Brain Injury Claims and the New York Threshold

Can You Prove a Brain Injury in New York When the Scan Was Normal?

Yes, and it happens in most of these cases, because the scan performed in the emergency department was never looking for what you have.

A head CT is ordered to rule out a bleed, a skull fracture, and a mass effect that requires immediate surgery. It answers that question well. It is not designed to detect the microscopic axonal injury that produces persistent cognitive symptoms.

New York's threshold does not ask for a picture. It asks for a documented, objectively supported loss of function.

Which means a brain injury claim in this state is won on neuropsychological testing, on a documented baseline, and on people who knew the person before the crash, rather than on an image.

Why the Emergency Department Scan Answered a Different Question

This gets explained backwards constantly, including by adjusters, so it is worth being precise.

Newer imaging, including MRI with susceptibility-weighted sequences and diffusion tensor imaging, is more sensitive to this kind of injury than CT, and it is ordered by a neurologist rather than at triage. But even where imaging remains unremarkable, the injury is diagnosed the way brain injuries have always been diagnosed: clinically, from the mechanism, the acute presentation, and objective testing of function.

An insurer that treats a normal CT as the end of the discussion is describing what a triage study was designed to exclude and calling it a diagnosis.

Which Threshold Category a Brain Injury Fits

Insurance Law § 5102(d) lists eight categories, and traumatic brain injury is not one of them by name.^[1] These claims run through two of the categories, and which one is used matters.

Permanent Consequential Limitation of Use

The stronger route in most brain injury cases, because the deficits that persist past a year generally do not resolve. It requires permanence established by a physician after a recent examination, and it requires the limitation to be consequential rather than trivial. A documented, measured deficit in memory or executive function is exactly that.

Significant Limitation of Use of a Body Function or System

Used where the injury produced substantial impairment for a period without a permanency opinion. It carries no permanence requirement, and after the May 2026 repeal of the 90 and 180 day category it absorbed a great deal of what that category used to handle.

Why the Repeal Cut Both Ways Here

A mild traumatic brain injury that produced four months of headaches, light sensitivity, and difficulty at work and then resolved used to fit the 90/180 category comfortably. That route is gone, so a resolving concussion now has to be documented into significant limitation of use, with objective testing, or it does not clear at all. A moderate or severe brain injury with lasting deficits was never dependent on that category and is unaffected. Our page on what New York counts as a serious injury covers all eight categories and the effect of the repeal.

Neuropsychological Testing, and Why It Satisfies the Objective Requirement

New York requires an objective basis for a threshold opinion, and subjective complaints alone are insufficient. In a brain injury case, that objective basis is the neuropsychological battery.

A qualified neuropsychologist administers standardized instruments measuring memory, attention, processing speed, executive function, language, and visuospatial ability, and scores them against normative data. The output is not a description of how someone feels. It is a set of standard scores, and a person functioning two standard deviations below expectation on delayed verbal recall has produced a measured finding.

Validity Testing Answers the Argument Before It Is Made

The defense in every brain injury case eventually reaches the suggestion that the person is exaggerating. Modern batteries include embedded and standalone performance validity measures designed to detect exactly that, and a claimant who passes them has answered the argument with data rather than with indignation. Where a defense examiner administers a battery and does not report validity results, that omission is worth examining.

The Premorbid Baseline Is What Makes a Deficit Visible

A test score is only meaningful against what the person was before. Establishing that baseline is the part of the case that families can help with most, and it comes from school and university transcripts, standardized test results, military records, performance reviews, licensing examinations, and work product.

A person who scored in the ninety-fifth percentile on a professional examination and now tests at the fiftieth has a documented decline. Without the earlier data point, an average score looks average.

The People Who Knew Them Before

Spouses, adult children, colleagues, and supervisors describe what changed in a way no instrument captures: the person who now writes everything down, who cannot follow a conversation with background noise, who lost their temper for the first time in thirty years. New York courts have long accepted that kind of testimony alongside the objective proof, and juries find it persuasive because it is specific.

The Symptoms That Appear After Everyone Has Moved On

Brain injury does not follow the timeline an insurance file expects, which is one of the reasons these claims get undervalued early.

• Cognitive. Short-term memory failure, difficulty concentrating, slowed processing, trouble finding words, and a loss of the ability to hold several things in mind at once.
• Executive function. Planning, sequencing, starting tasks, and switching between them. Frequently the deficit that ends a career while every individual test looks close to normal.
• Physical. Headaches, dizziness, balance disturbance, fatigue that arrives suddenly, and sensitivity to light and noise.
• Vestibular and visual. Convergence insufficiency and vestibular dysfunction, both objectively testable and both routinely missed at triage.
• Sleep. Insomnia and non-restorative sleep, which amplify every cognitive symptom.
• Emotional and behavioral. Irritability, emotional lability, anxiety, and depression, which the defense will attribute to circumstances rather than to injury.
• Smell and taste. Anosmia, which is a recognized marker of frontal injury and is often not asked about.

Several of these do not surface until the person returns to full work or school demands, which can be months after the crash. Report every symptom to a physician when it appears, because the threshold analysis is built on the contemporaneous record and a symptom first mentioned at a litigation examination carries far less weight.

What Drives Value in a New York Brain Injury Claim

We do not publish an average brain injury settlement figure. This category spans a concussion that resolves in six weeks and an injury requiring lifetime supervised care, and an average across that range is not information.

• Severity indicators at the scene and in the emergency department. Loss of consciousness and its duration, Glasgow Coma Scale scores, and the length of post-traumatic amnesia, which is one of the better predictors of outcome.
• Objective imaging findings where they exist. A hemorrhage, contusion, or diffuse axonal injury visible on MRI moves a case substantially.
• The magnitude and pattern of measured deficits. Against a documented premorbid baseline.
• Vocational consequence. Whether the person returned to the same job, returned at reduced capacity, changed careers, or cannot work. This is usually the largest economic component.
• Need for supervision, cueing, or assistance. Which converts a cognitive deficit into a life care cost.
• Age. A younger person carries the deficit across a longer working life and a longer life.
• Co-occurring conditions. Vestibular dysfunction, vision problems, seizure risk, and psychiatric sequelae each add their own treatment and their own limitation.
• Available coverage. A catastrophic brain injury against minimum limits is the cruelest arithmetic in this practice, and finding every applicable policy is part of the work.

New York places no statutory cap on pain and suffering. What operates instead is appellate review under CPLR § 5501(c), which asks whether an award deviates materially from what would be reasonable compensation, producing a body of decided cases against which a brain injury claim is valued by comparison.^[2]

What a New York Brain Injury Claim Can Recover

Once the threshold is met, everything opens, and in a brain injury case the future dominates the past.

• Medical expenses above basic economic loss. Neurology, neuropsychology, cognitive rehabilitation, vestibular and vision therapy, and medication.
• Future medical and rehabilitative care. Projected across the person's life expectancy.
• Lost earnings and lost earning capacity. Frequently the largest number in the case, established by a vocational expert working from the neuropsychological findings.
• Life care costs. Attendant care, supervision, home modification, and assistive technology where the deficits require them.
• Pain and suffering. Uncapped in New York, including loss of enjoyment of life and the awareness of one's own changed capacity.
• Loss of consortium. A spouse's separate claim, which in brain injury cases reflects a relationship that has actually changed.
• Guardianship costs. Where capacity is affected sufficiently to require it.

Note that Insurance Law § 5104(a) excludes basic economic loss from the liability claim, so the first $50,000 of medical bills and lost wages paid by no-fault sits outside the case against the at-fault driver. Our national library covers brain injury settlement values, mild traumatic brain injury claims, and post-concussion syndrome in depth.

 

How a Brain Injury Claim Gets Lost Early

These cases are lost early, by files that never got the right testing and never established what the person was like before.

• A New York attorney, not a referral desk. Don Worley has been admitted in New York since 2005 and has spent more than twenty years trying serious injury cases.
• The right testing, early. A qualified neuropsychological evaluation with validity measures, rather than a note in a chart saying the CT was negative.
• The premorbid baseline gets assembled. Transcripts, examination scores, performance reviews, and work product, because a deficit is only visible against what came before.
• Communication adapted to the client. Some clients with a brain injury find it easier to handle everything by text because of memory, concentration, or processing difficulty, and others find a phone call less demanding. We work the way each person can actually work, and we repeat things without anyone having to ask.
• Every policy located. Because a catastrophic injury against thin coverage is a coverage problem before it is a damages problem.
• A 98 percent recovery rate, built on saying no. Across more than 40,000 cases we have recovered over $100 million, and the rate holds because we decline the files we do not believe in.

Selective case acceptance by design. We are not a settlement mill. Every catastrophic injury case deserves a legal team that knows it inside and out. Deep experience and reputation only matters if it is applied to your case. If we take your case, we're fully invested in winning. Being selective allows us to give each case the attention, resources, and commitment it deserves.