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.
