A person injured in a New Jersey motor vehicle accident may assume that ongoing pain, an abnormal MRI, or continued medical treatment is enough to pursue compensation for pain and suffering. In many cases, however, the injured person must satisfy New Jersey’s “limitation on lawsuit” threshold before recovering noneconomic damages.
One important part of meeting that threshold is obtaining a physician’s certification of permanency. This certification is more than a routine medical note. It is a formal statement from a qualified physician, supported by objective clinical evidence, that the injured person sustained an injury falling within one of the categories recognized by New Jersey law.
Whether the limitation on lawsuit applies—and whether a certification of permanency is required—can depend on the insurance coverage selected, the injured person’s relationship to the policyholder, the types of vehicles involved, and several other factors.
What Is New Jersey’s Limitation on Lawsuit Option?
New Jersey automobile insurance policies generally provide two tort options:
- Limitation on lawsuit option, commonly referred to as the “verbal threshold.”
- No limitation on lawsuit option, sometimes called the “zero threshold” or “no threshold” option.
These options are governed by the New Jersey Automobile Insurance Cost Reduction Act, commonly known as AICRA, and are set forth in N.J.S.A. 39:6A-8.
The option selected can affect an injured person’s right to recover noneconomic damages following an automobile accident. Noneconomic damages include compensation for pain, suffering, disability, impairment, inconvenience, and loss of enjoyment of life.
A person who is subject to the limitation on lawsuit option generally cannot recover noneconomic damages unless the accident caused an injury within one of the statutory categories. By contrast, a person who is subject to the no limitation on lawsuit option generally does not need to establish one of those threshold injuries before pursuing pain-and-suffering damages.
The limitation on lawsuit does not prevent an injured person from pursuing all forms of compensation. Rather, it restricts the right to recover noneconomic damages unless the statutory threshold is met.
What Injuries Satisfy the Limitation on Lawsuit Threshold?
Under N.J.S.A. 39:6A-8(a), a person subject to the limitation on lawsuit may pursue noneconomic damages if the accident caused one of the following:
- Death;
- Dismemberment;
- Significant disfigurement or significant scarring;
- A displaced fracture;
- Loss of a fetus; or
- A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
As one can imagine from reading the above categories, most disputed automobile-injury claims involve the sixth category: a permanent injury within a reasonable degree of medical probability.
Automobile Insurance Cost Reduction Act (AICRA) defines an injury as permanent when the affected body part or organ has not healed to function normally and will not heal to function normally with further medical treatment. This does not necessarily mean that the injured person must be completely disabled or unable to work. It means that a qualified physician must be able to conclude, within a reasonable degree of medical probability, that the affected body part has not returned to normal functioning and is not expected to return to normal functioning despite additional medical treatment.
What Is a Certification of Permanency?
When a plaintiff subject to the limitation on lawsuit seeks noneconomic damages based on one of the statutory injury categories, New Jersey law requires the plaintiff to provide a physician’s certification attesting that the plaintiff sustained a qualifying injury.
The certification must state that the plaintiff sustained an injury described under N.J.S.A. 39:6A-8(a) and must be prepared by either:
- The licensed treating physician; or
- A board-certified licensed physician to whom the plaintiff was referred by the treating physician.
The certification must be based upon and refer to objective clinical evidence. That evidence may include appropriate medical testing, but the testing cannot be experimental or depend entirely upon the patient’s subjective response.
A certification of permanency is therefore not simply a statement that the patient continues to report pain. The physician must identify an objectively supported injury and provide the required medical opinion concerning its permanency.
When Must the Certification Be Provided?
Under N.J.S.A. 39:6A-8(a), the plaintiff generally must provide the certification within 60 days after the defendant files an answer to the complaint.
This deadline ordinarily arises after a lawsuit has been filed. Nevertheless, the medical and legal issues surrounding permanency should be evaluated well before litigation begins. Waiting until the deadline approaches may create difficulties if the treating physician has not addressed permanency, the medical records are incomplete, or additional diagnostic testing is needed.
Failure to obtain and serve an appropriate certification may result in motion practice and place the plaintiff’s claim for noneconomic damages at risk. A late or deficient certification does not necessarily produce the same result in every case, but it can create a substantial and avoidable procedural problem.
Does a Certification of Permanency Guarantee Recovery?
No. A certification of permanency is an important statutory requirement, but it does not automatically prove the case or guarantee compensation.
To recover for injuries sustained, the plaintiff must still prove:
- The defendant was negligent;
- The defendant’s negligence caused the accident;
- The accident caused or aggravated the claimed injury;
- The injury is supported by objective medical evidence;
- The injury satisfies the applicable AICRA statutory category; and
- The accident caused the pain, disability, impairment, and other damages being claimed.
The defense may dispute any of those elements. Common defense arguments include that the condition was degenerative, resulted from a prior accident, was not caused by the collision, improved with treatment, or does not prevent the affected body part from functioning normally. The defendant may also retain a medical expert to examine the plaintiff and offer a competing opinion concerning diagnosis, causation, treatment, or permanency.
Why Early Evaluation Matters
A certification of permanency should not be treated as a routine form that can be addressed at the last minute. Whether the limitation on lawsuit applies, whether the medical evidence supports a qualifying permanent injury, and whether the certification satisfies the statutory requirements can significantly affect an injured person’s ability to recover compensation for pain, suffering, disability, impairment, and loss of enjoyment of life.
A properly prepared personal injury claim requires more than collecting medical records and submitting them to an insurance company. It requires early analysis of the applicable insurance policies, careful review of diagnostic testing, coordination with treating physicians, attention to statutory deadlines, and preparation for the defenses that insurance companies routinely raise concerning causation, degenerative conditions, prior injuries, treatment gaps, and permanency.
If you or a loved one has been injured in a New Jersey motor vehicle accident, an experienced personal injury attorney can determine whether the limitation on lawsuit applies, evaluate whether the medical evidence supports a permanent injury, work with the appropriate physicians, and protect your right to pursue the full compensation available under New Jersey law.
At Scura, Wigfield, Heyer, Cammarota & Gonzalez, LLP, personal injury claims are prepared with the understanding that medical proof and legal strategy must work together. The firm carefully evaluates insurance coverage, objective medical evidence, expert opinions, and litigation deadlines from the outset of the case. When necessary, the firm is prepared to challenge insurance-company arguments through expert testimony, motion practice, and trial.
Scura, Wigfield, Heyer, Cammarota & Gonzalez, LLP remains committed to aggressively representing injured clients throughout New Jersey. Injured individuals deserve attorneys who understand the technical requirements of AICRA, prepare cases carefully, and are willing to fight for the maximum recovery permitted by law. At Scura Wigfield Heyer Cammarota & Gonzalez, LLP, we offer free consultations in all personal injury cases and only charge fees if we recover money for you.
