New York Personal Injury Lawyer Blog

In part 1 of this post, e discussed the initial stages of a no- fault claim when you are injured in a New York car crash. Now we will discuss what is required to be successful in your claim or lawsuit against the other car that caused the accident. Under Insurance Law Section 5102 (d), also known as the No-Fault Statute, which was established in 1973, in order to obtain compensation for your injuries, you must suffer what is known as a "serious injury" in the automobile accident. A serious injury includes:
1. Death;
2. Dismemberment;
3. Significant Disfigurement;
4. A fracture;
5. Loss of a fetus;
6. Permanent loss of use of a body organ or member;
7. Permanent consequential limitation of use of a body organ or member;
8. Significant limitation of use of a body function or system; or
9. A medically determined injury or non-permanent impairment that prevents the person from being able to perform their usual and customary activities for 90 of the 180 days immediately following the accident.

The first five sections of the "serious injury" definition are much easier to define and prove. For example, if you suffer a broken arm in the accident, you automatically meet the no fault threshold of serious injury. Similarly, if the accident causes the loss of a body part or severe scarring, these injuries will automatically satisfy the "serious injury" requirements. However, we do constant battle with insurance companies in determining whether an injury has caused a "significant limitation of a body function or system", and whether an injury has resulted in a "permanent consequential limitation of use of a body organ or member." So what is a "significant limitation" of a body function or system, or a "permanent consequential limitation of a body organ or member?" According to the law, in order for you to have suffered a "significant limitation", the limitation on the body part must be more than simply "minor, mild or slight." Further, the limitation must be objectively determined by a medical provider, and not simply substantiated by your "subjective" complaints of pain. As to "permanent consequential limitation" of a body organ or member, in addition to being more than "minor, mild or slight", the doctor must determine that the injury to your back, neck, or other body part is to some extent permanent, as established by the doctor's records and reports.

In order to beat the other driver's insurance company and be successful in your New York car crash case, we must prove first that the other driver was at fault for the accident, either in whole or partially. If we prove the other driver's responsibility for the accident, we must then establish through your treating doctor's reports how your injuries have affected you in your ability to perform activities of daily living, such as your job, or being unable to perform household chores. Further, the doctor must quantity disability such as loss of range of motion of your neck, back, arm, or whatever part of your body was injured in the accident. If we have this medical proof, we have the basis for a successful No-fault case in New York.

Continue reading "New York No-Fault Law Law-What Yon Need To Know-Part 2" »

In New York State, if you are injured in a motor vehicle accident, regardless of which car is at fault for the accident, your medical expenses and lost earnings will be paid by your own insurance company under the No-Fault Law of New York State. In order to qualify for no-fault benefits, you must immediately report the accident to your insurance company, and then you must submit what is known as an NF-2 (No-Fault Report Of Accident) within 30 days of the New York car crash. This 30 day rule is a problem, in that clients frequently are unfamiliar with the rule and don't initially intend to pursue a claim for their injuries. When they do contact a lawyer and learn that their medical bills, lost earnings and expenses are supposed to be submitted to their own insurance company (Clients will often ask-"Why is my insurance company responsible--that guy rear ended me!") it is often past the 30 day window, and the client's insurance company can attempt to disclaim coverage for no-fault benefits.

Once the claim has been properly filed with the no-fault insurance company, it is vital to obtain as much treatment with the orthopedist, neurologist, physical therapist, chiropractor or other provider as soon as possible. The reason for this is that all insurance companies will send you for an "Independent Medical Examination" (IME) within several weeks of the commencement of treatment, and in some cases, within days, to determine whether you need medical treatment. Of course, the "Independent" medical examiner, is anything but, often conducting 30 or more of these exams in one day. Certainly, it doesn't take a big stretch to say that they "know where their bread is buttered", and they are not likely to remain on the approved list of the insurance company if they continuously find that the examinee is in need of further treatment. It is my estimate that in 90% of our client's cases, the first examination with the "IME" doctor is used to establish that the client does not meet the No-Fault threshold" of "serious injury", and thus, the client is cut off from further treatment with that specialist. Insurance companies will often schedule numerous examinations for a client at the same time--i.e- they are sent to a neurologist, orthopedist and a chiropractor on the same day, so that the insurance company can utilize these "normal" examinations to cut the client off from all benefits.

Thus, it is our recommendation to our clients that they seek all necessary medical treatment expeditiously, not miss any appointments if at all possible, and when undergoing an "IME", explain to the doctor in detail the benefit they are receiving from their treatment (obviously, if you inform the no-fault doctor that treatment is not providing any benefit, you will be cut off). We find that if the client is upfront and respectful of the no-fault examiner, but also makes definitively clear that they do need more treatment and that the treatment is having some positive effect, the client may at least obtain one additional course of treatment of 6 to 8 weeks. This extension is vital to the personal injury aspect of the New York car crash case, as we will discuss in Part 2 of this post.

Continue reading "New York No-Fault Law--What You Need To Know--Part 1" »