Below is an E-mail exchange between me and a fellow who was recently involved in an auto accident near Buffalo, NY. This fellow, like most accident victims, was very frustrated by “the system”:

  • His car was totalled but because the insurance company only has to pay the fair market value of his car, rather than the replacement cost, he will lose money.
  • He is suffering both back and neck pain yet he wants to work. Because he has a computer job and an accomodating employer, he can manage to work, but he recognizes if he does work, he will not qualify as having suffered a “serious injury” as is required to bring a claim against the jerk who rear-ended him. In other words, he gets burned if he goes to work and rewarded if he does not…..

Worst of all, this fellow got what I think is BAD ADVICE from another Buffalo law firm (incidentally, one of the mega-firms that you see on the TV every 15 secs!) who told him to NOT work and to “milk it”. For the reasons discussed below, I think this is horrible advice and my recommendation to my clients is to ALWAYS tell the truth. And this isn’t just because I am a goody-two-shoes (although I do take great pride in my honesty), it’s because I am convinced that dishonest always ends up backfiring……..

From: Todd
Sent: Saturday, February 02, 2008 11:17 AM
To: James B. Reed
Subject: RE: Question


From my research I had surmised about the same [I had explained the “serious injury” threshold to Todd in an earlier E-mail that he is responding to]. I suppose it is safe to say that the laws now mirror our current health system which unfortunately leaves a large hole in meeting the needs of the American citizen. This holds especially true if you are a hard working honest individual. For instance, some of my first advice concerning this matter was to not work at all and quite literally to milk this event until workers compensation had to pay for lost wages. This, however, is completely against the reality of my character; as I am extremely honest and hard working. In my early days I worked construction and injuries and sickness were just not viable excuses to miss any work. Luckily today, I work in the computer field and the injuries I have do not prevent me from servicing my clients from my bed. Add to this my current employer is a wonderful company that has treated me extremely well.

I apologize for running on and on over this, but I have a lot of frustration and emotion. I had a terrible night of pain and I feel as though I will endure all of this for nothing than more costs to me. For instance, I will lose money on the gap between the actual value of my vehicle and the loan. I had 0% financing on this vehicle and I will not have this rate again as it is currently not being offered. I will have to by new glasses to replace the ones destroyed in the accident, etc. Sorry, I am doing it again.

So who in the New York Judicial system reigns as the god of what is and is not a serious injury? Would surgery for soft tissue damage count or is my only recourse that I show evidence of healed stress fractures later. From the research I have done so far it looks like you can have a broken bone and heal in three to six weeks and be able to sue for pain and suffering. But, you could have soft tissue damage, go through surgery and walk with a limp the rest of your life and not be able to receive anything. I need my medication to take hold and get me out of this mood.

Yes please send me your packet. Above all I would like to work with an attorney who is accessible open and up front about how all of this works. Also thank you so much for your time. It is very unusual to have such access to a lawyer like this. The other companies I talked with I dealt with a “claims representative” or phone operator.

Thanks, Todd




I TOTALLY understand your frustration. I know the system seems upside down– the hardworking honest person who quickly returns to work gets penalized (“Sorry Mr Hard Worker you have NO serious injury”) while the person who “plays the system” by staying out of work for the required 90 days seems to be rewarded (“Cha-ching Mr. Malinger, you win!).

I agree that the way in which N.Y. defines “serious injury” at times makes no sense because it does not fairly account for soft tissue injuries which can be very painful and debilitating. Come on, how fair is it that a tiny fracture of your little finger qualifies as a “serious injury” while someone with a low back injury who can barely drag himself out of bed does not qualify? Orthopedic Dr’s will tell you that broken bones often heal without any permanent problems while soft tissue damage like ripped and torn ligaments, tendons and other soft tissue ALWAYS leaves behind scar tissue that permanently impairs that soft tissue.

But what I can tell you is that I think the advice you were given by your first lawyers to “stay in bed and milk it” is BAD ADVICE. After 20+ years representing folks injured in NY accidents and having tried many cases before Upstate NY juries, I think juries are VERY perceptive and they can smell a malingerer a mile away. At trial, fakers lose!

So, my best advice is BE HONEST AND TELL THE TRUTH. If you are truly hurt and can’t go to work, then stay home. If you can tolerate the pain, then go to work. I have been pleasantly surprised to see that 99% of the time, if folks are honest, things will work out as they should. With that said, if you are hurting and even if you are going to work, it is still very important that you continue to see your Dr’s on a regular basis and that you follow all of their advice– if they say go to Physical Therapy, go to every appointment; if they say take painkillers and muscle relaxants, then take them; etc. Just because you are able to work in a job that is not physically intensive, does NOT mean that you have not been injured.

The bottom line is that only time will tell if you have a qualifying “serious injury” and no one has a crystal ball. That’s why I tell everyone that any insurance adjuster who tells you “you don’t have a serious injury” is totally full of BS because no one knows for sure until we see how your medical care progresses.

A true story illustrates the point: A friend of mine, John, comes to see me one month after an accident where he was rearended in a tractor-trailer accident. At the time, he has both back and neck pain but so far his xrays are normal and his Dr’s just have him taking muscle relaxants and pain killers. He is able to work because he has a desk job. I honestly told John that it’s too early to tell if he will have a qualifying “serious injury” but tell him to keep me posted about his condition. Fast forward one year. John’s back & neck have both gotten progressively worse. Painkillers and muscle relaxants aren’t working. Physical therapy and chiropractic treatment isn’t working. The insurance company finally authorizes MRI’s of his neck and back revealing herniated disks in both his neck and low back. He ends up with three separate surgeries. I end up settling his case against the rear-ending driver for $975,000. His case went from being worth $0 to almost a million bucks and I truly believe the fact that John toughed it out and attempted to work through the pain made his case worth more than if he had tried to milk it. What goes around, comes around!

So, let’s see how it plays out and take it one step at a time.

We will send our packet of information on Monday. In the meantime, enjoy the SuperBowl!!

Thanks, Jim

PS Forgot to answer your question about who “reigns supreme” in deciding serious injury– it is the Supreme Court judge assigned to hear your case.

James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529