during that month, was told to stay out of work by his primary care provider on March 26, 2010, and was scheduled for abdominal testing at St. Mary's Hospital in Troy, New York, on March 29, 2010.

On the morning of March 29, 2010, the accident that is the subject of this Claim occurred when an automobile owned by Defendant, and operated by one of its employees, struck the rear passenger side of Claimant's vehicle. Claimant testified that airbags did not deploy, he did not lose consciousness, and, afterwards, he was able to drive the couple of blocks from the accident scene to his previously-scheduled appointment at St. Mary's Hospital. During that appointment, Mr. Poole did not complain about headache, neck pain, or anything related to the car accident, and was able to drive home in his vehicle. In fact, Claimant said that he "felt fine" for the remainder of that day (Tr., p. 55).

Claimant said that, when he got up the next morning, March 30, 2010, however, he felt like he had been "slapped in the back of the head with a sledgehammer," his head was "pounding," and his neck was "killing" him (Tr., p. 55). He called the office of his primary care physicians at Capital Region Family Health Care, and Dr. Kim told him to go to the emergency room (hereinafter, the "ER").

The next day, March 31, 2010, Mr. Poole presented at the ER of St. Peter's Hospital in Albany, New York, with his chief complaint being constant neck, shoulder and upper back pain, rated at 10/10. No numbness, weakness, neurological complaints (including headache), or head trauma were noted (Ex. 14, pp. 3-5). Upon examination, Mr. Poole was found to have full range of motion (hereinafter, "ROM") in his neck (id., p. 4). X-rays were ordered (id., pp. 2, 9, 12; Tr., p. 56).(4) He was discharged later that same day with a diagnosis of neck and upper back strain, prescribed pain medications, and told to follow up with his primary care physician (Ex. 14, pp. 7, 11; Tr., p. 56). Claimant agreed that he was not given a neck brace, and he was not prescribed physical therapy (Tr., p. 96).

Daily Activities/Quality of Life

The composite testimony of Mr. Poole, his mother, friends, and employer, is that he suffered debilitating symptoms following the motor vehicle accident which have significantly diminished his quality of life. Before the accident, Mr. Poole was described as an outgoing, energetic, and active man, an avid hunter and fisherman, who shot archery, enjoyed spending time outdoors with his children, biking and playing with radio-controlled cars, played in the yard with his dog, and worked on his trucks. He no longer does any of those things (Tr., pp. 81, 83-84 [Claimant], 124-125 [Cleary], 141-142 [Price], 155, 161 [Garrison]). Mr. Price said that, sometime after he and Mr. Poole renewed their friendship in 2012, they went fishing, but Claimant had to stop and appeared to be in pain (Tr., pp. 143-144).

Claimant said that he had headaches, sensitivity to light, neck and shoulder pain, and tingling in his hands (Tr., pp. 58, 65). With respect to photosensitivity, after the accident Mr. Poole tinted the front windows in his house, hung dark curtains, and closed the Venetian blinds, to keep the sun from shining in the windows. He sat in darkened rooms, and wore dark sunglasses to watch TV. If exposed to too much light, he said that he would have headaches, migraines, and become nauseous, and that he still had sensitivity to light at the time of the trial (Tr., pp. 61 [Claimant], 127-129 [Cleary]). Mr. Garrison said that, during the first six months after the accident, Claimant was "basically couch-ridden… He's still almost in that condition," or at least he was for several years (Tr., pp. 157-159). Mr. Price similarly said that, since 2012, Mr. Poole has been "pretty much ... a hermit" (Tr., p. 146). Claimant's daylight activities remain much diminished and, when he is outdoors, Mr. Poole wears a hat, dark glasses, and/or stands or sits under a shade tree (Tr., pp. 85 [Claimant], 137 [Cleary]).

Mr. Poole said that he could not flex his head forward to look down to tie his shoes. Rather, he squatted and reached down instead. Likewise, he said that he still cannot extend his head back to raise his chin up in the air because he gets a shooting pain up the back of his neck and pain in his head (Tr., pp. 70-71). He reported that he still has intermittent tingling in his hands, as well as numbness in his fingertips (Tr., pp. 71, 105).

He no longer drives himself long distances so that his ex-wife and her husband transported him to his son's graduation in Texas. Sometime after 2012, Mr. Price drove Claimant to another graduation in South Carolina (Tr., p. 149). As a passenger, he travels at night and makes frequent stops (Tr., pp. 82 [Claimant], 150 [Price]). Ms. Cleary said that, when he does drive, her son wears two sets of sunglasses (Tr., p. 130).

Ms. Cleary also said that, before the accident, Claimant cut the lawn, shoveled snow, and did home repairs (Tr., p. 133). Since then, Mr. Poole said that he cannot do more than minimal household maintenance (Tr., p. 82). He said that he can wash and bathe himself, and carry light grocery bags, but needs friends to help him shop, clean the house, shovel snow, paint his living room, move appliances, and walk the dog (Tr., pp. 85-86 [Claimant], 134, 137 [Cleary], 146-149 [Price], 160 [Garrison]).

Mr. Mahlstedt agreed that Claimant used to be able to perform most any task required of an auto mechanic, including ones that involved the need to crouch, get down on his knees, reach above his head, pull, push, display manual dexterity, and lift heavy objects weighing up to 150 pounds (Tr., pp. 177-178). He said that, after the accident, Claimant is unable to do any mechanical work and Mr. Mahlstedt does not permit Mr. Poole to lift parcels that weigh more than 20 pounds (Tr., pp. 179-180).

April -December 2010

Dr. Jai Kim

About a week after his motor vehicle accident, on April 6, 2010, Claimant presented to Dr. Kim, complaining of severe neck pain, whiplash, and bilateral shoulder blade pain (Ex. 28-A, pp. 8-9; see Ex. 4, p. 43 [History of Present Illness (hereinafter, "HPI") section of Progress Note]). The Progress Note also indicates that Mr. Poole had tenderness, rated 7-8/10, and decreased ROM upon flexing and extending his neck (Ex. 4, p. 43 [Physical Examination (hereinafter, "PE") section of Progress Note]). Although the Progress Note does not record any specific measurements of the percentage of loss of ROM, Dr. Kim testified that, as far as she remembered, Mr. Poole could not flex and extend his neck (Ex. 28-A, pp. 51-52). On cross-examination, Dr. Kim said that she was not aware that the March 31, 2010 St. Peter's Hospital record indicated that Mr. Poole had full ROM of his neck (Ex. 28-A, p. 49). She also agreed that her notation of myalgia, or muscle pain, reflects Claimant's own subjective complaints and was not based upon any objective finding, such as an X-ray, MRI, or CT scan (Ex. 28-A, pp. 50-51). She further agreed that her Progress Note did not indicate that Claimant made any complaint of headache on April 6, 2010 (Ex. 28-A, p. 52; see Ex. 4, p. 43 [in the Review of Systems (hereinafter, "ROS") section of Progress Note, "HA" [headache] is not circled under the "Neuro" subheading of the ROS)]). Dr. Kim's diagnosis was that Claimant had a cervical sprain with pain in his shoulder blades, and she prescribed pain and anti-inflammatory medications, as well as heat and physical therapy (Ex. 28-A, p. 9; Ex. 4, pp. 43-44). Claimant was scheduled to return to work the following week (Tr., p. 57), so Dr. Kim also gave him a disability note (Ex. 28-A, p. 9).

Claimant presented to Dr. Kim's office six more times before he had surgery on his neck in November 2010 (April 19, May 14, June 10, September 7, October 1, and October 5, 2010), in each instance with complaints of neck and back pain similar to those he had on his initial visit, although, in June, Mr. Poole also reported pain going down his arms (radiculopathy), and on October 5, he also complained of light sensitivity (see Ex. 4, pp. 31-42; Ex. 28-A, pp. 10-15, 18-21, 52-54, 68). The HPI section of the April 19, Progress Note indicates that Claimant generally was improving (Ex. 4, p. 41), although Dr. Kim also testified that she recalled feeling Claimant having muscle spasms during that visit, which she agreed was significant, explaining that a muscle in spasm is somewhat hard to the touch, and painful upon palpation (Ex. 28-A, pp. 11-12). On cross-examination, however, when asked if her Progress Note actually references spasms, Dr. Kim said "[w]ell, I put painful" (Ex. 28-A, p. 53).

Dr. Kim again agreed in her testimony that the Progress Notes record Claimant's subjective complaints of pain, not objective findings (see Ex. 28-A, p. 56 [5/14/10]). During those six visits, Mr. Poole reported levels of pain that ranged from a low of 3/10 on September 7, 2010, to a high as 10+/10 on October 1, 2010. No complaints of headache were mentioned in the Progress Notes for the April/May visits, but constant, pounding, or persistent, headaches were noted in June/September/October. Dr. Kim prescribed for Mr. Poole a variety of medications, modalities of treatment, tests, made referrals for consultations with specialists, and issued Mr. Poole additional disability notes not to return to work. By October, the plan was to try to stabilize Claimant's migraines and reduce his smoking, a trigger for inflammation, or, if that was not possible, consider surgery as a last resort, which Dr. Whalen performed at the end of November 2010.

Claimant saw Dr. Kim on December 3, and December 17, 2010, after his surgery with Dr,. Whalen, about an oral thrush condition. No headache was noted on either visit (Ex. 4, pp. 27-29; Ex. 28-A, pp. 70-71).

MRIs

MRIs of Claimant's cervical spine were done on May 21, 2010, and again on August 13, 2010. The Diagnostic Imaging Report of the May MRI, done at Northeast Health Imaging, found a left paracentral disc protrusion present at C5-C6, along with deformity of the left ventral thecal sac, and possible minimal remodeling along the left side of the cervical cord. The only other abnormalities noted were a minimal disc protrusion at C3-C4, with slight flattening of the ventral thecal sac, and minimal degenerative disc changes at C6-C7. The vertebral bodies were of normal height and there was no abnormal signal within the cervical cord (Ex. 3, p. 3; Ex. 4, p. 46; Ex. 5, p. 18; Ex. 11, pp. 1 and unnumbered carry-over page).

In August 2010, MRIs of both Claimant's cervical and lumbar spine were done at Capital Region Neurosurgery. The MRI report for the cervical spine, interpreted by a radiologist at Northeast Medical Imaging, found normal cervical lordosis, no fracture or subluxation, that the vertebral height and marrow signal was maintained, and that the cervical cord was normal in signal and contour. The C2-C3, C3-C4, C4-C5, and C7-T1 levels all were unremarkable. At the C5-C6 and C6-C7 levels, there were mild degenerative disc signal changes. There was no disc herniation or central canal stenosis (Ex. 5, p. 23; Ex. 3, p. 1).

When Dr. Edward H. Scheid, Jr., at Capital Region Neurosurgery, reviewed the August MRI of Claimant's cervical spine, he noted that it "shows mild degenerative [changes] at C5-6 and C6-7" (Ex. 5, pp. 12-13; Ex. L [August 30, 2010 letter to Dr. Kim]).

CT Scan

Dr. Kim agreed in her testimony that a CT scan would provide an objective finding to consider, as opposed to Claimant's subjective complaints of pain, but the CT of Mr. Poole's head and brain, done by Northeast Health Imaging on September 9, 2010, was negative (Ex. 11, p. 2; Ex. 28-A, pp. 67-68).

X-Rays

Several X-rays of Claimant's cervical spine were done at Capital Region Neurosurgery on June 24, 2010. The report concerning frontal, neutral, flexion, and extension, lateral images stated they were "[u]nremarkable," found that disc spaces were maintained, and there was no fracture or destructive lesion (Ex. 5, p. 17; Ex.3 , p. 23).

Dr. Whalen noted X-rays, done on October 15, 2010, which showed a slight loss of disc height at C5-C6 (Ex. 3, p. 17; Ex. 12, p. 5; Ex. 29-A, p. 62).

Physical Therapy

Claimant attended eight physical therapy sessions from April 13 to May 6, 2010 at Seton Health Physical Rehabilitation, with spasms noted on two occasions (see Ex. 13, pp. 2, 4-5). Mr. Poole's last physical therapy session was on May 6, 2010. He was discharged thereafter because of noncompliance (Ex. 13, p. 1). Neither Dr. Kim, nor Dr. Whalen, was aware that Claimant had been discharged for noncompliance (Ex. 28-A, p. 54 [Kim]; Ex. 29-A, p. 67 [Whalen]).

Therapeutic Massage

Claimant presented at Judy Pochobradsky Therapeutic Massage, in Rensselaer, New York on May 21, 2010, with complaints of severe neck pain, as well as frequent pain in the C4-C6 area of the spine, along the occipital ridge, and in the Mastoid process, bilaterally. Pain was made worse by neck extension, and often radiated cranially along the posterior skull. Mr. Poole also described constant headaches since his motor vehicle accident. He said that his activities of daily living were greatly affected by pain, and rated his average daily pain level at 3-4/10 (Ex. 8, p. 2). ROM measurements (discussed below) also were noted. Claimant received therapeutic massage treatments on more than two dozen occasions over the course of the next year. They provided only mild relief, however, from his chief complaints of headaches, migraines, neck pain, and muscle spasms (see Ex. 8).

Range of Motion Measurements

Mr. Poole's medical records reference several ROM measurements. Dr. Whalen testified that normal ROM results would be about 45 degrees of flexion (chin forward) and extension (chin up and back), and 80 degrees of rotation, although he also said that there is some variability among individuals (Ex. 29-A, pp. 48-49). Dr. Storey agreed that normal flexion would be approximately 45-60 percent, and normal extension would be approximately 45-75 percent, and should be painless (Tr., p. 327).

An April 13, 2010 physical therapy evaluation (see above), although not altogether clear, indicated cervical ROM at 40 degrees, cervical extension at 12 degrees, right rotation at 40 degrees, left rotation at 65 degrees, right lateral at 30 degrees, and left lateral at 55 degrees, and also noted increased pain with right and lateral rotation (Ex. 13, p. 7).

A therapeutic massage treatment report, dated May 21, 2010 (the same day as Mr. Poole's first MRI) states, in pertinent part:

Upon initial evaluation, William exhibited an extensive loss in [ROM] of the neck. Flexion revealed [a] 25% loss of motion with tightness felt along the posterior neck. Extension showed [a] 70% loss of motion. Upon this action a "sharp, stabbing" pain was experienced along the base of the skull. RIGHT and LEFT Lateral Flexion show [a] 65% loss with pain felt along the middle of the posterior neck[ ] near C5-C6 area. A significant pain was also felt along the RIGHT side of the spine[.] William also exhibits an 85% loss with RIGHT Rotation. Pain is felt along the occipital ridge and the Mastoid Process (> on the RIGHT). LEFT rotation is also limited at 30%. RIGHT rotation exhibits [an] 80% loss in motion with [a] severe pain noted at the RIGHT shoulder that travels down into the RIGHT medial scapula. The Hypertonicity is extensive along SCM and Scalene Pain is significant upon palpation of [the] attachment sites and multiple Adhesions are noted along their muscle bellies.

(Ex. 8, pp. 2-3).

On June 9, 2010, Dr. Ralph Quade at Northeast Orthopaedics (now OrthoNY) (see below) found that extension and flexion did not increase pain, but that Claimant also was complaining of frequent daily headaches (Ex. 12, p. 1). Two weeks later, however, Dr. Edward H. Scheid, Jr., at Capital Region Neurosurgery (see below), reported that Claimant had "some difficulty with [ROM] in all directions and was very cautious and guarded" (Ex. 5, p. 2; Ex. H, p. 2 [June 24, 2010 letter to Dr. Kim]). In her testimony, Dr. Kim agreed that Dr. Scheid attached no numeric percentage to Claimant's diminished ROM (Ex. 28-A, p. 62). In late July, Dr. Scheid said that Claimant's ROM "of the cervical spine is very limited especially with extension" (Ex. 5, p. 4; Ex. I [July 27, 2010 letter to Dr. Kim]). In her testimony, Dr. Kim agreed that the limitation in extension Dr. Scheid noted differed from Dr. Quade's finding, about six weeks earlier, that extension and flexion did not increase Mr. Poole's pain (Ex. 28-A, p. 63).

On September 14, 2010, Claimant was seen by Priti Vohra, D.O., at The Albany and Saratoga Centers for Pain Management (see below). Upon inspection of the cervical spine, Dr. Vohra found no erythema or edema, full ROM in all planes, but that Claimant had pain at end-ROM, especially with extension and side bending, and that he had local tenderness to palpation at the cervical facet joints, bilaterally (Ex. 1, p. 3).

When Dr. Whalen examined Mr. Poole on October 15, 2010 (see below), he found Claimant's back was tender to palpation throughout the cervical spine and his ROM "is 40 degrees flexion, 30 degrees extension, 50 degrees right lateral rotation, and 70 degrees left lateral rotation with some facial grimacing. His … [m]otor strength is 5/5 in the upper extremities except for left wrist extension is 4/5" (Ex. 3, p. 17; Ex. 12, p. 4). Dr. Whalen testified that each of those ROM measurements was below normal (Ex. 29-A, p. 49).

Neurosurgical Consultation/Epidural Injections

Claimant was examined by Dr. Scheid on June 24, 2010, approximately three months after the accident (see Ex. 5, pp. 1-3; Ex. H). Claimant presented with neck pain that radiated into his bilateral shoulders and trapezius, which Mr. Poole rated at a constant 7/10. He also reported occasional numbness in the fingertips of both hands, as well as constant headache and sensitivity to light, with pain worse upon looking up. He denied any weakness in the upper extremities. Upon physical examination, Dr. Scheid found Mr. Poole to be in no acute distress, his neck was supple, and rated his motor strength in the upper extremities at 5/5, but also recited Claimant's difficulty with ROM discussed above (Ex. 5, p. 2; Ex. H, p. 2 [June 24, 2010 letter to Dr. Kim]).

Dr. Scheid also noted in his letter that an MRI of Mr. Poole's cervical spine showed a C5-6 left paracentral disc protrusion. He recommended that Claimant receive epidural steroid injections at C5-C6. Claimant received those injections on two occasions, June 30, 2010, and July 21, 2010 (see Ex. 5, pp. 15-16). Dr. Whalen testified that he did not have, or review, Dr. Scheid's notes, although he was aware that Claimant had treated with the doctor and had received epidural injections (Ex. 29-A, pp. 68-69, 80-82).

On July 27, 2010, Claimant again visited Dr. Scheid, reporting that the epidural steroid injections were not giving him relief and that the last injection seemed to exacerbate some muscle spasms in the posterior neck. Dr. Scheid examined Mr. Poole and rated his strength in the upper extremities to be 5/5, but also found the ROM limitations noted above (Ex. 5, p. 4; Ex. I [July 27, 2010 letter to Dr. Kim]).

Dr. Scheid's assessment was a displaced cervical disc and a whiplash injury. He prescribed Claimant medications, including one for muscle spasms. At his next appointment on August 6, 2010, Dr. Scheid reported that Claimant had diffuse tenderness that extended from the occipital region, posterior cervical, and bilateral shoulder area in the trapezius region with palpation, along with slight difficulty rotating his head from right to left, which, Mr. Poole said, exacerbated his symptoms. His muscle strength again was rated 5/5. Dr. Scheid recommended another MRI of the cervical spine, as well as one of the lumbar spine (see above), and prescribed more medication for Claimant (Ex. 5, pp. 6-8; Ex. J [August 6, 2010 letter to Dr. Kim]). Pending a review of that test, on August 13, 2010, Dr. Scheid issued another disability note for Mr. Poole to remain out of work (Ex. 5, pp. 9-10; Ex. K).

Claimant saw Dr. Scheid again on August 30, 2010. Dr. Scheid reviewed the August MRIs with Claimant (see above), including the mild degenerative changes at C5-6 and C6-7 in his cervical spine (Ex. 5, pp. 12-13; Ex. L [August 30, 2010 letter to Dr. Kim]). Dr. Scheid did not believe that Mr. Poole was a surgical candidate because "there were no structural lesions to the cervical or lumbar spine," and Mr. Poole was discharged from Dr. Scheid's care (id.). That review and conclusion was noted in the October Progress Notes from Dr. Kim's office (Ex. 4, pp. 31-34; Ex. 28-A, pp. 18-19, 68).Pain Management/Nerve Blocks

On September 14, 2010, Claimant was seen by Priti Vohra, D.O., at The Albany and Saratoga Centers for Pain Management. The HPI portion of the doctor's consultation note recited Mr. Poole's complaints of significant neck and shoulder pain, with associated migraines, nearly constant burning and throbbing pain, rated at 8/10, and difficulty with many of his activities of daily living (Ex. 1, p. 2). Dr. Vohra noted Claimant's May and August MRIs, and upon inspection of the cervical spine, found no erythema or edema, and full ROM in all planes (see above) (Ex. 1, p. 3). Testing of muscle strength of the upper limbs was rated 5/5.

Dr. Vohra's impression was that Claimant had cervical spine pain radiating toward his shoulders/shoulder blades, with concomitant migraines, likely the result of a whiplash injury and cervical facet arthropathy. The doctor proposed that Mr. Poole have bilateral cervical medial branch nerve blocks between C4-C7 (Ex. 1, p. 4). That procedure was done on September 16, 2010 (Ex. 1, p. 5).

Orthopedic Consultations and ACDF Surgery

Claimant had two orthopedic consultations in June and October 2010. On June 9, 2010, two months after the motor vehicle accident, Claimant was seen by Dr. Quade, who reviewed an MRI of Mr. Poole's cervical spine (see Ex. 12, pp. 1-2; Ex. 3, pp. 24-25).(5) Dr. Quade stated, in the HPI portion of his appointment note, that Claimant:

is complaining of severe pain on the right side of his neck, marked restriction with right lateral gaze to approximately 5 degrees, left lateral gaze is full to approximately 30 degrees. Extension and flexion does not increase the pain, but he is also complaining of frequent daily headaches. He has been going to physical therapy. He is taking often Flexeril for pain. He has had an MRI of the cervical spine, which shows a degenerative disc at C6-C7 [sic] with protrusion towards the left. The other disc levels appear to be normal. There is nothing particularly abnormal noted on the right. There is no weakness of biceps, triceps, or brachioradialis with reflex, as being 1+ in all of these and there is no shoulder rotator pain or shoulder rotator motion or weakness.

(Ex. 12, p. 1).

Dr. Quade's diagnosis was that Claimant had a severe cervical strain. He recommended physical therapy, massage therapy, or even chiropractic treatment, which he thought "would be safe to do … particularly with an MRI of the cervical spine that does not show a herniated disc" (Ex. 12, pp. 1-2). He further noted that no follow-up appointments were scheduled (id.). In Claimant's words, he was sent back to Dr. Kim because Dr. Quade "said he didn't fix headaches" (Tr., p. 59).

Dr. Kim's June 10, 2010 Progress Note recorded that Claimant saw Dr. Quade the previous day (see Ex. 4, p. 37 [under Reason for visit/History]). Dr. Kim testified that she was aware of some of Dr. Quade's findings, but was not aware of his diagnosis of severe cervical strain, or that he found nothing particularly abnormal on the right side of the cervical spine, no arm or shoulder weakness, no increased pain upon extension and flexion, no shoulder rotator pain, and that the MRI did not indicate a herniated disc (Ex. 28-A, pp. 58-60).

On October 1, 2010, Dr. Kim referred Mr. Poole for a second orthopedic consultation, this time with Dr. Whalen, because Claimant was still in pain and not getting better (Ex. 4, p. 34; Ex. 28-A, pp. 16-17). Claimant was examined by Dr. Whalen, another doctor at Northeast Orthopaedics, LLP (now OrthoNY), on October 15, 2010. At that visit, Mr. Poole described his symptoms:

[A]s a constant ache and throbbing sensation at the base of the cervical spine radiating up into the occiput causing headaches. The pain radiates down between his shoulder blades radiating to the right posterior scapular region greater than the left. He is unsure what makes his symptoms worse. Nothing seems to make it better. He denies any arm pain. He does feel weak in his upper extremities … 100% neck pain … Pain scale on average is a 7 to a 10/10 …

(Ex. 3, pp. 16-17; Ex. 12, pp. 3-4).

Upon PE, Dr. Whalen noted that Claimant appeared healthy, was in no apparent distress, had a normal affect, moved easily around the examining room and examining table, but Mr. Poole's back was tender to palpation throughout the cervical spine. The doctor also noted the ROM measurements and motor strength findings discussed above (Ex. 3, p. 17; Ex. 12, p. 4). Dr. Whalen also reviewed X-rays done that day (see above), as well as a film and report of the May 21, 2010 MRI (see above).(6)

Claimant told Dr. Whalen that he had the lumbar MRI done with Dr. Scheid, but Dr. Whalen said it was not available at that time (Ex. 3, p. 17; Ex. 12, p. 5; Ex. 29-A, pp. 62-63).

The Assessment portion of Dr. Whalen's Appointment Note described Claimant as:

[a] 41-year old man with significant neck pain and some left arm weakness. I discussed the problem with [Claimant]. He has this herniated disk at left C5-6. Most of the pain is from the neck. We discussed further conservative treatment or surgery. If he can manage with his symptoms, he may continue with conservative treatment. If not, he could consider surgery. I went over the surgery and postoperative course. While I believe surgery would have a reasonable chance of helping with his symptoms, there are no guarantees. There is a chance he could go through it all and be the same or worse following surgery …

We discussed the neck pain may or may not improve and I certainly would not expect complete relief of his symptoms, and he understands this.

He has significant cardiac problems and is status post MI five or six months ago. I do not know whether he can be cleared for surgery. This would be up to his cardiologist.

He would like to proceed with surgery. I asked him to check with Dr. Marmulstein if he could be cleared for surgery. If so, he would like to proceed. We will plan for ACDF [Anterior Cervical Diskectomy and Fusion] C5-6 with instrumentation and allograft. If he cannot be cleared with surgery, he will continue with conservative treatment until he can be cleared

(Ex. 3, p. 18; Ex. 12, p. 5; see Ex. 29-A, p. 20).

Dr. Whalen performed ACDF surgery for a herniated disc on Claimant on November 29, 2010 at St. Mary's Hospital in Troy (Ex. 3, pp. 14-15; Ex. 12, pp. 7-8; Ex. 30). The Operative Note recites that the surgery included the following procedures: an anterior cervical diskectomy and decompression at C5-C6, as well as the removal of a posterior extruded fragment of disc; anterior fusion at C5-C6 with allograft; and anterior instrumentation at C5-C6. In his testimony, Dr. Whalen explained that the goal of ACDF surgery is to take pressure off the nerves or spinal cord, depending upon the situation. Dr. Whalen explained that anterior means that he went in through the front of the neck. He then performed a diskectomy, or removal, of the disc at C5-C6. In this instance, there also was a small tear in the posterior, or back, of the disc, with a piece that had extruded posteriorly, through a hole in, and behind, the ligament that runs up and down the inside of the spine, near the spinal cord, where it could pinch or irritate nerves, so that also was removed (Ex. 29-A, pp. 20-23). The fragment measured 2 millimeters by 1 centimeter (Ex. 30, p. 5). A piece of bone graft, in this case allograft (manufactured using donated human bone), was put into the space where the disc had been between the C5 and C6 vertebrae. Finally, instrumentation in the form of a small plate was secured in place with four screws in order to fuse or hold the graft in place between the two vertebrae and stabilize the affected portion of the spine (Ex. 29-A, pp. 22-23).

Dr. Whalen said that, in theory, patients would lose roughly 10% of their ROM of the cervical spine after such ACDF surgery because the disc no longer can move. They may experience additional loss of ROM from pain, surgical scarring, or other reasons (Ex. 29-A, p. 26).

Mr. Poole presented to Dr. Whalen on December 28, 2010 to follow-up after the ACDF surgery, doing "reasonably well," but with complaints of significant neck pain, and some numbness/pain in the left arm (Ex. 3, pp. 12-13; Ex. 12, pp. 9-10; see Ex. 29-A, p. 27). Upon physical examination, Dr. Whalen found that Claimant had good strength in the upper extremities, although with some giving way upon testing all muscle groups initially. The doctor also noted that Mr. Poole wore sunglasses throughout the HPI and PE. Dr. Whalen hoped that the neck pain would subside in time. A further disability note was provided, and the doctor hoped that Mr. Poole would be "fit for return to work shortly" (Ex. 3, p. 13; Ex. 12, p. 10).

2011-2014

Surgical Follow-Up

Claimant next saw Dr. Whalen about 10 weeks later, on March 10, 2011, again reporting that he was doing reasonably well, that the surgery helped with arm pain, but that he still had a lot of neck pain, although it had improved. He also complained of migraine, dizziness, and tinnitus, which he said he has had since the accident. Mr. Poole again wore sunglasses to the appointment. Upon examination, Dr. Whalen found that Claimant had good strength and noted that he walked with a normal gait, and there was a significant improvement in Claimant's symptoms. A disability note was issued for an additional two months because Mr. Poole did not feel capable of working at the auto body shop. A consultation with a neurologist was arranged in order to evaluate his complaints of migraine and photophobia, and to determine if Claimant needed to stay out of work for a longer period (Ex. 3, pp. 10-11; Ex. 12, pp. 11-12). Dr. Whalen testified that tinnitus is not a common complaint in other patients with injuries similar to Mr. Poole's (Ex. 29-A, p. 29). Claimant testified that he didn't benefit at all from the ACDF surgery (Tr., p. 66).

Physical Therapy

Claimant attended 38 physical therapy visits with Columbia Physical Therapy between April and July 2011, was deemed to have worked hard and been compliant, and made overall progress. He continued to complain, however, of headaches, light sensitivity, difficulty sleeping, lifting, standing, and walking. It was felt that his progress had reached a plateau, and that he had derived the maximum therapeutic benefit from that therapy, so he was discharged from that practice (Ex. 6, p. 48).

Range of Motion Measurements

Columbia Physical Therapy session notes from April to July 2011 recorded increased cervical ROM measurements as follows: flexion, from 30 to 40; extension, from 20 to 30; side bending, on both sides, from 17 to 25; right rotation, from 45 to 65; and left rotation, from 45 to 70 (Ex. 6, pp. 4, 48).

In July 2011, Dr. Ian Cole, in Albany Medical Center's Department of Physical Medicine and Rehabilitation, examined Claimant and found that Mr. Poole had full functional ROM of the upper limbs (see below). In August 2011, his colleague, Dr. Farag Aboelsaad, found diminished ROM in the cervical spine in all directions, especially upon extension, although in September 2011, Dr. Aboelsaad reported that Mr. Poole's ROM was normal, secondary to pain (see below).

When Claimant treated with Dr. Quentin S. Phung at New York Pain Management at the end of September 2011, the doctor reported that Mr. Poole's cervical muscles were painful with flexion, extension, and lateral bending to either side (see below).

Dr. Whalen examined Claimant in March 2016, and reported that Claimant's neck was tender in the lower cervical spine. ROM was 30 degrees of flexion, 20 degrees of extension, and 70 degrees of rotation, bilaterally (see below). Dr. Whalen said that the flexion and extension measurements had decreased from those obtained in 2010, while right lateral rotation was improved and left lateral rotation remained the same (Ex. 29-A, pp. 49-50).

X-Rays

Dr. Aboelsaad ordered X-rays of Claimant's cervical spine in preparation for medial branch block injections at right C4-C7 (Ex. 2, pp. 5-6). Four X-rays of Mr. Poole's cervical spine were done at Albany Medical Center on August 10, 2011, with the only reported findings being a small amount of atherosclerotic calcification to the left carotid artery, and evidence of the ACDF spinal surgery (Ex. 2, p. 14).

Neurology Consultation

Claimant wore sunglasses during his neurology consultation at Albany Medical Center on March 16, 2011, but Dr. Mary Ann McKee did not see any abnormality upon her neurologic examination. She changed some of Mr. Poole's medications and recommended physical and massage therapies (Ex. 3, pp. 26-27).

Claimant saw Dr. McKee again on June 15, 2011. Mr. Poole's gains in ROM and strength from physical therapy (see above) were noted, but also that he still had headaches and photophobia. Dr. McKee could detect no underlying neurologic syndrome, however, and suspected that Claimant's symptoms were really posttraumatic in nature, and that he would benefit from a consultation with a doctor in physical medicine and rehabilitation (Ex. 3, pp. 31-32).

Claimant saw Dr. McKee again on August 25, 2011. Mr. Poole again wore sunglasses in the examination room because light bothered his eyes. Dr. McKee also noted that Claimant was referred to Dr. Aboelsaad for nerve block injections (see below), which seemed to help. Dr. McKee explained to Claimant that, from a neurologic point of view, he could return to work, but that he should follow up with Dr. Aboelsaad regarding any other necessary work restrictions (Ex. 6, pp. 28-30).

Medial Branch Blocks

On July 28, 2011, Claimant was seen by Dr. Cole in Albany Medical Center's Department of Physical Medicine and Rehabilitation, with complaints of severe headaches (although of decreased duration), photophobia, and pain radiating to shoulder blades, greater on the left than the right. As noted above, upon PE, Dr. Cole found that Mr. Poole had full functional ROM of the upper limbs, with gross motor strength among the elbow flexors and extensors, and wrist extensors, all rated 5/5 bilaterally. Dr. Cole ordered an EMG nerve conduction study, as well as future consultations with his departmental colleague, Dr. Aboelsaad (Ex. 2, pp. 8-9).

Dr. Aboelsaad, who saw Mr. Poole on August 10, 2011, noted that Claimant sat during the PE in no apparent distress or discomfort, but wore dark glasses because of the light and his migraine headaches. Mr. Poole's motor strength was rated at 5/5. Sensation was diminished bilaterally in the upper extremities, along with, as noted above, diminished ROM in the cervical spine in all directions, especially upon extension (Ex. 2, pp. 5-6).

On September 1, 2011, Dr. Aboelsaad injected medial branch blocks at C4-C7 (Ex. 2, pp. 10-13). Unfortunately, at his September 9, 2011 appointment, Mr. Poole said that the injections did not really help and reported that his pain continued, rating it at 6/10. Dr. Aboelsaad again found Claimant's motor strength in the upper extremities to be 5/5. On this visit, Mr. Poole's ROM was normal, secondary to pain. As the injections did not help, Dr. Aboelsaad discharged Mr. Poole (Ex. 2, p. 2).

EMG Study

Dr. George Forrest's report of the electromyogram (hereinafter, "EMG") nerve conduction study, done at Albany Medical Center on August 3, 2011, showed no evidence of right or left cervical radiculopathy, but did show evidence of left carpal tunnel syndrome (see Ex. 2, pp. 15-16), which, Dr. McKee's note stated, was asymptomatic (Ex. 3, pp. 28-30). Dr. Kim testified that she was not aware of the EMG study's indication that there was no evidence of right or left cervical radiculopathy (Ex. 28-A, p. 72).

MRI

An MRI of Claimant's cervical spine was done at St. Peter's Hospital on August 24, 2011. The MRI Report stated that there was normal cervical lordosis, no evidence of acute fracture or subluxation, and that vertebral body height and marrow signal was maintained. The C2-C3, C3-C4, C4-C5, C6-C7, and C7-T1 levels all were unremarkable. At C5-C6, only the post-surgical changes from the ACDF surgery were noted. The cervical cord was normal in signal and contour (Ex. 4, p. 44).

X-Rays

X-rays done the same day as the August 2011 MRI, similarly, found no evidence of fracture or subluxation, and that the prevertebral soft tissues were unremarkable (Ex. 4, p. 47).

Dr. Kim

Mr. Poole presented to Dr. Kim again on September 12, 2011, his first visit with her since his ACDF surgery nine months earlier, crying in frustration with neck and shoulder pain, and was treated for anxiety and depression, and prescribed medicines for both conditions. Dr. Kim noted that Claimant had treated with Dr. Aboelsaad. Headache was not indicated in the ROS portion of the Progress Note, although it was mentioned, probably resulting from the neck pain, in the Assessment/Plan portion of the record. Dr. Kim suggested that Mr. Poole see a neurosurgeon for a second opinion and another disability note was issued (Ex. 4, pp. 25-26; Ex. 28-A, pp. 23-26). Dr. Kim saw Claimant again three more times in October 2011 for his anxiety, with some improvement noted. Headache was not noted in any of the Progress Notes. Dr. Kim also testified that she issued Mr. Poole an indefinite disability note on October 3, 2010 (Ex. 4, pp. 17- 24; Ex. 28-A, pp. 26- 30).

On February 3, 2012, Claimant presented again to Dr. Kim, his first visit with her in three months. It was noted that he was seeing pain management (see below), but neck and shoulder pain, rated at 7/10, persisted. Dr. Kim agreed in her testimony that the Progress Note does not indicate any complaint of headache. Mr. Poole was issued another indefinite disability note (Ex. 4, pp. 15-16; Ex. 28-A, p. 30-31, 72).

Claimant returned to Dr. Kim on June 8, 2012 for neck pain management and complaining about his prescribed sleeping medication. The Progress Note also stated that he wore sunglasses and complained of headaches (Ex. 4, pp. 13-14; Ex. 28-A, p. 31). Mr. Poole next presented to Dr. Kim on November 12, 2012, with neck pain rated 6/10. His medications were adjusted. Dr. Kim agreed in her testimony that the Progress Note did not indicate any complaint of headache (Ex. 4, pp. 11- 12; Ex. 28-A, pp. 32, 73). On December 3, 2012, Claimant's neck pain and anxiety were improved, although pain was still rated 6/10, and headache was noted in the ROS portion of the Progress Note. The note also indicated that Mr. Poole was seeing a chiropractor (see below) twice a week (Ex. 4, pp. 9-10; Ex. 28-A, pp. 32-33).

Claimant presented to Dr. Kim on June 3, 2013 for the first time in four months, with pain rated at 7/10. The HPI stated that he denied having any new complaints. Dr. Kim agreed that the Progress Note did not indicate any complaints of headache. She prescribed nerve and pain medicines (Ex. 4, pp. 7- 8; Ex. 28-A, pp. 33-34, 73). Mr. Poole was back for a follow-up appointment on July 1, 2013, again without complaints of headache. The HPI noted that he was not taking his medications, secondary to cost, and his prescriptions were adjusted (Ex. 4, pp. 5- 6; Ex. 28-A, pp. 34, 73).

When Dr. Kim saw Claimant three months later, on October 4, 2013, he complained about neck pain, headaches, insomnia, and that some of his medications were not working. Dr. Kim prescribed a new pain medication and sent him for a CT scan of his head. She said that was the last time Mr. Poole treated with her (Ex. 4, pp. 3- 4; Ex. 28-A, pp. 34, 79). However, Dr. Kim's records do include a Progress Note of a November 7, 2013 follow-up appointment for medications. No complaint of headache was noted (Ex. 4, pp. 1-2).

Claimant testified that he did not have a primary care provider for a short period of time after he stopped seeing Dr. Kim. At trial, he said that he now treats with another doctor, but could not remember the doctor's name and, as of the trial date, had not seen him or her in about a year (Tr., pp. 101-102). That doctor has not treated Claimant for his neck ailments. Mr. Poole testified that he has not taken any prescription pain medication for his neck pain, migraines, or photosensitivity since 2013, or early 2014 (Tr., pp. 103, 120).

CT Scan

The CT of Mr. Poole's head and brain ordered by Dr. Kim was done by Northeast Health Imaging on October 11, 2013, and was negative (Ex. 11, p. 3).

Pain Management

Claimant treated with Dr. Phung at New York Pain Management on September 27, 2011 with complaints of significant chronic neck pain which moderately limited his activities. Dr. Phung's PE found Mr. Poole to be in no acute distress, with no apparent muscular atrophy, normal cervical lordosis, but with tender facet joints upon palpation of the cervical spine, normal musculature, but tender trapezius, both left and right, and painful cervical muscles with flexion, extension, and lateral bending to either side. Overall, Claimant had full shoulder, upper and lower arm, and finger, strength (Ex. 9, pp. 21-23).

Dr. Phung stated that both the HPI and PE were consistent with cervical spondylosis and facetogenic pain, concordant with MRI findings, and proposed a cervical facet joint injection at C5-C6 and C6-C7 for pain relief (Ex. 9, p. 24), which he did on October 13, 2011, and Claimant reported moderate pain relief, with pain not as constant, during his next visit on November 14, 2011 (Ex. 9, pp. 13-20). A second injection was administered by Dr. Phung on December 1, 2011 (Ex. 9, pp. 9-12). When he returned on December 28, 2011, Claimant again reported moderate pain relief, but still had considerable discomfort, and reported increasing lower back pain. Dr. Phung's PE identified muscular and joint tenderness in the lumbar spine and sacroiliac upon palpation with painful flexion and extension in those areas. Thus, the doctor proposed lumbar facet joint injections, which were done on January 26, 2012 (Ex. 9, pp. 1-8).

Ophthalmology

On October 26, 2011, Claimant saw Dr. Natalie W. Lopasic at Northeast Eye Center, who noted Mr. Poole's complaints of chronic headaches and extreme photophobia after his motor vehicle accident in which he sustained a herniated disc at C5-C6. After examining Claimant, Dr. Lopasic's impression was that Mr. Poole's symptoms of photosensitivity were most likely secondary to migraines that were triggered by his injury (Ex. 3, p. 8; Ex. 10, p. 3).

Chiropractic Treatment

Claimant treated with Timothy M. Kelly, D.C., at East Greenbush Chiropractic on multiple occasions,(7) with Chart Notes in evidence covering chiropractic adjustments during the period from September 2011 through October 2014, and billing records from April 2013 through March 2016 (see Ex. 7). The Chart Notes almost invariably included references to multiple joint restrictions in numerous planes of motion, and segmental loss of motion, along with tenderness upon palpation. Often hypertonicity and spasms were noted in various muscle groups. Claimant sometimes felt better after the adjustments, but, at other times, he felt worse, and, even when there was some relief, the pain would come back.

SSI

On or about February 15, 2012, Claimant began receiving Social Security Disability benefits, which he still was receiving at the time of his trial (Tr., p. 98; see Ex. 34).

2016

Dr. Whalen/Second Surgery

At the request of Claimant's counsel, Dr. Whalen prepared a Narrative Report, dated April 24, 2012, in preparation for an earlier scheduled trial date (see Ex. 31). Mr. Poole was supposed to have returned to be examined around the anniversary of his surgery, in November 2011, but Dr. Whalen said that Claimant did not do so. The Narrative Report provided a summary of Claimant's complaints, treatment, and the ACDF surgery. Dr. Whalen stated that the surgery helped with Mr. Poole's neck pain and arm symptoms, but the pain had not subsided at that point. Dr. Whalen believed that Claimant was disabled from his job from the time of his motor vehicle accident until on or about May 10, 2011 (Ex. 29-A, pp. 29-31, 34-35, 74; see Ex. 12, p. 12). Dr. Whalen concluded the Narrative Report with his opinion that Mr. Poole had a causally related injury from the motor vehicle accident with a herniated disk of his cervical spine, which required treatment with the ACDF surgery (Ex. 31).

On March 31, 2016, Claimant presented to Dr. Whalen for the first time in five years, for evaluation of his neck and shoulder pain, and in preparation for another previously scheduled trial date (Ex. 29-A, p. 32; Tr., pp. 105-106). The HPI portion of the Patient Visit Note again noted that Mr. Poole had not appeared for his follow-up appointment scheduled for one year after his November 2010 ACDF surgery. His pain, on average, was rated at 6-9/10. Claimant described neck pain at the occiput that extended down to the base of the cervical spine, going into the mid-thoracic spine. It radiated across the shoulders and into the posterior scapula equally. He described it as an ache and sharp pain, and sometimes a pins and needles feeling. It was made worse by activity and better with medications. Mr. Poole said that he did not have radiating arm pain, and denied any numbness, tingling, or burning, throughout his upper and lower extremities, although he said that he did feel some weakness in the upper extremities. He rated pain at 6-9/10, on average. He said that did not take any routine medications. He said that he had not had injections (Ex. 12, p. 13).

Upon PE, Dr. Whalen found Claimant in no apparent physical distress. He moved easily around the examination room and examining table. Dr. Whalen did note that Mr. Poole wore sunglasses for his photophobia. The doctor reported that Claimant's neck was tender in the lower cervical spine. ROM was 30 degrees of flexion, 20 degrees of extension, and 70 degrees of rotation, bilaterally. Upper and lower extremities' alignment was good, except for shoulders being limited to 135 degrees. Gait was normal and strength was 5/5 in all muscle groups in the upper and lower extremities. Dr. Whalen reviewed X-rays done that day and ordered a CT scan of the cervical spine because he was concerned that there might be a nonunion, or failure to heal, of the ACDF surgery performed in 2010. Dr. Whalen explained that, if the fusion did not heal, it often can cause neck pain, and sometimes a recurrence of arm symptoms. It also can lead to the screws moving within the bone, wearing a hole in the bone (which he called a "halo") so that the screws become loose and there no longer is good fixation (Ex. 12, pp. 14-15; Ex. 29-A, pp. 32-33).

Claimant returned to Dr. Whalen on April 5, 2016, with no changes in symptoms or pain level since his last visit, although it was noted that he had headaches. The doctor noted that the CT scan done by Image Care in Latham, New York on March 31, 2016 showed what appeared to be a nonunion of the fusion, with a little bit of halo formation around the C6 screws. The radiologist found sclerosis of the C5-C6 end plates without osseous fusion, consistent with nonunion. Dr. Whalen discussed two options with Mr. Poole. Continued conservative treatment could be pursued in the hope that the nonunion might heal, but Dr. Whalen was not confident that would occur five years after the ACDF surgery. The other option was to repair the nonunion by means of posterior decompression and fusion surgery at C5- C6. (Ex. 12, pp. 16-18, 29- 30, 47- 48; Ex. 29-A, pp. 33-34).

On April 25, 2016, Dr. Whalen performed posterior cervical spine surgery at St. Peter's Hospital for nonunion of the 2010 ACDF surgery at C5-C6. The Operative Note recites that the surgery included the following procedures: decompressive partial laminectomy/foraminotomy, right C5-C6; posterior fusion at C5-C6; posterior instrumentation at C5- C6; and local autograft bone grafting. In his testimony, Dr. Whalen explained that the goal was to stabilize the posterior portion of the spine in the hope that it would promote healing in the front of the spine as well. This time, he made an incision in the back of Mr. Poole's neck. The adjoining lamina on C5-C6 were thinned, the foramen was opened laterally, and gelfoam placed over the laminotomy defect, in order to open up the area around the nerve and relieve any pinching or irritation. Next, the posterior cervical fusion was performed, with the posterior part of the facet joint, bilaterally at C5-C6, as well as the lateral part of the lamina on the left, also at C5-C6, packed with local bone graft between the two vertebrae. Then, the spine was stabilized by placing screws into the lateral mass of the facet joints on either side, and connecting them by rods. Thus, after the second surgery, Mr. Poole had two sets of instrumentation, one in the front and one in the back. Dr. Whalen testified that, in theory, the second surgery should not have had much effect on Claimant's ROM because it did not require fusing an additional level of the spine. In practice, however, he said that ROM could be limited sometimes because of exposure, scarring, and pain (Ex. 12, pp. 39, 43- 45; Ex. 15, pp. 115-118; Ex. 29-A, pp. 40-44, 47; Ex. 32).

Claimant presented to Dr. Whalen for a follow-up appointment on May 24, 2016, reporting that he felt about 50% better after the surgery, but still had neck pain, with intermittent radiating aching pain into the posterior upper arms. Upon PE, he was in no acute distress, with good strength in the upper and lower extremities. He was issued a note to return to work as of May 29, 2016 (Ex. 12, pp. 40-41; Ex. 29-A, p. 51).

Claimant saw Leanne Thrane, a physician's assistant in Dr. Whalen's office, on August 23, 2016, feeling 60% better, after the surgery, but with complaints of some continuing aching pain in the neck, mainly at the occiput extending down the cervical spine, rated at 2/10. He was not taking anything for pain. Upon PE, he was in no acute distress, with good strength in the upper and lower extremities. Dr. Whalen testified that Mr. Poole was doing reasonably well (Ex. 12, p. 42; Ex. 29-A, pp. 51- 52).

Dr. Whalen testified that Claimant was supposed to be seen about one year after the second surgery, or about April 25, 2017, but was not aware of anyone in his practice group treating Mr. Poole since August 23, 2016 (Ex. 29-A, p. 52).

Claimant testified that he has not received any further medical care for his neck or spine, or treatment for his headaches because he was told that nothing more could be done for him (Tr., pp. 75-76).

Expert Opinions

Dr. Kim

Dr. Kim is a licensed physician in New York State and board certified in family medicine (Ex. 28-A, p. 5). She agreed, in her testimony, that it is important to record a patient's subjective complaints, because they: to a large extent, inform her impression of the patient; help her formulate modes of treatment; help in the ultimate diagnosis she makes; and may be relied upon by other medical providers who treat that patient (Ex. 28-A, pp. 75-76). Dr. Kim further agreed that her records are replete with references to pain, although she further agreed that they are Claimant's subjective complaints (Ex. 28-A, pp. 79-81).

Dr. Kim opined that Claimant has disc disease in his neck at C5-C6 which was causally related to his 2010 motor vehicle accident, and that his condition "could be" permanent (Tr., pp. 35-36, 79-80, 84).

Dr. Whalen

Dr. Whalen is a licensed physician in New York State and board certified in orthopedic surgery. He treats disorders of the musculoskeletal system, with a sub-speciality interest in spinal problems, and regularly operates on the spine (Ex. 29-A, p. 5; Ex. 29 [Dr. Whalen's CV]). Dr. Whalen agreed that he listens to a patient's subjective complaints, and then, uses his judgment to determine what imaging studies may be needed, such as X-rays, CT scans, and MRIs, to correlate with, or corroborate, those subjective complaints (Ex. 29-A, p. 6).

In the consultation note of his October 15, 2010 examination of Mr. Poole, Dr. Whalen observed that the May 21, 2010 MRI shows "a herniated [disc] at left C5-6" (Ex. 12, p. 5). He also testified that he was aware that Claimant had the August 2010 MRI of the lumbar spine, but was unable to obtain a copy of the report. He did not know about Mr. Poole's August MRI of the cervical spine (Ex. 29-A, p. 70). Accordingly, Dr. Whalen, likewise, was unaware of the findings contained in that MRI report, nor was he aware that Dr. Scheid concluded that Claimant was not a surgical candidate, or his reasons for that determination (Ex. 29-A, pp. 71-72). Dr. Whalen also said, however, that a herniated disc does not always cause impingement on the cord, and only rarely causes signal changes in the cord, so that he would expect to see a normal spinal cord signal on an MRI (Ex. 29-A, p. 85). He also agreed that the seriousness of the orthopedic injury was separate and distinct from any cord contour, or signal within the cord itself (Ex. 29-A, p. 86).

Dr. Whalen opined, based upon his treatment of Mr. Poole, that a competent producing cause of Claimant's neck injury was the motor vehicle accident on March 29, 2010, and that Mr. Poole's 2010 and 2016 surgeries resulted from the injuries he sustained in that accident (Ex. 29-A, pp. 44-47, 86-87). He further testified that an extruded fragment, like the one removed in Mr. Poole's November 2010 ACDF, "can happen with an injury. In this case, he had a car accident and then he had these problems, so it was caused by the motor vehicle accident" (Ex. 29-A, pp. 23-24). Dr. Whalen agreed that the disc is part of the body, which cannot be repaired and put back (Ex. 29-A, p. 25).

Dr. Storey

Dr. Storey is a licensed physician in New York State and board certified in neurology and electrodiagnostic medicine (Tr., p. 288; Ex. S [Dr. Storey's CV]). Dr. Storey explained that neurology is a specialty that deals with all aspects of the nervous system, including diseases or injuries to the brain, spinal cord, nerve roots, peripheral nerves, and muscles. A neurologist tests patients, renders a diagnosis, and provides treatment, in the form of medication and/or therapy, that does not involve surgery (Tr., p. 289). He reviewed Claimant's medical records for periods both before and after the motor vehicle accident, ER records, records of Mr. Poole's treating physicians, orthopedic and neurological records, operative reports and follow-up care, including records of, and/or reports by, Dr. Whalen, Dr. Scheid, and Dr. Quade (Tr., pp. 288, 310-311).

Dr. Storey examined Claimant on December 13, 2016 (Tr., p. 315). He took Mr. Poole's HPI, and discussed the 2010 ACDF surgery, which Claimant said did not help. Dr. Storey then conducted a neurological examination of Mr. Poole, including but not limited to his neck, to evaluate his nervous system. Cognitive function and the cranial nerves were normal, so there was no evidence of a disorder of the central nervous system, brain injury, or stroke (Tr., pp. 306-308). Dr. Storey then looked at Claimant's muscle tone to see if any were stiff, spastic, atrophied, shrunken, or twitching, signs of nerve, or nerve root, damage. They too were normal. He explained that motor strength testing involves the patient using various muscles to resist against pulling or pushing by the doctor, with a 5/5 rating indicating normal strength (Tr., pp. 304-305). Claimant was able to provide normal resistance in all the muscles Dr. Storey tested (Tr., pp. 308-309). Muscle reflexes and sensation to touch were examined to see if anything was interfering with nerve function and they were normal and symmetrical on both the right and left sides (Tr., pp. 309-310). Dr. Storey said that he generally does not do ROM testing, both because it is based upon the patient's subjective reporting, and also because he does not want to force someone with complaints of pain to move his or her neck in order to measure the movement (Tr., p. 310). He said that neurologists generally do not find ROM measurements to be useful, although, he added, orthopedic specialists find them to be more helpful (Tr., p. 326).

Dr. Storey explained that the nerve roots which exit the spinal cord in the area of the cervical spine primarily provide sensation to the arms (Tr., p. 290). He further described the areas of the body primarily supplied by nerve distributions emanating from between each level of cervical vertebrae as follows: C1, the back of the head; C2-C3, neck muscles and the back and side of the neck; C3-C4, the upper shoulder; C4-C5, shoulder/shoulder blade muscles and part of the deltoid, the large muscle in the upper arm; C6, biceps muscles, and the upper arms and outer forearms; and C7, triceps muscles, wrist and finger extensors, and the back or underside of the arms/forearms (Tr., pp. 290-294).

Dr. Storey agreed that doctors are trained to listen to their patients' subjective complaints of pain, but, he added, their training also instructs that they need to be able to correlate those symptoms to the findings (Tr., p. 329). He said that MRIs, X-rays, and EMGs, are objective tests that provide measurements, as opposed to the patient's subjective description of what he or she is feeling (Tr., pp. 311-312).

Dr. Storey, who reviewed both the film and the report of the May 21, 2010 MRI, did not believe that there was much difference between the terms herniation and protrusion, stating that they often are used interchangeably (Tr., pp. 295-296). He then reviewed the findings contained in the May 2010 MRI Report. The vertebral bodies were normal. If there was a fracture or compression, for example, he said that one of them might have been collapsed (Tr., p. 297). He said that the thecal sac is the lining around the spinal cord and contains the spinal fluid, and that the slight flattening of the ventral thecal sac noted at C3-C4, and its further deformity noted at C5-C6, along with remodeling of the left side of the cord, all meant that something was pushing from the outside, in the case of the thecal sac, indenting that fluid column slightly (Tr., pp. 297-298).

As for the disc protrusion noted at C5-C6, Dr. Storey described it as a "small" protrusion or bulge, and said that left paracentral means that the bulge is mainly in the center, slightly to the left side, as opposed to a lateral protrusion, which would go into the opening where the nerve roots exit the spinal cord (Tr., p. 298; see p. 290). Dr. Storey said that a patient with the findings noted at C5-C6 could have no complaints or symptoms at all, or, at most, might have a little bit of aching or stiffness (Tr., p. 298).

While the report does not address it, Dr. Storey opined, based upon his review of the May 2010 MRI films, that the findings at C5-C6 were chronic, degenerative, arthritic, changes which took many months to develop, because he saw evidence of drying out of the discs, and some sclerosis, or thickening, of the calcium around the disc spaces (Tr., p. 299). By contrast, he said that an acute injury would have been evidenced by inflammatory changes and swelling, and a "brightness" in the capsule where it was torn (Tr., p. 299). Dr. Storey further explained that, in an acute disc herniation, the disc material ruptures through the retaining wall (the capsule or annulus). That capsule has many nerve endings in it, so that an acute herniation or bulge would result in very sudden pain commencing at the time of the injury (Tr., p. 300). That did not occur in this instance (Tr., p. 321). He further said that the minimal, degenerative, disc changes noted at C6-C7 also were basically arthritic, long-term, changes not caused by an acute injury (Tr., pp. 298-299).

Dr. Storey also reviewed both the report and the actual film of the August 13, 2010 MRI of Claimant's cervical spine (Tr., pp. 300-301). He discussed the findings, noting that stenosis would be narrowing of the canal, which was not detected (Tr., p. 301). Dr. Storey discussed the discrepancy between the May 2010 MRI Report, which found a disc protrusion or herniation, and the August 2010 MRI Report, which did not, saying it could be attributable to a different radiologist reading an MRI done on a different machine. Moreover, Dr. Storey said that the two reports may convey an incomplete impression because, when the two actual images are compared, in his view, there is not much to differentiate them. He added that the protrusion in the first MRI "was pretty minimal to begin with, so it could simply just be a technical difference" (Tr. p. 302).

Dr. Storey discussed the June 2010 X-ray report, and thought that Mr. Poole's head was placed in different positions in order to determine whether there was any spinal instability, slipping or sliding out of alignment, or ligament damage. He said that it was a normal study. There was no abnormal movement (Tr., pp. 302-303; see Ex. 3, p. 23).

Dr. Storey noted that the wrist weakness found by Dr. Whalen correlates to the C7 level of the spine, but said there were other C7 muscles that apparently were not weak (Tr., pp. 310-311). He also said that Dr. Forrest's EMG finding of carpal tunnel syndrome on the left side has nothing to do with the cervical spine, but, rather, involves pinched nerves at the wrist (Tr., p. 304).

Dr. Storey further testified that reduced ROM measurements alone do not explain the cause of such findings, which could be attributable, for example, to sore muscles, or to the mechanics of the spine. Moreover, and in any event, he reiterated that such ROM measurements were more subjective than objective findings Thus, in his view, they really do not address whether or not surgery is necessary, or if there was a herniated disc. (Tr., pp. 327-328).

Dr. Storey would not have recommended Claimant's surgery, based upon Mr. Poole's symptoms, the scans, and the examination findings, because he did not see a good correlation between Mr. Poole's subjective complaints of pain and the objective findings (Tr., pp. 325, 333). Dr. Storey opined that the findings on the MRI scans were not related to Mr. Poole's motor vehicle accident, and, furthermore, that the ACDF surgery was not necessary as a result of that accident because: (i) the August 2010 MRI showed only mild arthritic changes and no surgical lesion; (ii) the minimal, chronic, paracentral disc bulge in the May 2010 MRI did not correlate with Claimant's symptoms; (iii) Dr. Whalen's finding of weakness in the wrist extensors would have been caused by a problem at C7, and no such problem was evident; and (iv) there was no evidence that Claimant suffered a head injury that would account for his complaints of headaches/migraines (Tr., pp. 312-313). Thus, he disagreed with Dr. Kim's and Dr. Whalen's opinions to the contrary that Mr. Poole's complaints related back to the motor vehicle accident, although he accepted that reasonable physicians could differ (Tr., pp. 324-325).

He did agree that the broken fragment or chip in Mr. Poole's disc was a body part (Tr., p. 331), and further agreed that there is no evidence in Claimant's medical records from before the motor vehicle accident either that it existed, or that it needed to be surgically repaired (Tr., p. 319). He noted, however, that the mere existence of the vertebral fragment did not mean that it was the cause of Claimant's symptoms, adding that the age-related changes shown in Mr. Poole's MRIs are very common, and frequently such patients are asymptomatic (Tr., pp. 318-320). Moreover, Dr. Storey said that the location of the bulging disc does not correlate with Mr. Poole's complaints, or Dr. Whalen's observations (Tr., pp. 320-321). He further thought it was "inaccurate and overly dramatic" to characterize the fragment as something that was close to pressing on the spinal cord because, in his view, nothing in the objective finding of the August 2010 MRI reveal anything close to the spinal cord or the nerve roots (Tr., p. 321).LAW

Mr. Poole alleges that, as a result of the motor vehicle accident, he suffered a serious injury under as many as three of the categories of Insurance Law § 5102(d). He asserts that he suffered: (1) a significant limitation of use of a body function or system (hereinafter, the "Significant Limitation" category); (2) a permanent consequential limitation of use of a body organ or member (hereinafter, the "Permanent Consequential Limitation" category); and/or (3) a medically-determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury (hereinafter, the "90/180" category).

Insurance Law § 5101, et. seq. (hereinafter, the "No-Fault Law") was enacted to "significantly reduce the number of automobile personal injury cases litigated in the courts" by limiting the "unfettered" common-law right to sue for injuries sustained in motor vehicle accidents (Licari v Elliott, 57 NY2d 230, 236-237 [1982]). The No-Fault Law provides that, in order for a claimant "to bring an action for 'non-economic loss' i.e., pain and suffering, he or she must demonstrate [a] 'serious injury' " under at least one of the categories set forth in Insurance Law § 5102(d) (Lamana v Jankowski, 13 AD3d 134, 136 [1st Dept 2004]; see Pommells v Perez, 4 NY3d 566, 571 [2005]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Insurance Law § 5104[a]). Once a claimant has been found to have sustained an injury within any of those categories, the serious injury threshold under the No-Fault law is satisfied, and the claimant is then permitted to recover for any and all damages proximately caused by the accident (Kelley v Balasco, 226 AD2d 880, 880 [3d Dept 1996]), "even those not meeting the serious injury threshold" (Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept 2010]).

Objective medical proof of a claimant's injuries is required in order to satisfy the statutory serious injury threshold; medical opinions based upon a claimant's subjective complaints alone are not sufficient (Toure v Avis Rent A Car Sys., supra; see Perl v Meher, 18 NY3d 208, 216 [2011]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

Significant Limitation Category/Permanent Consequential Limitation Category

The chief difference between the Significant Limitation and the Permanent Consequential Limitation categories, is that, under the Significant Limitation category, the limitation is not required to be total or permanent (Decker v Rassaert, 131 AD2d 626, 627 [2d Dept 1987]), although a permanent injury can qualify (Bellamy v Kaplan, 309 AD2d 583, 583 [1st Dept 2003]). As for the Permanent Consequential Limitation category, permanent loss does not require a showing of total loss of an organ, member, or function, but rather, only that it operates in some limited way, or only operates with persistent pain (Countermine v Galka, 189 AD2d 1043, 1045 [3d Dept 1993]; see June v Gonet, 298 AD2d 811, 812 [3d Dept 2002]).

There is considerable overlap in analyzing whether or not limitations under the Significant Limitation and the Permanent Consequential Limitation categories qualify as "significant" or "consequential" (see PJI 2.88). Under either category, " '[w]hether a limitation of use or function is 'significant' or 'consequential' (i.e., important...) 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" (Toure v Avis Rent A Car Sys., supra at 353; quoting Dufel v Green, 84 NY2d 795, 798 [1995]). An expert can establish the degree of an injury by expressing a quantitative measurement in terms of a numeric percentage of a claimant's diminished ROM to show the extent or degree of physical limitation, and thus, that it is serious. In the alternative, 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 present limitations to the normal function, purpose, and use, of the affected body organ, member, function or system (Toure v Avis Rent A Car Sys., supra at 350; Rodman v Deangeles, 148 AD3d 119, 121 [3d Dept 2017], lv dismissed 30 NY3d 989 [2017]). Moreover, the limitation must be shown to be "more than mild, minor or slight" (Smith v Genardo, 27 AD3d 821, 824 [3d Dept 2006]; Geher v Eisner, 19 AD3d 851, 852 [3d Dept 2005]; see Licari v Elliott, supra at 236).

Where the expert's qualitative assessment is supported by objective evidence, it can be tested on cross-examination, challenged by another expert, and weighed by trier of fact (Toure v Avis Rent A Car Sys., supra at 351; Dufel v Green, supra). By contrast, if such assessment is unsupported by objective evidence, the expert opinion may be wholly speculative (Toure v Avis Rent A Car Sys., supra at 351).

Moreover, where a degree of limitation analysis is proffered, there is no requirement that quantitative measurements be taken contemporaneously with the accident. Rather, it is permissible to rely upon a qualitative observation recorded shortly after the accident in order to prove causation, followed by more specific, quantitative measurements done later to establish the severity of the injury (Perl v Meher, supra at 217- 218). "Potential [claimants] should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries" (id. at 218).

Regardless of whether a claimant attempts to prove a serious injury based upon its degree, or its qualitative nature, he or she needs to show: (1) what medical tests were performed; (2) the objective nature of those tests; (3) what the normal ROM should be; and (4) the significance of his or her limitations (Rubin v SMS Taxi Corp., supra at 548-549).

90/180 Category

Under the 90/180 Category, a claimant does not need to prove a "significant" or "consequential" limitation, as is the case with the Significant Limitation and the Permanent Consequential Limitation categories, but he or she must present objective evidence of a "medically determined" non-permanent injury or impairment causally related to the motor vehicle accident, as well as proof that such impairment prevented him or her from performing substantially all of his or her regular activities for at least 90 of the 180 days after the accident (Toure v Avis Rent A Car Sys., supra at 357; Eason v Blacker, 155AD3d 1180, 1182-1183 [3d Dept 2017]; Howard v Espinosa, 70 AD3d 1091, 1093 [3d Dept 2010]; Nowak v Breen, 55 AD3d 1186, 1188 [3d Dept 2008]; Parks v Miclette, 41 AD3d 1107, 1110 [3d Dept 2007]). Substantially all means that the claimant was "curtailed from performing [his or her] usual activities to a great extent rather than some slight curtailment" (Gaddy v Eyler, 79 NY2d 955, 958 [1992], quoting Licari v Elliott, supra at 236; see Baker v Thorpe, 43 AD3d 535, 537 [3d Dept 2007]; Cummings v Jiayan Gu, 42 AD3d 920, 921 [4th Dept 2007], rearg denied 45 AD3d 1424 [2007]). The fact that he or she missed more than 90 days of work is not determinative; rather, claimant must show that he or she was prevented from performing "substantially all" of his or her material customary daily activities (Blake v Portexit Corp., 69 AD3d 426, 426-427 [1st Dept 2010] [emphasis in original]). Contemporaneous findings of injury are "highly relevant" to establishing a serious injury under the 90/180 category (Crawford-Reese v Woodard, 95 AD3d 1418, 1420 [3d Dept 2012]; see Tuna v Babendererde, 32 AD3d 574, 577 [3d Dept 2006]). Nevertheless, where an expert examines a claimant, even years after the motor vehicle accident, he or she may interpret records, such as operative reports and MRIs, created within 180 days of the accident in order to opine upon the claimant's condition as of the dates of those reports (Coley v DeLarosa, 105 AD3d 527, 529 [1st Dept 2013]; see Paulling v City Car & Limousine Servs., Inc., 155 AD3d 481, 482 [1st Dept 2017]; Clark v Basco, 83 AD3d 1136 [3d Dept 2011]; Ames v Paquin, 40 AD3d 1379, 1381 [3d Dept 2007] [Rose, J., concurring in part, dissenting in part]).

Causation

In addition to establishing the existence of a serious injury, a claimant is 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 (Diaz v Anasco, 38 AD3d 295, 295-296 [1st Dept 2007]; see Files v Ken Goewey Dodge, Inc., 33 AD3d 1109, 1110 [3d Dept 2006], lv denied 8 NY3d 803 [2007]; Franchini v Palmieri, 307 AD2d 1056, 1057 [3d Dept 2003], affd 1 NY3d 536 [2003]; Blanchard v Wilcox, 283 AD2d 821, 822-823 [3d Dept 2001]). Unless the reasons for concluding that the injury was attributable to the motor vehicle accident are explained, the expert opinion is " 'mere speculation' insufficient to support a finding that such a causal link exists" (Diaz v Anasco, supra at 296, quoting Montgomery v Pena, 19 AD3d 288, 290 [1st Dept 2005]; see Coston v McGray, 49 AD3d 934, 936 [3d Dept 2008]). DISCUSSION

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to establish, by a preponderance of the credible evidence, that he sustained a serious injury under Insurance Law § 5102(d), and, therefore, further failed to establish his right of recovery for the damages he allegedly suffered in connection with a motor vehicle accident on March 29, 2010. The Claim fails, primarily on the issue of causation. The witnesses provided generally sincere and forthright testimony although they were not equally persuasive.

As a preliminary matter, the Court does not credit two portions of Dr. Kim's testimony, which it regards both as incredible and suspect. First, the Court rejects Dr. Kim's asserted recollection that Mr. Poole could not flex and extend his neck during his first visit with her on April 6, 2010. The contemporaneous Progress Note simply records that his ROM was diminished to an unspecified degree. Dr. Kim did not explain why she would not have recorded this fact, which, apparently, was so vivid that she could recall it to mind nearly seven years later.

Second, and for the same reason, the Court cannot credit Dr. Kim's asserted memory of feeling Claimant having muscle spasms during her April 19, 2010 examination of Mr. Poole. Again, no explanation was proffered for why this finding, which, in her testimony, she agreed was significant, was not noted in the Progress Report. When challenged on cross-examination, she merely offered, "[w]ell, I said painful." In addition, the detection of muscle spasms would appear to be inconsistent with the statement, included elsewhere in the same Progress Note, that, in general, Mr. Poole was improving at that time. Moreover, and especially given Dr. Kim's testimony about the importance of recording patients' subjective complaints of pain to assist her and other doctors treat their patients, the Court finds it passing strange that she would omit to note this significant objective finding that might help correlate with Mr. Poole's subjective complaints of pain. For the foregoing reasons, the Court disregards both of these memories as implausible, unreliable, and not credit-worthy.

As to the merit of the opinions expressed by the medical doctors, the Court found the testimony of Dr. Storey to be comprehensive, authoritative, persuasive, and worthy of credit, particularly on the issue of causation. He explained, clearly and concretely, how Claimant's subjective complaints of pain correlate poorly with the objective findings, especially the MRIs, CT scans, and X-rays, which evidenced only mild, degenerative, deformities indicative of a chronic, arthritic condition, in a region of the cervical spine that does not account for Mr. Poole's most significant complaints of neck pain and debilitating headaches.

By contrast, the opinions expressed by Claimant's doctors as to causation are far less detailed or persuasive, with Dr. Kim's testimony and opinion largely based upon Mr. Poole's subjective complaints of pain, and those of Dr. Whalen finding far less corroboration and support in the medical record than the views expressed by Dr. Storey. The Court hastens to add that this conclusion is not a criticism of the care rendered to Mr. Poole by his primary healthcare provider and surgeon. Nevertheless, their opinions almost take it as a given that the accident accounts for Claimant's complaints/conditions. Thus, the Court concludes that Claimant failed to establish, by a preponderance of the credible evidence, that he suffered a serious injury that was causally related to the motor vehicle accident of March 29, 2010.

Dr. Kim opined, that Claimant's disc disease in his neck at C5-C6 was causally related to his 2010 motor vehicle accident. Her records are replete with references to Mr. Poole's subjective complaints of pain. Such subjective complaints alone are insufficient, however, to support a serious injury claim. Medical testimony that a spasm was observed, on the other hand, can constitute objective evidence to support such a claim (Toure v Avis Rent A Car Sys., supra at 357), and, Dr. Kim did say that she detected a muscle spasm on April 19, 2010. As noted above, however, the Court rejects that testimony.

Assuming, arguendo, Dr. Kim's memory of a muscle spasm was credited, the testimony still would be inadequate because, in order to qualify, the observation of the spasm must be objectively ascertained. Here, Dr. Kim indicated neither the location where the spasm was observed, nor the testing she used to detect it (see Perl v Meher, supra at 216-217 [debatable whether doctor's assessment, supported by clinical tests that were identified, but not fully described, along with observations of diminished mobility and strength and impaired ROM, provided legally sufficient qualitative proof of a serious injury]; Toure v Avis Rent A Car Sys., supra at 357-358 [spasm in right cervical spine that radiated into shoulders detected by chiropractor did not provide objective evidence where he did not indicate what tests were performed to induce the spasm]; Carota v Wu, 284 AD2d 614, 616 [3d Dept 2001] [osteopath's notation of spasms deficient where he did not identify the tests used to make diagnosis, or the location of trigger points and spasms observed]). Dr. Kim's purported memory suffers from the same deficiencies. Similarly, the spasm was not confirmed by objective testing (cf. Clements v Lasher, 15 AD3d 712, 713 [3d Dept 2005] [objective finding where chiropractor observed muscle spasms upon palpation of patient's neck, shoulder and back, that were confirmed by EMG testing]). Furthermore, while contemporaneous observation and recording of a patient's symptoms in qualitative terms can help prove causation (see Perl v Meher, supra at 217-218), Dr. Kim's observation was neither contemporaneous, nor recorded. Rather, it's reliability depends wholly upon the accuracy of her recollection of an observation made nearly seven years earlier and which was not memorialized at the time. Thus, the Court finds that Dr. Kim's testimony that she detected a muscle spasm, even if credited, would fail to provide the sort of qualitative observation recorded shortly after the accident necessary to prove causation. Aside from the purported recollection of a muscle spasm, no objective basis was offered for Dr. Kim's opinion that Claimant's disc disease in his neck at C5-C6 was causally related to his 2010 motor vehicle accident.

Finally, the Court does not credit Dr. Kim's opinion that Claimant's condition "could be" permanent, which it finds to be both equivocal and unsupported.

Dr. Whalen opined, based upon his treatment of Mr. Poole, that a competent producing cause of Claimant's neck injury was the motor vehicle accident on March 29, 2010, and that Mr. Poole's 2010 and 2016 surgeries resulted from the injuries he sustained in that accident.

At his initial appointment with Mr. Poole, Dr. Whalen noted that the May 2010 MRI showed a herniated disc at left C5-6, and that Claimant had neck pain. That MRI also showed minimal disc protrusion at C3-C4 and minimal changes at C6-C7. A few months later, he performed ACDF surgery to replace the disc. "Proof of a herniated disk, [however,] without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" (Pommells v Perez, supra at 574; see Tandoi v Clarke, 75 AD3d 896, 897 [3d Dept 2010]; Gonzalez v Green, 24 AD3d 939, 940 [3d Dept 2005]; Pianka v Pereira, 24 AD3d 1084, 1085 [3d Dept 2005]; Durham v New York E. Travel, 2 AD3d 1113, 1114 [3d Dept 2003]). Here, Dr. Whalen did not testify or opine that the herniated disc (or, any of the other minimal changes) was significant or important for purposes of the serious injury threshold (cf. Tandoi v Clarke, supra at 897-898 [where experts opined that the herniation caused the claimant to suffer persistent pain/weakness in her neck and left arm, numbness/tingling in her left hand/fingers, foot/toes, and related the observations from their physical exams/treatment with MRI scans/reports]).

Much in the record indicates that it was not. For example, Dr. Whalen's colleague, Dr. Quade, did not think the May 2010 MRI even showed a herniated disc, so that he recommended physical therapy, massage therapy, and even chiropractic treatment. Dr. Scheid reviewed both the May and August 2010 MRIs and saw only mild degenerative changes in Mr. Poole's cervical spine at C5-6 and C6-7. Dr. Scheid did not believe that Mr. Poole was a surgical candidate because of the absence of structural lesions to the cervical or lumbar spine. Dr. Storey thought that the two MRIs showed only a small protrusion, which partly accounted for the discrepancy between the MRI Reports about whether there was a herniation at all. In fact, after his initial consultation with Mr. Poole, Dr. Whalen himself said that further conservative treatment, as well as surgery, both were options, with the choice depending upon Claimant's ability to manage his symptoms. In other words, it was Mr. Poole's subjective assessment of his own pain that was the determining factor in the decision to perform ACDF surgery on his neck. The August 2011 MRI, obtained after Claimant's surgery, also was unremarkable but for evidence of the ACDF surgery.

Dr. Whalen also did not explain how or why he linked Claimant's herniated disc either to his physical complaints, or to his motor vehicle accident (see Howard v Espinosa, supra at 1094; June v Gonet, supra). By contrast, Dr. Story discussed, in detail and based upon his review of the MRIs and the MRI Reports, the reasons for his opinion that Claimant had chronic, degenerative, arthritic, changes at C5-C6, which took many months to develop. He explained that if Mr. Poole sustained an acute injury in the motor vehicle accident, then he would have had immediate, sharp pain, and noted that this did not occur. Dr. Whalen did not address how an injury causally related to the accident could have manifested itself in the delayed symptoms Claimant described.

Similarly, Dr. Storey testified that the herniation at C5-C6 did not explain Mr. Poole's complaints of headaches because the nerves issuing from that part of the cervical spine pertain to sensation elsewhere in the body, primarily the shoulders, shoulder blades, and upper arms. The portions of the cervical spine related to the head, by contrast, were normal, as were the images at C7, which relate to the left wrist, where Dr. Whalen determined there was some weakness. Moreover, Dr. Storey noted that the 2011 EMG study found some carpal tunnel syndrome in the left wrist, a condition wholly unrelated to the cervical spine. Dr. Whalen's testimony failed to address or refute any of those findings.

In the same way, X-rays do not support Dr. Whalen's opinions because the June 2010 radiographs were unremarkable, with no fractures or destructive lesions. While Dr. Whalen noted that the October 2010 X-rays showed a slight loss of disc height at C5-C6, he did not explain the significance of that finding, or how it might account for Mr. Poole's symptoms. August 2011 X-rays taken after the ACDF surgery also were unremarkable.

Dr. Whalen testified that the extruded fragment he removed during the November 2010 ACDF can be caused by an injury, and he linked it to the motor vehicle accident. He and Dr. Storey each agreed that the disc is part of the human body, which cannot be repaired and put back. Dr. Storey also agreed that there is no evidence that the fragment existed prior to the accident. As he further noted, however, the existence of the vertebral fragment did not establish that it was the cause of Claimant's symptoms, and that frequently such patients are asymptomatic. Once again, Dr. Whalen did not explain how the fragment accounted for Mr. Poole's subjective complaints of pain.

Dr. Whalen and Dr. Storey provided similar testimony concerning normal ROM results. Dr. Whalen testified about the ROM measurements he obtained in October 2010, saying that each was below normal. When he examined Claimant again in March 2016, flexion and extension measurements had decreased further, while right lateral rotation was improved, and left lateral rotation was the same.

The medical record includes multiple references to ROM observations and measurements. Some of the observations are descriptive. Others provide precise measurements. Most are clear. At least one (the April 2010 physical therapy note), the Court found to be confusing. Some indicate that Claimant had full ROM, with or without pain, as the case may be, including St. Peter's ER (March 2010), Dr. Quade (June 2010), Dr. Vohra (September 2010), Dr. Cole (July 2011), and Dr. Aboelsaad (September 2011). Others relate that Mr. Poole had an extensive reduction in ROM, along with pain, and that, sometimes, he presented as being cautious and guarded in his movements. They include records from therapeutic massage (May 2010), Dr. Scheid (June/July 2010), Dr. Whalen (October 2010/March 2016), Columbia Physical Therapy (Spring 2011 [some improvement over time noted]), Dr. Aboelsaad (August 2011), and Dr. Phung (September 2011).

Objective medical evidence of herniated or bulging discs, corroborated by an experts quantitative measurements expressing the numeric percentage of a patient's decreased ROM, can be used to establish whether or not an impairment is significant or consequential, provided they are derived by means of identified, objective, medical testing (Cohen v Bayer, 167 AD3d 1397, 1400 [3d Dept 2018]; Tuna v Babendererde, 32 AD3d 574, 577, supra; Pianka v Pereira, 24 AD3d 1084, 1086, supra; Munoz v Hollingsworth, 18 AD3d 278, 279 [1st Dept 2005]). Unfortunately for Claimant, all of the ROM tests in the record suffer from the same defect identified in the Court's earlier Summary Judgment decision with respect to Dr. Whalen's notes. None of them identify the diagnostic tests or other objective medical bases relied upon to show that those findings are based on anything other than Mr. Poole's subjective complaints of pain (see Tuna v Babandererde, supra; Blanchard v Wilcox, 283 AD2d 821, 822-823, supra; cf. Cohen v Bayer, supra at 1399-1400 [where doctors used inclinometers to measure percentage of reduced ROM in spine]). Dr. Whalen was asked about the ROM figures he obtained, but not how he obtained them, or what tests he used to derive those measurements (see Ex. 29-A, pp. 47-49). As such, the Court concludes that the ROM measurements do not provide objective, medical support for the opinions expressed by Claimant's doctors.

Claimant's subjective complaints of headaches, likewise, are not supported by objective findings in the medical record. Mr. Poole testified that he woke up with a pounding headache on the morning after his accident and that, as he told several medical providers on a number of occasions, including Dr. Scheid and Dr. Whalen, he suffered constant or frequent daily headaches thereafter. By contrast, his medical records reveal only an inconsistent history of such subjective complaints. No headache or head trauma was noted in the record from St. Peter's Hospital ER two days after the accident. In fact, the first references to headaches do not appear in Claimant's medical records until early June, some two months after the accident, when they were noted by Dr. Kim and Dr. Quade. No headache was noted in Mr. Poole's December 2010 follow-up appointment with Dr. Whalen after the ACDF surgery. Dr. Kim's Progress Notes from 2011-2013 provide only an episodic record of headaches, with such complaints noted on some occasions, and, at other times, not. Moreover, and in any event, Claimant's complaints of headaches were not physical limitations that could be observed by medical providers (Alcombrack v Swarts, 49 AD3d 1170, 1171-1172 [4th Dept 2008]). Likewise, the objective medical findings do not relate the headaches to Claimant's motor vehicle accident. Dr. Kim agreed that a CT scan would provide an objective finding to consider, but the September 2010 CT of Mr. Poole's head and brain was negative.

Dr. Scheid included the first reference to Claimant exhibiting light sensitivity, in his note of June 24, 2010, nearly three months after the accident. The medical records also note that Mr. Poole wore dark sunglasses to many appointments, and he and his friends and family testified about him sitting in darkened rooms and avoiding direct sunlight and outdoor activities. Mr. Poole's subjective complaints of light sensitivity were not supported, however, by objective medical findings. In June 2011, Dr. McKee could determine no underlying neurological syndrome to account for Claimant's photophobia and headaches, and queried whether it was the result of post-traumatic stress. In November 2011, Dr. Lopasic, the ophthalmologist, said that Mr. Poole's symptoms of photosensitivity were most likely secondary to migraines that were triggered by his injury. As with Claimant's complaints of headaches, neither Dr. Kim, nor Dr. Whalen, explained how the herniated disc at C5-C6 (or, any of the other minimal changes) related to the subjective complaints of photophobia.

With respect to the 90/180 category, the testimony of Claimant, his family, friends, and employer, describing his inability to perform customary daily activities for the first 90 days after his accident, is not supported by medical evidence that is independent of Mr. Poole's subjective complaints of pain. Dr. Kim did not testify, from any personal knowledge or observation, about Claimant's physical capacity prior to the accident, or his diminished ability to engage in his usual and customary activities afterwards (see Rodman v Deangeles, supra at 122, 124). Dr. Kim issued numerous disability notes to Mr. Poole, but they were in response to Claimant's subjective complaints of pain. Aside from the purported memory of feeling muscle spasms, which the Court rejects, Dr. Kim's records and her testimony do not include any objective corroboration of those complaints. In any event, her decision to keep Mr. Poole out of work is not determinative because she did not address whether or not Mr. Poole was unable to perform substantially all of his daily activities (cf. Tandoi v Clarke, supra [where doctor described the qualitative nature of the claimant's limitations by opining that pain limited her ability to do normal daily activities like housework, yard work, lifting, using the computer, watching TV, placing items on overhead shelves, her work as an ICU nurse, and attributed these limitations to the natural and expected medical consequences of her injuries]).

As for Dr. Whalen, he did not treat Mr. Poole until October 2010, more than six months after the accident, so he had no first hand knowledge of Claimant's ability to engage in his usual and customary activities during the applicable period (see Gonzalez v Green, supra at 941). Moreover, and unlike Dr. Storey, he did not discuss how the objective findings contained in the MRIs, X-rays, and CT scan, obtained during those first six months after the accident, might relate to Mr. Poole's functionality. Furthermore, in March 2011, Dr. Whalen gave Claimant a disability note because Mr. Poole felt he was incapable of returning to work. The record did not state affirmatively that Dr. Whalen thought so too. In August 2011, Dr. McKee thought that, from a neurological perspective, Mr. Poole could go back to work.

Likewise, neither Dr. Kim, nor Dr. Whalen, related Mr. Poole's complaints of intermittent tingling in his hands and numbness in his fingertips to any of the objective medical findings. The same applies to Claimant's complaints of radiculopathy noted by Dr. Kim in June 2010. To the contrary, Dr. Forrest's August 2011 EMG study showed no evidence of right or left cervical radiculopathy. In 2016, Claimant did not complain to Dr. Whalen of any radiating arm pain. Regarding tinnitus, Dr. Whalen stated that Claimant's complaint is not common among patients with injuries similar to Mr. Poole's.

As discussed in the Court's earlier Summary Judgment decision, the Social Security Administration decision is of no binding effect here because that determination is based upon different criteria.

Finally, Claimant's Post-Trial Brief argues that Mr. Poole's symptoms appeared to involve both the cervical spine, as well as a "severe post-concussive syndrome" (Post-Trial Brief of Edward P. Ryan, Esq., p. 5). There is nothing in the record, however, to support Claimant's theory that his symptoms were related to a concussion. Mr. Poole testified that he did not lose consciousness during the accident. No head trauma was noted when he presented at St. Peter's Hospital ER two days after the accident.

CONCLUSION

The Court concludes that Claimant failed to establish, by a preponderance of the credible evidence, that he sustained a serious injury under Insurance Law § 5102(d), and, therefore, further failed to establish his right of recovery for damages he allegedly suffered in connection with his motor vehicle accident on March 29, 2010, primarily because he failed to establish causation.

The Claim is, therefore, dismissed.

All motions and cross-motions, including Claimant's Motion No. M-89799, are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter Judgment accordingly.

June 24, 2020

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims


1. Dr. Kim's trial testimony was recorded on January 23, 2017, and the video of her testimony was admitted into evidence (see Ex. 28-B), as well as a transcript of her testimony (see Ex. 28-A). In addition, the video was viewed in Court at trial, off the record.

2. Dr. Whalen's trial testimony was recorded on January 19, 2017, and the video of his testimony was admitted into evidence (see Ex. 29-B), as well as a transcript of his testimony (see Ex. 29-A). In addition, the video was viewed in Court at trial, off the record.

3. At the oral argument, Claimant's counsel stated that the motion really was not to preclude, but rather, to limit the testimony of Defendant's expert.

4. Dr. Whalen did not remember seeing any X-rays taken at St. Peter's on March 31, 2010 and was unaware that Claimant was discharged with a diagnosis of cervical strain (Ex. 29-A, p. 58). Neither the X-rays, nor any report of their findings, were introduced into evidence.

5. Dr. Whalen, a member of the same practice group, believed that to be the May 21, 2010 MRI, although he did not know if Dr. Quade saw the film, or just the report (Ex. 29-A, pp. 7, 12,18, 64).

6. Which Dr. Whalen believed was the same MRI that Dr. Quade reviewed (Ex. 29-A, p. 18).

7. On April 5, 2013, Claimant treated with Richard D. Shade, D.C., at the same practice group (see Ex. 7, p. 24).