Functional Evaluations
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Supreme Court Cases without Good Objective Medical Evidence
Cases that were LOST based on lack of Good Objective Medical
Evidence and lack of proper medical testing

1., Nos. 02-302-302-570866/01
“…A diagnosis of a bulging or a herniated disc, by itself does not constitute a serious injury. The report by the doctor does not indicate that he performed any tests to substantiate that the plaintiff’s physical limitations result from a disc injury.”

2. 2d 340, 741 N.Y.S. 2d 731
“…despite MRI reports which showed central herniation at C6-7 and bulging and dural flattening at L5-S1. This evidence was sufficient to establish, prima facie, that the plaintiff did not sustain a serious injury… Objective evidence failed to provide proof of physical limitations resulting from the disc injury and it’s duration”.

3. A.D. 2d 865, 744 N.Y.S. 2d 255
…Evidence insufficient to establish that officer suffered serious injury…police officer dragged under a vehicle was diagnosed with severe shoulder strain… independent medical examination indicated good range of motion in the shoulder. Evidence was insufficient

4.WL 31248994 (N.Y.A.D. 2 Dept)
“…Medical report from the treating physician were insufficient to establish that victim sustained a serious injury…victim’s physician initially examined her two days after the accident and found limitations in range of motion… but did not report any range of motion restrictions during the three-year period of time between the accident and the final examination.”

5. WL 31968945 NYAD 3 Dept) 01/30/03
Appeal…does not contain any medical or other evidence addressing any ongoing physical or medical problems of plaintiff. We are thus constrained by the evidence in this record to conclude that it was proper not to charge for future pain and suffering…

6. 6. 292 A.D. 2d 202, 739 N.Y.S. 2d 368
“…chiropractor’s examination of plaintiff was conducted three years after underlying automobile accident, There was NO OBJECTIVE MEDICAL EVIDENCE connecting the injuries and subjective complaints to the accident, or evidence of any tests performed to confirm plaintiff’s subjective complaints”. In the present case all symptoms can be reduced to pain. Judge wrote, “ She has not shown any reduced range of motion or limitation of use of a specific body function, system or member.” Indeed, it is characteristic of chronic pain to affect all of a person's activities.

Even though he sympathized with the plaintiff, the judge concluded pain, by itself, must not only be medically determined, but meet the 90 out of 180 day rule in Insurance Law Section 5102(d) to be considered a serious injury. By itself it does not constitute a limitation of use.

Case Dismissed

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