One second you are driving down a country road, minding your own business. Another car fails to stop at a stop sign. You’re injured. Now you're on the side of the road with a pain in the neck and uncertainty about the future.
Fortunately, some people sustain no injuries in a car crash and can resume normal activities almost immediately. Unfortunately, there are also people whose lives change fundamentally after a car wreck. Recreational activities, like bicycling or jogging, that used to bring immense joy are now physically impossible. Physical requirements of employment are just too much. Whether it's standing for extended periods of time, or certain repetitive motions, continued employment—at least at a particular job—may seem untenable.
As you may be aware, in order to make a claim for pain and suffering after a New York car crash you must generally show a "serious injury." There are exceptions to this rule, but they are few and far between. An experienced New York personal injury attorney can assess the particular facts and determine whether any of these exceptions may apply.
Some insurance companies may contend that someone who returns to work soon after a car wreck does not have a serious injury and is therefore not entitled to compensation for pain and suffering. That is simply not the case.
Some categories of serious injury, such as the fracture category, require no evidence of work loss. And when it comes to the “significant limitation of use” and “permanent consequential limitation of use” categories, the presence or absence of work activities is not determinative. It may be a consideration, but a claim of serious injury under these two categories will not necessarily depend on the person’s physical capability to continue employment.
One category of serious injury where employment status takes on an added importance is the “90/180" category. This somewhat awkwardly worded category is just as difficult to read as it is to understand when applied to unique individuals:
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.
To break the language of this “90/180” category down a bit, you can see that a "nonpermanent" injury can qualify as a serious injury, entitling the person to compensation for pain and suffering.
Thus, if an insurance company says that you have only sustained a "strain" that does not necessarily mean that you are not entitled to compensation for pain and suffering. A "strain" diagnosis can, after all, serve as a working diagnosis before formal diagnostic imaging is taken. A "strain" diagnosis can also potentially have an objective basis if a medical provider assigns the diagnosis based on a clinical assessment that does not depend solely on your complaints of pain. New York courts have accordingly found that strain injuries can potentially qualify under the 90/180 category.
Further analyzing the language of this 90/180 category, the injury must "prevent the injured person from performing substantially all of the material acts which constitute . . . usual and customary daily activities." This is where the ability or inability to work may come into play.
However, just because someone reports to the office does not mean that they are able to perform the same activities they were able to perform before the car wreck. If, for example, someone is on light-duty with “work restrictions,” some courts have found that to be relevant in determining whether that person has a qualifying injury under the 90/180 category.
As such, the fact that someone returned to work soon after a car crash does not necessarily mean that they have not sustained a serious injury.
Finally, the plain language of the 90/180 category emphasizes the first 180 days, or roughly 6 months, immediately following the trauma of the collision. This makes sense. After all, the category depends on evidence of a “non-permanent injury.” For this reason, a court will generally look at the activities of the injured person during the six-month period following the wreck.
If an insurance company is telling you that you are not entitled to compensation for pain and suffering because your injuries do not rise to the level of a serious injury, it may be a good idea to consult an experienced New York car accident attorney. A settlement for pain and suffering must generally account for past and future pain and suffering. That means a settlement today must make you "whole" for pain and limitation you may experience tomorrow and into the future.
If you have questions about whether you are entitled to make a claim for pain and suffering after a New York car accident, please do not hesitate to contact the lawyers at William Mattar, P.C. They have extensive experience analyzing medical records and helping injured New York motorists demonstrate to insurance companies and juries that they sustained a “serious injury.”