New York No-Fault and Serious Injury Threshold Deciphered

So you’ve been injured in a car accident (truck, bus, etc.) and you are wondering whether or not you have a case.  For car accidents in New York, you can’t sue for minor injuries.  You need to have a “serious injury” – I’ll explain.

In the 1970’s the law regarding suing for injuries caused by an accident changed substantially.  Before that, if you had an accident, you would get the medical treatment you needed and sue for the cost of the medical treatment, time lost from work, out-of-pocket expenses (ie: taxis to treatment) and for your injuries.  The “no-fault” law changed all that.

Now, the “no-fault” law provides a minimum of $50,000 of insurance coverage for medical bills, lost-earnings and out-of-pocket expenses when an traffic accident occurs.  That’s a good thing. This money is available under the insurance policy for the car you are in (whether you are driving or a passenger), the car that hit you (if you are a pedestrian,) your own insurance or if there is no insurance, that can be found (ie; a pedestrian with no insurance hit by a hit and run driver) a state fund, MVAIC, will pick up the tab.

This means that your medical bills, lost earnings and out-of-pocket expenses will be covered even if you lose control of your car and hit a tree!  Collecting these benefits will have no impact on your insurance rates or driving record. (The insurance company might raise your rates for having an accident, but collecting the benefits will have no impact.)

The trade-off is that if somebody else is responsible for your injuries, you can ONLY sue if you have sustained a serious injury.  So, you may ask, what is a serious injury?

Here’s how it’s defined by NY Insurance Law § 5102(d):

An injury resulting in: (1) death, (2) dismemberment, (3) significant disfigurement, (4) fracture, (5) loss of a fetus, (6) permanent and total 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, and (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 90 days during the 180 days immediately following the occurrence of the injury or impairment.

 Let’s break that down!

  1. Death: The family of a person that was killed in an accident can sue the responsible parties.  There must be an administrator in place (somebody that a court has recognized as having the authority for the estate of the person that’s passed.)
  2. Dismemberment: Loss of a hand, foot, leg, etc.  This is obviously a “serious injury.”
  3. Significant Disfigurement: A scar or other unsightly result of the injury, in a prominent place.
  4. Fracture: An x-ray indicates that you sustained a broken bone anyplace in your body.
  5. Loss of Fetus: If you are pregnant and your pregnancy ends as a result of the accident.  You are, of course, expected to prove that the pregnancy was sound prior to the accident and that you would have been likely to give birth if the accident had not occurred. Miscarriages early in a pregnancy as very common and might not be the result of a low impact collision with very little property damage or other injuries.
  6. Permanent and total loss of use of a body organ, member, function, or system: This is another extreme scenario, which would include such injuries as blindness, deafness or serious brain damage.

The injuries above are quite obvious.  So the question is, can you sue if you are alive, have not been dismembered, didn’t sustain blindness, don’t have a scar, fracture or brain damage and didn’t not lose a pregnancy?  The answer is “yes,” but here’s what needs to be proven.

 7. Permanent consequential limitation of use of a body organ or member,

These are less extreme scenarios.  A person is hurt, seriously hurt, and their use of their body is permanently limited due to this injury.  This is obviously much more difficult to prove than the extreme scenarios in 1-6.

Let’s say that after your accident you are feeling stiffness in your neck and go home from the scene.  Sometimes this stiffness goes away in a few days and you are feeling fine.  You would not be able to sue for this injury.  You would be limited to collecting “no-fault” benefits.

Let’s say you injured your neck and went to the hospital from the scene of the accident.  You complained about your neck and they took X-rays at the hospital.  They tell you the X-rays are normal and send you home.  You wake up the next morning and can’t turn your head.  If you go to a doctor, he or so will likely prescribe a regimen of physical therapy and painkillers.  You go for physical therapy and take the painkiller and a few weeks later you feel fine.  You would be limited to collecting “no-fault” benefits.

On the other hand, if the injuries are “soft tissue,” meaning that they do not show up on an X-ray, and you are still having pain despite physical therapy and painkillers for let’s say a month, your doctor will probably send you for an MRI and other diagnostic testing. There are tests than that can diagnose “soft tissue injuries” such as disc herniations and bulges.  If you are diagnosed with a herniation or bulge, but don’t get any significant treatment for the injury, you will probably still be limited to collecting no-fault benefits.

You need to prove that this injury is “permanent,” which means that you will never be quite the same a result of it.  So how do you prove this?  Your doctor can provide documentation and testing to show that your range of motion for your neck does not improve despite the use of all therapies and treatment available, such as physical therapy, acupuncture, chiropractic care and possibly a surgery that improves the condition, but does not completely resolve the injury.  Then you can sue under this part of the law.

But what if you if you have an injury that is not permanent, is it possible to sue?  The answer is yes, but falls under the next provision of the law.

  1. Significant limitation of use of a body function or system

Your testing for your neck shows a herniation or bulge, but you recover completely from this injury and have full use after treatments (physical therapy, chiropractic, acupuncture, surgery, etc.)  You can sue, but it is necessary to combine this part of the law with the next section.

  1. 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.

 Now that’s a mouthful!  What this means is that if you have not been able to work for about three months due to your injuries, you do have a right to sue.  It is important to understand that even if you went right back to work the day after the accident, trying to work through the pain, you can still sue if you end up having to stay out later and are out for three months (90 days) within the six months (180 days) after the accident.

Of course, your doctor must attest to your inability to work and provide appropriate test results and a disability letter.  It must also make sense that the type of work you do cannot be done with the injury you are claiming.  It is often hard to prove that somebody with a “desk job” needs to lose a great deal of time, but if you do physical work, it can be quite credible that a herniation in your neck requires a great deal of time off from work to heal properly.

Even if you are not employed, you can still prove that you were not able to perform your usual customary activities.  For example, if you are caring for young children and cannot physically do so because of your injuries, you would need to prove that somebody (paid or unpaid) provided the care that you could not do.  If you are retired and volunteer at the library, but you would not do so for 90 days, you could get a letter from the library and possibly meet this requirement.  If you are unemployed at the time of the accident, but could not do the job you usually do, this could also be a basis for this claim.

I am using a neck injury here as an example, but of course the same concept would apply to other types of “soft tissue” injuries such as back injuries, injuries to the extremities (hands, arms, legs, knees, etc.)

Please remember that this is just the tip of the iceberg and that you can only know for sure if you have a case by discussing your particular facts with an experienced personal injuries.

If you have any questions, please feel free to call WITTENSTEIN & WITTENSTEIN at 718-261-8114, e-mail us at or messenger us on Facebook:wittensteinesqs.

2019-01-19T13:48:13+00:00By |0 Comments

About the Author:

Alyce Wittenstein is a world class attorney, blogger and filmmaker. She began working at the firm in 1985 as a managing paralegal, learning all the practices and procedures of the firm from Mr. Wittenstein and the staff. From 1995-1998, she attended CUNY Law School where she made a mark as a teaching assistant for Civil Rights leader Haywood Burns. She founded a Human Rights Delegation to Haiti and studied Constitutional Law with Supreme Court Justice Ruth Bader Ginsburg. Working at the Equal Opportunity Employment Commision (EEOC), she learned a great deal about Employment Discrimination matters. She brought her knowledge of the Personal Injury practice and her passion for Civil Rights to the firm when she was admitted to the Bar in 1999. In 2000, she became a partner and the firm name was changed to Wittenstein & Wittenstein, Esqs. PC.

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