The New Jersey No Fault Act provides that a person who is injured in an automobile accident (the plaintiff) who is subject to the “limitation on lawsuit option” (the verbal threshold) may not sue the owner or operator of an automobile (the defendant) for “noneconomic damages” (pain and suffering) unless that person has sustained one of six types of bodily injury that are specified in the statue including “a permanent injury.” N.J.S.A. 39:6A-1(a). The statute specifies that an injury shall be considered “permanent” when a body part “has not healed to function normally and will not heal to function normally with further medical treatment.”

In order to vault the permanency threshold, a plaintiff must submit a “certification from a treating doctor based upon “objective clinical evidence” that may include “diagnostic testing.” In Oswin v. Shaw, 129 N.J. 290 (1992), the Supreme Court noted that “objective clinical evidence” may be based upon the physical examination and observation of the treating doctor such as “swelling, discoloration and spasm.” In contrast, “diagnostic testing” will generally include X-rays, MRIs, CT Scans, EMGs and EEG.