VERNON B. VALENTINE v. DANIEL J. BRUNO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2563-03T52563-03T5

VERNON B. VALENTINE,

Plaintiff-Appellant,

v.

DANIEL J. BRUNO,

Defendant-Respondent.

___________________________

 

Argued September 20, 2005 - Decided

Before Judges Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

L-4754-02.

Charles M. Crocco, argued the cause for appellant (Nelson, Fromer & Crocco, attorneys; Mr. Crocco, of counsel and on

the brief).

David S. Springer, argued the cause for respondent.

PER CURIAM

This is a verbal threshold automobile accident case. The trial court dismissed the complaint on a summary judgment motion, because plaintiff failed to prove that his injury was "serious" and because he failed to present medical evidence distinguishing the injuries he suffered in an earlier slip and fall accident from those he allegedly suffered in the auto accident. See Polk v. Daconceicao, 268 N.J. Super. 568, 571-72 (App. Div. 1993). We agree that plaintiff's medical evidence was manifestly insufficient to satisfy the Polk standard, and we affirm without reaching the issues of whether his injuries were serious or whether "seriousness" continues to be an element of the lawsuit threshold under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a.

I

Plaintiff claims that he sustained lower back injuries in an automobile accident on July 19, 2001. He was taken to the hospital immediately after the accident, where he was treated and released after complaining of pain in his hip and lower back. On August 29, 2001, he sought treatment from Dr. Dennis J. Nitto, who had previously treated plaintiff for lower back injuries due to a slip and fall accident.

According to Doctor Nitto's report dated August 31, 2001, he diagnosed plaintiff with "traumatic strain/sprain injuries" from the auto accident and recommended a series of twelve chiropractic treatments to address his injuries. He noted that plaintiff "is not disabled from work/activity" and characterized plaintiff's prognosis as "fair but favorable."

Following a series of treatments, Dr. Nitto issued a final report on April 8, 2002, in which he noted the following residual symptoms after treatment: "Low back pain, spasms and restrictions, improved but persistent" and "Left leg pain, persistent." He reported that an MRI performed on November 26, 2001 revealed a disc bulge at L4/L5 and L5/S1 and that an EMG on January 24, 2002 revealed a left L5/S1 radiculopathy and right lumber radiculitis. He diagnosed plaintiff with lumbosacral hypokinesia/kinesalgia, lumbosacral paravertebral myospasms, disc bulging at L4/L5 and L5/S1, and lower extremity radiculopathy, all "secondary to traumatic strain/sprain injuries."

In his April 8, 2002 report, Dr. Nitto noted that plaintiff told him that he "had a slip and fall in 1999 in which he injured his lower back and right arm." He concluded, based only on the fact that plaintiff had not had treatment for the slip and fall accident since August of 2000, that "there is a direct causal relationship between [the auto accident] and his new symptoms."

Apparently without having re-examined plaintiff, Dr. Nitto signed a certificate of permanency on September 20, 2002, attesting that plaintiff had suffered permanent injuries in the 2001 automobile accident. The alleged permanent injuries were the same as those recited in his April 8, 2002 report as being "secondary to traumatic sprain/strain injuries" incurred in the auto accident.

The records of treatment for plaintiff's earlier slip and fall accident, however, reveal that Dr. Nitto had diagnosed plaintiff with virtually the same injuries from the fall. In a report dated July 6, 2000, Dr. Nitto indicated that he treated plaintiff for "a fall at a supermarket that occurred on January 19, 2000." He diagnosed plaintiff with "anatomical and physiological derangement of the lumbosacral spine, . . . lumbar hypokinesia/kinesalgia with intractable paravertebral myospasms secondary to spinal derangement . . . and probable lower extremity radiculopathy," all "secondary to traumatic strain/sprain injuries." Dr. Nitto also opined that these injuries were permanent and that plaintiff's "symptoms are going to recur and progress as time goes on." Significantly, he recommended that plaintiff undergo an MRI and an EMG of his lower back, but apparently plaintiff did not have those diagnostic tests until after the auto accident.

On June 25, 2003, Dr. Nitto signed a questionnaire in which he gave positive answers to a series of yes or no questions concerning whether plaintiff's injuries had been caused by the July 19, 2001 car accident. The questionnaire did not include any analysis or explanation as to how Dr. Nitto reached those conclusions.

II

Because plaintiff suffered an injury to his lower back in the earlier slip and fall accident, and claimed that he injured the same body part in the auto accident, he had the burden of presenting medical evidence differentiating between the injuries suffered in the first accident and those suffered in the second accident. Polk, supra, 268 N.J. Super. 568, 571-72. This requirement applies to cases filed under AICRA, as well as to pre-AICRA cases. Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div. 2004); Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). At a minimum, plaintiff was required to present a report from a doctor who reviewed the medical records from both accidents and differentiated between the medical impacts from the first accident and the second accident. Bennett, supra, 368 N.J. Super. at 469.

We agree with the trial judge that plaintiff's proofs fell far short of meeting this requirement. Dr. Nitto's reports did not indicate that he had reviewed any of plaintiff's medical records from the prior accident. Nor did he explain the reasons for his conclusion that the injuries were due to the auto accident as opposed to the slip and fall. Since plaintiff did not follow Dr. Nitto's advice to undergo MRI and EMG tests after the first accident, there is no basis in this record to conclude that the MRI and EMG he underwent after the second accident revealed injuries from that accident as opposed to residual problems from the slip and fall. We agree with the trial judge that the questionnaire was a net opinion. Buckalew v. Grossbard, 87 N.J. 512, 524-25 (1981). Summary judgment was properly granted.

Finally, plaintiff has attempted to raise on this appeal a claim concerning his right to recover his PIP co-payments. See D'Aloia v. Georges, 372 N.J. Super. 246 (App. Div. 2004), cert. denied, 182 N.J. 428 (2005). That claim is not properly before us as it was not raised before the trial court.

 
Affirmed.

(continued)

(continued)

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A-2563-03T5

October 3, 2005