Key Takeaway
Court ruling on 13% range of motion loss not qualifying as serious injury under NY no-fault law, requiring radiologist report rebuttals in personal injury cases.
Il Chung Lim v Chrabaszcz, 2012 NY Slip Op 03600 (2d Dept. 2012)
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13% loss of ROM not deemed a serious injury
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The old standard of needing to address the radiologist report is necessary notwithstanding Perl
In opposition, the plaintiff failed to raise a triable issue of fact. The approximate 13% limitation in range of motion of the left knee noted by the plaintiff’s treating physician, Dr. Benjamin Chang, on his most recent examination of the plaintiff on December 3, 2010, was insignificant within the meaning of the no-fault statute (see McLoud v Reyes, 82 AD3d 848, 849). In any event, the plaintiff’s submissions were insufficient to raise a triable issue of fact to rebut the finding of the defendant’s radiologist that the injuries depicted in the magnetic resonance imaging (hereinafter MRI) films of his left knee were degenerative in nature and unrelated to the subject accident. Neither the plaintiff’s radiologist nor Dr. Chang addressed the findings of the defendant’s radiologist pertaining to the degenerative nature of the plaintiff’s left knee injuries, and Dr. Chang’s conclusion that, based upon a review of the uncertified MRI report, the subject injuries were caused by the accident and were not degenerative in nature, was speculative and insufficient to raise a triable issue of fact (see Mensah v Badu, 68 AD3d 945, 946; Ortega v Maldonado, 38 AD3d 388).
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