Certification of Permanency

The AICRA statute is clear:

Limitation on lawsuit option.

Every owner, registrant, operator or occupant of an automobile to which section 4 of P.L.1972, c.70 (C.39:6A-4), personal injury protection coverage, or section 4 of P.L.1998, c.21 (C.39:6A-3.1), medical expense benefits coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for noneconomic loss to a person who is subject to this subsection and who is either a person who is required to maintain personal injury protection coverage pursuant to section 4 of P.L.1972, c.70 (C.39:6A-4) or medical expense benefits pursuant to section 4 of P.L.1998 c.21 (C.39:6A-3.1), or who is a person who has a right to receive benefits under section 4 of P.L.1972, c.70 (C.39:6A-4) or P.L.1998 c.21 (C.39:6A-3.1), as a result of bodily injury, arising out of ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment. For the purposes of this subsection, “physician” means a physician as defined in section 5 of P.L.1939, c.115 (C.45:9-5.1).

In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician. The certification shall state, under the penalty of perjury, that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective credible evidence, which may include medical testing, except that any such testing shall be performed in accordance with medical protocols pursuant to subsection a. of section 4 of P.L.1972, c.70 (C.39:6A-4) and the use of valid diagnostic tests administered in accordance with section 12 of P.L.1998 c.21 (C.39:6A-4.7). Such testing may not be experimental in nature or dependant entirely upon subjective patient response. The court may grant no more than one additional period not to exceed 60 days to file the certification pursuant to this subsection upon a finding of good cause.

A person is guilty of a crime of the fourth degree if that person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any certification filed pursuant to this subsection. Notwithstanding the provisions of subsection e. of N.J.S. 2C:44-1, the court shall deal with a person who has been convicted of a violation of this subsection by imposing a sentence of imprisonment unless, having regard to the character and condition of the person, the court is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others. If the court imposes a noncustodial or probationary sentence, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution. Nothing in this subsection a. shall preclude an indictment and conviction for any other offense defined by the laws of this State. In addition, any professional license held by the person shall be forfeited according to the procedures established by section 4 of P.L.1997, c.353 (C.2C:51-5); N.J.S.A. 39:6A-8a.

In Casinelli v. Manglapus, 357 N.J. Super. 398, 417 (App. Div. 2003), the Court explained:

We also note that here, as in Watts and Konopka, physician certifications, albeit untimely, were filed with the court. In reaching our conclusion that, under appropriate circumstances, the doctrine of substantial compliance may be invoked to avoid dismissal, we do not suggest that plaintiff can avoid the statutory requirement that a complying physician certification be filed. Indeed, "[t]he Legislature endeavored to reduce litigation and insurance costs by deterring doctors from filing false reports and did so by requiring a certification in a form to permit prosecutions for perjury." Tierra v. Salazar, 356 N.J. Super. 586, (App. Div. 2002); see also Rios, supra, 354 N.J. Super. at 583 (noting that under penalty of perjury, the physician certification must state that the plaintiff has sustained an injury that satisfies the verbal threshold).

The AICRA statute states: “The certification shall be based on and refer to objective clinical evidence." N.J.S.A. 39:6A-8a.(Emphasis added).

The certification must also be from a competent physician qualified to testify about the objective clinical evidence relied upon. Generally, it is well accepted that a medical expert may only offer opinions based on findings within his expertise. See Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006).

So, for example, chiropractors are not qualified to testify about MRI results pursuant to caselaw and New Jersey’s statutes and Administrative Code. The practice of a chiropractor is statutorily limited to the “adjustments and/or manipulation of the articulations of the spine and related structures.” See N.J.A.C. 13:44E-1.1; N.J.S.A. 45:9-14.5; Bedford v. Riello, 392 N.J. Super. 270 (App. Div. 2007), Thomas v. Carlton Hosiery, 14 N.J. Super. 44 (App. Div. 1951), Pensabene v. Straus, 342 N.J. Super. 196 (Law Div. 2001). Chiropractic medicine does not include the interpretation or administration of MRI scans or studies. Therefore, if you intend to rely on an MRI to establish your permanent injury, you will need a board certified orthopedist, neurologist or surgeon who is qualified to base his opinion on MRI scans or studies.

No Insurance Coverage? No Recovery!

If you get into a car accident and want to sue, your obvious first thought is, “how much can I recover from the person who hurt me?” But you have to make sure you have your own house in order. If you own a motor vehicle that is principally garaged in New Jersey and do not have liability insurance approved by the New Jersey Division of Banking and Insurance, you cannot sue for injuries or other damages suffered as a result of the accident. Furthermore, you could face a fine or suspension.

But, what if you have insurance from a policy issued in another state? You would not be alone in thinking that such coverage would allow you to sue. But, you may very well be culpably uninsured. When determining who is culpably uninsured, courts look to see where the individual’s automobile is registered and/or principally garaged. N.J.S.A. 39:6A-3. An automobile is “principally garaged” in New Jersey if its “physical location” is in the state.

The New Jersey Supreme Court has held that if your vehicle was insured out of state but principally garaged in New Jersey for at least the past four (4) months, that you are culpably uninsured and completely barred from recovering either economic or non-economic damages. Caviglia v. Royal Tours, 178 N.J. 460 (2004). Additionally, you cannot recover for property damage in this situation. Rogers v. Carchesio, 366 N.J. Super. 181 (App. Div. 2004). Now, if you owned a vehicle which you failed to insure, but were a passenger in a vehicle, which was insured, and were injured you will be barred from recovering economic damages. You still may be able to sue for non-economic damage but are subject to New Jersey’s verbal threshold. Martin v. Chabra., 374 N.J. Super. 387 (App. Div.).