JEAN H. BUISSERETH v. FORD MOTOR CREDIT CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1227-04T21227-04T2

JEAN H. BUISSERETH,

Plaintiff-Appellant,

v.

FORD MOTOR CREDIT CO.

and ANDREA M. REICHEL,

Defendants-Respondents.

_______________________________________________________

 

Submitted December 6, 2005 - Decided

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, No. L-9291-02.

Liebowitz, Liebowitz & Stern, attorneys for

appellant (William C. Rindone, Jr., of counsel

and on the brief).

Judith A. Heim, attorney for respondents

(Marie Seitz, on the brief).

PER CURIAM

Plaintiff, Jean H. Buissereth, appeals from a summary judgment granted on the ground that his injuries failed to satisfy the verbal threshold established by the Automobile Insurance Cost Reduction Act in N.J.S.A. 39:6A-8. We affirm.

Buissereth, whose insurance policy contains the verbal threshold, was involved in an automobile accident in Teaneck on July 16, 2002. He went to a hospital, complaining of pain in the head, neck and spine. The diagnosis was acute cervical sprain and headache, and he was discharged. There was no indication that he had hurt his left shoulder.

On July 19, 2002, Buissereth went to Dr. Steven Stoller. According to Stoller's report of February 27, 2003, Buissereth complained of pain in his head, left shoulder, lower back, and "right radicular pain." P91a Also according to that report, at the time of re-examination on July 26, 2002, Stoller's impression was "lumbar right-sided radiculopathy, cervical strain/sprain and left shoulder strain/sprain, possibly an AC joint strain." 93a He continued physical therapy. Re-examinations followed on July 31 and August 16, 2002. The

aforesaid report reads as follows with the respect to the latter examination:

On re-examination of August 16, 2002, Mr. Buissereth continued to complain of right-sided lower back pain that radiated down the right anterior thigh region. He also continued to complain of significant left shoulder pain. This had significantly affected his ability to work and drive according to Mr. Buissereth. He reported having difficulty with turning the wheel and doing most of his activities with his left shoulder. He reported that he recently had been bitten by a bee in the right lower leg region which did get infected. He reported being on anti-biotics. He reported that he thought he was prescribed Ceclor and reported that he was to see his physician later that day. Mr. Buissereth was mildly limping on the right side. This was either secondary to his symptoms in the thigh and lower back as well as where the bee sting was. On physical examination of the cervical spine, Mr. Buissereth did have full range of motion. There was mild palpable tenderness appreciated. Spurling's maneuver was positive for pain. Locally, however, there were no radicular symptoms. Palpatory examination of the left shoulder again revealed significant palpable tender points. There was some mild palpable tenderness on the AC joint. Impingement testing did produce pain as well as performing Hawkins maneuvers. This was totally normal on the right side. Codman's maneuver was negative, however, it was painful when performing this maneuver on the left hand side. On physical examination of the lumbar spine, Mr. Buissereth had multiple palpable tender points particularly on the right side. Straight leg raising was negative on the left but did produce right buttock symptoms on the right side. However, there were no symptoms present past the knee on the right hand side. SI joint testing was negative for pain or dysfunction. Motor was generally 5/5 in the lower extremity. My impression was a left shoulder injury; rule out an AC injury vs. a rotator cuff injury, lumbosacral sprain and right radicular symptoms. Mr. Buissereth was not taking his medications secondary to the interaction with the anti-biotics. He was recommended

an MRI of the left shoulder to rule out an AC injury vs. a rotator cuff tear. He was also recommended an EMG of his right lower extremity and his lumbar spine. Mr. Buissereth informed me that light duty at his job was not available and, at that point, his job required a lot of driving and lifting of heavy objects. He was unable to perform these duties for an eight hour shift. Therefore, he was given a note to keep him out of work until further notice.

The balance of the report reads as follows:

On re-examination of September 25, 2002, Mr. Buissereth was recommended and scheduled for an arthroscopic subacromial decompression.

On November 1, 2002, Mr. Buissereth underwent an arthroscopic Bankhart repair, a repair of a SLAP lesion and capsular shrinkage of the left shoulder at the Paramus Surgical Center. Mr. Buissereth left the Operating Room in satisfactory condition.

On re-examination of November 6, 2002, Mr. Buissereth's wounds were clean and dry and his sutures were removed. He was to be kept in a sling for three weeks and was to begin physical therapy at that time.

On re-examination of December 24, 2002, Mr. Buissereth had not been compliant with wearing his sling. He stated that he had some clicking in his shoulder. On physical examination, there was full passive range of motion. Therefore, he was to continue with physical therapy.

On re-examination of January 6, 2003, Mr. Buissereth had full range of motion. He was experiencing pain at the flexion, abduction greater than 120 degrees. He states that he feels better than he has before and was wishing to return to work. Therefore, he was allowed to return to work with a twenty pound weight restriction. He was also placed on Celebrex 400 mg.

On re-examination of February 21, 2003, Mr. Buissereth has returned to work without complaints but still feels that he has some weakness. On physical examination, there was full painless range of motion of his shoulder. Motor was 5/5. He was to continue with physical therapy for strengthening exercises and will incorporate a home program.

In my medical opinion, I feel that Mr. Buissereth's injuries are causally related to his motor vehicle accident of July 16, 2002. I feel that Mr. Buissereth's prognosis is fair.

Judge Harris granted the motion on a number of grounds, but we need only discuss one of them: the lack of evidence of a permanent injury.

The only evidence of permanency cited by Buissereth is Stoller's certification of January 31, 2003, submitted to defense counsel to satisfy N.J.S.A. 39:6A-8a. The certification reads in pertinent part as follows:

Based upon my professional expertise and the findings in the attached report, including reference to clinical objective findings and/or objective medical tests, it is my opinion, that within a reasonable degree of medical probability, my patient has sustained permanent injury that will have permanent residual sequelae. It is my further opinion that within a reasonable degree of medical probability, although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury cannot be completely resolved by way of further medical treatment intervention and there will always be some aspect of residual permanent injury experienced for the balance of my patient's lifetime.

The production of a certification of permanency does not itself establish a cause of action or preclude summary judgment. Watts v. Camaligan, 344 N.J. Super. 453, 465 (App. Div. 2001); Rios v. Szivos, 354 N.J. Super. 578, 585 (App. Div. 2002). In short, in this case, the medical reports fail to identify any permanent injury. Therefore, we affirm substantially for the reasons expressed by Judge Harris on the issue of permanency.

 
Affirmed.

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A-1227-04T2

December 21, 2005