PAMELA V. MCELROY v. JOSEPH M. AZYDZIK, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1898-05T21898-05T2

PAMELA V. MCELROY,

Plaintiff-Appellant,

v.

JOSEPH M. AZYDZIK and

JOSEPH T. AZYDZIK,

Defendants-Respondents.

_______________________________________________________________

 

Argued July 12, 2006 - Decided August 8, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Union County, L-3478-04.

Samuel R. Mechanic argued the cause for

appellant (Andrew H. Koppel & Associates,

attorneys; Mr. Mechanic, on the brief).

Caryn P. Siperstein argued the cause for

respondents (Faust Goetz Schenker & Blee,

attorneys; Ms. Siperstein, on the brief).

PER CURIAM

This is a verbal threshold case. Plaintiff Pamela V. McElroy, injured her right thumb in an automobile accident on May 3, 2004. She appeals from a summary judgment order entered on November 4, 2005, dismissing her complaint. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.

Following the accident, plaintiff was taken to the Robert Wood Johnson Hospital, and an x-ray was taken of plaintiff's right hand and her right thumb. The results of the x-rays were as follows: "No evident fractures or dislocations. Joint spaces are intact. Some minimal degenerative changes of the metacarpophalangeal joint spaces are seen." According to the hospital records, plaintiff sustained a sprain of her right thumb and a contusion on her left knee from the accident.

In a report dated November 3, 2004, Dr. Meyers confirms that he reviewed the medical records from the hospital emergency room dated May 3, 2004, and he "noted x-rays of the right thumb/hand revealed minimal degenerative changes in the first metacarpophalangeal joint spaces." Dr. Meyers also referred to another x-ray of plaintiff's right thumb taken by his office on May 18, 2004, which showed "no evidence of fracture or dislocation" to plaintiff's right hand or right thumb. The final discharge diagnosis by Dr. Meyers was "post-traumatic subluxation of the first metacarpophalangeal joint and interphalangeal joint of the right thumb in a post reduction state with chronic synovitis of the right thumb."

The 1998 Automobile Insurance Cost Reduction Act (AICRA) requires a plaintiff to prove a verbal threshold injury by objective credible evidence. DiProspero v. Penn, 183 N.J. 477, 495 (2005). Here, the trial court concluded that plaintiff's medical documentation failed to establish that she suffered a permanent injury as a result of the automobile accident on May 3, 2004:

I cannot come to the conclusion that a possible sprain of the thumb, dislocation, sprain of the thumb with some swelling, is sufficient.

A mere [parroting] of the statute by the doctor is not enough.

I'm satisfied that under these circumstances, . . . there's no objective evidence to suggest that this is a permanent injury.

Motion granted.

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 proofs were insufficient to establish a prima facie case of a permanent injury as required by AICRA. See N.J.S.A. 39:6A-8(a) (requiring that physician's certification of permanency "be based on and refer to objective clinical evidence"). Here, the x-rays taken of plaintiff's thumb on May 3, 2004, and May 18, 2004, do not provide objective medical evidence of a permanent injury.

Affirmed.

 

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A-1898-05T2

August 8, 2006