A recent Appellate Division, Second Department court decision highlights an aspect of the law in New York in regards to automobile accident cases and “soft-tissue” injuries (a “soft tissue” injury is one that is not a fracture but is rather damage to the muscles, ligaments or tendons).
The law in New York is that if a person is injured in a car accident then he or she can seek No-Fault insurance benefits up to $50,000 for economic losses pertaining to the accident (such as medical treatment expenses and lost earnings), regardless of who is at fault in causing the accident. One goes about seeking such benefits by timely submitting a No-Fault application. A person is able to sue the other driver directly to seek more compensation, but only if the economic losses exceeds $50,000, or if a “serious injury” exists. A “serious injury” is defined by law as it includes death, fracture, and a permanent limitation of or permanent loss of use of a body part or function, as well as a significant limitation of use of a body function or system. “Serious injury” also includes a non-permanent loss of use of a body member or organ that substantially impairs a person from engaging in customary everyday activities for 90 out of 180 days after the accident. This “non-permanent use” category is also called a “soft-tissue” injury, and it is the most difficult for plaintiffs to prove.
In Lewars v. Transit Facility Management Corp., 923 N.Y.S.2d 701 (2d Dept. 2011), the plaintiff lost her case (when defendant’s summary judgment motion was granted) when the Court held that she not sustain a “serious injury” because she missed only one week of work as a result of the accident (therefore, the “90 out of 180 day” category was not satisfied). Also, the Court held the following in regards to the plaintiff’s doctor’s findings: “the affirmation and annexed submissions of [the plaintiff’s doctor] did not make any findings that were sufficiently contemporaneous with the subject accident as to the existence of significant limitations in either the plaintiff’s cervical or lumbar range of motion. Indeed, while [the plaintiff’s doctor] examined the injured plaintiff the day after the accident, he failed to quantify any lumbar or cervical spine range of motion as of that date. Rather, he asserted merely that the injured plaintiff had “decreased” range of motion. Even with respect to this unquantified finding, he did not set forth the objective testing he performed. The earliest quantified findings concerning lumbar or cervical range of motion provided by the plaintiffs was from an examination performed six months after the subject accident. These findings were not sufficiently contemporaneous with the subject accident and did not overcome the deficiencies in [the plaintiff doctor’s] earlier examination.”
Salvatore R. Marino, Esq.