Articles Posted in No-Fault Law In New York

New York’s “no-fault law,” found in § 5104 of the New York Insurance Law, limits a plaintiff’s ability to recover non-economic damages in an auto accident claim. “Non-economic damages” are often the greatest losses in car accidents and other injury cases. They go beyond direct expenses like medical costs and lost wages. They include an accident victim’s pain and suffering, emotional anguish, and other harms that often occur because of a serious accident. The no-fault law only allows recovery of non-economic damages in cases involving “serious injury.” New York courts regularly hear disputes over whether an auto accident injury meets the statute’s definition of “serious injury.” Two recent cases from the New York Appellate Division, Second Department, Buchanan v. Keller and Broadwood v. Bedoya, demonstrate the sort of evidence needed for certain “serious injury” claims.

Section 5102(d) of the Insurance Law provides a list of injuries that constitute “serious injury” under the no-fault law. The items on the list range from the specific, such as “death” or “dismemberment,” to the more ambiguous. Two of these items are subject to ongoing dispute in the courts:
– “Permanent consequential limitation of use of a body organ or member” (PCL); and
– “Significant limitation of use of a body function or system” (SL).

A defendant moving for summary judgment on a “serious injury” claim has a prima facie burden of demonstrating that a plaintiff’s alleged injury does not meet the statutory definition. A plaintiff can counter this by establishing a “triable issue of fact.” In a 2009 decision, Staff v. Yshua, the Appellate Division, Second Department found that the defendant met this burden through expert testimony. The defendant presented an affirmation from an orthopedist who examined the plaintiff and concluded that their “injuries were now resolved and without permanency.” The court held that the plaintiff “failed to raise a triable issue of fact” in opposition to the defendant’s evidence. In a case from 2011, Jilani v. Palmer, the court found that the plaintiff had met their burden by producing an affidavit from a chiropractor that challenged the findings of the defense expert.
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Last week, Governor Andrew Cuomo announced a state initiative in a stated effort to curb purported no-fault fraud by “getting rid of deceptive doctors” and “shutting down medical mills.” The problem that Gov. Cuomo seeks to address is that some No-Fault doctors engage in fraudulent billing procedures, according to Cuomo, which reportedly results in “hundreds of millions of dollars in insurance costs to New Yorkers.” In order to implement this initiative, Gov. Cuomo has directed the Department of Financial Services (DFS) to issue a new regulation that will permit the Dept. to “ban doctors that engage in fraudulent and deceptive practices.”

Additionally, the initiative involves audits of 135 medical providers whose billing procedures “have raised concerns”, demanding information from these providers as to their corporate structure, payment requests to insurance companies, and the physicians’ participation in the medical practice (as opposed to businessmen). The providers who treat car accident victims will receive a form with fourteen days to respond. The failure to do so may result in the provider being banned from further participation in the no-fault system.

Further, in what would seem to be a lack of due process, prior to a hearing, a list of providers that are “suspected of no-fault fraud” will be sent to the Department of Health (DOH) and the State Education Department (SED) for their review. Then, DFS will conduct hearings. In my opinion, before making allegations and referring cases to these other agencies, DFS should conduct hearings first, but that is not the manner in which the State intends to operate. There is also the implicit threat that in “appropriate cases”, the DOH and SED will revoke medical licenses and decide whether criminal charges should be filed.

One of the primary motivations for the Cuomo initiative is the allegation that New York’s auto insurance rates are the 4th highest in the nation, specifically due to fraud in the No-Fault system. Interestingly, when the New York State Trial Lawyers (NYSTLA) introduced legislation before the New York State Assembly known as the “Sunshine Act”, which would require insurance companies to open their books, show their earnings, and prove whether no-fault fraud was the real reason behind the excessive premiums or just a ruse to raise premiums, their well paid lobbyists bitterly oppose this regulation. This is an issue Governor Cuomo should be exploring as part of his effort to stamp out fraud in the No-Fault insurance industry.

What Governor Cuomo’s initiative also does not address is fraud by the insurance companies in denying medical care to injured victims of car accidents. Let me explain. Back in 1974, when the No-Fault Law was implemented, the purpose of the law was to restrict auto accident claims with the provision that the victim would have to suffer a “serious injury” to have a legal basis to sue for his or her injuries. A “serious injury” under New York’s Insurance Law includes a fracture, disfigurement, dismemberment, loss of use of a body part or system, and non-permanent injuries which lead to a “substantial limitation” of one or more parts of the body. In exchange for the restrictions imposed on auto claims, no-fault insurance was to provide up to a minimum of $50.000.00 in medical and economic (lost wages) benefits to car accident victims.

However, car insurance companies have created a mockery of the original statute. Through their lobbying efforts, and their huge impact on the Court system, hundreds of thousands of car accident victims who have suffered torn tendons, ligaments, and spinal injuries such as herniated discs, routinely have their cases dismissed before they ever get to trial through motions by insurance company defense lawyers claiming that these injuries do not meet the “no-fault threshold.” This includes those who have undergone surgery to treat those injuries!

Further, those injured in car crashes must now submit to no-fault “IME’s” (“Independent” medical examinations), which consist of five to ten minute examinations by doctors hired and paid for by the very insurance companies that “are on your side…that you are in good hands with…”, who make findings as to whether injuries meet the no-fault threshold in these cursory, biased examinations. If the “IME” doctor determines that the person does not have a “threshold injury”, in short order they will receive a letter from the insurance company informing them that all further benefits are denied! To add to the ridiculousness of calling these examinations “independent”, the insurance companies all use the same doctors for these “IME”s, the ones who will reliably find that the victim needs no further treatment, can go back to work and their normal activities, and has no “serious injury.”

In sum, Governor Cuomo, if you want to combat fraud in the insurance industry, and do this in an even handed manner, explore the auto insurance industry’s practices when it comes to “IME’s” and investigate the true reasons behind the excessive auto insurance premiums in New York, in addition to the initiative to root out “medical mills.”

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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.

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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.

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When you are in a New York motor vehicle accident, your medical bills, hospital bills and lost wage claims are paid by the no-fault insurance company, which is your own insurance company, even if the other car was at fault for your accident. Any occupant of your vehicle that is injured in this New York car crash is also covered under this provision, and makes a claim through your insurance company.

You must be aware that in order to be eligible for No-Fault coverage, an application (known as an NF-2) must be submitted within 30 days of the accident for each person making a claim for No-Fault benefits. Unfortunately, the insurance companies involved often fail to notify the claimants of the 30 day rule, which jeopardizes your medical, hospital and wage benefits through No-Fault. That is why it is vital that if you are in a New York car accident, you should consult an attorney immediately.

If you, a loved one, or friend has been involved in any type of accident, contact The Law Office Of Mark A. Siesel online or at 888-761-7633 for a free consultation with an aggressive, experienced attorney who will provide personal attention and dedication to your case.

This past week, our firm won a significant Westchester County car accident verdict in a case in which Allstate Insurance, as its custom, refused to make a reasonable offer. The case was simple. Our client, a woman in her late fifties, was hit by a car while walking to work and suffered a left hand injury, and other injuries of lesser severity. Allstate knows that attorneys are now fearful to go to trial in Westchester car accident cases, (not to mention slip and fall cases, dog bite cases or product liability cases as well), because Westchester juries tend to be very conservative and favor defendants, either because they think verdicts are too high in general, there are too many lawsuits, or their insurance rates will go up. Additionally, under the No-Fault Law in New York, plaintiffs must meet the “threshold”, which generally means that they must have a fracture, a disfigurement, or some type of permanent injury to recover any compensation. Thus, Allstate, more than any other insurance company, has a practice of forcing plaintiff attorneys to go to trial (Allstate’s strategy is well known and has been posted on various Internet sites) in the hope that plaintiffs won’t sue and lawyers won’t take cases when they see that Allstate is the insurance company for the wrongdoer.

We called Allstate’s bluff, (they offered a measly $10,000) and the jury awarded our client a total verdict of $105,000 for past and future pain and suffering. In addition to the fact that this Westchester auto accident jury taught Allstate the lesson that they will be held accountable when the evidence is there, the other positive development from this case was our experience with the new “Summary Jury Trial Program”, with Judge Gerald Loehr presiding.

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What is No-Fault coverage and what am I entitled to under it?

Regulation 68 requires that “in the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the applicable No-Fault insurer, or any of their authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.”

You should file your claim with the insurance company which covers the car in which you were an occupant (either as passenger or driver) or, if you were a pedestrian, with the car that injured you.

What do I do if my expenses exceed the $50,000 available under No-Fault?
Ans: When the basic No-Fault benefits are consumed, you may apply for Additional No-Fault (Additional PIP) benefits either from the vehicle you occupied or any auto policy of a related member of your household. Additional PIP is an optional coverage which is usually not expensive.

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