JOHN GORMAN AND CHARLENE GORMAN v. BARBARA J. GRUNT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3744-05T53744-05T5

JOHN GORMAN AND CHARLENE GORMAN,

Plaintiffs-Appellants,

v.

BARBARA J. GRUNT,

Defendant-Respondent.

________________________________________________________________

 

Argued March 14, 2007 - Decided June 12, 2007

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-2152-04.

Robert D. Kobin argued the cause for appellants (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys; Mr. Kobin and Susan B. Reed, on the brief).

David N. Heleniak argued the cause for respondent (O'Donnell, McCord & DeMarzo, attorneys; Maryann O'Donnell McCoy, of counsel; Mr. Heleniak, on the brief).

PER CURIAM

Plaintiffs John Gorman and Charlene Gorman appeal from two orders: one entered on January 6, 2006 granting summary judgment dismissing the complaint for plaintiff's failure to meet the verbal threshold; and a second order, entered on March 7, 2006, denying plaintiff's motion for reconsideration.

On September 9, 2002, plaintiff was involved in a rear-end collision with defendant. Shortly after the accident, plaintiff was examined by his family physician, Herbert Greenbaum, D.O., and treated for neck pain, tenderness and decreased range of motion in the cervical spine. Dr. Greenbaum diagnosed an acute cervical strain and prescribed medication and hot packs. Plaintiff saw Dr. Greenbaum on September 23, 2002, and reported "continuing neck pain, tenderness and decreased range of motion, as well as frontal headaches." Dr. Greenbaum "ordered X-rays of the cervical spine and physical therapy." In his answers to interrogatories, plaintiff reported that the X-rays taken on September 23, 2002 showed "[m]oderate degenerative changes of the mid and lower cervical spine."

Plaintiff attended physical therapy from September 25, 2002 to November 13, 2002. He saw Dr. Greenbaum for follow-up visits on October 1, October 8, October 18 and November 15, 2002, during which time he had continued physical therapy and medications, but reported no improvement.

Dr. Greenbaum referred plaintiff for a pain management consultation with Michael E. Rudman, M.D. Dr. Rudman examined plaintiff on November 20, 2002, after which Dr. Rudman reported that his examination indicated a "significant" decrease in range of motion, tenderness and pain in the C2 to C6 area, and that "X-ray examination of [plaintiff's] cervical spine on 9/23/02 shows only mild degenerative changes in the mid and lower spine with evidence of interspace narrowing at C4-5 and C6-7[,] as well as narrowing of the facet joints at the C4-5, C5-6 and C6-7 levels bilaterally."

The difficulty with plaintiff's post-accident medical reports is that he had been treated for virtually the same cervical spine injury more than two-and-a-half years before the September 2002 accident. In January 2000, Dr. Greenbaum referred plaintiff for radiographs of the cervical spine. Dr. Mark Cosentino, M.D., reported that the radiographs of the cervical spine taken in 2000 showed

extensive degenerative changes of the spine with multi-level degenerative disc space narrowing and anterior and posterior degenerative osteophytes at multiple levels. This is associated with some degenerative changes of the oncovertebral joints. There is narrowing of the left C4-5, C5-6 and C6-7 neural foramina with some narrowing of the right as well. There are no compression deformities or subluxations. The pre-vertebral soft tissues are normal. There is some cervical spine straightening.

After Dr. Cosentino made these observations in his report dated January 10, 2000, he diagnosed "extensive degenerative changes as described. Encroachment of the neural foramina bilaterally."

On January 19, 2000, plaintiff was examined by Steven Dorsky, M.D., of the New Jersey Spine Center, who stated in his report that plaintiff presented

with a history of neck pain dating back approximately one month. The problem began spontaneously. Complaints include the neck radiating bilaterally to the shoulders. This was initially worse on the right but is presently worse along the left side.

Dr. Dorsky's impression was that plaintiff presented "with a history of neck pain as well as intermittent radiculopathy secondary to advanced degenerative disease."

On March 1, 2000, Dr. Dorsky saw plaintiff again, at which time plaintiff had "persistent complaints of neck pain as well as radiculopathy along the right side. Pain is mostly situated on the left side of the neck extending to the head and eyes . . . . Range of motion remains very limited and painful. There is pain with axial compression." Dr. Dorsky recommended a cervical MRI and instructed plaintiff to continue taking Vicodin and Celebrex. On March 14, 2000, Dr. Dorsky reported that "[a]n MRI of the cervical spine reveals cervical spondylosis at multiple levels with ridging most notably at the C5-C6 and C6-C7. This is causing mild to moderate spinal stenosis. [Plaintiff] has cervical spondylosis resulting in neck and arm pain." Dr. Dorsky did not recommend surgery but indicated plaintiff should continue with physical therapy and exercise on his own.

Relative to the September 2002 accident, plaintiff underwent an independent medical evaluation (IME) by Warren J. Bleiweiss, M.D., on January 31, 2005. Plaintiff did not report his cervical pain and treatment in 2000 during that examination. Dr. Bleiweiss stated that plaintiff "first noted left-sided neck, head and shoulder pain after a motor vehicle accident that occurred in September of 2002." Plaintiff did, however, report to Dr. Bleiweiss that he was involved in a second motor vehicle accident on October 7, 2003. Plaintiff claimed that accident "caused right-sided neck, head and shoulder pain." Dr. Bleiweiss stated that plaintiff had "not reached maximum medical improvement at this time."

On June 28, 2005, Barry S. Levine, M.D., examined plaintiff for evaluation of the injuries "allegedly sustained" in the September 2002 accident. During that examination, plaintiff "denie[d] prior neck difficulties" and "denie[d] any other accidents." When Dr. Levine reviewed the other medical reports, however, he learned that plaintiff had a second motor vehicle accident in October 2003 and a history of neck pain and radiculopathy since 2000. Dr. Levine reported that "[t]he degenerative changes on an MRI of cervical spine were chronic and not related to the motor vehicle accident. Pre-existing degenerative disc disease of cervical spine as well as left-sided cervical facet joint syndrome were said to be pre-existing." Dr. Levine's final impression of plaintiff's condition was as follows:

As a result of the motor vehicle accident on 9/19/02, patient allegedly sustained injury to his cervical spine. Patient was treated conservatively including medication and physical therapy. He had a series of left-sided cervical facet blocks for [the] "cervical facet arthropathy." Regular cervical spine X-rays before and after the 9/19/02 accident showed extensive degenerative change of the cervical spine but the facet joints [are] not mentioned as reviewed above. While denying pre-existing neck problems, patient was treated and evaluated including a spine surgical consultation in regard to his neck in the year 2000. While denying any other motor vehicle accidents, records indicate a second accident in October 2003. Patient[']s continued complaints are noted above. Examination shows extreme voluntary guarding to which no objective residual of the 9/19/02 accident can be demonstrated. Patient has pre-existing chronic degenerative change of cervical spine sufficient to cause chronic intermittent symptoms from time to time. Patient has no objective residual that can be attributed to the 9/19/02 motor vehicle accident.

After completing discovery, defendant moved for summary judgment. Judge Steven F. Smith, Jr., heard argument on January 6, 2006 and granted the motion because plaintiff had not presented any objective proof of injury related to the September 2002 accident. Plaintiff's counsel argued that although there was no MRI, plaintiff "did undergo cervical medial branch blocks, several of them on the left side, and did undergo radio frequency lesioning on the left side, and was given a TENS unit for treatment on the left side," all of which counsel maintained were objective evidence of a permanent injury. The court disagreed with plaintiff that "treatment equals objective proof of injury" and stated that

the recent statute [N.J.S.A. 39:6A-8] requires objective evidence of an injury as to avoid the mischief that might be created by persons, not your client in any sense, but persons in a general sense [from] claiming [that] an injury may or may not be serious and doctors treating an injury that may or may not require treatment.

In his motion for reconsideration, plaintiff's counsel argued that the facet injections "are more diagnostic than an MRI because you go in there and . . . shoot it with some Novocain, and you shoot it with some other material, and if it works, which it did in this case, that shows that there is an injury to that area and it shows that it's not something a man is just making up." The trial judge disagreed and denied the motion, stating that "the inter facet injections are not diagnostic test[s]."

Plaintiff appealed and argues that the trial court erred in (1) failing to find that "facet injections and medial branch blocks were objective clinical evidence as defined by N.J.S.A. 39:6A-8;" (2) failing to find "that spasm was objective clinical evidence as defined by" the statute; and (3) failing to find that plaintiff sustained a permanent injury.

We have carefully considered the record in this matter in light of plaintiff's arguments and the applicable law. We are satisfied that plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

The Automobile Insurance Cost Reduction Act of 1998 (AICRA) amended the prior "limitation on lawsuit option," commonly referred to as the verbal threshold. N.J.S.A. 39:6A-8(a). Under the amended statute, a person who opts for lower cost auto insurance containing a limitation on his or her ability to sue for non-economic damages, must meet the verbal threshold by demonstrating that he "has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). "An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.

The statute requires that a physician certify the injury as permanent, "based on . . . objective clinical evidence, which may include medical testing . . . performed in accordance with medical protocols pursuant to [N.J.S.A. 39:6A-4(a)] and the use of valid diagnostic tests administered in accordance with [N.J.S.A. 39:6A-4.7]." Ibid. (emphasis added). Consequently, an expert's opinion that plaintiff has suffered a permanent injury must be supported by "objective clinical evidence" and cannot be dependent upon a party's subjective reports of pain. Ibid.; see Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993) (citing Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).

In short, AICRA requires a plaintiff to provide "objective clinical evidence" of a permanent injury. N.J.S.A. 39:6A-8(a); Serrano v. Serrano, 183 N.J. 508, 514 (2005). In Serrano, the Supreme Court noted: "[i]t is clear to us that the Legislature intended to eliminate lawsuits for frivolous injuries, and did so by requiring a plaintiff to prove by objective clinical evidence, supported by a physician['s] certification under penalty of perjury, an injury fitting into one of the six statutorily defined threshold categories." Id. at 518. (emphasis added).

In the numerous medical reports included in the record, we find no objective support for plaintiff's claimed permanent injury. Accordingly, we affirm.

 
Affirmed.

When we refer to plaintiff in the singular, we are referring to John Gorman. Charlene Gorman, his wife, is named in the complaint on a per quod claim only.

Although Dr. Greenbaum diagnosed plaintiff as suffering from "acute cervical strain" shortly after the accident, there was no reference to "acute cervical strain" in any of the other reports in the record, nor was there any reference to "spasm" in any of the medical reports.

N.J.S.A. 39:6A-4(a) addresses the parameters of verbal insurance policies and N.J.S.A. 39:6A-4.7 authorizes the Division of Consumer Affairs to establish "a list of valid diagnostic tests to be used in conjunction with the appropriate health care protocols in treatment of persons sustaining bodily injury and subject to [N.J.S.A. 39:6A-8(a)]." N.J.A.C. 11:3-4.5(b) contains the list of approved "diagnostic tests which have been determined to have value in the evaluation of injuries, the diagnosis and development of a treatment plan for persons injured in a covered accident." Facet injections are not listed.

(continued)

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A-3744-05T5

June 12, 2007