An IME doctor must offer an explanation why he believes a Claimant's diminished range of motion is self restricted

Kim v Orourke, 2010 NY Slip Op 01613 (2d Dept. 2010)

“The defendant’s own examining neurologist reported findings of limitations in the ranges of motion in the cervical and lumbar regions of the injured plaintiff’s spine (see Powell v Prego, 59 AD3d 417; Norme v Ajons, 57 AD3d 749; Wright v AAA Constr. Servs., Inc., 49 AD3d 531; Umar v Ohrnberger, 46 AD3d 543; Bentivegna v Stein, 42 AD3d 555), and he failed to “explain or substantiate, with any objective medical evidence, the basis for his conclusion that the noted limitations were self-restricted” (Bengaly v Singh, 67 AD3d 1030, 1031; see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734; Chang Ai Chung v Levy, 66 AD3d 946; Moriera v Durango, 65 AD3d 1024).”

Unlike a 5102(d) matter, a no-fault insurer can make a prima facie case of lack of medical necessity through diminished findings even if the ROM restrictions are not self imposed.  An insurance carrier can argue that further treatment would be of no benefit.  An argument that further treatment would be palliative should usually prevail, although there is no case law on that discreet issue.  I think, however, that the palliative argument would be weakest against treatment that a pain management facility provides.

An interesting 5102(d) case involving a knee surgery

Gilmonio v Toussaint, 2010 NY Slip Op 50258(U)(App. Term 1st Dept. 2010).

An appellate court found that the a knee surgery was insufficient to defeat a threshold motion based upon a knee injury.  The court found that the plaintiff’s expert’s opinion was inappropriate “since [the doctor’s] conclusions were premised on an incomplete history of plaintiff’s medical treatment”.

Read the case – it is quite interesting.  Can you see the no-fault link?

The first department is out of control

Yes, you read that title correctly.  Three bizarre decisions as of late, one which deals tangentially with no fault (Garcia v Leon, 2010 NY Slip Op 01538 [1st Dept 2010]), one which effects the safety of no-fault attorneys going to court in the bronx (People v Correa, 2010 NY Slip Op 01533 [1st Dept. 2010]) and one which effects the negligence case of a no-fault attorney (Tselebis v Ryder Truck Rental, Inc., 2010 NY Slip Op 01442 [1st Dept 2010]) have been decided by the First Department.

Garcia is completely at odds with conflicting Second Department precedent inasmuch as it affirmatively allows for hearsay evidence to be used to defeat a summary judgment motion as set forth herein: “[t]he affidavit of her treating chiropractor, taken in conjunction with her medical experts’ unsworn statements and her MRI tests, raises questions as to whether her shoulder and cervical and lumbar spinal injuries are permanent or significant, and not merely preexisting, degenerative, or caused by a subsequent 2007 accident (see Liriano v Ostrich Cab Corp., 61 AD3d 543 [2009]; Hammett v Diaz-Frias, 49 AD3d)”

Correa ruled that former Chief Judge Judith Kaye’s creation of a Supreme Court, criminal division, in the Bronx, which had original jurisdiction over both misdemeanor and felony cases, was unconstitutional.  Thus, many violent misdemeanants’ convictions are being vacated.  Look both ways before you cross the street because Rikers is being emptied.  I am being facetious by the way.  Finally, Tselebis takes the notion of summary judgment and I think turns it into an evidentiary fact finding device, contrary to the purpose of the summary disposition statute, but consistent with the modern view of the summary judgment motion, i.e., a trial on papers.

First, another plaintiff fails to adequately address a claim of lack of causation. Secondly, a serious injury is not required in order to sustain a claim for economic loss after the three year period found in 5102(a)(2)

Hartman-jweid v Overbaugh, 2010 NY Slip Op 01197 (4th Dept. 2010)

1. Lack of Causation:

“Defendant’s expert concluded, based on his examination of plaintiff and his review of her medical records, that the only objective medical findings with respect to any alleged injury related to a preexisting degenerative condition of the spine. “[W]ith persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant’s claimed lack of causation” and, here, plaintiff failed to meet that burden (Carrasco v Mendez, 4 NY3d 566, 580; see Lux v Jakson, 52 AD3d 1253). Although plaintiff submitted the affidavits of a chiropractor and her treating physician in opposition to the motion,neither affidavit addressed the conclusion of defendant’s expert that the changes in plaintiff’s spine were degenerative in nature (see Marsh v City of New York, 61 AD3d 552; Valentin v Pomilla, 59 AD3d 184, 186; Lux, 52 AD3d 1253).”

2. A Plaintiff may collect economic loss for the three year time period following the motor vehicle accident

“Finally, we reject the contention of plaintiff that the court erred in granting that part of defendant’s motion concerning her claim for loss of earnings that continue beyond the three-year statutory period (see generally Insurance Law § 5102 [a] [2]). Although a plaintiff need not sustain a serious injury to support such a claim (see Colvin v Slawoniewski, 15 AD3d 900; Tortorello v Landi, 136 AD2d 545), defendant met his initial burden by establishing that plaintiff did not sustain any injury that was causally related to the accident and that any limitation on plaintiff’s activities was self-imposed, and plaintiff failed to raise a triable issue of fact with respect to that claim.”

I found the second part interesting.  I suppose if I hurt my back, decide not to “treat”, avoid a no-fault IME, never go back to work and hire someone to substantiate why I did not go back to work, I can collect economic damages for the rest of my life.

5102(d) – what NOT to do

Here is a case which is the epitome of a plaintiff in a serious injury threshold action who just could not get it right.  It is really sad. Bleszcz v Hiscock, 2010 NY Slip Op 00639 (2d Dept. 2010).