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Tuesday, February 26, 2008

Verbal Threshold

If verbal threshold satisfied, entire case goes to jury Gerber v. Springfield Bd. _____ NJ Super. _____(A-6662-97T1, decided February 3, 2000)
For purposes of summary judgment, plaintiff established that one of her injuries met the tort threshold for pain and suffering under N.J.S.A. 59:9-2(d). Despite the fact that other elements of her claim were insufficient to independently satisfy N.J.S.A. 59:9-2(d), once plaintiff established that any of her injuries met the tort threshold, her case as a whole must be presented to the jury.

Limitation on Lawsuit Threshold

What is the Limitation on Lawsuit Threshold/Verbal Car Insurance Law? -It Prohibits Citizens without permanent Injuries From Recovery of Medical Deductibles and Injuries Against Drunk & Careless Drivers

Compiled by Kenneth Vercammen, Esq. from materials supplied by ATLA and other consumer organizations The car insurance laws have changed dramatically. You now have to make an important decision to protect you and your family. The new law requires your insurance company to send you a form where you choose between two types of auto insurance. One is called "No Limitation on Lawsuit option or No Threshold". The other is called "Limitation on lawsuit option or Lawsuit/ Verbal Threshold".

The insurance companies want you to choose the Limitation on lawsuit/ Lawsuit Threshold so they can make more money. What they don't want you to know is that Limitation on lawsuit/ Lawsuit Threshold limits many of your rights. With Limitation on lawsuit/ Lawsuit Threshold if you were injured in an accident caused by a drunk or reckless d river, you would not be compensated unless you suffered such injuries as death, dismemberment, disfigurement, fracture or permanent lifelong injuries.

Under the No Limitation on Lawsuit option or No Threshold, you will retain your Constitutional Rights to a jury trial if you are injured in a car accident. You may bring a claim against a driver who injures you, and be compensated for your pain, lost wages and suffering.


What you don't know about your automobile insurance can hurt you. The following important information on automobile insurance law will explain that you may already have given up your right to make a claim or sue for damages. The purpose of the law which affects all New Jersey policy holders and their families, is to change choices. We recommend no threshold and suggest you write to your insurance company immediately.

"Limitation on Lawsuit Option/ Verbal" threshold costs less than no threshold, but the reduction in cost limits your legal right to make a claim or file a lawsuit to recover money for pain and suffering if you or members of your family are injured in an automobile accident.

Q. What is the "limitation on lawsuit option"?

A. The lawsuit limitation option (also known as the verbal threshold) limits your legal rights to make a claim for monetary damages or to file a lawsuit against a careless driver unless you sustain one of the following types of injury.

Type 1 - Death Type 2 - Dismemberment Type 3 - Significant disfigurement or scarring Type 4 - Displaced fracture Type 5 - Loss of a fetus Type 6 - Permanent injury

A permanent injury occurs when a body part has not and will not heal to function normally. WE RECOMMEND THAT YOU DO NOT ELECT THE "LIMITATION ON LAWSUIT OPTION." The injury must be established by objective medical finding such as the doctor's observation of the physical injuries, x-ray, CT-scan, myleogram and MRI, and if such objective evidence is not found, then I cannot successfully prosecute a claim for non-economic loss. You must agree to assist your attorney in obtaining medical records and reports in connection with a Limitation/ Lawsuit/ Verbal Threshold case.

Q. What is the "no limitation on lawsuit option"?

A. The no limitation option (also known as "no threshold") permits you to make a claim or to file a lawsuit against a careless driver for any and all personal injuries. WE RECOMMEND THAT YOU ELECT THE "NO LIMITATION ON LAWSUIT OPTION."

Q. What happens if I choose the Lawsuit Threshold and my injuries are not included in one of the 6 types?

A. You are not permitted to make a claim or file a lawsuit to recover money for pain and suffering. For example, if you injure your neck back head, arms or legs, but the injury is not permanent or your use is not significantly limited, you can't sue or even make a claim for an out-of court settlement even though your in jury required medical treatment and caused you pain and suffering.

Q. Who benefits when I am not able to make a claim or sue?

A. Careless drivers who cause accidents have no responsibility for the injuries they cause. Their insurance companies profit because they do not have to pay money to injured persons.

Q. If I choose the Lawsuit Threshold, am I the only one who can't make a claim or sue?

A. No. Lawsuit Threshold coverage applies to your spouse and any children living with you who do not have their own automobile insurance coverage. They also lose the right to sue or even make a claim.

Q. My other coverage choice, No Threshold, what is it?

A. No Limitation/ No Threshold protects your right to recover money for pain and suffering no matter what the injury.

Q. How do I choose the type of coverage I want for myself and my family?

A. When you renew or purchase an automobile insurance policy, your insurance company will provide you with a coverage selection form. You can also contact your insurance company immediately and pick No Threshold. If you need assistance, please schedule an appointment with Ken Vercammen to discuss you rights.

If, at the time of your insurance renewal, if you fail to choose NO LIMITATION/ NO THRESHOLD, you will automatically be given the LIMITATION/ LAWSUIT THRESHOLD. With the LIMITATION/ LAWSUIT THRESHOLD you will not be fully protected against a careless driver who hits you.

If you want to fully protect yourself from a negligent driver who injures you, choose NO THRESHOLD. Don't be fooled into false savings. Know what your rights are before you sign them away.

Please feel free to call Kenneth Vercammen, Esq. to schedule a for free in office consultation.. 732-572-0500

Relevant caselaw and legal argument successfully used in prior cases:


KENNETH VERCAMMEN & ASSOCIATES, PC 2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500 Attorney for Plaintiff,


N.J.S.A. 39:6A8 requires plaintiff to prove his/her injuries fall into at least one of six categories as set forth in the statute. The plaintiff's injuries fulfill the requirements of #6 of the categories. Specifically enumerated:

Type (6) Permanent Injury. It is plaintiff's contention that a serious and significant injury was indeed suffered as a result of the accident. The Supreme Court case of Oswin v. Shaw, 129 N.J. 290 (1992) originally set forth that plaintiff's who can show objective evidence of injury and disability that fit the statutory definition of "serious injury" will be considered to have made out a prima facie case of "serious injury". Oswin Supra. at 318. Plaintiff's attached certification also describes plaintiff's subjective complaints and limitations. The Doctor has reviewed this Brief and is incorporating the following by reference. Plaintiff has significant limitations of both the cervical and dorsal ranges of motion as set forth herein above. There is tenderness and spasms in both plaintiff's cervical musculature and lumbar spine upon palpation. The plaintiff will experience recurring episodes of pain and weakness in the future following lifting, bending and stretching for any length of time. As the plaintiff's work and home life require such lifting, bending and stretching, she continues and will in the future continue to suffer pain and weakness in performing these necessary movements.

The Appellate Division in Owens v. Kessler 272 NJ Super. 225 (App. Div. 1994) held that a spasm is an objective manifestation of injury and summary judgment for defendants should not have been granted in this verbal threshold case since plaintiff's medical expert's report, showing continued evidence of spasm after cessation of medical treatment, clearly constitutes prima facie objective evidence of permanent injury or at the very least raises a genuine issue of material fact. In Owens the motion judge erred in inferring that not having neurological treatment diminished the veracity of plaintiff's claim in the absence of medical opinion to support that inference; plaintiff's uncontradicted claims that the injuries rendered him unable to continue to participate actively in sports and interfered both with the only jobs he was able to secure and with his pursuit of a high school diploma warranted submission to a jury with respect to whether the claimed disability had a serious impact on his life. The motion judge failed to properly evaluate the medical proofs in accordance with the standard mandated by Rule 4:62-2. In Brown v. Puente, 257 N.J. Super. 203 (App. Div. 1992), the plaintiff was on summer vacation after his junior year in high school when he injured his neck and back in an automobile accident. Two years after the accident, he continued to complain of daily headaches, stiffness and chronic pain. His doctor reported evidence of limitation of motion accompanied by marked tenderness, muscle spasm and pain. He concluded that the injuries were of "a permanent nature especially since they have lasted as long as they have after the accident and course of intensive physical therapy." The Appellate Division found that the report of the plaintiff's doctor supported "an objectively determined substantial limitation of motion." In addition, the court found that the plaintiff established that the injuries had a substantial impact on his life. He certified that he had to give up high school athletics due to severe chronic pain and that he had difficulty managing as a college student since he was unable to sit or study for long periods of time. Accordingly, the court denied the defendant's motion to dismiss the complaint. In Dabal v Sodera 260 NJ Super. 397 (App. Div. 1992), the plaintiff sustained injuries to her neck and back. She was treated with a variety of modalities. She was examined by medical expert Dr. Morris Horwitz, a certified disability claim evaluator, two years after the accident. Dr. Horwitz found a derangement of the cervical and lumbar spine with limitation of motion. Dr. Horwitz in Dabal diagnosed a cervical hyper acceleration injury, lumbosacral sprain and diffuse cervical and lumbar myositis. He concluded the injuries were permanent. The Appellate Division in Dabal found that the plaintiff satisfied the objective standard by providing an expert's report with credible evidence of objective findings. The court found that the plaintiff also satisfied the subjective standard of "serious impact" on her life. The plaintiff stated that she cannot sit or drive more than 25 minutes and cannot sleep without pain. In addition, she said that dancing had been an important social activity in her life and that she has been unable to dance since the accident. At the outset, the Appellate Division clarified "the perspective from which a trial judge must consider a defendant's verbal threshold summary judgment motion" and noted that the "judge is not to make a pre-trial determination of such factual issues." The court in Dabal noted that the plaintiff was unable to participate in a primary social activity as a result of her injuries. The court stated:

"We do not view that assertion as expressing a trivial concern to her, if, indeed, dancing had been important to her and if, her injuries have deprived her of the ability to pursue that activity. Obviously what constitutes a deprivation having only a minimal and inconsequential life-affecting impact on one person may have a serious impact on another person."

As a result, the court held that the plaintiff's injuries had a "serious impact" on her life because she was unable to engage in "social or recreational activity which had been a significant and important component of [her] way of life." In Foti v Johnson 269 NJ Super. 198 (App. Div. 1993), Judge Pressler wrote for the court that the plaintiff met the verbal threshold with production of objective medical evidence that a back injury aggravated a pre-existing condition. When an automobile is struck from the rear, it is abruptly accelerated in a forward direction. The force and suddenness of such an impact upon the occupant of a vehicle so struck, causes the neck to hyper extend beyond its normal range of motion. The occupant's head is caused to strike the back of the seat and then almost instantly is jolted in the reverse direction or forward in flexion due to tissue elasticity and the deceleration of the car. This sudden hyperextension occurs within the first one quarter of a second following impact, so rapidly that the normal protective reflex mechanisms cannot function. In rear end collisions, injury results from the relative acceleration of the head and trunk of the occupant, and the degree of injury is independent of the rate of acceleration of the car. Significant discomfort may be delayed for at least 24 hours following the accident. The patient's complaints may include neck discomfort, or the pain may be experienced only in the shoulder or in the arms or in the back of the head. Pain may be referred to the interscapular region or to the suboccipital region. Headaches are common. In hyperextension injuries to the neck, there is no prevention of movement until the head hits the chest wall, and this is beyond the physiologically permitted limit. Because the permitted physiological range of extension is very short when the neck is slightly rotated, the posterior joints can soon be pushed beyond the physiological range, and injury results from extension strain. Subsequent pain causes the muscle supporting the injured area to go into spasm in an effort to immobilize the area as a protective mechanism from further aggravation and injury. When ligaments and tendons have been torn, stretched or ruptured, adhesions will develop at the site of attachment. When connective tissue is injured, it is replaced by scar tissue which does not have any elastic properties or the mobility of the previously uninjured tissue. The formation of scar tissue then causes a loss in the normal range of motion which is demonstrated on neurological and orthopedic testing. The patient is subject to episodes of remission and exacerbations caused by various aggravations. Due to the mechanism of trauma induced injury there is a general weakening of the supporting soft tissue structure. A number of long term studies have indicated that pain with no evident physical cause persists in 20% to 45% of patients with significant cervical injuries. Xray studies demonstrate that degenerative problems develop after injury in 39% of patients, whereas by comparison, only 6% of the general population over the age 30 develop degenerative changes over a comparable time. Thus it appears obvious that cervical injuries predispose patients to cervical degenerative osteoarthritis. Additional studies have shown that persistent upper extremity pain, numbness, interscapular pain, cervical curve reversal or one level of localized restricted cervical motion, as early findings, have been associated with long term disability.


In Oswin v. Shaw, Supra. at 307 the Supreme Court stated:

"We choose to follow the N.Y. approach and apply the Summary Judgment model to verbal threshold determinations." The role of the Judge in summary judgment procedure is to determine whether there is a genuine issue as to a material fact, but not to decide the issue if he finds it to exist". Judson, Supra, 17 NJ. at 73 (emphasis added)."

The Oswin Court continued at 307 :

"The verbalthreshold determination consists of two questions. (1) Whether under any view of the plaintiff's injuries they can be said to fall within at least one of the nine categories the New Jersey's statutes specifies, and ( 2 ) If so, whether the evidence before the court on Motion for Summary Judgment demonstrates a material dispute of fact regarding the nature and extent of the plaintiff's injuries". In Arencibia v. Rosas 270 N.J. Super 339 (App. Div. 1994), the court wrote that electro-magnetic and nerve-conducting tests, as well as x-rays, may provide the needed objective evidence required under Oswin to satisfy the verbal threshold. On September 21, 1989, plaintiff was a passenger in an automobile owned by Hector Rosas and driven by her then boyfriend, now husband, defendant Julian Rosas, in North Bergen, when it struck the rear of an automobile, owned and operated by defendant Catherine Ulrich, that was stopped at a red light. The arbitrator found Julian Rosas 100 percent liable and Catherine Ulrich 0 percent liable. Plaintiff's damages found to be $17,500.00. Rosas requested a trial de novo. Plaintiff's injuries satisfy category seven: "permanent consequential limitation of use of a body organ or member" or category eight: "significant limitation of use of a body function or system." N.J.S.A. 39:6A-8a. The medical evidence shows that plaintiff has satisfied the verbal threshold requirements as delineated in Oswin. Dr. Bravo, a neurologist, found limited range of motion in plaintiff's neck, along with moderate to severe spasm of the thoracic and lumbar areas of spine. Spasm is an objective form of evidence. Id. at 320. However, the record shows much more. Dr. Bravo also noted in his final report of September 27,1990, that plaintiff's "EMG and NCV of the left upper limb and retrocollic area were abnormal, indicating a radiculopathy with involvement of posterior rami." Likewise, Dr. Marsh found objective evidence that plaintiff's ranges of motion "were compromised." He stated that plaintiff had deep and superficial spasm of the cervical, thoracic and lumbosacral sections of the spine. He also reported that x-rays of the cervical spine revealed "reduction of the neutral lateral curve." These x-rays also indicated "marked subluxation with sprain." Under Oswin, x-rays may provide the needed objective evidence, Arencibia v. Rosas, supra. Another neurologist, Dr. Dasika found a 30 percent limitation of movement of the cervical and lumbosacral sections of the spine. Plaintiff continues to take the pain medications that Dr. Dasika prescribed for headaches and pain, Arencibia v. Rosas, supra. All of plaintiff's treating physicians concluded that plaintiff's injuries were sustained in the automobile accident of September 21, 1989, and found permanency or significant limitation caused by plaintiff's injuries, Arencibia v. Rosas, supra. In Cineas v. Mammone, 270 N.J. Super. 200 (App. Div. 1994), the plaintiff sustained injuries to his neck and back and was treated by an orthopedist, neurologist, psychologist, and an internist. Each of the doctors found objective evidence of muscle spasm and loss of motion and concluded that the injuries were permanent and disabling. In addition, the plaintiff claimed a significant impact on his life including a limitation of overtime work, household chores and sexual relations. The court found that the plaintiff provided medical reports from four treating doctors that showed decreased range of motion and spasm. Accordingly, the court held that plaintiff presented credible, objective medical evidence sufficient to establish a significant limitation of use under type 8. The court noted that the record contained conflicting medical reports because a defense orthopedist and psychiatrist found only minimal residual evidence of a mild soft-tissue injury. Nevertheless, where there is a disputed issue of fact, the plaintiff must be afforded the opportunity to present his or her evidence to the finder of fact. As recognized by the Oswin Court, nature and extent of a plaintiff's injuries are questions of fact properly reserved for the jury.

"We hold that the Court should decide only the legal issue of whether a plaintiff's alleged injuries, if evidence thereof is to be believed, would meet the verbal threshold, and we allocate the determination of the nature and extent of the plaintiff's injuries to the jury when the plaintiff shows by credible, objective medical evidence the existence of a material dispute of fact. Oswin, Supra at 322

The plaintiff was shown that a material dispute of fact indeed exists. Furthermore, it is well settled in this state that "Motions for Summary Judgment are granted only with much caution and where there are genuine disputed issues of fact, they must be resolved at a plenary hearing" Shandel v. Shell Oil Co., 195 N.J. Super. 311 (Law Div. 1984). The conflicting expert reports certainly constitute a genuine disputed issue of fact. "On motion for summary judgment, it is movant's burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact and all inferences of doubt are drawn against movant in favor of opponent. Only when it is palpably disclosed that there is no genuine issue of fact and that movant is entitled to judgment as matter of law should such motion be granted" Selzer v. Isaacson, 147 N. J. Super 308 (App. Div. 1977). If all inferences of doubt are to be drawn against the moving party, then defendant's motion for summary judgment must be denied. In Moreno v. Greenfield, 272 NJ Super 456 (App. Div. 1994), the Appellate Division noted that "we have not lost sight of the fact that this evidence was presented at a Summary Judgment motion when all favored inferences must be granted to the plaintiff." Rule 4:46-2, Judson v. Peoples Bank and Trust of Westfield, 17 N.J. 67,75 (1954). The Court in Brill v Guardian Life 142 NJ 520 (1995) still requires the Court to review all evidence, not to just dismiss cases as the defense suggests. In Moreno the court noted that, "We will, however, independently examine plaintiff's proofs and pass on this issue. In doing so, we must view plaintiff's activities as she participated in them prior to the accident. We do not treat plaintiff's as fungible commodities." The plaintiff Moreno was an active twenty-two year old who set forth in her certification certain things that she cannot perform including dancing and aerobics. The court noted that each of these difficulties in themselves appear relatively minor, especially when viewed by judges of a different generation. Yet we can appreciate that in the aggregate plaintiff has described loss of a segment of her youth. The total picture is more of a person of middle age rather than a young woman of twenty-four. Her continuing efforts to continue as close to a normal life style as she can, even in the face of back pain associated with her proven physical injuries, should not disqualify her claim. A jury should find that the totality of the disability from the accident has a "serious impact on the plaintiff's life," quoting Oswin v. Shaw, 192 N.J. at 319, Moreno Slip Op at 9-10. In Cavanaugh v. Morris, 273 NJ Super 38 (App. Div. 1994), the court noted in sum, a complaint alleging a permanent soft tissue injury survives a defense motion for summary judgment if the four propositions are met. The court in Cavanaugh noted that the report of continuing spasm long after the accident meets Oswin's objective medical-evidence requirements. The court noted the legislature's verbal threshold scheme patently did not intend to excluded all soft tissue injuries. The trial courts must carefully scrutinize plaintiff's proofs offered in opposition to a summary judgment in the light of Oswin and subsequently developing jurisprudence fairly to determine whether the claim for non-economic loss may continue. The court again reversed and remanded the granting of summary judgment.

___________________________ write in name of patient Plaintiff,




Civil Action


I ______________________________ (physician) certify that: 1. I am a permanent resident of this State and a physician licensed to practice medicine in the State of New Jersey. I am and have been in the actual practice of ___________________ since __________, which includes my residency training. I graduated from _______________________ and have been licensed in New Jersey for ______ years. 2. I am a licensed physician as defined in N.J.S.A. 45:9-5.1. 3. I am the licensed treating physician to the Plaintiff or a board certified licensed physician to whom the Plaintiff was referred by the treating physician. Any opinions set forth herein are within a reasonable degree of medical probability. 4. The Plaintiff, as a result of a motor vehicle accident on _____________ sustained the following injury: (give diagnosis) ______________________________________________.

5 I am not a relative either through blood or marriage of the patient/plaintiff. 4. My opinion is based upon the circumstances and examination of the patient, plus a history of the condition. 5. I last examined the patient on _____________ and determined the following clinical conditions: __________________________________________________________ ____________________________________________________________________________ _____________________________________________________

6 Such injury has resulted in permanent injury. Permanent injury which means a body part or organ or both has not healed to function normally and to medical probability will not heal to function normally with further medical treatment. 7. This certification is based upon the following objective clinical evidence: ____________________________________________________________________________ ____________________________________________________________________________ _ 8 Any testing referred to above is not experimental in nature or dependent entirely upon subjective patient response.

I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

Date: _______________________ ___________________________________ (physician's signature)


I CERTIFY that on ___________________________, 2004 the doctor personally came before me and acknowledged under oath, to my satisfaction, that this person (or if more than one, each person): (a) is named in and personally signed this document; and (b) signed, sealed and delivered this document as his or her act and deed.

------------------------------------------------------ Notary Seal

KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030

Associate Editor: Ernest Fantini