MARIA LIPTAK et al. v. JEANETTE KLOPCHIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0412-04T30412-04T3

MARIA LIPTAK and

JOSEPH LIPTAK,

Plaintiffs-Appellants,

v.

JEANETTE KLOPCHIN,

Defendant-Respondent.

____________________________________________________________

 

Argued October 6, 2005 - Decided January 24, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Sussex County, L-823-02.

Leandro Lolo argued the cause for appellants

(Goldstein, Ballen, O'Rourke & Wildstein, attorneys;

Mr. Lolo, on the brief).

James T. Gill argued the cause for respondent

(Leary, Bride, Tinker & Moran, attorneys; Mr. Gill,

on the brief).

PER CURIAM

Plaintiff Maria Liptak appeals from a Law Division order dated August 11, 2004, granting summary judgment in favor of defendant Jeanette Klopchin based upon plaintiff's failure to satisfy the requirements of the verbal threshold under N.J.S.A. 39:6A-8(a). Judge Russell concluded that plaintiff failed to establish by objective credible evidence that she sustained a permanent injury as a result of her automobile accident on December 24, 2000. We affirm.

Plaintiff's complaint sought non-economic damages for injuries allegedly sustained in a motor vehicle accident on December 24, 2000, however, plaintiff had also sustained injuries in a prior accident on May 30, 1997. Plaintiff was fifty years old when she was involved in the first accident on May 30, 1997, and she was treated at Saint Anthony's Hospital. Hospital records indicate she experienced back pain, pain in her left shoulder and mid-back pain radiating into her neck. The same records indicate that she was "unable to turn head," her chief complaint was "neck/back pain/stiffness," and the diagnosis was "cervical strain/sprain." X-rays taken of the cervical spine on May 30, 1997, revealed the following:

The cervical vertebra appear intact. There is some narrowing of intervertebral disc spaces at C5-C6 and C6-C7 with some osteophytic changes noted and these are most prominent posteriorly. There is straightening of the cervical spine possibly secondary to muscular spasm.

IMPRESSION: Narrowed C5-C6 and C6-C7 intervertebral disc spaces with associated osteophytic changes. No evidence of acute osseous injury. Osteoarthritic changes are noted at C1-C2 level and in addition to the posterior osteophytic changes at C5-C6 and C6-C7 there are some posterior osteophytic changes also noted at C3-C4 and C4-C5.

As noted by the trial court, plaintiff underwent physical therapy, and her treatment records show that she complained of back pain on August 17, 2000, approximately four months prior to the automobile accident on December 24, 2000. She also complained of pain in her right arm radiating into her shoulders and fingers on October 27, 2000, less than two months prior to her subsequent accident.

Following plaintiff's second automobile accident on December 24, 2000, she was evaluated in the emergency room at Newton Memorial Hospital. Once again, plaintiff complained of pain in her neck, right shoulder, and right arm. X-rays were taken of plaintiff's cervical spine, and she was discharged with a primary diagnosis of "cervical strain." Thus, in both motor vehicle accidents, plaintiff sustained cervical strain.

On January 15, 2001, plaintiff sought treatment from Elmer Platz, a physical therapist. In a progress report dated February 26, 2001, Platz stated that plaintiff had initially "reported pain in the right neck, shoulder and arm." Platz noted that "the patient reports some improvement in the neck but persisting . . . discomfort with activity."

Plaintiff was also seen by Dr. David Basch. Dr. Basch's report dated May 15, 2001, includes the following:

[Plaintiff] comes into this office for evaluation following her motor vehicle accident which occurred on 12/24/00. She states that at the time of her accident she was complaining of severe pain in her neck. She [went] to the emergency room at Newton Hospital. Since then she has received eight weeks of physical therapy which has not helped her. She is still complaining of severe pain in her neck radiating to the right arm and shoulder blade. She feels that the neck is quite stiff. She is having difficulty with activities and turning her head. She denies any previous injuries to the neck and she now comes in for further evaluation.

Physical Examination: On examination, the patient is holding her head quite still. There does appear to be significant stiffness of the cervical spine in flexion, extension, side bending and rotation. There is tenderness along the posterior cervical muscles. There is tenderness along the medial border of the right scapula. There is full range of motion of both shoulder without evidence of impingement. There is some radiation of pain in the right arm in the distribution of C5-6. The remainder of the neurological exam is intact.

Assessment: Cervical strain, chronic with radiculopathy right arm.

[Emphasis added.]

In a follow-up report dated June 26, 2001, Dr. Basch noted that plaintiff was still complaining of "severe pain in her neck, which radiates to her right arm." He also reviewed a recent MRI of the cervical spine which showed "mild to moderate stenosis of the cervical spine at C5-6 and C6-7 with some nerve root impingement." Dr. Basch concluded that the MRI findings were consistent with the patient's symptoms, and that her symptoms were causally related to the motor vehicle accident on December 24, 2000. As noted in his earlier report, however, Dr. Basch was unaware of the previous neck injuries plaintiff sustained in the accident on May 30, 1997.

Plaintiff began treating with Dr. Todd Koppel on November 4, 2002. On October 24, 2003, plaintiff's attorney provided defense counsel with a copy of an undated narrative report from Dr. Koppel, noting that plaintiff complained of "right-sided neck pain radiating to her right upper extremity since a motor vehicle accident which occurred on December 24, 2000." Dr. Koppel's report also indicated that plaintiff had "received good relief from the therapies received but a degree of symptoms still exist." Based on his belief that plaintiff was asymptomatic prior to the accident on December 24, 2000, Dr. Koppel concluded that plaintiff's injuries resulted from the accident on December 24, 2000:

A causal relationship exists between the patient's current symptoms and the motor vehicle accident on December 24, 2000. She was asymptomatic prior to the accident in question. Vertebrogenic changes with stenosis was revealed on the MRI study. Although these changes were most likely present prior to the accident, her symptoms were not. The accident, therefore, initiated nerve root injury which was not present prior to the accident in question.

In an undated certification entitled "Certification Pursuant to Automobile Insurance Cost Reduction Act of 1998," Dr. Koppel states that in his opinion, within a reasonable degree of medical probability, plaintiff "sustained permanent injury that will have permanent residual sequelae," and that "there will always be some aspect of residual permanent injury experienced for the balance of my patient's lifetime." However, this certification, which refers to injuries "resulting from an accident of December 24, 2002," fails to set forth the results of any objective medical tests, fails to indicate the nature of any permanent injuries sustained by plaintiff, and fails to state that plaintiff has sustained an injury to a body part or organ or both that "has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a).

In support of her summary judgment motion, defendant argued that plaintiff was unable to demonstrate a causal connection between the accident on December 24, 2000, and the injuries she allegedly sustained to her neck, shoulder, and arm because those same body parts were injured in the prior automobile accident on May 30, 1997. Based on plaintiff's deposition testimony, her attorney argued that the two accidents involved different injuries:

[S]he testifies that in the prior accident in 1997 that it's an injury to her shoulder as a result of the seatbelt. It was not an injury to her neck. She . . . didn't have any complaints as far as the neck. That's the injury that we're here for today, . . . the cervical spine, not the shoulder and not the lower back.

The "Medicals Reviewed" section of the undated narrative report prepared by plaintiff's expert, however, indicates that he did not have the benefit of medical records from the accident that occurred on May 30, 1997. In addition, the "Medicals Reviewed" section does not list the treatment records showing that plaintiff complained of back pain on August 17, 2000, approximately four months prior to her accident, and that plaintiff had also complained of pain in her right arm radiating into her shoulders and fingers on October 27, 2000.

The trial judge's findings and conclusions included the following:

Plaintiff was previously involved in an automobile accident in which she sustained injuries, on May 30, 1997. Plaintiff contends that the injuries from that accident were mild and eventually resolved themselves. X-rays revealed narrowed C5-C6 and C6-C7 spaces with associated osteophytic changes. As a result of her injury, she underwent physical therapy and at least one cortisone injection. Additionally, about four months before the 2000 accident, plaintiff complained of back pain. Furthermore, approximately two months prior to the 2000 accident, plaintiff complained of pain in her right shoulder, arm, and fingers.

. . . .

In the case at bar, Dr. Koppel certifies that a causal relationship exists between the plaintiff's current symptoms and the 2000 accident. However, the only support for Dr. Koppel's opinion is plaintiff's assertion that she did not have any symptoms prior to the 2000 accident, but the evidence does not support this contention.

In the months prior to the 2000 accident, plaintiff complained of pain in her back, shoulder, and arm. In addition, the pre-accident and post-accident MRIs reveal that the plaintiff's C5-C6 and C6-C7 were abnormal. Therefore, Dr. Koppel's certification is not based on objective clinical evidence as required by the requisite statute.

The trial court's findings are well-supported by substantial credible evidence in the record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), and its conclusions predicated on those findings are legally sound. We agree that plaintiff's medical documentation failed to prove by objective credible evidence that she suffered a permanent injury as a result of the automobile accident on December 24, 2000. Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). We therefore affirm substantially for the reasons stated by Judge Russell in her comprehensive written decision attached to the order of summary judgment dated August 11, 2004.

 
Affirmed.

Because Maria Liptak's husband, Joseph Liptak, is asserting a derivative claim, we refer to Maria Liptak alone as "plaintiff."

(continued)

(continued)

9

A-0412-04T3

January 24, 2006