Last week I discussed the serious injury threshold under New York’s no fault insurance law and how difficult it can be for you to meet that threshold if you suffer a soft tissue injury in a motor vehicle accident and wish to sue the negligent person who caused your accident. This week I want to delve further into soft tissue injuries.
By definition, a soft tissue injury is one that damages your ligaments, tendons or muscles. Usually it causes swelling and a great deal of pain. It can happen all at once, such as in an auto accident or a slip and fall, or it can happen over time, such as carpal tunnel syndrome, a repetitive stress injury often suffered by people who must do a lot of typing or data entry at work.
Common Soft Tissue Injuries
The term “soft tissue injury” covers an extensive range of tears, pulls and bruises that your muscles, tendons and ligaments can receive. Since you have these soft tissues throughout your body, you can sustain an STI to virtually any part of your body. Some of the more common STIs include the following:
- Anterior cruciate ligament (ACL) tear to your knee
- Rotator cuff sprain or tear to your shoulder
- Achilles tendon rupture in your ankle
- Lateral epicondylitis (tennis elbow)
- Medial epicondylitis (golfer’s elbow)
- Temporomandibular joint (TMJ) injury to your jaw
- Stress fracture
- Bulging or herniated disc
- Contusions (bruises)
- Tendonitis (inflammation of a tendon)
- Bursitis (inflammation of a bursa, the fluid-filled sac between your bones and your muscles and/or tendons)
The reason why soft tissue injuries are so painful is because your sensory nerve endings are located there. If you have ever suffered a “simple” strain or sprain, you know the pain it causes and how long it can take for that pain to subside. With some STIs, you may require surgery and it could take you years to recover, assuming you ever fully recover. I know this from personal experience, having been rear-ended by a negligent driver years ago. I have intermittent pain to this day. So I fully understand exactly what you are going through if you suffered an STI as the result of someone’s negligence or misconduct.
Vehicular accidents versus other accident types
One of the things you need to be aware of is that the serious injury threshold applies only to STIs you receive in a vehicular accident. You need not meet this threshold if you sustain your STI as a result of some other type of accident. That having been said, however, you also need to be aware of the fact that insurance companies are loathe to cover STIs no matter how you receive them. They take the same attitude as the no fault insurance law; i.e., that your injury is minor, not serious.
Consequently, you need an experienced and aggressive personal injury attorney on your side if you suffer an STI and wish to pursue a personal injury claim against the person whose negligence caused your accident and therefore your injury. DubiLaw has an impressive track record taking soft tissue injury cases to mediation or arbitration, and I also frequently take them all the way to trial. Whether via settlement or jury award, I see it as my duty and privilege to recover the maximum amount possible for my clients under their particular circumstances.
Preexisting Injury and the Eggshell Plaintiff Rule
Just because you have a preexisting soft tissue condition does not mean that your accident cannot exacerbate that condition. In fact, it usually does. Therefore, the new injuries you receive are very real and very compensable. For example, if you already have a bulging disc in your back, the new STI you receive to your back in your accident can easily herniate that disc. The result? While you did not need surgery for your bulging disc, you likely do need it for your herniated disc.
The eggshell plaintiff rule, sometimes called the eggshell skull rule, says that a defendant must take the plaintiff as (s)he finds him or her. In other words, the defendant cannot use your preexisting condition or any frailty you may already have had as a defense to limit his or her liability when (s)he causes your new injuries. Nevertheless, defendants almost invariably try to do this in STI cases where the plaintiff had a preexisting condition, particularly when, as is usually the case, the defendant is represented by his or her insurance company.
One standard practice that insurance companies use when you have an STI case involving your spine is to insist that their own radiologist evaluate you. What the radiologist is looking for is osteophytes, a/k/a bone spurs, along your spine. Osteophytes indicate a degenerative spine condition as opposed to a new injury. Since spinal x-rays and MRIs can be difficult to read, here again you need an experienced personal injury attorney such as DubiLaw who knows an osteophyte when he sees one – and also knows when there are none, despite what the insurance company’s radiologist may claim.
If you need a personal injury litigator or if you are an attorney who needs outside personal injury litigation help, please call Richard A. Dubi toll-free at 833-FOR-DUBI (833-367-3824).