The attorneys recognized are:

• Matthew F. Belanger, in the practice area of personal injury plaintiff: general. The Brighton resident is listed for the second time.
• David L. Cook, in the practice area of business litigation. Cook, of Pittsford, has been named to New York Super Lawyers in three previous years from 2007 – 2009.
• John A. Falk, in personal injury plaintiff: general. A Brighton resident, Falk is listed for the second time.
• Angelo G. Faraci, in personal injury plaintiff: medical malpractice. Faraci, who resides in Rochester, has been listed in New York Super Lawyers since 2007.
• Paul K. Lange, in personal injury plaintiff: general. First named to New York Super Lawyers in 2007, Lange resides in Rochester.
• Joseph A. Regan, of Rochester, in personal injury plaintiff: medical malpractice. Regan has been named to New York Super Lawyers since 2008.
• Stephen G. Schwarz, of Fairport, in personal injury plaintiff: medical malpractice. He was first named to New York Super Lawyers in 2007.
• Brian M. Zorn, in personal injury plaintiff:  medical malpractice. Zorn, of Victor, has been named to New York Super Lawyers since 2007.

Only five percent of the attorneys in Upstate New York are named to the Super Lawyers list. Super Lawyers selects attorneys using a multi-phase process combining peer nominations and evaluations with third-party research. Candidates are evaluated based on peer recognition and professional achievement. The publication aims to provide a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

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Disc degeneration causes a bulge or a loss of disc height where the annular fibers remain intact. A protrusion—sometimes known as a prolapsed—is a bulge where some annular fibers are lost but others remain intact. A herniation—sometimes known as an extrusion—results from a loss of annular fibers in a manner that allows the jelly-like disc nucleus to extrude through the annular tear. Finally, fragmentation—sometimes known as sequestration—occurs when either or both of the annulus or the nucleus separates from disc.

Any of these four categories of disc injury can result in compression or irritation of a nerve root or of the spinal cord itself. Compression of the cord is called myelopathy. A serious form of myelopathy is called Cauda Equina Syndrome, which is caused by a large central disc herniation that compresses the lower spinal cord. Symptoms of cauda equina syndrome include loss of bladder and bowel control. Radiculopathy is nerve pain caused by compression or irritation of a nerve root. It causes pain, numbness, and/or tingling in the areas enervated by the damaged nerve, which is known as a dermatome. Sciatica is radiculopathy involving the sciatic nerve and can be caused by a herniation at L5/S1.

Many disc herniations—some studies show as high as 50%–improve with time and without invasive treatment. In the case of disc injuries that result in intractable pain; severe or worsening neurological deficits, or the lack symptomatic relief after 4 to 6 weeks, surgery may be indicated.

The most basic surgical procedure for spinal disc injuries is called a laminectomy and discectomy. In this procedure, the surgeon makes a small incision over the injured disc, removes a piece of bone—called the lamina—from the vertebra to expose the foramen, and then removes the disc material that is irritating the nerve.

If the disc is damaged beyond the point of repair, the injured person may undergo a spinal fusion, where the surgeon will remove the disc entirely and fuse together the vertebrae above and below the removed disc using a metal plate, screws and a bone graft.

Any and all of these structures (spinal cord, vertebrae, ligaments, intravertebral discs, and cauda equina) can be injured as a result of trauma, but by far the most serious spinal injury is damage to the cord itself, which can cause permanent, irreversible paralysis. Approximately 50% of all spinal cord injuries are caused by motor vehicle accidents, 20% caused by falls and most of the remainder by violence or sports injuries.

Although this may seem complicated, the attorneys, nurses and staff at Faraci Lange have worked on hundreds of cases involving spinal injuries from the most common to the most devastating. Our team has the wisdom and experience to represent people who have sustained spinal injuries of all types. If you or someone you love had sustained a spinal injury in an accident, call Faraci Lange for a free consultation.

ANATOMY OF THE SPINE

The basic structures that make up the spine include the spinal cord, the nerve roots that exit the cord and travel to all parts of the body, the vertebra that protect the cord, the ligaments that support the spine and the intervertebral discs between most of the vertebra.

The spinal cord is a long bundle of nerve tissue that extends from the base of the brain, down the back, through the spinal column. The spinal cord is made up of motor and sensory nerve cells called neurons. The motor nerves transmit commands from the brain to the muscles that allow us to control movement. The sensory nerves transmit information about what we feel, like temperature and pain.

The vertebrae are a series of interconnected bones that protect the spine. The vertebrae fit together into a long series of joints. Each individual joint has not much movement, but, taken altogether, the range of movement of the spine as a whole is considerable, allowing a person to bend and twist.

The spine is divided into five basic regions: seven cervical vertebras make up the neck (C1-C7); twelve thoracic vertebras (T1-T12) make up the upper and mid back; five lumbar vertebras (L1-L5) that make up the low back; the sacrum, which has five segments (S1-S5) and coccyx (tailbone). There are small canals on each side of the vertebra called intravertebral foramen through which the nerve roots that service the body branch off of the spinal cord.

In between almost every vertebra is a disc that acts like a shock absorber. Discs are a bit like a jelly donut with a gel-like center called the nucleus pulposus and a stronger, fibrous outer covering called the annulus fibrosus.

The spine integrity is maintained by three ligaments running the length of the spinal column: the anterior longitudinal ligament; the posterior longitudinal ligament; and the ligamentum flavum. There are smaller ligaments connecting individual adjoining joints (facets) between vertebrae.                  

The spinal vertebra can be fractured as a result of trauma. Vertebral fractures can be stable or unstable. Vertebral fractures may be referred to as compression fractures or burst fractures. Unstable vertebral fractures put the spinal cord at risk for injury. Additionally, bleeding can occur around the spinal cord after vertebral fracture which can put the spinal cord at risk. Each fracture must be evaluated, whether compression fracture, or burst fracture, to determine whether the spinal cord is at risk. Additionally, severe spinal ligamentous injury can also cause the spine to become unstable, putting the spinal cord at risk. There are other traumatic spinal injuries that do not involve a fracture. Musculoskeletal strain, also known as whiplash, results when the soft tissues of the muscles, ligaments and tendons are stretched beyond their limits resulting in pain, spasm and swelling. [Part 2 coming Wednesday, December 1, 2010]

The attorneys named are:

• Matthew F. Belanger, in the practice areas of personal injury litigation and product liability litigation. Belanger, a resident of Brighton, has been named to Best Lawyers since 2008.
• John A. Falk, in medical malpractice law, personal injury litigation and product liability litigation. The Brighton resident also was named to Best Lawyers in 2009.
• Angelo G. Faraci, in legal malpractice law, medical malpractice law, personal injury litigation and product liability litigation. Faraci, who resides in Rochester, has been listed in Best Lawyers since its inception in 1983.
• Paul K. Lange, in medical malpractice law, personal injury litigation and product liability litigation. First named to Best Lawyers in 2001, Lange resides in Rochester.
• Joseph A. Regan, in medical malpractice law, personal injury litigation and product liability litigation. The Rochester resident has been named to Best Lawyers since 2005.
• Stephen G. Schwarz, in medical malpractice law, personal injury litigation and product liability litigation. The Fairport resident was first named to Best Lawyers in 1999.
• Brian M. Zorn, in medical malpractice law, personal injury litigation and product liability litigation. Zorn, who resides in Victor, has been named to Best Lawyers since 1995.

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, is based on an exhaustive annual survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Because Best Lawyers is based on a peer-review survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Steven Naifeh, president of Best Lawyers, said, “We continue to believe – as we have believed for 28 years – that recognition by one’s peers is the most meaningful form of recognition in the legal profession.”

In an effort to combat rising automobile insurance rates, in 1974 the New York Legislature passed sweeping changes to the Insurance Law designed to provide a basic level of economic coverage for New York drivers hurt in motor vehicle accidents while at the same time significantly curtailing the number of motor vehicle cases litigated in the State courts.

Known as the No-Fault law, the statutes create a dual system for compensating persons involved in motor vehicle accidents. Regardless of fault, every automobile insurance policy in New York provides for the payment of first-party benefits of up to $50,000 for “basic economic loss” for covered persons injured in car accidents, but bars the filing of lawsuits against the at-fault party to recover non-economic loss (i.e. pain and suffering) except for those who have suffered “serious injury” as defined by the statute.

II. Who is covered under the No-Fault Law?

1. “Covered Persons”

A. includes any pedestrian injured through the use of operation of a motor vehicle, any owner, occupant or operator of a motor vehicle, any other person entitled to first party benefits, including the named insured under the insurance policy and members of the named insured’s household.

B. Bicyclists are covered persons.

C. With an express provision in the policy, insurance companies are permitted to exclude coverage for:

1. Persons who intentionally injure themselves;
2. Persons operating under the influence of alcohol or drugs;
3. Persons who are committing a felony;
4. Persons who are knowingly passengers in a stolen car;
5. Persons who are injured while fleeing the police or while racing.

D. Motorcyclists and their passengers are excluded from no-fault coverage, as are non-pedestrians injured by motorcycles.

E. Pedestrian victims of motorcycles are covered by no-fault.

III. First Party Benefits:

1. Basic economic loss (also called PIP or Personal Injury Protection):

A. Minimum limit: $50,000;

B. It is available regardless of fault;

C. Covers:

1. Accident related medical expenses;
2. Lost wages up to $2,000;
3. Other reasonable and necessary expenses.

2. APIP:

A. Although $50,000 is mandatory on all motor vehicle policies in New York, car owners can buy additional protection above the mandatory $50,000.

B. A carrier who pays APIP benefits is subrogated under certain situations to the recovery the insured obtains from the at-fault party.

3. Procedure to obtain first party benefits:

A. An injured party must give the carrier notice of the accident within 30 days by filling out a no-fault application.

1. Obtain the standard form that can be obtained by calling, e-mailing or writing the carrier to report the accident.
2. Failure to timely file this form will permit the insurance carrier to disclaim coverage for first party benefits.

B. Medical Bills:

1. Insured must give his/her health care providers the insurance information for the no-fault carrier, which normally includes:

a. The name of the company;

b. The claim number; and,

c. The name of the adjuster responsible for the claim.

2. THE MEDICAL PROVIDER MUST BILL THE NO-FAULT CARRIER WITHIN 45 DAYS OF THE DATE OF SERVICE AND FAILURE TO DO SO WILL RESULT IN THE CARRIER BEING ALLOWED TO DISCLAIM COVERAGE.

3. Once the no-fault carrier has been timely billed, the carrier must pay the bill within 30 days or must provide a written disclaimer stating the reasons why the carrier refuses to cover the bill.

a. The automobile insurance carriers pay bills according to an agreed upon fee schedule that pays medical providers substantially less than their normal fee.

b. The injured party is not responsible for paying the difference between the medical provider’s normal fee and the no-fault fee schedule.

4. Upon receiving a written denial, the injured party has the right to dispute the decision.

a. Can file a lawsuit or arbitration.

5. There is no time limit for how long the carrier is obligated to pay accident related medical expenses.

a. However, within one year after the accident the need for future accident-related treatment must be “ascertainable.”

b. If not, such expenses can still be covered but the injured party bears the burden of showing that the expenses were ascertainable and necessitated by the accident.

6. APIP is triggered, if it exists, after the $50,000 in mandatory PIP is exhausted.

a. If there is no PIP, the bills go to the next level of coverage, which is whatever the person’s primary coverage is. It could be private health insurance, Medicare, Medicaid, or self pay if the person has no coverage.

C. Lost Wages.

1. Limit is up to $2,000 a month for not more than three years after a motor vehicle accident.

a. The actual amount is calculated as 80% of the injured party’s average weekly wage. If that number is more than $2,000 for one month, the injured party will be paid $2,000.

b. New York State Disability benefits and Social Security Disability benefits are an offset to what the No-Fault carrier is required to pay for accident-related lost wages.

c. The carrier will require an injured party to file for both New York State Disability and Social Security disability even where it appears obvious that the injury party will not qualify for the benefit.

1. The failure to apply can delay, reduce or eliminate the no-fault carrier’s obligation to pay lost wages.

D. Other reasonable and necessary expenses.

1. Include household help, baby-sitting services and the like.

2. Limited to $25.00 per day and for only one year.

E. Death benefit.

1. In the event of a motor vehicle related death, the no-fault carrier will pay a $2,000 benefit for funeral expenses.

F. Dealing with No-Fault Disputes.

1. The dispute begins with the carrier providing a written denial of claim form stating the reasons why the claim is being denied.

2. Aggrieved parties, who can include the injured person or their medical providers operating under an assignment of rights, have two options:

a. Binding arbitration or

b. Filing a breach of contract suit.

3. Arbitration process:

a. Initiated by the aggrieved party completing and filing of a no-fault arbitration request form along with a $40.00 filing fee to the American Arbitration Association.

b. An injured party who prevails in a no-fault arbitration is entitled to the repayment of the $40.00 arbitration filing fee and to a reasonable attorneys’ fee if represented by counsel.

G. Workers Compensation Coverage.

1. A person injured in a motor vehicle accident while acting in the scope of his or her employment has the option of filing a workers compensation claim instead of filing for no-fault benefits.

a. The carrier cannot assert a lien on the first $50,000 in benefits paid in such circumstances, because they are considered in lieu of ‘first party benefits’ under No-Fault.

b. Workers compensation provides better benefits for a longer period.

H. Property Damage:

1. When you notify your insurance carrier of an auto accident, report the damage to your car;

2. The insurance carrier will and adjuster to the property damage claim;

a. often, the PD claim will have a different claim number.

3. Let your carrier know where the car was towed or where it is so that they can send an adjuster to evaluate the damage.

4. Always obtain photographs of the damage to your vehicle and, if possible, of all of the other vehicles in the accident.

5. Whatever the damage to your vehicle, the amount you will receive in compensation from your insurance company will be reduced by your deductible and limited by the applicable limits.

a. If a person has a nice car, the limits should reflect that.

b. If the accident was not the insured’s fault, often the insured can get the deductible back from the at-fault driver.

IV. Bodily Injury Coverage:

A. Bodily Injury coverage provides indemnification and a defense to insured’s who face claims in an MVA where the other party asserts a “serious injury” and that the insured was the at-fault party.

1. Allow for recovery of economic loss “in excess of basic economic loss” and for “non-economic loss”, which is pain and suffering damages.

a. in excess of basic economic loss means wages in exceeding $2000 per month and any economic loss in excess of $50,000.

2. The minimum limits in NY are $25,000/50,000.

a. Absurdly low-nobody should have minimum limits:

-cannot protect personal assets and personal property.

-examples on inadequate coverage.

b. This means there is $50,000 available for each accident and no one person can get more than $25,000.

3. Single Limit Policies:

a. The stated limit applies to every claim except PIP with no individual per person limits.

B. Bodily injury limits apply when there is a claim that the insured was at fault in causing the MVA.

C. Two pre-conditions to a BI lawsuit:

1. Evidence that the insured was negligent;

2. Evidence that the injured party meets the “serious injury” tort threshold as defined in the statute.

D. What is a “serious injury”?

1. Insurance Law 5102(d) defines a ‘serious injury” as one that results in:

a. death;

b. dismemberment;

c. significant disfigurement;

d. a fracture;

e. loss of a fetus;

f. permanent loss of use of a body organ, member, function or system;

g. permanent consequential limitation of use of a body organ or member;

h. significant limitation of use of a body function or system; or

i. 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 and eighty days immediately following the occurrence of the injury or impairment.

2. “Serious Injury” is a threshold, not a measure of recoverable damages. A. The following hypothetical is useful to illustrate this point:

Two passengers in the same car involved in a motor vehicle accident with another vehicle that is clearly liable for the accident. Both sustain soft tissue injuries that result in substantial subjective pain, but that lack any objective findings of the injury. Both are prevented fromperforming substantially all of their activities of daily living for 80 days after the accident, but then return to all activities, albeit with pain. The physicians believe that each is living day to day with pain due to soft tissue injury. In addition to the soft tissue injury, one of the two sustains a simple accident-related fracture of the pinky on his non-dominant hand. The passenger with the pinky fracture can sue the at fault driver to recover for his non-economic loss for the fracture and for all of his accident-related injuries because his pinky fracture meets the serious injury threshold. The other passenger cannot bring a lawsuit against the at fault driver, but is limited to first party benefits for basic economic loss, because none of his injuries meet the threshold.

3. Thompson v. Abbasi, 15 AD3d 95 (1st Dept. 2005), the Appellate Division, First Department, stated the following about the “serious injury threshold”:

In the context of this appeal, we engage in the perennial debate over the issue of whether a plaintiff’s evidence of personal injury meets the statutory threshold set by Insurance Law Section 5102(d), ‘an elusive standard that all too frequently escapes facile and final resolution.’

Consequently, we respectfully and simply urge that the ‘serious injury’ threshold be the subject of High Court interpretation or statutory reform aimed at drawing a brighter line between those cases where plaintiff’s injuries are truly and verifiably ‘serious’ within the meaning and intent of section 5102(d) and those which are neither.

One need only examine the scores of repetitive judicial and legal debates on this issue to conclude reasonably and quickly that the status quo is a diversion of precious court resources which is correctable in the interests of justice, fairness and efficiency.

V. Med-Pay Coverage:

A. “Med-pay” coverage, which will pay for medical expenses for one or more people involved in a motor vehicle accident regardless of fault.

1. For personal policies, the limits are ordinarily $1,000, although a person or entity can buy more.

2. Commercial policies usually have $10,000.

B. This coverage is really a “lawsuit avoidance” coverage because it allows adjusters to cover medical expenses for injured people up to the limit of med-pay coverage without getting into issues of liability and serious injury.

C. Any claim must be made within one year of the accident and it can be used for any person injured in an MVA, including the insured.

1. Can be used to satisfy liens and rights of subrogation.

VI. Workers Compensation:

A. A person involved in a motor vehicle accident while in the scope of his or her employment can resort to the workers compensation system for first party benefits and, in the event of a serious injury, can also bring an action against the at-fault driver.

B. Workers Compensation Law Section 29 authorizes an employee injured of killed on the job to both collect Workers Compensation benefits and pursue an action against the wrongdoer, but with several important strings attached:

1. The Workers Compensation carrier has a lien against proceeds recovered from the injured tortfeasor;

2. The employee must notify within 30 days the Board, his employer and the carrier of his/her pursuit of a third-party action;

3. Any third-party action cannot be settled without the written permission of the workers compensation carrier;

4. If the at-fault party is a co-employee, the injured party is limited to the workers compensation remedy and cannot bring an action against the co-employee or the employer.

a. Example: Two employees of a dental office are transporting some office equipment from one dental office to another. The vehicle is owned by the dental practice. The driver runs a stop sign and is broad-sided by a truck, killing the passenger. The passenger’s family is limited to workers compensation and cannot file an action against the owner of the car (her employer) or the driver (co-employee in the scope of her employment).

VII. Supplemental Uninsured/Underinsured Motorist Coverage:

A. “SUM” coverage, provides coverage to an insured and his or her family members injured in an auto accident where:

1. the at-fault party flees the scene and cannot be located,

2. has no insurance (uninsured claim), or

3. has less liability coverage that the insured’s SUM limits.

B. Whether this coverage is available for a particular accident is determined by:

1) whose fault the accident was;

2) the amount of your SUM coverage; and

3) the amount of liability coverage the at-fault driver(s) has.

a. Example, if someone ran a red light and collided with your car causing you a significant injury, that driver had the minimum coverage allowed under the law (currently $25,000) and you had $100,000 of SUM coverage in your policy, you would be entitled to recover up to $75,000 from your insurance company.

C. In order to recover SUM benefits, the injured party must give his/her carrier written notice of the possibility of a SUM claim within fairly strict time limits, which can be as short as 30 days. The failure to do so can result in the loss of this coverage.

D. In uninsured motorists cases, the insured must provide the carrier with an affidavit within 30 days detailing what was done to locate coverage or, in the event of a hit and run, find the driver.

E. SUM limits cannot exceed your BI liability limits.

F. SUM is not liability coverage, so liens and rights of subrogation do not apply to it.

G. It is cheap and everybody should have it to their full liability limits, including umbrella coverage.

I. For businesses, if the named insured is an entity, there will be no named insured coverage. Firefighter example.

VIII. Liens and Rights of Subrogation:

1. The No-Fault law provides where an insurer is liable for first-party benefits to a “covered person” that arise from the negligence of a “non-covered person”, the carrier has a lien for its first party benefits.

2. No-Fault carriers that pay Additional Personal Injury Protection benefits (APIP) have a right of subrogation for payments in excess of first party benefits.

A. Does not apply to SUM coverage.

IX. How do I advise people buying insurance?

1. Consider purchasing APIP:

A. It is not expensive;

B. Especially important if the person has no or inadequate health insurance.

2. BI liability limits must:

A. Be above the legal minimum

1. $25,000/$50,000 provides no protection to anybody.

B. Take into account personal assets and property of the insured

C. For high net worth individuals, consider a personal and/or corporate umbrella.

1. Make sure underlying limits meet the requirements of the policy-no gaps.

D. Always have SUM coverage in the amount of the BI liability limits

1. This should include attaching to any umbrella.

2. Why should we be spending our money to indemnify the world with high BI limits while risking that the people with whom we might be involved in an MVA will have the minimum statutory limits?

Faraci Lange also continues to hold the #1 ranking in all of New York State for the Personal Injury Litigation category with 7 attorneys listed and in the Product Liability Litigation category with 6 attorneys listed. This means that no law firm of any size in the entire State of New York has more lawyers listed in these categories than Faraci Lange. Faraci Lange also continues to be the #1 ranked law firm in Rochester for 2009 in the Medical Malpractice Law, Personal Injury Litigation and Product Liability Litigation categories.

Faraci Lange is proud to be ranked #1 in New York State and in Rochester in all of these legal categories by its peers in the legal profession.