Andrew S. Horsfall, Esq. Secures Defense Decision at Arbitration of Section 5102(d) Serious Injury Claim

Andrew S. Horsfall, Esq., successfully defended a motorist and secured an arbitration decision that declined to find plaintiff’s alleged injuries met the “serious injury” threshold under New York Insurance Law § 5102(d).

Plaintiff alleged that he suffered a traumatic brain injury, head trauma, injuries to his cervical and lumbar spine, vestibular system injuries, and the loss of his senses of taste and smell when his vehicle was hit on the passenger’s side as the defendant travelled through an intersection.

Plaintiff alleged, among other symptoms, that the traumatic brain injury and post-concussive syndrome caused chronic neck pain, lower back pain, loss of balance, difficulty with concentration. Plaintiff, a one-time financial planner and avid golfer, also alleged that he was no longer able to participate in community activities, maintain his financial planning business, or play more than 3 holes of golf without experiencing an exacerbation of symptoms. In direct contradiction to his testimony on direct examination, investigation into plaintiff’s daily activities revealed he continued to golf on a regular basis and performed well at an 18-hole golf tournament less than four months before the arbitration.

Plaintiff’s pre-accident medical history revealed pre-accident complaints of chronic neck pain and degenerative changes treated by a chiropractor. His post-accident medical records showed that his acute symptoms and complaints were inconsistent with a traumatic brain injury and his other symptoms did not begin to develop until later and were too remote in time to be causally related to the subject accident.

The arbitrator’s decision noted the inconsistencies in plaintiff’s testimony as substantially weakening his credibility. His medical records and subjective progression of symptoms also reflected that his complaints were not related to any alleged injuries from the accident. The arbitrator concluded that plaintiff’s alleged injuries did not meet the “serious injury” threshold under New York State Insurance Law § 5102(d).

 

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