To recover damages for pain and suffering under New York's No-Fault Insurance Law, an individual injured in a car accident must establish that he or she has suffered a "serious injury." There are nine (9) categories of "serious" injuries: (1) death; (2) loss of a fetus; (3) dismemberment; (4) fracture; (5) significant disfigurement; (6) permanent loss of use of an organ, member, system, or function; (7) permanent consequential limitation of use of an organ or member; (8) significant limitation of use of a body function or system; and (9) non permanent impairment for 90 days during the first 180 days succeeding the accident.

First, with respect to death, fetal loss, and dismemberment, these injuries are fairly self-explanatory and are not the subject matter of much litigation. It is important to note, however, that dismemberment can only be established by complete loss of a body part, not just loss or limitation of use of a body part.

Next, to qualify as a serious injury fracture under the No-Fault Law, an individual must have broken or cracked a bone or part of a bone as a result of the accident. Examples of serious injury fractures include a knee fracture, a broken nose, and a chipped or broken tooth requiring medical or dental attention. In contrast, neither a deviated septum nor a knee cartilage fracture will constitute a serious injury fracture since such injuries do not involve broken bones.

Further, if a party suffers "significant disfigurement" as a result of an accident, he or she has a serious injury under the No-Fault Law. The test for significant disfigurement is objective: the plaintiff must show that a reasonable person would regard her worsened appearance with sympathy or judgment, or would find her condition objectionable or unattractive. Although the disfigurement need not be on one's face or head or of a minimum length or density, it must be noticeable. Hence, a two-inch facial scar and one-and-a-half inch knee scar constitute significant disfigurements, whereas a scar on an individual's neck, which is covered by her hair, does not constitute a significant disfigurement.

The next category of serious injury is permanent loss of use of a body organ, member, function, or system. Under this category, there must be total, permanent loss of use; a substantial limitation is insufficient. Thus, permanent muscle damage on the area around the lower lip is compensable under this category, whereas only moderate loss of use of the lumbar spine is not.

An individual also has a serious injury if she has a permanent consequential limitation on the use of a body organ or member. Although total loss of use is not required under this category, there must be proof of a significant and permanent limitation. For example, a rotator cuff injury that inhibits an individual's ability to move his arm without incurring pain constitutes a permanent consequential limitation, but a mild permanent disability resulting in neck issues only during weather changes does not.

The next serious injury category is significant limitation of use of a body function or system. The distinguishing factor between the "significant limitation of use" category and the above two categories is that this category does not require a total or permanent limitation. However, similar to the above two categories, the limitation must be more than just slight. Examples of significant limitation of use of a body function or system include: (1) hearing loss for up to two years after a car accident; and (2) suffering carpal tunnel syndrome as a result of a motor vehicle accident that causes difficulties driving, opening doors, and sleeping. In contrast, a twenty percent (20%) overall impairment in the spine is generally not a significant limitation under this category.

The last serious injury category is a non permanent impairment for 90 days during the first 180 days succeeding the accident. The injury need not be "serious" in the sense required by the other categories of injury under the statute, but rather the focus is on the injury's ability to impair an individual's daily activities over the requisite time period. The ability to return to work may, in some circumstances, indicate that the injured party's daily activities have not been substantially curtailed, but the ability to work after the accident does not prevent the court from making a serious injury finding under this category. For example, where the injured party is not able to engage in significant aspects of her job, is prevented from performing her household duties, and cannot sleep without disturbance for 90 out of the first 180 days after the accident, she has a serious injury under this category.

In sum, an individual in a car accident can commence a lawsuit against the individual at fault for the accident if he or she has suffered an injury that falls within one of the aforementioned nine (9) serious injury categories.

Of course this article provides only a summary of the "serious injury" requirement under New York's No-Fault Insurance Law. Every motor vehicle accident case is different. And the rules in Pennsylvania are also quite different. You should consult a personal injury attorney at Levene Gouldin & Thompson if you have been injured in a motor vehicle accident to fully understand your rights under New York's No-Fault Insurance Law. We have experienced personal injury attorneys who have been successful in litigating serious injury threshold claims.