Feb 172014
 

My client is a woman in her 30’s.  She was, suddenly and without warning, struck from behind by another vehicle while stopped on Route 70, a local highway in Medford, New Jersey. She complained of significant neck and back pain after the accident and was taken from the scene of the accident to a local hospital.

NJ’s Limitation on Tort in this Rear-End Car Accident Case

There was no issue as to liability, i.e., the driver who rear-ended my client was at fault.  The only determination was whether she was able to recover damages because she had Limitation on Tort Threshold in her car insurance policy.

When NJ drivers have Limitation on Tort Threshold in their car insurance policies, they cannot sue for non-economic damages, such as pain and suffering, unless the injury is permanent or satisfies one of the other injury categories defined by New Jersey Statutes Annotated 39:6A-8a.

Because my client was subject to Limitation on Tort Threshold, the lawyer for the negligent driver argued that she could not recover for pain and suffering because her injuries were not permanent.  In addition, my client had two prior motor vehicle accidents where she had similar injuries to her neck and back; therefore, the defendant also argued that her neck and back injuries were caused by the prior accidents and not the subject car accident.

Distinguishing the Old Neck/Back Injuries

After she was discharged from the hospital, she was instructed to follow-up with an orthopedic doctor and given some pain medication to alleviate her neck and back pain.  The treating orthopedic physician ordered an MRI imaging study which showed many of the same neck and back problems, i.e., herniated and bulging discs, from the prior car accidents.

After careful review of the most recent imaging study taken after the car accident and old imaging studies taken after her two prior car accidents, we were able to determine that there was a new injury from the accident at issue.  She had a new disc herniation at a level in her neck that was not in her old imaging studies.  Therefore, her neck was clearly injured in the most recent rear-end car accident.

As a result, my client needed neck surgery due to the new herniated disc injury in her neck.  Fortunately, the surgery was successful in substantially reducing the radiating pain and headaches.  However, this type of injury will always remain problematic and permanent.

On the basis of the new disc injury in her neck, we successfully argued that there was a new injury which met the requirements of the Limitation on Tort Threshold thereby resulting in a six-figure recovery for the injured client.

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