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A Plaintiff’s Complaints of Pain Without an Objectively Permanent Injury Fails to Meet the Verbal Threshold

In January, 2019, Plaintiff Martchela Popova-Mladenov was injured in a motor vehicle accident when Defendant Jason Coigne swerved into her lane on I-295 in Mount Laurel, causing her to hit him. She complained of neck pain, but she chose not to go to the ER. A month later, complaining of lower back pain, a doctor took an X-ray, which showed “mild degenerative disc disease.” She had a lumbar MRI a few months later, which showed a pre-existing, degenerative condition to her lower back. In 2021, Popova-Mladenov filed a lawsuit against Coigne, alleging she sustained permanent injuries to her lower back. The issue in Popova-Mladenov v. Coigne, 2026 N.J. Super. Unpub. LEXIS 258 (App. Div. Feb. 12, 2026) was whether Popova-Mladenov met the “verbal threshold” and could prove she had sustained a permanent injury through objective clinical evidence, rather than only exhibiting subjective complaints of pain.

New Jersey’s Automobile Insurance Cost Reduction Act (AICRA) allows drivers seeking New Jersey automobile insurance to choose between one of two tort options: “limitation on lawsuit” and “no limitation on lawsuit.” Those who choose the “limitation on lawsuit” option, otherwise known as the “verbal threshold,” can only succeed in a lawsuit for non-economic “pain and suffering”-type damages if their injuries meet the “verbal threshold.” They can do so by proving they have one of several listed injuries, including, among others, a “permanent injury within a reasonable degree of medical certainty.” They also must prove their permanent injury through accepted diagnostic tests, and not entirely upon their subjective responses or complaints of pain.

Prior to trial, both parties obtained experts to offer opinions on Plaintiff’s claims of injuries to her lower back. Plaintiff’s expert, Dr. Joshua Landa, arrived at the conclusion that the accident caused damage to Popova-Mladenov’s lumbar spine, including a permanent aggravation of pre-existing degenerative changes. Defendant Coigne’s expert, Dr. Seven Carl Hausmann concluded that the objective clinical evidence from the MRIs of her lumbar spine showed her condition was “consistent with degenerative spondylosis, which is age-related” and was not due to, and pre-dated, the accident. Plaintiff produced a second report from Dr. Landa to rebut Dr. Hausmann’s conclusions, confirming that the condition of her lower back pre-dated the accident, but that condition made them “susceptible to injury,” and the pain she experienced after the accident had not resolved and was “likely a permanent injury.” The emphasis on “likely,” included in the opinion, is important.

At trial, Dr. Landa testified on Popova-Mladenov’s behalf, stating that though the objective condition of Plaintiff’s spine pre-dated the accident, he confirmed that his opinion that she had a permanent injury was based on her continued, subjective complaints of pain. After Plaintiff had introduced all of her evidence, Coigne asked the court to dismiss Plaintiff’s complaint. He argued that Plaintiff failed to meet the verbal threshold because Dr. Landa could not prove she had a permanent injury based on objective medical evidence, only Plaintiff’s ongoing, subjective pain. The trial court agreed and dismissed Plaintiff’s complaint, and she appealed.

In reviewing the trial court’s opinion, the Appellate Division focused on Dr. Landa’s opinion that Plaintiff “likely” had a permanent injury, and that, after he admitted the MRI established the condition of her lumber spine was degenerative and pre-dated the accident (and could not show objective evidence of an injury caused by this accident), Dr. Landa based his conclusions as to Plaintiff’s permanency for the purposes of the verbal threshold on her complaints of pain alone. The Appellate Division referred to New Jersey Supreme Court precedent, which stated that subjective complaints of pain, “standing alone, are insufficient to satisfy the verbal threshold,” and a plaintiff must present objective clinical evidence from diagnostic tests, like an MRI, establishing a permanent injury.

Here, the Appellate Division concluded that Dr. Landa could not identify anything in Plaintiff’s lumbar MRI that showed objective medical evidence of an injury caused by the accident. As a result, because his conclusion that she sustained a permanent injury to her lower back was based solely on Plaintiff’s own complaints of pain, and no objective diagnostic test, she could not meet the verbal threshold, and the trial court properly dismissed her complaint.

Plaintiff’s Bodily Injury Claim Dismissed Due to Her Failure to Provide a Comparative Analysis With Her Pre-Existing Condition

Plaintiff Debbie Williams-Siraj claims to have been injured in an automobile accident on September 28, 2017, when the vehicle driven by defendant Lynne Schwartz collided with her.  Although plaintiff claimed to have suffered significant injuries to her lower back including spinal disc herniations and fractures, she had been previously diagnosed with chronic and progressive lumbar disc disorder with radiculopathy.  The issue in Williams-Siraj v. Schwartz, 2025 N.J. Super. Unpub. LEXIS 427 (App. Div. Mar. 19, 2025) was whether plaintiff’s bodily injury claim was subject to dismissal due to her failure to provide an expert report which included a comparative analysis of the plaintiff’s residuals prior to the accident with the injuries suffered in the automobile accident at issue.

Plaintiff alleged that she was injured when the defendant Schwartz operated her car in a reckless and negligent manner in changing lanes into the path of plaintiff’s vehicle, purportedly causing plaintiff to swerve onto the curb.  Although the cars never actually collided, plaintiff claimed that the incident caused significant injuries to her lower back including spinal disc herniations and fractures. 

However, two days before this incident, plaintiff’s pain management doctor told her that she was a likely candidate for spinal surgery because of her chronic and progressive lumbar disc disorder with radiculopathy. 

About one month after the automobile accident, plaintiff for the first time sought treatment at a hospital emergency room.  According to the records, plaintiff’s knee gave out, causing her to fall.  However, plaintiff reported a history of a herniated disc and lower back pain.  Although she was not admitted to the hospital, a few days later, she was admitted because her back condition had worsened.  Two days after that, she underwent a lumbar fusion surgery.

Almost two years later, plaintiff filed a lawsuit against the defendant, claiming that the accident aggravated her existing condition in her back.  Her automobile policy limited the coverage for which she could recover because she had elected the “verbal threshold” limitation.  Discovery ensued and, prior to the end of discovery, plaintiff still had not retained any expert witnesses nor served any expert reports to substantiate her injury. 

The defendant filed for summary judgment, arguing that plaintiff’s complaint should be dismissed because she alleged an aggravation of her pre-existing injury but had not provided expert testimony to compare plaintiff’s condition before the accident to the injuries suffered as a result of the accident.  Thus, the defendant asserted that she had not established that the accident caused an aggravation of her pre-existing condition.

In opposition, plaintiff now submitted two expert reports. Although she did not move to reopen discovery to permit the proper consideration of these reports, the trial court nevertheless considered the substance of each report.

In the first expert report, the doctor concluded that plaintiff had “significant pathology” in her lower back and suffered a “new neurologic injury with motor and sensory deficit[s]” that were “causally related to her motor vehicle accident.”  In the second expert report, that doctor noted that before the accident, plaintiff “had chronic back pain that was controlled with medications, [and] after the car accident she had  significant injuries that made her disabled [and required her to walk] with a walker . . .”  This expert also opined that her injuries were permanent and caused significant change in her life.

Nevertheless, the trial court granted summary judgment to defendant and concluded that plaintiff was obligated under the law to provide a Polk analysis of the medical records.  To satisfy the verbal threshold requirement, Polk (case of Polk v. Daconceicao) necessitates that a comparative analysis showing aggravation of the pre-existing injury must be provided by an expert.  Because plaintiff failed to do so, summary judgment was granted on behalf of the defendant.  This appeal ensued.

The Appellate Division noted that plaintiff had elected the verbal threshold option in her insurance policy.  Once that option is elected, the New Jersey law is triggered which provides that plaintiff may only recover for her pain and suffering if she suffers “a permanent injury with a reasonable degree of medical probability, other than scarring or disfigurement.”  Further, the statute finds an injury is 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.”  Plaintiff must also establish permanency with “objective clinical evidence.”

Because plaintiff was claiming an aggravation of a pre-existing condition, the Appellate Division noted that a diagnosis of aggravation of a pre-existing injury or condition “must be based upon a comparative analysis of the plaintiff’s residuals prior to the accident with the injuries suffered in the automobile accident at issue.”  This analysis “must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post-trauma.”  Further, the Court noted that without this comparative analysis, “the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6(a)-8 (the verbal threshold).

The Appellate Division concluded that the trial court did correctly determine that plaintiff was required to provide this comparative analysis, i.e., a Polk analysis to defeat summary judgment.  She claimed that a pre-existing condition was aggravated by her injuries she purportedly suffered in this accident.  However, she did have a substantial prior history of issues concerning issues to her back which was so significant that two days before this accident, her doctor recommended that she have surgery to address it.  According to her MRI reports, plaintiff’s lower back was already compromised as early as 2013.  She did not seek any initial emergency treatment.  The only time she sought treatment following the accident was when she fell down one month later.

Additionally, the Appellate Division noted that plaintiff had failed to produce any expert reports before the close of discovery.  The court noted that the trial court’s inquiry could have ended there and arguably should have.

Nevertheless, the Court also considered those expert reports that were submitted outside of discovery.  In reviewing them, however, the Appellate Division agreed with the trial court that these reports did not meet the required Polk standard.  Specifically, one of the experts failed to do any kind of comparative analysis and the other expert only made vaguely conclusory statements about the ultimate impact of the purported injuries.

Thus, the Court agreed that the plaintiff was unable to establish that defendant proximally caused the permanent injuries for which she sought recovery.  Therefore, the Appellate Division did affirm the trial court’s decision to grant summary judgment and dismiss the lawsuit.

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.

Breaching the Verbal Threshold for an Automobile Accident Injury through Scarring or a Permanent Injury

The Verbal Threshold is a requirement set by the New Jersey Legislature for an individual to be compensated for bodily injuries suffered in an auto accident. The Verbal Threshold, or the Limitation on Lawsuit option, was created to reduce the cost of car insurance by limiting a person’s ability to seek compensation for noneconomic damages. The Verbal Threshold is codified at N.J.S.A. 39:6A-8.

When selecting a car insurance policy, a person has an option to select a lower premium in exchange for a limited right to seek compensation for damages occurring in a car accident. However, a person still has the option of selecting an unlimited right to seek compensation in exchange for a higher premium.

The Verbal Threshold is not a complete bar in seeking compensation for pain and suffering as the statute lists six exceptions. A person may proceed with a claim for pain and suffering if their injuries meet one of the following exceptions:

  1. Death
  2. Dismemberment
  3. Significant disfigurement or scarring
  4. Displaced fractures
  5. Loss of a fetus
  6. Permanent injury

Death, dismemberment, displaced fractures and loss of fetus are more clear-cut exceptions than significant disfigurement or scarring, or a permanent injury. Significant disfigurement or scarring, and permanent injuries are the most likely claims to be litigated. 

The Supreme Court of New Jersey has defined a “significant” scar or disfigurement as one that “an objectively reasonable person could find that the scar or disfigurement substantially impairs or injures the beauty, symmetry, or appearance of a person, rending the bearer unsightly, misshapen or imperfect, deforming the person in some manner.” Soto v. Scaringelli, 189 N.J. 558, 574 (2007). Other factors that courts are to consider are the “appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.” Id.

In Soto, the court found a scar on a person’s shoulder was not “significant” enough to breach the threshold. The judge reviewed the scar in person and verbally described it for the record and noted that the surgeon had done a remarkable job. The judge described the scar as approximately four inches in length and that it was not noticeable absent a strong light. The judge dismissed the case without permitting a jury to decide whether the person should be awarded compensation.

A permanent injury is defined as one that has not healed and will not heal to function normally even with further medical treatment. N.J.S.A. 39:6A-8(a). This injury must be proven with objective medical evidence. A person’s subjective complaints alone will not overcome the threshold.

A doctor must certify that a person has suffered a permanent injury as a prerequisite to filing a lawsuit. The doctor must state that their opinion is based on objective medical evidence and not solely dependent on the person’s subjective complaints. This certification must be provided to a defendant during the early stages of litigation for the case to continue. A court will dismiss a case absent this certification.

The Supreme Court of New Jersey has found that an MRI showing a herniated disc as certified by a doctor is sufficient objective evidence to allow a case to proceed to a jury. Pungitore v. Brown, 379 N.J. Super. 165 (App. Div. 2005). A jury will then deliberate whether the plaintiff’s injuries combined with any testimony, that may include subjective complaints and limitations on their activities of daily living, amount to a permanent injury. If a permanent injury is found, a jury then may award the plaintiff compensation for the injuries caused by the car accident. 

The Verbal Threshold is not a complete bar to recovery but is a prerequisite for a person to overcome. This is in furtherance of the New Jersey Legislature’s goal of reducing the cost of car insurance by limiting car accident claims to those with severe injuries.

Subjective Complaints of Pain and Suffering from Automobile Accident Insufficient To Meet Permanent Injury Requirement of Verbal Threshold

Plaintiff Glenn Hughes allegedly suffered injuries as a result of an October 17, 2017 automobile accident with defendant Jason Worthington.  On that date, defendant Worthington rear ended the plaintiff.  At trial, the defendant stipulated as to liability with the only issue to be decided at trial was whether plaintiff’s injuries were permanent and causally related to the accident.  The issue in Hughes v. Worthington, 2022 N.J. Super. Unpub. LEXIS 2655 (App. Div. Dec. 30, 2022) was whether the plaintiff’s subjective complaints of pain sufficed to constitute a permanent injury under the verbal threshold.

The case was tried before a jury and the defendant Worthington moved for a directed verdict based upon plaintiff’s failure to present objective, credible medical evidence to support his claim that he suffered a permanent injury.  That motion was granted and this appeal ensued.

The plaintiff alleged to have suffered injuries to his neck as a result of the accident.  Plaintiff’s doctor, Dr. Norman Stempler, testified that plaintiff lost range of motion in his neck as a result of the accident.  Further, he testified that an MRI taken two months after the accident supported his diagnosis that plaintiff suffered an aggravation of pre-existing degenerative disc disease.  However, upon cross examination, Dr. Stempler admitted that the degenerative disc disease of the plaintiff’s cervical spine pre-dated the accident and he could not observe an aggravation of this pre-existing condition of plaintiff’s MRI.  Further, he conceded that his opinion concerning the aggravation of the degenerative disc disease was derived from plaintiff telling him that he was asymptomatic before the accident but that, after the accident, he experienced a decreased range of motion in his neck.

Moreover, Dr. Stempler admitted that he could not determine if the findings on plaintiff’s MRI were acute or chronic.  He agreed that the range of motion testing had a subjective component.

At trial, the defendant moved for a directed verdict, arguing that plaintiff failed to demonstrate – with objective, credible medical evidence – that he suffered a permanent injury as a result of the accident.  The trial court noted that the plaintiff’s doctor formed his opinion based upon the plaintiff’s subjective complaint and, therefore, determined that Dr. Stempler improperly relied on subjective evidence.  Finally, the trial court concluded that, as a result, the plaintiff failed to establish by objective, credible evidence, a nexus between his alleged injuries and his automobile accident, as required by the New Jersey verbal threshold statute.

Upon appeal, the plaintiff claimed that his subjective complaints, i.e. his restricted range of motion, was sufficient to support Dr. Stempler’s opinion that there was a permanent injury.  The Appellate Division rejected that argument.

The Court noted that under the verbal threshold of the New Jersey automobile law, AICRA, N.J.S.A. 39:6A-8, lawsuits are restricted for damages from automobile accidents unless the victim “sustains a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fracture; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.”  Further, the Court noted that under this statutory provision “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.” 

The Appellate Division cited to prior case law that to vault this “threshold,” a physician must certify that the automobile accident victim suffered from a statutorily enumerated injury.  This opinion must be based on “objective clinical evidence.”  Further, the necessary objective evidence must be derived from accepted diagnostic tests and cannot be dependent entirely upon subjective patient response.  Thus, subjective tests alone, such as range of motion tests, will not suffice to meet this standard.

The Court further noted that “plaintiff was required to prove through expert testimony there was objective clinical evidence his injuries were permanent and causally related to the automobile accident.”  The Appellate Division found that his physician’s testimony concerning permanency was based solely on the plaintiff’s subjective claims concerning a diminished range of motion.  Hence, plaintiff failed to provide the requisite objective proofs that were required to meet the threshold. 

Dr. Stempler had based his opinion on plaintiff’s current complaints, which purportedly did not exist prior to the accident, that he had suffered a permanent injury.  However, Dr. Stempler also acknowledged that he was unable to determine if the degenerative disc disease of the cervical spine observed on the MRI was acute or chronic.  Thus, the Appellate Division found that “his testimony was not based on credible, objective evidence obtained from accepted diagnostic tests, and is, therefore insufficient to fault the threshold under N.J.S.A. 39:6A-8.”  Accordingly, the Appellate Division found that the trial court did properly grant the motion for a directed verdict, dismissing the lawsuit.

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