New York No-Fault Law: Is The Serious Injury Threshold Really Serious Or Just Joking ?

Posted By Michael R. Varble || 28-Oct-2013

In today's blog post, I want to discuss the New York No-Fault law and the serious injury threshold. What is the No-Fault Law, and how does it affect a claim for personal injuries before the New York Courts ? Well, No-Fault is a statutory scheme that is designed to limit the number of automobile accidents that are filed in the Courts. To be eligible to file a claim for pain and suffering in a New York Court, you need to have suffered a "serious injury."

What is a serious injury ? A serious injury is defined by NY Insurance Law § 5102(d) as an injury resulting in: (1) death, (2) dismemberment, (3) significant disfigurement, (4) fracture, (5) loss of a fetus, (6) permanent and total loss of use of a body organ, member, function, or system, (7) permanent consequential limitation of use of a body organ or member, (8) significant limitation of use of a body function or system, and (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. That's a mouth-full.

What does all of this mean. Many of the categories are pretty self explanatory like numbers 1 through 6. Most of the difficult cases come with numbers 7-9, because the other categories are pretty easily established through medical records and normally are not disputed with any credibility. So what are we talking about here.

A serious injury must be established by objective medial evidence. What is this ? You, as a plaintiff, must have an injury that can be established through medical science by something other than subjective complaints of pain. For example, a headache, even if it lasts for several weeks, is not something that can be observed by a treating physician and, as a result, it will not satisfy the serious injury threshold. Another example might be a doctor's observation of a spasm. The observation of a spasm by a doctor is not sufficient to establish a serious injury. However, if the observation of the spasm is supported by a specific medical test, it may be enough to establish a serious injury.

A claim asserted under the 90 of the first 180 days must be established with objective medical evidence. As a result, a person's complaints of pain and statements that he or she was unable to return to work are not sufficient unless they are supported by a medical test. What kind of tests are we talking about ? Well, there are numerous diagnostic tests but a few that come to mind are CT Scans, MRI's, EMG tests and many other tests that doctors can perform in a physical examination.

Where a person is claiming that they have a permanent consequential limitation of use of a body organ or member, he or she must show through medical evidence that the limitation is in comparison to a normal function. You must have objective medical evidence that shows a loss of range of motion, or a medical comparison between a normal function and the plaintiff's function of an organ, member, function or system. Your doctor must also be qualified in the field for which they provide an opinion about the limitation. In other words, you can't use a psychiatrist to say that your knee doesn't bend as far as it use to because of a car accident.

May people suffer herniated discs in car accidents. In fact, I just settled a case last week where my client had two herniated discs from rear end car accident. However, a herniation by itself is not enough to satisfy the serious injury threshold and there are numerous appellate court cases in New York that state this. The person suffering from the herniated disc must also have some form of objective medical evidence that shows a physical limitation. A doctor must also state the degree of the physical limitation so the Court can determine if it is in fact significant. Your treating doctor must also make these findings contemporaneously with the accident (which seems pretty difficult to me if you think about it) or a Court could determine them to be insufficient. The case law really indicates that you cannot have evaluations outside of a year after the accident saying that you have significant limitations, probably because it looks like the plaintiff went to a doctor that their attorney recommended when they didn't get a report that they thought would help in a lawsuit. All of our readers out there should also keep in mind that the existence of a pre-existing condition does not preclude the finding of a serious injury. You can suffer a serious injury through an aggravation of a pre-existing injury.

In summary, what does all of this mean to you as a prospective client ? It means that you need to have a legitimate injury if you are going to be successful in a claim filed in a New York Court arising out of an automobile accident. This statutory scheme is designed to weed out the non-serious physical injuries to permit the Courts to focus on the seriously injured claimants. Lawyers normally do not recover large sums of money for people who are not very seriously injured and in the end, do you really want to be the plaintiff that receives a large check from an insurance carrier ? Probably not. Most people would prefer to not have to suffer the pain, hospitalization, recovery time and disruption to their lives that are caused when someone really is seriously injured.

With all of this in mind, I would urge anyone who has been the victim of someone's negligence in a car accident to give us a call for a free consultation and a free case evaluation. I will be happy to discuss your case with you in depth, give you my assessment of your chance of success and talk about all of your options. I will always say that I hope you do not have to be in the position of a plaintiff, but I know people will be injured in accidents. It is just part of life. So, if you or someone you love has been hurt and you need to talk to an attorney, please give me a call at 1.800.900.6204. The attorneys at Michael R. Varble & Associates, P.C. have over 150 years of collective experience and we will be happy to fight for you !

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