If you have been involved in a motor vehicle accident in New York and want to be compensated for your pain and suffering you must have sustained a “serious injury”. This is commonly known as the serious injury threshold. This law was established in 1971 as part of The Comprehensive Motor Vehicle Insurance Reparations Act.
Motorcycle operators and passengers are excluded from this law and do not have to prove a “serious injury” in order to recover money.
New York State “Serious Injury” Threshold Law
The law that defines a “serious injury” is Insurance Law §5102(d). It defines a “serious injury” as any one of the following conditions:
- Significant disfigurement;
- A Fracture;
- Loss of a fetus;
- Permanent loss of use of body organ, member, function
- Permanent consequential limitation of use of a body organ
- Significant limitation of use of a body function or system or 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.
The death of a motor vehicle accident victim meets category one as long as a medical doctor states the death was caused by the accident.
Category two is met if an accident victim’s limb is cut off from their body.
The most common manner that a motor vehicle accident victim meets category three is if they have a scar from the accident. The courts have stated that the scar must be something that a reasonable person would regard as unattractive, objectionable or the object of pity and scorn.
In order to meet category four, the accident victim must have sustained a fractured bone. This is commonly known as a “broken” bone. This is usually demonstrated with a diagnostic test like an X-ray, CT scan or MRI. In addition, the injured person must have a medical doctor that states the fracture was caused by the accident.
If a person is pregnant at the time of the accident and they lose the fetus after the accident they meet the requirements of category five as long as a medical doctor states the loss of the fetus was caused by the accident.
Category six is a “permanent loss of use of body organ, member, function
or system”. This is rarely met by motor vehicle accident victims. The injured person must show that they suffered a “total loss” of the organ, member, function or system.
The most commonly met categories are seven and eight
Accident victims with injuries to their neck, back, shoulder or knee are often able to meet categories seven and eight. In order to breach the threshold under these categories the client must have complaints of pain to the body part after the accident. In addition, they must have a permanent limitation in the body part. This is most often demonstrated with a reduction in the range of motion of the body part.
The most recent case that controls these categories is Perl v. Meher, 18 N.Y.3d 208 (Ct. of App. 2011). The case was decided by New York’s highest court and changed the proof was needed in order to demonstrate a “serious injury”.
In Perl the Court of Appeals held that a serious injury could be established with symptoms in qualitative terms shortly after the accident and then later with specific quantitative measurements of the injury. This means that if a person had complaints of neck pain in the emergency room on the day of the accident and a loss of the range of motion of their neck several years later, they established a “serious injury”.
New York courts have also stated that in order to meet these categories you must have objective proof of the injury. Examples of this are X-rays, CT scans, MRIs or EMG tests.
Consistent medical treatment is very important
Continuous treatment with no interruptions after the accident is very important under categories seven and eight. The courts have decided that motor vehicle accident victims do not have a “serious injury” if there is a gap in their treatment.
Most important is to have medical treatment immediately after the accident. If you fail to treat within the first two weeks after the accident it could be fatal to the claim that your injuries are “serious”. Having an experienced lawyer that is aware of these pitfalls is necessary if you want to receive fair and reasonable compensation for your injuries.
In order to meet category nine an accident victim must be unable to perform their normal daily activities for 90 days in the first six months after the accident. This category is most commonly met when an accident victim is unable to go to work for more than 90 days in the six months following the accident. The inability to work must be related to the injuries sustained in the accident.
What if I had a similar injury before the accident
Many accident victims incorrectly believe that if they have a prior or pre-existing injury they cannot have sustained a “serious injury” as a result of a motor vehicle accident. This is incorrect as the Law Office of Carl Maltese frequently represents clients with pre-existing injuries or conditions that are aggravated and exacerbated by the accident.
Many of our clients had a similar injury years before the accident, recovered and were asymptomatic at the time of the motor vehicle accident. If the accident then set them back, they can be compensated. We always obtain your medical records from before the accident and provide them to your treating doctor so that they can render a persuasive opinion as to how the accident changed your condition.
The Law Office of Carl Maltese has been very successful in persuading the courts and insurance companies that an aggravation or exacerbation to a pre-existing condition is a “serious injury” and deserves compensation.
The Law Office of Carl Maltese understands New York’s “Serious Injury” threshold law
The Law Office of Carl Maltese has a track record for successfully proving to the court and insurance companies that their clients sustained a “serious injury”. We have successfully represented thousands of car accident victims and almost always have been able to demonstrate that they sustained a “serious injury”. We are fully familiar with the law and know how to win these cases in Suffolk County Supreme Court.
If you have been in a car accident, contact the Law Office of Carl Maltese at (631) 543-8811 for a free consultation. At your free consultation we will be happy to answer any and all questions about your car accident and if your injuries meet the New York State Serious Injury threshold.