LYNDA REITENOUER v. AAA MID ATLANTIC INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2140-08T32140-08T3

LYNDA REITENOUER,

Plaintiff-Respondent,

v.

AAA MID ATLANTIC INSURANCE

COMPANY,

Defendant-Appellant.

____________________________________

 

Argued October 14, 2009 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-1071-07.

Patricia Hart McGlone argued the cause for

appellant (McGovern Legal Services, LLC,

attorneys; Ms. McGlone, on the brief).

Juliana M. Petito argued the cause for

respondent (DuBois, Sheehan, Hamilton, Levin &

Weissman, attorneys; Ms. Petito, on the brief).

PER CURIAM

Defendant AAA Mid Atlantic Insurance Company appeals from the judgment of the Law Division awarding plaintiff Lynda Reitenouer personal injury protection (PIP) benefits under N.J.S.A. 39:6A-4 in connection with a 2004 automobile accident. Plaintiff alleged that this accident exacerbated her preexisting condition known as reflex sympathetic dystrophy (RSD).

Defendant argues that: (1) plaintiff failed to establish an exacerbation of RSD by competent objective medical evidence; (2) the trial court's judgment was improperly based on hearsay evidence; (3) the court's assessment of the evidence was influenced by bias against defendant; and (4) the court erred in admitting evidence that was not disclosed in pretrial discovery. We reverse. We are satisfied that plaintiff failed to prove, by competent and objective medical evidence, that the 2004 accident exacerbated her alleged RSD. Because this basis for reversal is dispositive, we need not, and specifically do not, address the remainder of defendant's arguments.

I

Plaintiff's first suit against defendant to recover PIP benefits concerned medical treatment she received in connection with a June 13, 2001, automobile accident. In early 2002, Dr. Phillip Getson, a board certified family practitioner, diagnosed plaintiff as suffering from RSD. Dr. Getson based this diagnosis on his clinical observations and the conclusions he reached from a thermographic examination of plaintiff's cervical spine. In a report dated June 10, 2002, Dr. Getson gave the following description of how the thermogram test is performed:

The patient's clothing was removed over the examined parts [cervical spine] and those parts were artificially cooled and ventilated and allowed to equilibrate to the surrounding ambient room temperature (62 - 72 degrees Fahrenheit).

The examination was performed three times at 15-20 minute intervals over the course of approximately one hour and the studies were examined for abnormality and consistency. The study consists of various color thermographs taken in posterior and oblique cervical, lateral, anterior and posterior upper arm, forearm and hand projections. Relative symmetry is the expected norm.

The trial court dismissed plaintiff's PIP coverage claim on April 23, 2004. The court found that plaintiff "failed to establish that [her] diagnosis of RSD was causally related to the June 13, 2001[,] motor vehicle accident."

On December 14, 2004, plaintiff was involved in the automobile accident that is the subject of this appeal. According to plaintiff, she was a passenger in a truck that had come to a full stop in a Target parking lot when a mini-van that was backing out of a parking space struck the vehicle on the side where she was sitting. At the time, plaintiff was still seeing Dr. Getson on a monthly basis for the symptoms related to the 2001 accident.

Plaintiff saw Dr. Getson the day after the 2004 accident. He stated that plaintiff reported the following complaints:

Cervical spine pain, right greater than left, thoracic spine pain, right greater than left, lumbar spine pain, right greater than left, significant and severe pain in right upper extremity from shoulder to elbow to fingers, wrist and hand as well. She also notes severe pain in right hip, right thigh, right knee, right calf and right foot.

Based only on plaintiff's subjective complaints, and his clinical impression, Dr. Getson concluded that the latest accident had exacerbated plaintiff's RSD. He recommended ketamine infusion, a treatment he had recommended before the December 14, 2004, accident.

Dr. Richard Domsky, a physician retained by defendant to perform an independent medical examination (IME) of plaintiff, confirmed Dr. Getson's diagnosis of RSD and also suggested ketamine infusions as a treatment plan. Dr. Domsky's opinion was limited to plaintiff's status at the time. He did not offer any opinion as to whether plaintiff's current condition was an exacerbation of any prior condition.

Defendant pre-certified plaintiff to receive the ketamine infusion treatment plan; she received in-patient ketamine treatments over a five-day period in June 2005. The ketamine treatments continued on an outpatient basis once or twice a month until October 2006, when defendant formally terminated further medical benefits. Plaintiff filed this suit seeking further PIP benefits for unpaid medical bills related to the 2004 accident.

II

As a threshold issue, the trial court overruled defendant's objection and permitted plaintiff to call her son David Bauer as a witness, despite her counsel's failure to specifically identify him as such before the start of the trial. The court reasoned that defense counsel should have logically anticipated that plaintiff would call her son to testify about her physical condition.

Over defense counsel's objections, the court also: (1) permitted plaintiff's medical expert, Dr. Getson, to opine that plaintiff suffered from RSD prior to the 2004 accident based on medical reports authored by non-testifying physicians; and (2) admitted into evidence medical bills, authenticated only by an employee of Cooper University Hospital's collections department, in support of the proposition that she received ketamine treatment related to RSD.

Defendant called Dr. Richard Katz as a medical expert. He performed a second IME on plaintiff on September 6, 2007. In his opinion, plaintiff's reported complaints in connection with the 2004 accident did not constitute a change or exacerbation of the condition she related to the 2001 accident. In Dr. Katz's opinion, there was no objective medical evidence to support plaintiff's claims of exacerbation.

III

In Bowe v. New Jersey Mfrs. Ins. Co., 367 N.J. Super. 128, 138 (2004), we held that in order to receive PIP benefits based on a claim of exacerbation of a preexisting condition,

a PIP claimant must present objective medical evidence from which a medical professional can form an opinion that the trauma suffered in the particular accident caused the aggravation. This opinion must, at the very least, be based on an evaluation of the medical records of the claimant prior to the particular accident.

The evidence presented by plaintiff at trial failed to meet this standard.

As plaintiff's medical expert, Dr. Getson provided the only testimonial evidence concerning her injuries, both before and after the 2004 accident. In Dr. Getson's opinion, the thermogram is the only test that provides objectively measurable indications of RSD. We acknowledge that defendant's medical expert disputes the reliability of the thermogram and its acceptability within the medical community as a diagnostic instrument for RSD. We need not resolve this dispute, however, to address the issues raised in this appeal.

Accepting, arguendo, the reliability of the thermogram as a means of objectively assessing RSD, there is nothing in this record that indicates that plaintiff's preexisting RSD was exacerbated by the 2004 accident. Dr. Getson's testimony describes in detail the results of the thermogram performed on plaintiff after the 2001 accident. He does not provide, however, an analysis, based on objective medical data, explaining how this preexisting RSD was affected by the 2004 accident. Without such an analysis, an opinion that relies only on plaintiff's subjective complaints does not meet the standard we articulated in Bowe.

Reversed.

According to the medical testimony presented at trial, RSD is a pain syndrome consisting of three stages of progression. The first stage is characterized as generalized complaints of pain, without corresponding physical manifestations. The second stage begins approximately six months after the first one during which patients show signs of muscle atrophy, including abnormal skin discoloration and texture, and abnormal looking hair and nails. The final stage occurs approximately one year after complaints associated with first stage are identified during which patients suffer incontrovertible signs of muscle atrophy and dystrophy, and sick looking skin, hair, and nails.

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A-2140-08T3

March 3, 2010