In another article on this website the New York No-Fault insurance law is discussed in detail. Under that law, in return for providing up to $50,000 in basic economic loss regardless of fault to people injured in motor vehicle accidents, The New York No-Fault Law bars the filing of lawsuits against at fault drivers unless the injured party meets the “serious injury” tort threshold as defined in the statute. Thus, in order to bring a lawsuit against another driver for injuries sustained in an auto accident or an accident where a pedestrian is struck by an automobile to recover for pain and suffering or expenses and lost wages not covered by No-Fault benefits you must prove that you have suffered a “serious injury” or the case will be dismissed.

Background

When the no fault law was first passed, it contained a monetary threshold of $500.00. By 1977, it was clear that the monetary threshold was not preventing a sufficient number of lawsuits from being filed so the Legislature amended the statute to substitute a verbal “serious injury” threshold for the prior monetary threshold.

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

1. death;
2. dismemberment;
3. significant disfigurement;
4. a fracture;
5. loss of a fetus;
6. permanent loss of use of a body organ, member, function or system;
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 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.

In the case of Licari v. Elliott, 57 N.Y.2d 230 (1982), the New York Court of Appeals (New York State’s highest court) established the following principles for interpreting the serious injury threshold under Section 5102(d) of the Insurance law: 

1. The purpose of the threshold is to limit lawsuits

"There can be little doubt that the purpose of enacting an objective verbal definition of serious injury was to 'significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium." 

2. Proof of a qualifying “serious injury” is an absolute pre-condition to suit

"…there shall be no right of recovery for non-economic loss [i.e. pain and suffering] except in the case of serious injury…" [pg. 234.]

3. Courts must determine in the first instance whether the proof is sufficient to support a finding of serious injury

The "Legislature intended that the court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within that class of injuries that, under no-fault, should be excluded from judicial remedy." [pg. 238.] 

4. Courts must strictly construe the word "serious" in the term "serious injury"

A "minor, mild or slight limitation of use [is] classified as insignificant within the meaning of the statute." [pg. 236.] 

5. Courts must enforce bright lines even where they prevent a injured person from filing a lawsuit

"While there is little doubt that the plaintiff suffered discomfort as a result of the accident, the court has no choice but to enforce the legislative mandate and dismiss the complaint when a plaintiff fails to meet the burden of proving…[serious injury.]" [pg. 240.] 

6. Objectively verifiable symptoms mean more than subjective complaints of pain

"We do not believe the subjective quality of an ordinary headache falls within the objective verbal definition of serious injury as contemplated by the No-Fault Law." [Pg. 239.] 

Therefore, in addition to proving that the at-fault driver was negligent in causing the accident, the no-fault law requires the injured party to prove that his or her injury was “serious” within the meaning of that statute. This means that even where the other driver was at fault and a party sustained an injury and damages as a result, that party cannot recover unless the injury was serious enough to fit into one of the nine categories outlined above. 

"Serious Injury" is a threshold, not a measure of recoverable damages. Once the “plaintiff establishes a prima facie case that any one of several injuries he or she sustained in an accident is a 'serious injury' within the meaning of Insurance Law 5102(d), he or she is entitled to seek recovery for all injuries incurred as a result of the accident." O'Neill v. O'Neill, 261 A.D.2d 459 (2nd Dept. 1999). 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 from performing 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. 

While several of the categories are clear, such as death, dismemberment, and the loss of a fetus, the remaining categories have engendered significant litigation over what is and is not a “serious injury.” The following is a summary of the current state of the law in the categories that result in the most significant litigation.

Significant disfigurement

Although the No-Fault law strives for objectively verifiable proof of a serious injury, the significant disfigurement category is almost inherently subjective. Courts have defined a “significant disfigurement” to be one that would "be regarded by a reasonable person as unattractive, objectionable, or as the subject of pity or scorn… ." Spevak v. Spevak, 213 A.D.2d 622 (2nd Dept. 1995). Thus, in most situations where “significant disfigurement” is raised, it will be a jury question as to whether a condition meets the standard. That said, some disfigurements are so imperceptible that no reasonable person could find them significant. See O'Brien v. Golan, 284 A.D.2d 256 (1st Dept. 2001)(affirming the decision of the trial court to not charge the jury on significant disfigurement where the barely perceptible loss of ½ the nail on the second toe was not a disfigurement that a reasonable person would view as unattractive, objectionable or the subject of pity or scorn.)

A fracture

A fracture is a break in the bone, not cartilage. Catalan v. Empire Storage, 213 A.D.2d 366 (2nd Dept. 1995)(holding that the trial court properly refused to charge the jury that a tear in the cartilage of plaintiff's knee could constitute a fracture.) 

Although it is often called a “broken nose”, in Ives v. Cottrell, 211 A.D.2d 899 (3rd Dept. 1995) the Court held that a deviated septum is not a fracture within the meaning of the No-Fault law.

There is some controversy as to whether fractured teeth constitute a fracture. In Gertis v. Jarosz, 284 A.D.2d 938 (4th Dept. 2001) the Fourth Department held that because the trial court treated a fractured tooth as a serious injury in its charge without objection from the defendant, it constituted a serious injury in that case, at least suggesting that the result would have been different had the defendant objected to the charge. However, in Kennedy v. Anthony, 195 A.D.2d 942 (3rd Dept. 1993), the Third Department held that a fractured tooth met the no-fault definition of fracture because there was no clear evidence that the Legislature intended to exclude teeth from that definition. 

Certain fractures, like the ribs, are difficult to diagnose on x-ray when they are new, meaning that in some situations an x-ray taken on the day of the accident can be read as normal when there were rib fractures present. In these cases, it is important to meticulously document that later discovered rib fractures are related to trauma from the motor vehicle accident. In Dirr v. Charnecki, 154 A.D.2d 426 (2nd Dept. 1989) the Court concluded that a conclusory affidavit from a physician reciting that some rib fractures do not appear on x-ray and then diagnosing a rib fracture clinically was deemed insufficient to raise question of fact as to whether the plaintiff sustained accident-related rib fractures. The result is different if the expert evidence is more carefully drafted. Expert testimony that some fractures are not initially visible on radiograph, clear documentation of symptoms consistent with fractured ribs, later radiographs depicting "old, healed fractures" and no other evidence of trauma or other cause for rib fractures likely creates a triable issue of fact. Amodio v. Noto, 229 A.D.2d 366 (2nd Dept. 1996).

Permanent loss of use of a body organ, member, function or system

In Oberly v. Bangs, 96 N.Y.2d 295 (2001), the Court of Appeals held that to meet this category of serious injury, the loss of use of a body organ, member, function or system must be both permanent and total. Therefore, to meet this category of serious injury, an injured party must provide expert proof showing: 1.) a permanent injury, 2.) resulting in a total loss of use of an organ, member, function or system, and 3.) proximately caused by the motor vehicle accident.

Permanent consequential limitation of use of a body organ or member and significant limitation of a body function or system

These two categories are often lumped together and courts deal with them as a single unit at least in part because no court seems to have wanted to define the difference between a “body organ or member” and “a body function or system.” The distinction would seem to be crucial because any injury to an “organ or member” must be permanent to meet the threshold while an injury o a “function or system” need not be permanent. 

The importance of the distinction is evident in Wojcik v. Kent, 21 A.D.3d 1410 (4th Dept. 2005), where the Court held that the trial court properly granted a directed verdict on serious injury “in view of the concession of the defendant’s expert that plaintiff sustained a significant limitation of use of a body function or system, if only for a brief period of time.” 

Significance

To meet the definition under either category, an injury must be significant. New York law is clear that the terms “consequential” and “significant” are synonymous, but what do they mean? Mild, trivial or minor injuries are neither "significant" nor "consequential", Abdallah v. Flattery, 280 A.D.2d 917 (4th Dept. 2001), but where is the line between an injury that meets the threshold and one that does not? The answer to this question is far from clear, a fact that has troubled litigants and courts. Recently, in 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.

The Appellate Division, First Department accurately described the state of the law and the vast majority of the confusion relates to these two categories of serious injury. In the continuing absence of a bright line, fhe following cases provide at least some guidance: 

Jablonski v. Bolt, 213 A.D.2d 982 (4th Dept. 1995): Expert's opinion that the plaintiff suffered a permanent 50 % loss of forward flexion and extension of lumbar spine, 25% loss of side bending motion and 25% loss of flexion and extension of cervical spine deemed sufficient to create a question of fact as to serious injury.

Meireles v. Lakeland Central School, 208 A.D.2d 508 (2nd Dept. 1994): Expert's finding that plaintiff had an accident related 40% deficit in the range of motion of the cervical spine 18 months after the accident deemed sufficient to create a question of fact as to serious injury.

McCarthy v. Perault, 277 A.D.2d 664 (3rd Dept. 2000): 33% reduction in the range of motion of the neck, deemed permanent by an orthopedist, qualifies as a serious injury whether or not it is severely painful.

Pareti v. Giglietta, 221 A.D.2d 607 (2nd Dept. 1995): finding by expert of a 20% restriction in the range of motion of the cervical spine that "should be considered permanent" was sufficient to create a question of fact as to whether plaintiff sustained a "significant limitation of use…"

Trotter v. Hart, 285 A.D.2d 772 (3rd Dept. 2001): expert's opinion that plaintiff sustained a 20% loss of use of the cervical spine and 10% loss of use of the lumbar spine established neither a significant or consequential loss of use. However, the expert proof in this case was clearly deficient in several important respects including:

1. Lack of a recent medical examination.

2. Failure to identify any objective tests supporting findings.

3. Conclusory assertions of permanency designed to merely parrot the statute.

Monette v. Keller, 281 A.D.2d 523 (2nd Dept. 2001): 2% loss of cervical rotation did not demonstrate a "significant limitation of use of a body function or system" as a matter of law.

Clark v. Perry, 21 A.D.3d 1373 (4th Dept. 2005) reversed a grant summary judgment to defendant who had submitted the affidavit its defense examiner who opined that images of plaintiff’s spine showed no bulging discs and that plaintiff sustained only a mild injury that was healed. The 4th Department held that plaintiff created a question of fact with the affidavit of her treating physician who opined that diagnostic imaging showed accident-related disc bulges (objective finding), that plaintiff had a 50% decreased range of motion in two areas of her spine (quantitative measurement of disability) and that these injuries were permanent.

Sarkis v. Gandy, 15 A.D.3d 942 (4th Dept.2005) holding that plaintiff failed to create a question of fact by submitting the affidavit of her treating chiropractor averring that plaintiff had a 10-15% limitation of her upper trapezius that was permanent in nature. The chiropractors own records characterized this level of disability as “mild” and more recent records showed plaintiff’s range of motion to be full and pain free in all 6 planes. 

Caldwell v. Grant, 31 A.D.3d 1154 (4th Dept. 2006) reiterates the now well established point that proof of a herniated disc will not meet the threshold without additional objective medical evidence establishing that the herniation caused significant physical limitations. Compare Howell v. Holloway, 17 A.D.3d 1117 (4th Dept. 2005) where an issue of fact was raised by the affidavit of plaintiff’s treating physician, supported by extensive medical records, quantifying by objective measurement plaintiff’s limitations of movement and opining that these limitations were permanent, which, coupled with the subjective complaints of severe continuous pain, permitted a finding of a significant limitation of use and a permanent consequential

It is often unwise to generalize, but these cases certainly suggest that the line between a loss or limitation of use, permanent or otherwise, that exceeds 20% will be sufficient to create a jury question as to serious injury.

A numeric quantitative measure of disability is not the only way to establish that an injury is significant because the Court of Appeals held in Toure v. Avis, 98 N.Y.2d 345 (2005) that a qualitative assessment can suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. 

Permanence

Are injuries that can be restored by surgery permanent? Answer seems to be affirmative. See Hassam v. Rock, 290 A.D.2d 625 (3rd Dept. 2002), Hackett v. Driver, 228 A.D.2d 918 (4th Dept. 2000). In addition, although it is not a required element, Permanent injuries can fit into the significant limitation of use category. Preston v. Young, 239 A.D.2d 729 (3rd Dept. 1997). 

90/180

In a provision that has the midnight oil still wet on its pages, the Legislature adopted a “catch-all” category to try to provide a remedy for people with transient, temporary disabilities caused by car accidents. Called the “90/180 Rule”, it defies precise definition. To fall within the category, an injured party must prove that as a result of the accident, the injured party sustained a medically-determined injury or impairment of a non-permanent nature that prevented him or her from performing substantially all the material acts that constitute his or her usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the accident. As with all of the other serious injury categories, "the critical inquiry is whether the plaintiff has submitted sufficient competent, credible medical evidence based on objective medical findings…" Monk v. Dupuis, 287 A.D.2d 187 (3rd Dept. 2001).

Because this category explicitly states that the injury is of a non-permement nature, a jury cannot award damages for permanency under this category. Wymer v. National Fuel Gas, 217 A.D.2d 920 (4th Dept. 1995). 

Being unable to work for more than 90 out of the first 180 days after the accident will support a finding of serious injury under this category, but does not compel that finding, especially if the injured party was not under doctor’s orders to stay at home. See Pierre v. Nanton, 279 A.D.2d 621 (2nd Dept. 2001); Hines v. CDTA, 280 A.D.2d 768 (3rd Dept. 2001)(affidavit of plaintiff's expert raised a question of fact under the 90/180 rule where he identified a medical condition using some objective criteria and based on that, opined that plaintiff was disabled from work for more than 90 days within the first 180 days after the accident). 

Conclusion

As can be appreciated after reading the various complex interpretations that have been provided by the courts to help define the “serious injury” threshold, succeeding in a case involving an injury sustained in an automobile accident is frequently determined by the skill and experience of the attorney representing the injured victim and his or her understanding of the strict proof requirements for meeting the serious injury threshold. Faraci Lange has been handling automobile accident cases since the No Fault law was passed in 1974 and over that span has tried hundreds of these cases and settled thousands more. If you have suffered what you believe to be a serious injury in an auto accident, Faraci Lange can help you assess your chances of succeeding with a lawsuit to recover your pain and suffering and other damages not covered by No-Fault benefits.

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