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Substantiation of diminishment of ROMMay 6, 2017

Rose v Tall, 2017 NY Slip Op 02947 (1st Dept. 2017)

“However, his report is insufficient to raise a triable issue of fact because, on his initial examination, he found normal to near-normal range of motion, which did not qualify as a serious injury (see Eisenberg v Guzman, 101 AD3d 505 [1st Dept 2012]). Furthermore, on a more recent examination, that neurologist found a deficit in one plane and normal to near-normal range of motion in all other planes, and failed to explain the inconsistencies between his earlier findings of almost full range of motion and his present findings of additional deficits, rendering his opinion speculative (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]). Plaintiff’s showing of relatively minor limitations was insufficient to sustain a serious injury claim”

How does one reconcile (1) Need for objective evidence to prove medical necessity of services; (2) A patients conditions waves and wanes; and (3) There is need to explain inconsistencies between patients initial and subsequent conditions.

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