Is PTSD a 'Serious Injury' Under Insurance Law §5102(d)?

Kenneth E. Pitcoff and Andrea M. Alonso, New York Law Journal

April 8, 2019

Insurance Law §5102(d) defines ‘serious injury’ as a personal injury that results in one or more of nine definitional terms. Traditionally, these terms have been strictly construed and personal injuries that did not meet one on the nine definitions could not be considered ‘serious injuries’ for purposes of §5102(d). One category of ‘serious injury’ that has seen recent expansion is injuries that result in “significant limitation of use of a body function or system.” See Insurance Law §5102(d).

The Third and Fourth Departments have begun to consider post-traumatic stress disorder (PTSD) as a ‘serious injury’ under Insurance Law §5102(d)’s definition of “significant limitation of use of a body function or system.” This inclusion is a significant expansion of the statutory definition which has been strictly interpreted. Currently, the First and Second Departments have not followed this trend of incorporating PTSD into definition of ‘serious injury.’

‘Significant’ Threshold

‘Serious injuries’ for purposes of §5102(d) have been limited to the types of physical injures described in the statute. The Court of Appeals, examining the legislative intent, has held that ‘significant’ limitations of use need to be “something more than a minor limitation of use.” See Licari v. Elliott, 57 N.Y.2d 236 (1982). “Minor, mild, or slight limitations of use should be classified as insignificant” within the meaning of §5102(d). Licari, 57 N.Y.2d 236. Determining if this threshold of ‘significant’ has been met, “involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part.” See Toure v. Avis Rent a Car Systems, 98 N.Y.2d 353 (2002). Only injuries that are appropriately ‘significant’ meet the threshold of a ‘serious injury’ under the no-fault law.

PTSD itself is a disease that is diagnosed through the examination of numerous factors. A list of factors considered when diagnosing PTSD can be found in the Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition (DSM-5). The DSM-5 is published by the American Psychiatric Association and has become the standard reference book for practitioners in the field of mental health.

According to the DSM-5, the essential feature of PTSD is the “development of the of characteristic symptoms following exposure to one or more traumatic events.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition 274 (2013). The “clinical presentation of PTSD” varies from individual to individual. at 275. Some sufferers experience loss of memory of the traumatic event, diminished participation in previously enjoyed activities, or the tendency to engage in aggressive physical or verbal behavior with little or no provocation, among other things. PSTD is not often a permanent ailment. Complete recovery within three months of the onset of symptoms occurs in approximately one- half of adults.

In determining the ‘significant’ threshold, courts have reviewed numerous factors. In addition to the extent or degree of the limitation resulting from the injury, the duration of the injury has been considered as well. See Griiths v. Munoz, 950 N.Y.S.2d 787 (2d Dept. 2012). “Mere temporary discomfort” is not enough to constitute a significant limitation of a use of body function or system. Licari, 57 N.Y.2d 236. Insurance Law §5102(d) does not have an expressed temporal requirement for a ‘significant’ limitation. See Griiths, 950 N.Y.S.2d 787; Insurance Law §5102(d). Medical examinations conducted shortly after an incident were insufficient to raise a triable issue of fact as to whether plaintiff’s injury “existed for a sufficient period of time to rise to the level of ‘significance’ and whether the injured plaintiff sustained a significant limitation of use of a body function or system.”

Injures that have met the “significant limitation of use of a body function or system” threshold have been physical in nature. Serious injuries to the neck, back, and nervous system are all injures that have been found to be ‘significant’ in nature for purposes of ‘serious injuries’ under §5102(d). See Toure, 98 N.Y.2d 353; Insurance Law §5102(d).

Case Law

In a recent decision, the Third Department included the mental illness of post-traumatic stress disorder (PTSD) as a ‘serious injury’ for purposes of §5102(d). See Vergine, supra. In Vergine, the plaintiff claimed ‘serious injuries’ after being involved in a car accident. Defendant moved for summary judgment dismissing the plaintiff’s complaint for lack of a ‘serious injury.’ Plaintiff cross-moved to amend their bill of particulars to include PTSD as a serious injury. The Supreme Court denied plaintiff’s cross motion and granted defendant’s motion, dismissing the complaint. The Third Department reversed the Supreme Court’s ruling and granted plaintiff’s cross motion including PTSD as a ‘serious injury.’

Specifically, the Vergine court held that “causally-related PTSD constitute[ed] a “‘significant’” limitation of the use of a body function or system.” This inclusion is a substantial expansion of the definition of ‘serious injury’ that moves outside the traditionally strictly construed statute. To support their decision, the court relied of the reasoning of the Court of Appeals in Toure. See Vergine, 167 A.D.3d 1319; Toure, 98 N.Y.2d 353.

In Toure, a plaintiff was stuck by a car and suffered back injuries. A doctor examined a CT scan and MRI of the plaintiff and opined that the plaintiff’s injuries were caused by plaintiff’s motor vehicle accident and the injures left the plaintiff with a “decreased range of motion” in his lumbar spine and a permanent restriction of use in the injured areas. This examination had no quantitative measurements of loss of motion; however, the court found the doctor’s qualitative assessment to be sufficient to defeat a defendant’s motion for summary judgment for lack of a ‘serious injury.’

The court was satisfied that the assessment “describe[d] the “‘qualitative nature’” of plaintiff’s limitations “‘based on the normal function, purpose and use of the body part.’” The Toure court was also persuaded by the doctors’ notes that the plaintiff suffered limitations in physical activities including difficulty sitting, walking for any extended times, and inability to lift heavy boxes.

Toure held that a qualitative assessment of a plaintiff’s condition may be sufficient to substantiate a claim for a serious injury under no-fault law, so long as the qualitative evaluation has an objective basis and compares the plaintiff’s function to the normal function, purpose and use of the affected body function or system. See Toure, 98 N.Y.2d 353. Vergine expands the qualitative assessment standard in Toure to include affected psychological systems. See Vergine, 167 A.D.3d 1319. This ruling expands §5102(d) beyond its textual bounds. Thus far, this expansion of ‘serious injury’ has been limited to the Third and Fourth Departments where the courts have held that PTSD may constitute a ‘serious injury’ when it is “causally related to a motor vehicle accident and demonstrate by objective medical evidence.” See Krivit v. Pitula, 79 A.D.3d 1432 (3d Dept. 2010); Hill v. Cash, 117 A.D. 3d 1425 (4th Dept. 2014). In Krivit the plaintiff had a history of self-medication, symptoms of depression, and a history of Prozac use prior to her car accident. Still, she was able to establish a triable issue of fact as to whether the car accident caused her to suffer PTSD for purposes of no-fault insurance law even though she did not undergo diagnostic testing.

The Fourth Department, in Hill, aired the ruling that PTSD can constitute a ‘serious injury.’ In that case, defendants were permitted to rely on the unsworn records of a psychologist to raise a triable issue of fact, defeating plaintiff’s motion for summary judgment. See Hill, 117 A.D. 3d 1426.

Neither the First or Second Departments have included PTSD into the §5102(d) definition of ‘serious injury.’ These departments have only reiterated that both severity and duration of an injury can be considered when deciding if a limitation of a body function or system is significant enough to constitute a ‘serious injury.’ See Partlow v. Meehan, 155 A.D.2d 647 (2d Dept. 1989).

Conclusion

Including PTSD in the no-fault ‘serious injury’ definition is a radical departure from the original statutes’ iteration, which is to limit the liability rule for motor vehicle accidents. This departure could have negative consequences. Insurance Law §5102(d) has traditionally been strictly construed and courts have noted legislative intent in limiting the types of injuries that are eligible for recovery under the no-fault law. See Toure, 98 N.Y.2d 353. Including psychological conditions into a statue that thus far has only pertained to serious physical injuries would greatly increase the number of motor vehicle cases in an already crowded court docket.

Psychological conditions, by their very nature, can be difficult to ascertain and can be unpredictable in their duration. Insurance Law §5102(d) is meant to deal with physical injures with measurable limitations and durations.

Kenneth E. Pitcoff and Andrea M. Alonso are partners at Morris Duffy Alonso & Faley.
Kelsey Dougherty Howard, a paralegal, assisted in the preparation of the article.

Reprinted with permission from April 08, 2019 the edition of the New York Law Journal © 2019 ALM Media Properties, LLC. All rights reserved.
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