ARLENE VELEZ et al. v. FRANKLIN M. ARIAS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5485-05T35485-05T3

ARLENE VELEZ and ANTONIO

VELEZ, her husband,

Plaintiffs-Appellants,

v.

FRANKLIN M. ARIAS,

NARCISCO A. MILAN,

HARVEY J. GOLUBOCK,

and MARSHA GARRISON,

Defendants-Respondents.

_______________________________________

 

Submitted: February 27, 2007 - Decided March 13, 2007

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-3494-04.

Garces & Grabler, attorneys for appellants (Gary A. Cavalli, on the brief).

Methfessel & Werbel, attorneys for respondents Franklin M. Arias and Narcisco A. Milan (Heather P. Schlisserman, on the brief).

David S. Springer, attorney for respondents Harvey J. Golubock and Marsha Garrison (John M. Malaspina, on the letter relying on the brief filed on behalf of respondents Franklin M. Arias and Narcisco A. Milan).

PER CURIAM

Plaintiff Arlene Velez appeals from an order granting summary judgment entered on May 15, 2006, dismissing her complaint for personal injuries arising out of an automobile accident for failure to satisfy the "limitation on lawsuit" option (frequently called the "verbal threshold") under the l998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. The trial judge found that plaintiff had failed to establish a permanent injury through objective, credible medical evidence.

On appeal, plaintiff contends the trial court failed to accord her all favorable inferences and erred in employing the standard of "serious" permanent injury in determining that her injuries did not overcome the verbal threshold. Plaintiff also contends she suffered a qualifying permanent injury sufficient to overcome the threshold as evidenced by the reports and records of her four treating and examining physicians who opined causation and permanency based on positive clinical tests. We are not persuaded by these arguments and affirm substantially for the reasons set forth in Judge LeBlon's written opinion of May l5, 2006. We add the following comments.

Although the phrase "serious" permanent injury is contained several times in the trial court's opinion, including the court's conclusion, it is clear to us that the use of the word was inadvertent. We are satisfied the court was well aware of and applied the appropriate standard in evaluating plaintiff's injuries for purposes of summary judgment, having cited to Serrano v. Serrano at the outset of the opinion. Based on our review of the record, we are satisfied the trial court's recitation of the record is accurate and its legal analysis is sound.

Fifty-year-old plaintiff was involved in a rear-end collision on June 2, 2002. She went to the emergency room the next day, complaining of back, neck and left leg pain, and was diagnosed with multiple areas of muscular sprain. A week later she had cervical and lumbar spine x-rays taken, which indicated no acute herniation and no acute disc bulge. Plaintiff treated with Doctors Cunningham and Bogdan of Ani Orthopaedic Group through November 2002. Her MRI of September 11, 2002, revealed evidence of "acute mild left-sided C6 radiculopathy and acute mild left sided L3 radiculopathy" and "a mild demyelinating ulnar nerve neuropathy at the elbow . . . . consistent with the clinical diagnosis of cubital tunnel syndrome." Dr. Bogdan also noted that plaintiff had severe lumbar paraspinal spasm. His November l2, 2002 report reflected, among other items, an impression of lumbar radiculopathy most likely at L3-4 on the left, cervical radiculopathy most likely at C4 and C6, cubital tunnel syndrome on the left, and lumbar paraspinal spasm at L4-5 region on the bilateral.

As noted by the trial court, the November 2002 report was the last report indicating spasm. The report of Dr. Mullally's neurological evaluation of May 25, 2004, noted an EMG that had been performed on May 23, 2004, "revealed evidence of a high lumbar L3 radiculopathy" and his impression was chronic pain syndrome. We agree that the "presence of spasm in plaintiff's lumbar spine five months after the accident, but not indicated thereafter, is not sufficient to defeat summary judgment." See Jacques v. Kinsey, 347 N.J. Super. 112, 120 (Law Div. 2001) (finding that spasms documented "for four or five months, coupled with some loss of range of motion, are not sufficient objective, clinical evidence to support the doctor's finding of permanent injury to vault his claim past the verbal threshold"). Although Serrano removed the "serious" injury requirement, it did not remove the "permanent" injury requirement. We further note that Dr. Bogdan neither opined causation nor permanency in his two reports contained in the record.

Viewing plaintiff's proofs in the light most favorable to her, she presented objective evidence of radiculopathy, which is insufficient to overcome the verbal threshold even under the liberal standard following Serrano. Plaintiff's psychiatric claims also fail as a matter of law as Dr. Ivanov failed to provide any objective clinical evidence confirming the nature of plaintiff's injuries. It is insufficient that Dr. Ivanov responded in his AICRA certification dated March l7, 2004 to question 5 asking him to list the objective clinical evidence confirming the nature of plaintiff's injuries that he obtained "computerized psychological testing MEM I-II," as none of his reports references any type of testing performed on plaintiff.

Affirmed.

 

In Serrano v. Serrano, 183 N.J. 508, 510 (2005) the Court held that an AICRA plaintiff "has to prove only an injury defined in N.J.S.A. 39:6A-8(a) [a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement], and does not have to clear the additional hurdle of proving a 'serious injury.'"

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A-5485-05T3

March 13, 2007