VERONICA MURRAY v. JOHN YOUNG
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1020-04T51020-04T5
Submitted October 5, 2006 - Decided March 9, 2007
Before Judges A.A. Rodr guez and Collester.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, L-6986-01.
David S. Rochman, attorney for appellant.
Styliades, Jackson & DiMeo, attorneys for
respondent (Teresa Gerlock Hanni, of counsel
and on the brief).
Plaintiff Victoria Murray appeals from the September 10, 2004 order of Judge Charles A. Little granting summary judgment to defendant and dismissing her complaint for non-economic damages based on failure to satisfy the verbal threshold requirement of a permanent injury within a reasonable degree of medical probability as defined by N.J.S.A. 39:6A-8(a). We affirm.
This case arises from a motor vehicle accident on March 23, 2000, when plaintiff was twenty-four-years old. As a result of the collision, her left side hit the driver's door. The following day she experienced pain in her neck and back. She went to the emergency room of Cooper Hospital on March 25 and was diagnosed with muscle strain. She was given a prescription for Flexeril and Motrin and released. Three days later, on March 28, 2000, she consulted with Dr. Arthur I. Marks, D.O., at Occupational Health Service in Pennsauken, complaining of persistent pain in her neck and back as well as daily headaches. She told Dr. Marks that she worked as a receptionist for a temporary agency and did not lose time from work following the accident. Dr. Marks' assessment was cervical and lumbar sprains and strains with post-traumatic headaches. He prescribed the same medications as given to plaintiff by the emergency room physician and told plaintiff to recheck in a week.
On April 14, 2000, plaintiff returned and said she was still having pain while bending, lifting, walking and sitting too long. A week later, she returned with the same complaints, and Dr. Marks told her to continue with ibuprofen and Flexeril as well as a home exercise program. Plaintiff continued to see Dr. Marks weekly with the same complaints of persistent pain in her neck and back. On June 20, 2000, Dr. Marks' assessment was cervical, dorsal and lumbar sprains and strains with traumatic myofascitis. His August 16, 2000 report stated plaintiff's neck and back pain was much worse because she started a new job working in a factory. Dr. Marks found hypertonicity in the paravertebral cervical and lumbar muscles.
Plaintiff continued to see Dr. Marks on a bi-weekly basis and then monthly through September 29, 2000. She returned on February 8, 2001 and told Dr. Marks she was six months pregnant and due to deliver in May. She complained of low back pain and pain in her left hip. Dr. Marks' examination revealed full flexion, negative straight leg raising and no motor, sensory or reflex deficit. Plaintiff next saw Dr. Marks on July 25, 2001 with complaints of swelling and tenderness in her knees and hands. He referred her back to her personal physician for a work-up for systemic arthritis. Dr. Marks saw plaintiff twice more, the last time being on October 23, 2001. Dr. Marks' examination revealed tenderness in her wrist, mild effusion of the right knee and tenderness in the cervical/lumbar paravertebral musculature.
Dr. Marks referred plaintiff to Dr. Shiva Gopal for a neurological examination. Dr. Gopal's clinical impression was post-traumatic cervical strain/sprain with left cervical radiculopathy. An MRI of plaintiff's lumbar spine was performed on July 12, 2000 by Dr. Marc L. Kahn and revealed no herniated disk or disk pathology. On August 22, 2000, Dr. Gopal performed an EMG, which revealed evidence of a left C6-7 radiculopathy. An MRI of plaintiff's cervical spine was performed by Dr. Dilip Kapadia, and the report stated "muscle spasm. No other abnormalities are seen."
However, Dr. Barry S. Gleimer, an orthopedist, examined plaintiff on August 8, 2000, and his review of the MRI of the lumbar spine indicated broad based disk bulge or protrusion at the L4-L5 level as well as mild bulging at L2-L3 and L3-L4. He noted that the radiologist's report did not indicate the extent of posterior bulge/protrusion but rather a good signal in the disks. Dr. Gleimer's opinion was that the radiologist's report was "obviously, and visually on review of MRIs, inaccurate." Dr. Gleimer saw plaintiff again on October 5, 2000, and found no significant disk pathology, although there was bulging on the lumbar MRI with no nerve involvement. He stated her cervical MRI was unremarkable, but felt there was nerve involvement. He also found that she had clinical carpal tunnel even though an upper extremity EMG was negative.
Dr. Gleimer's report of July 10, 2001 indicates that plaintiff presented herself for re-evaluation with ongoing complaints of neck and back as well as hand numbness and tingling in the morning. His assessment was clinical carpal tunnel syndrome, cervical radiculopathy at C6 and C7, a bulging lumbar disk based on his personal review of the MRI as well as cervical and lumbar strain and sprain. In his final report of November 1, 2001, Dr. Gleimer's assessment was the same. He concluded that
There is nothing to offer the patient at this time. In my opinion she has sustained permanent injury as a result of her motor vehicle accident of March 23, 2000 with regards to the above lumbar disk injury noted on personal review as well as nerve injury noted in nerve testing. There is certainly associated chronic muscular and ligamentous injury as well.
On October 29, 2001, plaintiff underwent another EMG of her upper extremities. The impression was extensor tendonitis of the right thumb without carpal tunnel syndrome and cervical muscular strain. No finding of C6-7 radiculopathy was noted.
In addition to Dr. Gleimer's report, plaintiff relies upon the evaluation and report of Dr. Kahn who found chronic traumatic cervical and lumbosacral sprain and strain, radicular type with symptoms of the left upper extremity and bilateral lower extremity and bilateral trapezial myofascitis. He opined that because of her persistent symptoms and his clinical findings, she suffered a permanent injury based upon a reasonable degree of medical certainty to her cervical or lumbosacral spine.
Since 2001, plaintiff has had no treatment and seen no physicians with respect to injuries to her neck, back or extremities. The record discloses she missed no time from work and has given birth to two children since the accident.
Plaintiff further claims permanent injury related to the accident in the form of a cataract in her right eye. Dr. Yaras noted that at twenty-seven, plaintiff was at an age where one would not normally see a cataract. Based on the history given by plaintiff that her vision had deteriorated since the 2000 accident, he stated:
The combination of the history of trauma on the side of the cataract, the inadequate explanation for unilateral cataract otherwise, and the traumatic appearance of the cataract, lead me to believe the most likely explanation for this was the motor vehicle accident. There is obviously no way to prove this, however. . . . So the likelihood is that the patient will experience good vision after the cataract is removed. (Emphasis supplied.)
An earlier report by an ophthalmologist, Dr. Lee H. Yasgur, in December indicates plaintiff told him that she "has become aware of blur in OD for one yr but was recently startled by how poorly OD sees. She has not had eye pain or injury previously."
Following argument on defendant's motion for summary judgment, Judge Little concluded that plaintiff failed to make a prima facie showing that her injuries fell within the serious-permanent-injury standard of the verbal threshold requirement of N.J.S.A. 39:6A-8(a) and dismissed plaintiff's claim. He noted the reports indicated no disk pathology shown in two MRIs and the fact that no trauma to the right eye was indicated at the time of the accident. We agree with the determination. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Juarez v. J.A. Salerno & Sons, 379 N.J. Super. 91, 94-95 (App. Div. 2005).
March 9, 2007