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What Kinds of Questions Should New Jersey Permanency Evaluators Ask Petitioners?

An attorney in New Jersey recently asked me a question I have not been asked before, namely whether some permanency evaluators ask too many questions of examinees.  This attorney commented that some of the experts seem to be engaging in discovery with all their questions.  This got me thinking about what permanency evaluators are supposed to be focusing on during examinations.  What kinds of questions are crucial to ask under New Jersey law during a permanency exam?  

In my opinion, a lawyer cannot practice workers’ compensation law very well, and a doctor cannot perform permanency evaluations well, without reading and comprehending the case of Perez v. Pantasote, 95 N.J. 105 (1984).  The Supreme Court in its 1984 opinion explained what the legislature intended after the massive overhaul of the New Jersey Workers’ Compensation Act in 1979.  The law dramatically changed proofs on disability.  This is what the Supreme Court wrote: “First, there has to be demonstrable objective medical evidence of a restriction of a function of the body or an organ. Second, there had to be a reduction to a material degree of an employee’s working ability.”  Then the Court added that even if there is no reduction in working ability, an award for permanency still can be made if “…the injury substantially interferes with other, non work-related aspects of petitioner’s life.”   

What this means is that permanency awards are not about whether someone has a herniated disc after the accident or underwent surgery or had injections.  That type of negotiation ignores what the Supreme Court said.  The law passed in 1979, as interpreted the Supreme Court, focused entirely on these criteria: 1) objective medical evidence; 2) substantial impact on work, or 3) “substantial interference” with non-work activities at the time of settlement.  You can have a herniated disc from an accident and have no problems at work or at home.  If that is the case, there would be no award of permanency.

In an impairment state, (which New Jersey is not), the job of a permanency evaluator is much simpler. The focus is just on the injury and diagnosis (herniated disc, medial meniscal tear, etc.) and on an evaluation of the injured body part. There is no need in an impairment state to ask about impact on work or non-work activities. That doesn’t matter.  Rather, the permanency evaluator generally refers to the AMA Guidelines for Impairment to establish a percentage for a permanency award. New Jersey does not use AMA Guidelines because it is a disability state.  Here is how to think about the difference between impairment and disability states.  Impairment is to disability as high school is to college.  It’s harder to get to the next level.  

Permanency evaluators need to ask questions of the examinee that address the requirements discussed in the Perez decision.  Here are some possible questions:  Have you been able to return to work in your former job or in a new job? Are you able to work a full day or do overtime now? Were you active in sports before the accident?  Are you active now in sports or in going to the gym? Have you had to eliminate or curtail certain activities since the accident? What has been the impact of this accident on your non-work life? In addition, the permanency evaluator in every state must ask questions about past medical history of injuries or accidents to the same body part, including prior or subsequent car accidents, slip and falls, prior or subsequent workers’ compensation injuries, etc.

More questions are better than fewer questions. How does a permanency evaluator do this? There are some very strong medical groups on the respondent side that get this information by asking the examinees to fill out forms in the waiting room.  There is one medical group located in central Jersey working for petitioners’ counsel that gets the information in a different way.  They have a form that has two columns at the top, one for “difficulty” and the other for “no difficulty.”  Scores of major life functions are listed on the left side, and the examinee checks off difficulty or no difficulty in performing life functions, like sitting, lifting, cleaning, etc.  That information is then included in the permanency report.  The important issue is not how many questions are on the intake form but whether the evaluation is addressing the legal test of disability in New Jersey.

Judges are impressed when they read a permanency report that complies with the Supreme Court decision in Perez, especially since some permanency evaluators just regurgitate the medical records sent to them, conduct a physical examination and then provide an estimate without even asking about the impact of the accident on work life or non-work activities.  This is evaluating paper,  not people.  Some permanency evaluators prepare reports without asking or knowing if the employee has a job at the time of the evaluation!

Workers’ compensation has changed immensely since 1979 when the statute was overhauled.  The most significant fact today is that workers’ compensation in New Jersey has become extremely expensive. In the first two decades after the 1979 amendments, rates remained relatively inexpensive. Then rates skyrocketed in the past 10 years.  In 2026 a person with high wages who is out a year will receive over $62,000 in tax free temporary disability benefits.  An award of 50% permanent partial disability will cost a private or public employer nearly a quarter of a million dollars.  Most of those employees are back to work at the time they receive the award.  Medical costs are higher in New Jersey than in any other state.  These trends underscore why it is so important that permanency evaluators pay close attention to how the Supreme Court defined disability in New Jersey over 40 years ago.

Plaintiff’s Personal Injury Lawsuit From Auto Accident Barred Due to Her Failure to Provide a Timely Certification of Permanency

Plaintiff Renee Ransdell was involved in an automobile accident with defendant Shari Waldron in January 2018.  At the time of this accident, plaintiff had an automobile insurance policy which subjected her to the limitation on lawsuit threshold, requiring her to prove a permanent injury to recover damages for her noneconomic loss (i.e., her pain and suffering).  The issue in Ransdell v. Waldron, 2024 N.J. Super. Unpub. LEXIS 2677 (App. Div. Oct. 30, 2024) was whether plaintiff’s claim was barred due to her failure to submit a timely certification of permanency and expert report to establish a permanent injury under the pertinent auto insurance statute, N.J.S.A. 39:6A-8(a).

 Plaintiff contended that she suffered a head injury, leading to a hearing loss, as well as spinal injuries from this accident.  Discovery in this case closed in September 2021. Plaintiff failed to provide any expert reports or expert opinions that her injuries were permanent and causally related to the accident during the discovery period.

The matter was arbitrated in March 2022, but plaintiff timely filed for a trial de novo and a trial was set for November 2022.  Before trial, the defendant filed a motion for summary judgment, which was to be heard on September 23, 2022.  Plaintiff requested consent to carry the motion until November 18, 2022, and the trial until February 13, 2023.  The defense counsel did consent, upon the proviso that it was to give plaintiff an opportunity to respond to the motion, and not to provide plaintiff with the opportunity to provide new and additional discovery. 

Nevertheless, plaintiff attached to her opposition to the motion for summary judgment, an “affirmation” by Dr. Rahul Sood, stating that he was one of her treating physicians. She also attached notes from an October 18, 2022, visit with him.  The treatment portion of this report provided an opinion that her symptoms were causally related to this automobile accident with a reasonable degree of medical probability.  He also stated that her prognosis was guarded. Further, plaintiff submitted a certification of permanency provided by Dr. Sood. 

The trial court granted the motion for summary judgment, ruling that plaintiff failed to meet her burden under the statute.  The court noted that plaintiff’s failure to produce a timely certification of permanency was not fatal to her claim.  However, plaintiff did not timely provide any medical expert report or narrative report as required under the court rules.  Further, the trial court noted that plaintiff failed to move the court to reopen discovery and failed to attach a certification of due diligence to the belated certification of permanency.   

This appeal followed.  Plaintiff argued that the certification of permanency from her treating doctor did comply with the New Jersey statute, N.J.S.A. 39:6A-8(a).  Further, plaintiff argued that the case should be remanded so her new attorney could remedy the errors of her prior counsel.

The Appellate Division noted that the trial courts have broad discretion to establish discovery deadlines.  Generally, the Appellate Division will defer to a trial court’s disposition of discovery unless it finds that the trial court has abused its discretion.  The admission or exclusion of expert testimony is “committed to the sound discretion of the trial court.” 

The Court noted that under New Jersey auto insurance law (referred as AICRA), if the plaintiff has selected the limitation on lawsuit threshold option, a claim for a non-economic loss is only permitted where the injured party has suffered a bodily injury which results “in a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. . . .”  It requires that the plaintiff file a certification by a physician attesting “under the penalty of perjury that the injury satisfies one of the threshold categories.” 

Further, this law requires a plaintiff to provide within sixty days of the answer (to the complaint) a certification from a physician, stating that the plaintiff’s injury is permanent and is based on and refers to objective clinical evidence.  The focus on objective evidence is to prevent lawsuits based only upon a plaintiff’s subjective reports from proceeding.  Further, the Court noted that a court can grant no more than one additional period, not to exceed sixty days, to file the certification.  If the plaintiff fails to timely file a certification, plaintiff would be subject to “an array of sanctions that include reimbursing the defendant with reasonable attorney’s expenses or dismissal of the complaint.”  The court is to “choose a response that is proportionate to the procedural stimulus after considering the facts.”

In applying the standard in this case, the Appellate Division was not persuaded that the trial court made a mistake in granting defendant’s motion for summary judgment.  It noted that the plaintiff had failed to provide any expert reports by the end of the discovery period, before the arbitration was held, before defendant filed a motion for summary judgment, before the initial return date of the motion or before the initial trial date that had been scheduled.  Rather, she submitted an untimely expert report from a previously unnamed expert over one year after the end of discovery in opposition to defendant’s motion for summary judgment.

The Appellate Division further noted that under the court rules, specifically
R. 4:23-5(b), a court may exclude the testimony of a treating physician whose report is not furnished pursuant to the court rules when it is demanded. Rule 4:17-7 requires that amendments to Answers to Interrogatories must be served no later than twenty days prior to the end of the discovery period and “may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.”  Without a certification of due diligence, any late amendment must be disregarded by the court and adverse parties.

In considering these rules, the Appellate Division found that plaintiff’s untimely submission of her expert report, as an exhibit to her opposition to defendant’s summary judgment motion without a certificate of due diligence or a motion to open discovery, did not comply with the pertinent court rule (R. 4:17-7).  The Court agreed with the trial court that “the uncontroverted sequence of events indicates dismissal was the appropriate remedy.”  This certification of permanency was only sought by the plaintiff’s former counsel in response to the motion for summary judgment, well after the discovery end date.  Plaintiff failed to file a motion for good cause to extend the time for filing as permitted by the statute.

Hence, the Appellate Division agreed that under the circumstances and considering the substantial prejudice to defendant, “the trial court was well within its discretion to disregard the certification of permanency and consider it outside the scope of the record upon which summary judgment could be granted.”  Therefore, the Appellate Division affirmed the trial court’s decision in granting summary judgment and dismissing the complaint. 

Plaintiff’s Loss of Balance May Satisfy the Permanency Requirement of the Tort Claims Act

Plaintiff Berta Abreu Flores was injured as a result of a collision by the defendant North Hudson Regional Fire & Rescue Department’s fire engine.  During a training exercise, the fire engine crossed the road and struck the front of her residence opposite the fire house where plaintiff was working on the first floor.  She claimed an injury from the accident, including a hearing loss, shoulder injury, and a loss of balance.   The issue in Flores v. North Hudson Regional Fire & Rescue, 2023 N.J. Super. Unpub. LEXIS 1928 (App. Div. Oct. 27, 2023) was whether the plaintiff’s injuries satisfied the substantiality and permanency of the Tort Claims Act verbal threshold under N.J.S.A. 59:9-2(d).

At the time of the accident, plaintiff was operating a tax preparation business out of the first floor of the residence.  While she was working, the defendant fire company was conducting a training exercise at a fire station.  The fire engine crossed the road, struck the front of the residence where she was working, and the impact damaged the building’s support columns.  While plaintiff was speaking with one of her employees, the employee saw the wall coming down.  She yanked plaintiff from her chair by her right arm. 

After plaintiff was pulled from her desk, she immediately began to have pain on the left side of her head.  She noted fragments of glass that were in her hair and a lump in her head.  She was taken to a local emergency room where she reported pain in her left side, head, and shoulder and dizziness.

She continued to experience pain in the weeks following the accident but did continue to work until the end of the tax season.  She has not worked since that time. 

About four months after the accident, plaintiff went to an audiologist with complaints of “hearing loss, dizziness, nasal congestion, and difficulty maintaining her balance.”  The audiologist tested her and found that plaintiff had decreased hearing in both ears and injury to her brain stem.  He further diagnosed her with a loss of balance.  He attributed the hearing deficits and loss of balance to the incident.  Plaintiff tried to take Lasix for the dizziness but the drug’s side effects caused kidney damage and it had to be discontinued.  After that drug was discontinued, plaintiff’s loss of balance worsened.  Although her hearing problems persisted to some extent, she did not obtain hearing aids. 

She also sustained injury to her right shoulder and treated with an orthopedist who diagnosed her with a tear of the supraspinatus tendon.  After physical therapy failed to resolve her shoulder symptoms, she underwent an arthroscopic rotator cuff repair.  She continued to have post-surgery about a 10% loss of full function in her right shoulder.

Plaintiff filed a lawsuit against the fire department and two of its employees as a result of the accident.  She claims that the defendants were negligent in causing the accident. 

Following the completion of discovery, defendants filed for a summary judgment to dismiss the plaintiff’s claims of pain and suffering.  Defendants argued that her post-accident medical problems were not substantial and permanent, as required under the Tort Claims Act, N.J.S.A. 59:9-2(d), to pursue a claim for pain and suffering.  In the opposition to the motion, the plaintiff attested to her balance and hearing problems.  In particular, she noted that she was losing her balance at least twice each day on average and had fallen recently. 

Nevertheless, the trial court judge granted summary judgment to the defendants.  He found that the plaintiff’s medical experts did not show that the damage to her hearing loss was substantial.  He found that she did not require a hearing aid and she was still able to return to work.  She was also able to finish the tax season.  As for her right shoulder, the trial court judge found that plaintiff had not shown by objective medical evidence that the injuries resulted in a loss of bodily function that was substantial.  However, he did not comment on her imbalance problems.

This summary judgment dismissal was appealed to the Appellate Division.  The Court noted that under the Tort Claims Act verbal threshold provision, for the plaintiff to obtain a monetary award, plaintiff must prove a “permanent loss of a bodily function, permanent disfigurement or dismemberment.”  Under New Jersey case law, the courts have construed this provision to require that the claimant suffer an “objective” permanent injury or disfigurement that is “substantial.” 

Thus, the courts have set up a 2-prong standard in evaluating whether the plaintiff’s injuries constitute a permanent loss of bodily function.  First, the plaintiff must prove that there is an objective medical evidence of a permanent injury and then, second, plaintiff must prove that there is a permanent loss of a bodily function that is substantial.

In reviewing the record, the Appellate Division agreed that the plaintiff’s shoulder injury and hearing loss claim did not vault the verbal threshold.  The trial court judge found from the medical evidence that plaintiff’s shoulder injury had been effectively resolved through surgery.  The 10% estimated residual limitation on her shoulder functions was not sufficiently “substantial” to qualify to the statute.  Further, she had not prevented sufficient evidence that her post-surgery shoulder condition had substantially restricted her daily life activities. 

The Appellate Division found that a closer question was whether the plaintiff’s hearing loss claims vaulted the threshold.  Again, however, the Appellate Division agreed with the trial court that it was not sufficient.  It noted that none of the plaintiff’s expert had expressed a numerical value as to the plaintiff’s diminution of hearing.  Further, it did not rise to the level to be a substantial limitation on her daily life activities.  It was not severe enough for plaintiff to obtain the aid of a hearing device.  Further, plaintiff admitted that, with attentiveness, she was able to engage in normal conversation with others. 

However, the Appellate Division reached a different conclusion with respect to the plaintiff’s ongoing deficits of balance.  Her medical documentation did establish that she has suffered significant problems with her balance, as often as twice per day.  The Court concluded that plaintiff’s frequent and persistent loss of balance post-Lasix presented a genuine issue of material fact under the Tort Claims Act.  Thus, it reversed the summary judgment.

When the case is tried, the Court noted that the jury verdict’s form should contain a specific inquiry concerning the loss of balance.  If that loss is found by the jury to surmount the threshold, then plaintiff’s other injuries caused by the accident could also be compensated.

Hence, the Appellate Division reversed the trial court’s decision and remanded it back for further proceedings.

Court Finds That Minor’s Left Elbow Fracture May Meet Permanency Requirement of Tort Claims Act

Plaintiff T.R.C. through his guardian ad litem Ada Cardenas filed a personal injury complaint against defendants, Harrison Board of Education, Harrison In District Day School, and the Town of Harrison due to an injury in the preschool program at the Harrison In District Day School.  The minor plaintiff, while playing on the playground equipment, fell and fractured his left elbow.  The issue in Child T.R.C. v. Harrison In District Day School, 2023 N.J. Super. Unpub. LEXIS 1797 (App. Div. Oct. 18, 2023) was whether the minor’s injury qualified as a “permanent loss of bodily injury function,” as required by the Tort Claims Act to be able to sue for pain and suffering.

The injury happened while the minor and his classmates were at a playground near the school during recess.  The minor fell from a platform, landed on his left arm and suffered a left elbow injury.  He underwent surgery to repair a displaced lateral condyle fracture in his left elbow which required the placement of two pins.  After the surgery, his arm was in a long arm cast for five weeks, after which the pins were removed.  He then underwent a year of physical therapy.

At the conclusion of discovery, the defendants filed a motion for summary judgment, arguing that the minor had not suffered a permanent loss of bodily function.  The trial court agreed with the argument and dismissed the complaint.  This appeal ensued.

The Appellate Division noted that under New Jersey law, to recover for pain and suffering under the Tort Claims Act, “a plaintiff must show (1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial.”  For purposes of the summary judgment motion, the trial court had assumed that the minor plaintiff had presented objective medical evidence of a permanent bodily injury under the first prong.  The issue was the second prong and whether the plaintiff’s injuries were considered “substantial.”

Here, the testimony was that the minor plaintiff could no longer participate in gym class because of this injury.  He could no longer write using his left arm.  He was unable to partake in his favorite pastimes such as playing sports, playing with his friends and playing at the playground.  He is unable to dress himself.  Further, the minor’s father testified that he was embarrassed about his scars and that he now eats with his right hand instead of his left.

The plaintiff provided expert testimony that concluded more likely than not that the minor had sustained a permanent injury that will have a permanent residual sequelae. The minor also presented a plastic surgery expert, reporting that the minor’s left elbow had several scars, including the larger one which was 5 cm. by 1 cm.  He also had three smaller scars that were all hypopigmented.  The plaintiff’s plastic surgeon expert opined that the scars were permanent in nature.

The defendants presented an orthopedic defense expert who opined that the plaintiff did have some permanent losses, including scars about the lateral elbow with a loss of range of motion of about 10% and a loss of grip strength.

Based upon these facts, the Appellate Division found that the plaintiff had raised a genuine issue of material fact as to whether he sustained a permanent loss of bodily function that is substantial.  It was undisputed by the defendant’s orthopedic expert that the plaintiff still had a 10 degree decreased range of motion in his elbow, along with reduced grip strength in his left hand.  This limitation along with his alleged inability to dress himself, participate in gym class, participate in sports and write with his left hand created a legitimate fact issue as to whether the plaintiff had met the permanency threshold.  Given the plaintiff’s young age, his significant life expectancy, and the genuine prospect that he may face a lifetime of limitations for these permanent residuals, the Court held that “a jury could find plaintiff demonstrated a permanent loss of bodily function that is substantial.”

Further, the Appellate Division noted that the trial court had not sufficiently addressed the plaintiff’s scarring.  The plaintiff had argued that the scars constituted a permanent disfigurement.  However, there was no indication as to whether plaintiff provided the court with photos of the scar or have plaintiff appear before the court so as to give the judge an opportunity to observe the scars.

The Appellate Division noted that a permanent disfigurement could qualify as a permanent injury under the Tort Claims Act but the scar “must impair or injure the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, or deforming them in some manner.”  Thus, the Court held that, upon remand, the plaintiff shall brief the issue and provide the trial court with photos or an opportunity to view the scars in person so the record may be properly developed.  The trial court would then be in a position to perform the requisite analysis under the applicable case law to determine whether the minor plaintiff’s scars constituted a permanent disfigurement.

Based upon all the facts, the Appellate Division reversed the trial court decision and remanded it back to the trial court.  The Court found that, for purposes of summary judgment, plaintiff had demonstrated a material factual dispute as to whether his elbow injuries met the requirements of the Tort Claims Act so as to permit him to pursue a pain and suffering claim.

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