For those of us who have represented the victims of serious New York car accidents over the last 25 years, the No-Fault threshold has proven to be a minefield of inconsistent and unfair results and decisions, particularly when comparing the decisions of Courts in the First Department, which includes Manhattan and the Bronx, with the Second Department, which is comprised of Brooklyn, Staten Island, Queens, and several suburban counties including Westchester, Rockland and Dutchess Counties. More specifically, decisions in Manhattan and the Bronx in cases in which the injured person has suffered injuries other than fractures (which automatically meet the “No-Fault threshold” and thus can be pursued in Court) are much more favorably received by the appellate Courts when the defendant makes a motion to dismiss than they are in the 2nd Department.
The No-fault threshold, which is defined in Section 5102 (d) of the New York State Insurance Law, requires a specific level of injury suffered in a car accident before a plaintiff can successfully commence a lawsuit for compensation. Injuries that automatically meet the no-fault threshold include a fracture, a disfigurement, a dismemberment, death, the death of a fetus, and a series of very specific type of soft tissue injuries which are subject to much interpretation and confusion. This latter group of injuries, including “a significant limitation of use of a body function or system”, and “permanent consequential limitation of use of a body organ or member”, are the specific problem areas, in which the same exact injury might be considered a “serious injury” which meets the no-fault threshold in the Bronx, but does not pass muster in the more conservative and harsh viewpoint of judges in the Second Department.
As a classic example, I have represented clients who suffered torn labrums or rotator cuffs, and had surgery as a result, who are determined to have a “serious injury” meeting the No-fault threshold in the Bronx, yet that same injury and surgery in Westchester does not qualify as “serious” in the view of the presiding judge. Further, herniated discs in the back or neck form the basis of a large percentage of defense motions to dismiss for lack of a threshold injury due to the legal uncertainty and inconsistency that surrounds cases involving these injuries. Ironically, an injury as potentially minor as a fractured pinky or toe without long term treatment is automatically a threshold injury, whereas a victim of a car crash with long term treatment for back or neck herniations could be facing a motion to dismiss their case for lack of a “threshold” injury.
In the last few years, the appellate Courts have added another onerous requirement to cases in which the injured person suffers soft tissue injuries, which the Court of Appeals, and specifically Chief Judge Lippman, has finally dispensed with as not required by Section 5102. That requirement was that the treating doctor for the victim immediately record specific findings of lost range of motion of the injured body part, whether it be an arm, leg, hip, back, neck, or ankle, and if there were no contemporaneous range of motion findings, the case would be subject to dismissal. This harsh result was the scenario in a trio of cases which the Court of Appeals decided to review, and in two of those three cases, the Court of Appeals reversed the dismissal and remanded the cases back to the lower Court for a trial by jury.
The three cases were brought by Joseph Perl, David Adler, and Sheila Travis and for purposes of this article, we are focusing on the first two cases. In the Perl case, Mr. Perl testified that as a result of his accident, he could no longer have marital relations, garden, or carry packages while shopping. Mr. Adler testified that he was having trouble lifting his children and ambulating. In both cases, the treating doctor conducted several tests upon his initial examinations, found that there was some restriction of range of motion and strength, but he did not quantify the lost ranges of motion that he observed in the examinations. However, several years later, the treating doctor did use instruments to document that both men had suffered specific, quantifiable losses of range of motion. As a result of the treating doctor’s failure to provide contemporaneous loss of range of motion, both cases were dismissed at the lower Court level.
Finally, at long last for practitioners in the field of automobile accident litigation, New York’s highest Court clarified the long held belief that the No-Fault statute does not require “a contemporaneous demonstration of restricted range of motion”, and noted that a qualitative assessment of the plaintiff’s condition will also suffice to meet the requirements, as long as this assessment has an objective basis and compares the plaintiff’s limitations to normal function. In music to the ears of plaintiff lawyers in auto accident litigation, the Court stated:
“We agree…that a rule requiring contemporaneous numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject rule that would make contemporaneous quantitative measurements a prerequisite to recovery.”
Our next objective is to lobby the New York State Legislature to expand the definition of a threshold injury to include herniated discs of the cervical or lumbar spine, torn tendons of the arm such as a torn labrum or rotator cuff, and tears of knee cartilage, ligaments or tendons such as a torn anterior cruciate ligament or torn meniscus.
If you have been injured in a New York car crash, motorcycle accident, or truck accident, or injured in a construction accident, contact the Westchester County Personal Injury Attorneys online or toll free at 888-761-7633 for a free initial consultation to discuss the details of your case with an experienced trial attorney who will fight the insurance companies to maximize compensation for your injuries, lost earnings, and medical expenses.