Range of Motion Loss and the Serious Injury Threshold: When Perl Doesn't Help

Range of Motion Limitations and the Serious Injury Threshold

Personal injury plaintiffs seeking recovery for non-economic damages under New York Insurance Law Section 5102(d) must satisfy the serious injury threshold. This statutory requirement limits recovery to cases where plaintiffs sustained injuries meeting one of nine defined categories, including “significant limitation of use of a body function or system” or “permanent consequential limitation of use of a body organ or member.”

Quantifying Range of Motion Restrictions

Courts have developed extensive precedent interpreting these categories, particularly regarding what degree of range of motion limitation qualifies as “significant.” The quantification of range of motion restrictions has generated substantial litigation, with courts examining percentage limitations to determine whether they rise to the level of serious injury.

While no bright-line rule exists, appellate decisions have consistently held that minor or mild limitations — typically those in the single digits or low double digits — do not satisfy the threshold. This judicial interpretation reflects the statute’s purpose: to restrict personal injury litigation to genuinely serious cases while requiring minor injury claims to proceed through the no-fault insurance system without tort liability.

The Perl Doctrine and Degenerative Conditions

Beyond establishing the extent of range of motion limitations, plaintiffs must also address causation challenges, particularly when defendants present evidence of degenerative conditions or other preexisting pathology. The landmark Court of Appeals decision in Perl v. Meher provided significant relief to plaintiffs by holding that minor degenerative changes shown on diagnostic imaging do not defeat serious injury claims as a matter of law.

However, as the Second Department’s decision in Il Chung Lim v. Chrabaszcz demonstrates, Perl did not eliminate plaintiffs’ burden to rebut defense radiologists’ findings when those experts conclude that injuries are entirely degenerative and unrelated to the accident.

Case Background: Il Chung Lim v. Chrabaszcz

Il Chung Lim v Chrabaszcz, 2012 NY Slip Op 03600 (2d Dept. 2012)

In this motor vehicle accident case, plaintiff claimed serious injury to his left knee. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law Section 5102(d). Their motion included expert medical evidence addressing both the severity of plaintiff’s claimed limitations and the causation of his knee condition.

The Plaintiff’s Medical Evidence

Plaintiff’s treating physician, Dr. Benjamin Chang, examined plaintiff most recently on December 3, 2010, and documented an approximate 13% limitation in range of motion of the left knee. Plaintiff relied on this finding to support his claim of significant limitation of use of a body function.

The Defense Radiological Evidence

Defendants submitted radiological evidence: their radiologist reviewed MRI films of plaintiff’s left knee and opined that the injuries depicted were degenerative in nature and unrelated to the accident.

In opposition to defendants’ motion, plaintiff submitted his own radiologist’s report and Dr. Chang’s affidavit. However, neither plaintiff’s radiologist nor Dr. Chang specifically addressed the defense radiologist’s conclusions about the degenerative nature of the knee injuries. Dr. Chang offered an opinion that the injuries were caused by the accident and were not degenerative, but the Second Department found this conclusion speculative because it was based solely on plaintiff’s subjective history and an uncertified MRI report rather than independent objective analysis.

Jason Tenenbaum’s Analysis:

1. 13% loss of ROM not deemed a serious injury

2. 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).

Legal Significance: Quantifying Serious Injury and Addressing Degenerative Findings

The 13% ROM Threshold

The court’s treatment of plaintiff’s 13% range of motion limitation provides important guidance on the serious injury threshold. The Second Department characterized this limitation as “insignificant within the meaning of the no-fault statute,” joining numerous other decisions finding that limitations in the low-to-mid teens do not satisfy Section 5102(d).

This holding reinforces that plaintiffs must demonstrate substantial restrictions on bodily function, not merely measurable limitations that may have minimal practical impact on daily activities.

Post-Perl Practice: What Changed and What Didn’t

The decision’s more significant contribution involves its treatment of the Perl principle in the context of radiological evidence. In Perl v. Meher, the Court of Appeals held that defendants cannot defeat serious injury claims simply by showing degenerative changes on diagnostic imaging. However, the Lim court made clear that Perl does not relieve plaintiffs of the burden to respond to defense expert opinions that injuries are entirely degenerative and unrelated to the accident.

This distinction proves crucial for understanding post-Perl practice:

• When defendants merely show degenerative changes on imaging — Plaintiffs need not specifically rebut this evidence because Perl establishes that degenerative changes alone do not preclude serious injury findings
• When defense radiologists opine that injuries are entirely degenerative in etiology — Plaintiffs must respond with expert evidence addressing this causation challenge

Silence in the face of affirmative degenerative causation opinions allows defendants to prevail on summary judgment.

Why Dr. Chang’s Opinion Was Rejected

The court’s rejection of Dr. Chang’s causation opinion as “speculative” establishes important limitations on medical expert testimony. Physicians cannot simply accept patients’ accident histories and conclude that injuries were traumatically caused without objective medical basis for that conclusion.

When uncertified diagnostic reports and patient history constitute the sole support for causation opinions, courts will find such opinions insufficient to raise triable issues of fact. This holding requires treating physicians to conduct independent analysis of diagnostic studies and articulate objective findings supporting their causation conclusions.

Practical Implications for Personal Injury Practitioners

For Plaintiff’s Counsel

For plaintiffs’ counsel handling car accident claims, this decision underscores the need for careful expert preparation when facing degenerative condition defenses. Once defendants submit radiological opinions that injuries are entirely degenerative, plaintiffs must:

1. Retain their own radiologists to review the same imaging studies
2. Provide detailed rebuttal opinions specifically addressing the defense expert’s conclusions
3. Identify imaging findings that support traumatic rather than purely degenerative etiology

Treating physicians’ affidavits must be drafted with particular attention to causation. Generic statements that injuries were “caused by the accident” based on patient history will not suffice. Physicians should explain what objective findings support their opinions and address why degenerative changes, if present, do not fully account for the patient’s condition.

Case Evaluation and Settlement Strategy

The decision also affects case evaluation and settlement strategy. Plaintiffs with range of motion limitations in the low-to-mid teens face significant summary judgment risk, particularly when diagnostic imaging shows degenerative changes. Unless additional serious injury categories apply — such as fractures, permanent consequential limitations, or 90/180-day injury — cases with marginal range of motion findings may warrant early settlement consideration.

For Defense Counsel

For defense counsel, this case illustrates the power of comprehensive medical examinations coupled with radiological review. Defendants should routinely have defense radiologists review MRI and other imaging studies when plaintiffs claim orthopedic injuries. The key is ensuring that defense radiological opinions:

• Go beyond merely noting degenerative changes
• Affirmatively opine on causation
• Address the absence of traumatic findings

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