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New York No Fault Insurance – Part 2: Permanent Losses and Limitations

New York No Fault Insurance – Part 2: Permanent Losses and Limitations

For more information, please contact The Ahearne Law Firm, PLLC at (845) 986-2777 for an initial consultation and case evaluation.

This post is the second in a series highlighting New York’s no fault insurance law.

As mentioned in our New York No Fault Insurance blog post, New York is one of twelve states that have enacted no fault insurance law in order to protect individuals injured in motor vehicle accidents. No fault law removes, in part, the evaluation of each party’s fault in the causation of the accident and requires that insurance company pay up to $50,000 for legitimate economic losses related to the accident. Covered damages include, among other things, expenses for medical care and lost earnings. Article 51 of New York Insurance Law — also known as the No Fault Law or personal injury protection (PIP)—requires insurance coverage to pay for injuries for each person hurt in a vehicular accident regardless of who was actually at fault in the case.

Permanent Loss of Use of a Body Organ, Member, Function  or System

The New York Court of Appeals has established that “only a total loss of use is compensable under the ‘permanent loss of use’ exception to the no-fault remedy.”  Oberly v. Bangs Ambulance, Inc., 751 N.Y.S.2d 295, 727 N.Y.S.2d 378 (2001) (holding that alleged continued pain and cramping suffered by plaintiff was not a “total loss of use” sufficient to show a “serious injury”).

Courts have been hesitant to find a serious injury under the “permanent loss of use” criterion when the plaintiff has suffered a soft-tissue injury, such as herniated or bulging discs. In Slisz v. Miga, 14 A.D.3d 953, 789 N.Y.S.2d 775 (4th Dept. 2005), the Court held that the plaintiff had not met his burden under the “permanent loss of use” exception to the no-fault remedy where the plaintiff had not submitted any evidence that he had sustained a “total loss” of use of his lumbar spine. See also, Schou v. Whiteley, 9 A.D.3d 706, 780 N.Y.S.2d 659 (3rd Dept. 2004) (holding that neither the removal of the plaintiff’s discs nor the loss of use of certain cervical and lumbar vertebrae constitutes a total loss of use); Raugalas v. Chase Manhattan Corp., 305 A.D.2d 654, 760 N.Y.S.2d 204 (2nd Dept. 2003) (plaintiff did not suffer a total loss of use of her cervical or lumbar spine).

Permanent Consequential Limitation or Significant Limitation of Use

“In order to establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system.” Toure v. Avis Rent-A-Car Systems, 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865 (2002).  The Court of Appeals in Toure v. Avis Rent-A-Car Systems established that an expert’s conclusory findings, without support, will not suffice to establish a serious injury under the Insurance Law. See also, Sarkis v. Gandy, 15 A.D.3d 942, 789 N.Y.S.2d 578 (4th Dept. 2005) (holding that plaintiff did not sustain a serious injury where plaintiff’s experts made only conclusory, unsupported findings with respect to range of motion); Simpson v. Feyrer, 27 A.D.3d 881, 811 N.Y.S.2d 788 (3rd Dept. 2006); Hock v. Aviles, 21 A.D.3d 786, 801 N.Y.S.2d 572 (1st Dept. 2005).

In quantifying the limitations of use a plaintiff has incurred, he/she is required to show more than a “mild, minor or slight limitation of use.”  Miki v. Shufelt, 285 A.D.2d 949, 728 N.Y.S.2d 816 (3rd Dept. 2001). In Miki v. Shufelt, the court held that the plaintiff failed to establish either a permanent consequential limitation of use or a significant limitation of use where the plaintiff’s own experts characterized the disability as “mild”.  Further, the court stated that findings of limited range of motion failed to establish a serious injury where the medical experts provided no details as to these findings and failed to show how they were ascertained. See also, Brandt-Miller v. McArdle, 21 A.D.3d 1152, 801 N.Y.S.2d 834 (3rd Dept. 2005).

“Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury.  Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380 (2005);  Kearse v. New York City Transit Authority, 16 A.D.3d 45, 789 N.Y.S.2d 281 (2nd Dept. 2005); John v. Engel, 2 A.D.3d 1027, 768 N.Y.S.2d 527 (3rd Dept. 2003). In John v. Engel, the court held that even though plaintiff’s MRI showed a herniated disc at C5-6, plaintiff’s injury did not constitute a serious injury because the plaintiff’s medical records revealed no evidence of objective tests to determine any loss of range of motion or spasm or muscle weakness or tingling sensations. See also, Grimes-Carrion v. Carroll, 17 A.D.3d 296, 794 N.Y.S.2d 30 (1st Dept. 2005) (holding that plaintiff did not establish a serious injury under either the permanent consequential limitation qualifier or the significant limitation qualifier where expert did not quantify spinal range of motion limitations until over 3 years after the accident); but see, Desulme v. Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 (2nd Dept. 2004) (holding that quantified limitations of range of motion established a serious injury).

Plaintiff’s subjective complaints of pain, without any objective medical evidence in support, are insufficient to establish a serious injury.  Gonzalez v. Green, 24 A.D.3d 939, 805 N.Y.S.2d 450 (3rd Dept. 2005) citing, Scheer v. Koubeck, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788 (1987) (holding that pain alone cannot establish a basis for a serious injury). Courts have also required plaintiffs to establish a causal connection between the MRI findings and the alleged “limitations” of use.  In Davis v. Evan, 304 A.D.2d 1023, 758 N.Y.S.2d 203 (3rd Dept. 2003), the Court held that plaintiff failed to establish a serious injury under the permanent consequential limitation and significant limitation of use categories, where the plaintiff failed to “explain how a cervical MRI revealing cervical herniated discs supports a finding of permanent loss of function in her thoracic spine, or to identify any other objective or diagnostic tests utilized to support the conclusion of loss of thoracic spine function.”  In Davis, the plaintiff could point to an MRI showing a disc herniation, but without some kind of causal connection between the disc herniation and the claimed limitations of use, plaintiff could not establish a serious injury.

#newyork #nofault #insurance #accident #injury

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