In New York, the answer depends on whether your injuries meet what is known as the serious injury car accident threshold under Insurance Law § 5102.

I was injured in a two-car accident and have been out of work for four months. I’ve received little from no-fault benefits. What are my claims?

No Fault Claim

Since you’re receiving no-fault benefits, you likely filed a prompt application. The no-fault carrier pays your medical bills and lost wage benefits, but only a portion of your lost wage claim. The remaining balance and out-of-pocket expenses must be recovered from the negligent driver. You must sue them for personal injuries. A personal injury case compensates you for pain and suffering, out-of-pocket expenses, and lost wages.

What Qualifies as a Serious Injury Car Accident in New York?

You must have sustained a “serious injury” to bring a personal injury case. Insurance Law § 5104. Insurance Law § 5102 divides “serious injuries” into categories. One category is 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 eighty days immediately following the occurrence of the injury or impairment.” Insurance Law § 5102(d).

I cannot give a simple answer if you fit into this category. Missing more than 90 days of work does not necessarily mean you have a serious injury. See Amamedi v Archibala, 70 AD3d 449, 895 NYS2d 42 (1st Dept 2010) and Blake v Portexit Corp., 69 AD3d 426, 893 NYS2d 28 (1st Dept 2010).

A Doctor Must Corroborate Your Claim

Your doctor must confirm that you cannot work and perform most of your usual daily activities.

General statements from you or your doctor about avoiding certain activities or being somewhat restricted in daily life are not enough to prove serious injury under the 90/180 category. Onishi v N & B Taxi, Inc., 51 AD3d 594, 858 NYS2d 171 (1st Dept 2008); Gorden v Tibulcio, 50 AD3d 460, 855 NYS2d 515 (1st Dept 2008).

You need expert medical evidence supporting your disability for the time specified in the statute. Blake v Portexit Corp., 69 AD3d 426, 893 NYS2d 28 (1st Dept 2010); Lanuto v Constantine, 192 AD2d 989, 596 NYS2d 944 (3d Dept 1993).

A physician’s testimony that you could not perform your usual activities during the required period must be based on more than your subjective complaints of pain. Lagana v Shamsian, 270 AD2d 313, 704 NYS2d 287 (2d Dept 2000).

Can Be “Serious Injury” Even If Return To Work

Even if the injured resumed daily activities, the threshold may be met if their ability to perform activities remained substantially impaired. Judd v Walton, 259 AD2d 1016, 703 NYS2d 845 (4th Dept 1999). Plaintiff’s return to work within the statutory period did not preclude finding of serious injury, especially since they relied on assistants to carry all but the lightest objects.

See also Thomas by Thomas v Drake, 145 AD2d 687, 535 NYS2d 229 (3d Dept 1988) (mere fact that student returned to school did not preclude finding of substantial impairment); but see Ceruti v Abernathy, 285 AD2d 386, 728 NYS2d 445 (1st Dept 2001). (Court dismissed case when plaintiff missed 20 days of school and doctor advised student to avoid gym class for three months.)

In your case, you likely meet the 90/180 threshold since you received four months of no-fault lost wage benefits. These benefits are only payable if your doctor submits a note attesting to your disability. The same doctor can testify in court about your disability. Hopefully, they will testify that you could not perform “substantially all of the material acts which constitute such person’s usual and customary daily activities.”

An experienced attorney can evaluate whether your serious injury car accident qualifies under this category. They can help you pursue the compensation you deserve.

By James Santner, Esq.

If you have questions about motor vehicle accident cases or similar situations, contact us. Consultations are free, and there’s no fee unless we win.