Key Takeaway
Learn how Kim v O'Rourke established standards requiring IME physicians to provide objective evidence when claiming range of motion limitations are self-restricted.
Understanding IME Requirements in New York No-Fault and Personal Injury Cases
Independent Medical Examinations (IMEs) play a crucial role in both no-fault insurance claims and personal injury litigation throughout New York, including Long Island and New York City. When insurance companies or defense attorneys challenge the extent of an injured person’s disabilities, they frequently rely on IME reports to support their position that injuries are less severe than claimed or that limitations in range of motion are self-imposed rather than genuine.
For personal injury attorneys and no-fault practitioners, understanding the standards that courts apply to IME testimony is essential for effectively challenging inadequate or biased examinations. The case law consistently requires that IME physicians provide objective medical evidence and sound reasoning when they claim that a patient’s physical limitations are voluntary or exaggerated.
The Kim v O’Rourke Decision: Setting Standards for IME Testimony
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.
The Critical Distinction: Objective Evidence vs. Conclusory Statements
The Kim v O’Rourke decision establishes a fundamental principle that resonates throughout New York personal injury and no-fault law: medical experts, particularly IME physicians, cannot simply declare that a patient’s range of motion limitations are “self-restricted” without providing objective medical evidence to support this conclusion.
This requirement serves several important purposes in the legal system. First, it protects injured individuals from superficial or biased medical examinations that might dismiss legitimate injuries without proper investigation. Second, it ensures that medical testimony meets basic standards of reliability and scientific validity. Third, it provides courts with a clear framework for evaluating the adequacy of expert medical testimony.
The Burden of Proof on IME Physicians
When an IME physician claims that range of motion limitations are self-imposed or voluntary, they must provide specific, objective medical evidence to support this finding. This evidence might include:
Inconsistency in Testing: Documentation showing that the patient’s range of motion varies significantly between different testing sessions or methods in ways that suggest voluntary limitation rather than organic pathology.
Absence of Supporting Objective Findings: Evidence that the claimed range of motion limitations are not supported by corresponding objective findings such as muscle atrophy, swelling, deformity, or other physical signs that would typically accompany genuine restriction.
Specific Clinical Signs: Identification of recognized clinical signs of malingering or symptom magnification, such as non-anatomic patterns of pain or inconsistencies between claimed limitations and actual physical capabilities observed during the examination.
Distinguishing No-Fault Claims from 5102(d) Threshold Cases
Jason Tenenbaum’s analysis in this case commentary highlights an important distinction between no-fault medical necessity determinations and 5102(d) serious injury threshold evaluations. This distinction is crucial for attorneys practicing in both areas of New York insurance law.
No-Fault Medical Necessity Standards
In no-fault cases, insurance carriers can establish a prima facie case for denying benefits by showing that further treatment would not be medically necessary, even when range of motion restrictions are genuine rather than self-imposed. The focus in these cases is on whether continued treatment will provide meaningful benefit to the patient, not necessarily on whether the patient’s limitations are real or fabricated.
This creates different strategic considerations for attorneys handling no-fault disputes. Rather than focusing primarily on proving the objective reality of the patient’s limitations, attorneys must also address the medical necessity of ongoing treatment and the potential for continued improvement.
The Palliative Treatment Exception
The commentary notes that arguments for palliative treatment should generally prevail in no-fault cases, even when active improvement may not be expected. This reflects the understanding that some treatments serve primarily to maintain current function or prevent deterioration rather than to cure the underlying condition.
However, the analysis suggests that palliative treatment arguments may be most challenging when dealing with pain management facilities. This observation reflects practical concerns about the long-term administration of pain medications and interventional procedures that may carry their own risks and complications.
Strategic Implications for Personal Injury Practice in Long Island and NYC
Challenging Inadequate IME Reports
For personal injury attorneys in Long Island and New York City, the Kim v O’Rourke standard provides a powerful tool for challenging inadequate IME reports. When reviewing an IME report that claims range of motion restrictions are self-imposed, attorneys should systematically examine whether the physician has provided specific, objective evidence to support this conclusion.
Key questions to ask when reviewing such reports include:
What specific tests were performed? Did the IME physician conduct multiple range of motion measurements using standardized techniques? Were the results consistent across different testing methods?
What objective findings were documented? Did the physician identify specific physical signs that would support a finding of voluntary limitation, or did they simply conclude that limitations were self-imposed without supporting evidence?
How does the IME physician’s opinion compare to treating physicians? Are there significant discrepancies between the IME findings and the documented observations of treating physicians who have examined the patient over longer periods?
Preparing Clients for IME Examinations
Understanding the standards established in Kim v O’Rourke also helps attorneys better prepare their clients for IME examinations. Clients should be advised to:
Be consistent in their responses: Clients should provide truthful, consistent descriptions of their symptoms and limitations throughout the examination process.
Follow instructions carefully: During range of motion testing, clients should attempt to perform requested movements to the extent they are able, stopping only when they experience genuine pain or limitation.
Report symptoms accurately: Clients should clearly communicate when movements cause pain or discomfort, providing specific descriptions rather than vague complaints.
The Evolution of IME Standards in New York Case Law
The Kim v O’Rourke decision builds upon a substantial body of New York case law addressing the standards for IME testimony. The cases cited in the decision – including Powell v Prego, Norme v Ajons, and Wright v AAA Constr. Servs., Inc. – demonstrate the courts’ consistent approach to requiring objective medical evidence to support claims of voluntary limitation.
This evolution reflects the courts’ recognition that IME examinations can be subject to bias and that protecting injured individuals requires maintaining high standards for medical testimony. The requirement for objective evidence serves as a crucial safeguard against superficial or prejudicial medical evaluations.
The Role of Treating Physicians vs. IME Physicians
The case law also recognizes important differences between treating physicians and IME physicians. Treating physicians typically have the advantage of observing patients over extended periods and developing longitudinal assessments of their conditions. IME physicians, by contrast, conduct single examinations often in adversarial contexts.
This distinction affects how courts evaluate conflicting medical testimony. When treating physicians document genuine range of motion limitations over time, IME physicians who claim such limitations are self-imposed face a higher burden of providing convincing objective evidence to support their contrary conclusions.
Practical Applications for Current Practice
Document Review and Case Preparation
Personal injury attorneys should systematically review IME reports for compliance with the Kim v O’Rourke standards. This includes:
Identifying conclusory statements: Look for opinions about self-restriction that are not supported by specific objective findings or detailed analysis.
Comparing with treating physician records: Analyze whether IME findings are consistent with the documented observations of treating physicians.
Evaluating examination methodology: Assess whether the IME physician used appropriate testing methods and conducted a sufficiently thorough examination.
Discovery Strategy
The Kim standard also informs discovery strategy in personal injury cases. Attorneys should consider seeking:
IME physician qualifications: Information about the examining physician’s training, experience, and any potential bias or conflicts of interest.
Examination protocols: Details about the specific tests and procedures used during the IME, including whether standardized assessment tools were employed.
Comparative data: Information about how the IME physician’s findings compare to their typical range of conclusions in similar cases.
Frequently Asked Questions About IME Standards and Range of Motion Testing
What constitutes “objective medical evidence” for supporting claims of self-restricted range of motion?
Objective medical evidence includes specific clinical findings that can be independently verified and reproduced. This might include documentation of non-anatomic pain patterns, significant variations in range of motion testing between sessions, absence of corresponding physical findings that would typically accompany genuine restriction, or specific clinical signs recognized in medical literature as indicators of voluntary limitation.
Can an IME physician’s opinion alone defeat a personal injury claim?
While IME reports can be influential, they must meet basic standards of adequacy to be given significant weight by courts. Under the Kim v O’Rourke standard, conclusory opinions without objective medical support may be deemed insufficient. The overall strength of the case will depend on the quality of all medical evidence, including treating physician records and other objective findings.
How should attorneys respond to IME reports claiming self-restricted range of motion?
Attorneys should systematically analyze such reports to determine whether they meet the Kim standard. This includes reviewing whether specific objective evidence supports the physician’s conclusions, comparing IME findings with treating physician records, and considering whether the examination methodology was appropriate and thorough.
What is the difference between no-fault medical necessity and 5102(d) serious injury determinations?
No-fault medical necessity focuses on whether continued treatment will provide meaningful benefit, while 5102(d) determinations focus on whether injuries meet specific statutory categories of “serious injury.” In no-fault cases, carriers can deny benefits by showing treatment lacks necessity even when limitations are genuine, whereas 5102(d) cases primarily concern the objective severity and permanency of injuries.
Why might palliative treatment arguments be weaker for pain management facilities?
Pain management treatments often involve long-term medication administration or interventional procedures that may carry their own risks and complications. Courts may scrutinize whether such treatments provide sufficient benefit to justify their continued use and associated risks, particularly when functional improvement is not expected.
Contact The Law Office of Jason Tenenbaum for Expert Representation
If you’re facing challenges with IME reports or no-fault insurance denials in Long Island or New York City, you need experienced legal representation that understands the complex standards governing medical testimony and insurance coverage decisions. The Law Office of Jason Tenenbaum has extensive experience challenging inadequate IME reports and fighting for clients’ rights to necessary medical treatment and fair compensation.
Our team understands the nuances of both no-fault medical necessity determinations and personal injury threshold cases. We know how to identify weaknesses in IME reports, develop effective discovery strategies, and present compelling evidence of genuine injury and ongoing medical needs.
Don’t let insurance companies use biased or inadequate medical examinations to deny you the benefits and compensation you deserve. We work with qualified medical experts who understand the proper standards for evaluating injuries and can provide the objective evidence needed to support your claim.
Call us today at 516-750-0595 for a free consultation. We’ll review your case, analyze any problematic IME reports, and help you understand your legal options. With our deep understanding of New York insurance law and personal injury practice, we’re here to protect your rights and fight for the medical care and compensation you need to recover from your injuries.
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- Medical Necessity in No-Fault Insurance: Understanding the First Department’s Victory for Insurance Carriers
- A prima facie case of medical necessity?
- Personal Injury
Legal Update (February 2026): Since this 2010 post, New York’s no-fault regulations under Insurance Law Section 5102(d) and related IME standards may have been subject to regulatory amendments, updated medical examination protocols, or revised evidentiary requirements. Practitioners should verify current provisions regarding IME physician obligations and the sufficiency standards for medical evidence when challenging self-restricted range of motion claims.
