The No-Fault Law is an absolute albatross around the necks of injured people and their attorneys in New York State, and has been so since its implementation in 1974. The basic purpose of the law when it was promulgated was twofold: to allow for the expeditious handling of automobile accident claims which were deemed to meet what is known as the “no-fault threshold”, and second, to root out what was perceived to be fraudulent, non meritorious claims. One of the main reasons that this antiquated law needs to be significantly modified in 2013 is that when the law was placed into effect, there were no MRI’s, CAT Scans, and other radiological examinations which could conclusively determine whether the injured driver or passenger had suffered a “soft tissue” (cartilage, ligament, tendon, spinal disc) injury . Thus, the inclusion of a fracture as a “no-fault threshold” injury, (because this injury could be determined by x-rays), but not, for example, a herniated disc of the neck or back, or a torn tendon or ligament.
Thus, as the No-Fault law presently exists, a fractured toe or pinky automatically meets the requirements of a no-fault “threshold” injury, but a person who suffers a torn tendon, ligament, cartilage or other “soft tissue” injury such as a herniated disc, which is in all likelihood, much more serious than a broken toe (for which there is no treatment), may have no case under the No-Fault law!
The No-fault threshold includes several very specific injuries suffered in motor vehicle accidents, as well as three general types of injuries contained in three sections of the statute which are poorly worded, confusing, and constitute a huge percentage of the litigation instituted by the no-fault insurance companies and their lawyers in contesting No-fault claims. The definitive sections are as follows:
Loss of a fetus;
Permanent loss of use of a body organ, member, function or system.
The problems arise in interpreting the following three sections: 1) “permanent consequential limitation of use of a body organ or member; 2) “significant limitation of use of a body function or system”; and 3) “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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” That last section is a true example of legislators gone amok.
The problems arise in the interpretation of many of the terms—for example, what is “significant limitation of use”? Isn’t that different for each person who is injured in an accident? What is a “consequential limitation”? What are the “material acts which constitute a person’s usual and customary daily activities”? As can be seen, the vague and inconsistent terminology utilized by the drafters of the No-Fault Law was fraught with difficulty from the inception of the statute, almost forty years ago.
Another problem that has arisen, and which brings us to the point of this article, is interpretations of the law by judges (seemingly supportive of the insurance industry) adding in requirements which were never part of the original statute, and which make claims and cases even more difficult to settle or win in Court. The Ramkumar decision is a classic example of this. In this case, the plaintiff was cut off from treatment by his own no-fault insurance company after only five months of treatment, despite the fact that he had suffered a torn meniscus in the accident in question, for which he required surgery. The lower Court dismissed his case, stating that he had not properly offered documentary evidence and a sufficient explanation for why he didn’t continue treatment after his no-fault insurance company had terminated his benefits. Essentially, the lower Court ruled that after the no-fault carrier booted him from coverage, Mr. Ramkumar was required to either continue treatment with his health insurance company, or if no health insurance was available, provide a “reasonable explanation” why he didn’t pay for his treatment out of his own pocket. Of course, nowhere in the antiquated No-Fault law is this requirement included. Fortunately, the majority in the Court of Appeals noted that although a plaintiff is required to have some explanation why he stopped treatment for his injuries after only five months, not having health insurance nor money to pay for medical treatment out of his pocket WAS a reasonable explanation. Further, the Court stated that the case should not have been dismissed because the evidence showed that the treating surgeon found that the meniscus permanently lost stability due to scar tissue, which Mr. Ramkumar will have for the remainder of his life.
The other irony here is that the no-fault carriers send injured victims of car accidents to no fault “IME”S (Independent medical examinations, which are anything but independent) within weeks, and sometimes days, after car accidents, to be conducted by “examiners” who are paid for by the no-fault insurance companies for a specific purpose—to find that there is nothing wrong with the injured person, thus permitting Allstate, State Farm, Geico, Progressive et. al. to stop paying for treatment. Of course, this is exactly what happened with Mr. Ramkumar, although he was fortunate enough to have obtained five months of treatment before thrown off coverage by the insurance carrier he was paying premiums to.
The moral of this story is simple. If you really want to root out fraud, call, fax, email or text your local legislator (if you are fortunate enough to have a cell phone number for the legislator) with a simple message. The No-fault law is unfair. It is outdated. When it was written, there was no means to determine if someone had suffered a “soft tissue” injury, but in case you missed it, now we have MRI’s, CAT Scans, Bone Scans, EMG’s, and numerous other tests for these injuries. The No-Fault law protects the car insurance companies at the expense of innocent victims of automobile accidents. If you want to examine fraud, take a look at no-fault exams by insurance company doctors, who perform dozens of three minute “exams” each week on injured people with the conclusions in their reports written before the person walks into the examiner’s office.
Hopefully, if enough people do this, we will finally get traction with Governor Cuomo, who does not believe this is a problem, apparently.
Continue reading ›