36 THE QUEENS COURIER • QUEENS BUSINESS • JANUARY 9, 2020 FOR BREAKING NEWS VISIT WWW.QNS.COM
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WAR OF THE GONIOMETERS
Q: Last summer, my car collided with a bus, and I was injured in my right knee. My orthopedic
surgeon took an MRI which showed a “full-thickness articular cartilage lesion in the lateral femoral condyle”.
Another physician measured my ‘range of motion’ using something called a ‘goniometer’. Upon comparing
her results to the normal range, she found a 33% restriction in the ‘extension’ of my right knee.
A: A primary purpose of New York's No-Fault Law, article 51 of the Insurance Law, is to reduce the
number of common-law tort actions arising from motor-vehicle accidents. If you will permit me to simplify,
under section 5102(j), any insured owner, operator or occupant of a motor vehicle is deemed to be a ‘covered
person’. Under section 5104(a), in any action by one covered person against another for personal injuries
arising out of negligence in the operation of a motor vehicle, the parties should bypass the courts and go
directly to their insurers for compensation for non-economic loss – except in the case of a serious injury – and
for basic economic loss.
Under section 5102(c), ‘non-economic loss’ means pain and suffering and similar non-monetary
detriment. Greatly, greatly simplifying, under section 5102(a), ‘basic economic loss’ includes up to fifty
thousand dollars per person of the following combined items: professional health services; loss of earnings
from work; and all other reasonable and necessary expenses incurred, up to twenty-five dollars per day for not
more than one year.
Continuing to simplify, under section 5102(d), ‘serious injury’ means a personal injury which
results in: death; • dismemberment; • significant disfigurement; • a fracture; • loss of a fetus; • permanent loss
of use of a body organ, member, function or system; • permanent consequential limitation of use of a body
organ or member; • significant limitation of use of a body function or system; or • a non-permanent
impairment that prevents you from performing substantially all of your usual and customary daily activities
for at least 90 out of the 180 days following the accident. The better to avoid an unnecessary jury trial, it is for
the court to determine, in the first instance, whether you have sustained a serious injury.
Furthermore, it is not enough that you have gone to your own doctors; you must also submit to
examination by doctors of the defendants’ choosing. Those physicians will take out their own goniometers and
may assert that your range of motion is normal. They may assert that the problems with your right knee are
not due to traumatic injury; rather, they reflect a ‘chronic and degenerative’ condition. After that, your
attorney may see fit to engage other physicians in order for you to succeed.