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1. Thompson v. Dominguez, A-2837-01T3 DDS No. 23-2-2496 Judges Fall and Weissbard Jan. 8, 2003 No specific type; AICRA case. Plaintiff was involved in two separate motor vehicle accidents occurring approximately four weeks apart. In the first, she was struck from the rear while she was stopped at a traffic light. In the second, she was again struck in the rear, this time while she was stopped at an intersection waiting to make a left turn. After the first accident, plaintiff complained of neck pain, upper and lower back pain, and severe headaches. She visited her family physician who found that she had sustained a whiplash injury. Four days post-accident she commenced chiropractic treatments, which she continued for about three weeks. The chiropractor diagnosed her as suffering from “cervical sprain/strain; lumbar sprain/strain; cervical disc degeneration; cervical kyphosis; hyperlordosis; lumbar anamalous segment; and myalgia and/or myositis.” In his report dated one and one-half months after the first accident and two and one-half weeks after the second accident, the chiropractor noted that plaintiff had reported new, more severe pain in her neck and lumbar spines after the second accident. His diagnoses, however, remained the same. An MRI taken at some point apparently revealed three disc herniations. Further, there was evidence of muscle spasm during plaintiff’s initial two months of treatment. Five months after the first accident and four months after the second, the chiropractor opined that plaintiff had “reached a plateau in progress and attained the maximum benefits of chiropractic treatment,” and that no further treatment was warranted. Plaintiff did not present any evidence of subsequent medical treatment for her injuries, although she did present a medical report of an examination performed more than one year post-accident, which did contain another reference to muscle spasm. Both defendants moved for summary judgment, which the judge granted in separate opinions. He noted that plaintiff’s claim was for aggravation in the second accident of the cervical and lumbosacral sprain and strain injuries sustained in the first accident. The judge reviewed the legislative intent in enacting the Automobile Insurance Cost Reduction Act � to halt the proliferation of lawsuits in which the soft tissue injuries are not serious � and noted that the act was to be construed broadly “to eliminate minor personal injury automobile negligence cases from the court system in order to achieve economy and provide lower insurance premiums to the public.” Conceding that an extremely severe soft tissue injury might be considered to be a permanent injury to a body part or organ within the meaning of AICRA, the judge found that plaintiff’s claims here, for aggravation of a sprain or strain of the soft tissue in the neck or back, plainly did not vault her over the high AICRA threshold. He stated that: “Plaintiff clearly failed to demonstrate that she sustained a permanent injury to a body part or organ, namely, that ‘a body part or organ, or both, has not healed to function normally with further treatment’ under N.J.S.A. 39:6A-8.” Plaintiff appealed, contending that the trial judge erred in finding that she had not sustained a serious and permanent injury and contending that she proved such injury by objective, credible medical evidence. She asserted that long-term spasms, both by themselves and in conjunction with three herniated discs, represented objective, credible evidence of a permanent injury. The appellate panel, after analyzing the record in light of the written arguments of the parties, affirmed substantially for the reasons expressed by the trial judge in his opinion. It added that plaintiff failed to produce objective, medical evidence of an injury cognizable under the tort limitations provisions contained in the statute that was causally related to these two accidents. Specifically, the panel found that there was no medical evidence causally linking the disc herniations disclosed in the MRI to either of these accidents. Additionally, the finding of muscle spasm during plaintiff’s initial two months of treatment and thereafter at an examination performed over one year later � with no reference to any spasm during the intervening time period � was insufficient under the new verbal threshold law to constitute evidence of a “permanent injury within a reasonable degree of medical probability.” 2. Donato v. Holmes, A-3850-01T3 DDS No. 23-2-2552 Judges Carchman and Parrillo Jan. 15, 2003 No specific type; pre-AICRA case. (Although AICRA’s applicability is discussed.) Plaintiff and defendant were involved in a motor vehicle accident on Nov. 30, 1998. On the next day, plaintiff went to the emergency room of a local hospital complaining of lower back and neck pain. X-rays were negative. Plaintiff underwent treatment with an orthopedic surgeon who ordered an MRI during the course of treatment, revealing a central bulge of the L5-S1 disc. Two years and six days after the accident, the doctor issued a report diagnosing plaintiff’s injury as “cervical, dorsal, and lumbar sprain/strain, as well as spasm of the bilaterial cervical paravertebral musculature.” Apparently, the spasm was intermittent and was revealed during some examinations by the doctor but not in others. In his final examination of plaintiff and subsequent report, issued three years and two months post-accident, the doctor opined that plaintiff’s post-traumatic symptoms were chronic and would not substantially improve. The final diagnosis was chronic post-traumatic cervical, dorsal, and lumbar spine pain and spasm. The doctor indicated that he had prescribed Ultracet for plaintiff, which would hopefully alleviate some of her chronic discomfort. He discharged plaintiff from his care due to the fact that nothing further could be done from an orthopedic standpoint. Her prognosis was noted as poor due to the fact that she remained symptomatic three years after the accident. Plaintiff contended that the references to “chronic” were the functional equivalent of permanent injuries as called for in the verbal threshold statute. She still complained of intermittent, sharp, stabbing pains, which she claimed diminished her participation in activities that she had engaged in prior to the accident. These included tennis � which she said she had played several times per month before the accident, but only several times in total since � and her job duties as a manager at a rental car company, which included washing cars. The motion judge granted summary judgment to the defendant, making a threshold determination that AICRA applied because the accident occurred after May 19, 1998, and plaintiff’s policy was renewed after that date. The judge then determined, as a matter of law, that there was neither permanent injury nor a serious impact on plaintiff’s life as a result of the accident. While affirming the result, the appellate judges first noted that they disagreed with the motion judge’s determination that AICRA applied to this case. Reviewing the language of the pertinent statutes and the legislative history, the court stressed that parts of the law were to take effect immediately, whereas others were to take effect 90 days after the enactment of the new law. Specifically, while N.J.S.A. 39:6A-8 was amended by the statute and provided that it was to apply to automobile insurance policies issued or renewed on or after the effective date of AICRA, AICRA itself provided that it was to take effect 90 days following either the establishment by the Commissioner of Banking and Insurance of basic benefits required to be provided, or the adoption by rule of the professional boards of the designation of valid diagnostic tests pursuant to the provisions of section 12 of AICRA � whichever was later � except that: (1) sections 47 through 61 were to take effect on the 90th day after the date of the enactment; and (2) sections 1, 12, 26 through 46, 62 through 65, and 67 were to take effect immediately. The appellate judges noted that the amendments to the new verbal threshold statute, identified as “P.L. 1998, c. 21, section 11,” were not included in those sections taking effect immediately. The accident here fell within the 90-day period after enactment of AICRA, but prior to the effective date. The State Board of Medical Examiners’ new rules, governing the validity of diagnostic tests, became effective on March 1, 1999, 10 months after the accident. AICRA, therefore, did not apply. Addressing the merits of plaintiff’s claim, the court found that even if the motion judge erred in distinguishing the plaintiff’s doctor’s use of the word “chronic” from “permanent,” and plaintiff had met the first, objective prong of the Oswin test sufficient to withstand a motion for summary judgment, plaintiff did not demonstrate a serious impact on her life, and the judge’s grant of summary judgment was, therefore, appropriate. Reviewing some of the case law interpreting what was required to meet the serious impact standard of the verbal threshold statute, the court was not persuaded that the combined impact of plaintiff’s described limitations rose to the level described in the cases discussed. While the judges did not deprecate the seriousness of plaintiff’s injury and the discomfort she suffered, they concluded that the limitations on her playing tennis, or even washing cars at her employment, did not rise to the level of impact contemplated by the Legislature in providing recovery under the statute. 3. Campbell v. Austin, A-1391-01T5 DDS No. 23-2-2559 Judges Wallace Jr. and Hoens Jan. 15, 2003 No specific type; pre-AICRA case. Plaintiff was involved in a minor motor vehicle accident on Sept. 26, 1995. On the next day, he went to the hospital complaining of neck and lower back pain, and was diagnosed with acute cervical and lumbar sprain. X-rays were taken two days post-accident, which revealed moderate narrowing of the C5-6 disc space with associated spur formation. His doctor’s diagnosis was degenerative disc change at C5-6. Nine days post-accident, plaintiff was examined by another doctor, who diagnosed plaintiff with cervical and lumbar sprain/strain and temporomandibular joint dysfunction bilaterally. Plaintiff was last treated by this doctor one month and three days post-accident. Plaintiff saw a third doctor about a month post-accident, who also diagnosed him with cervical and lumbar sprain/strain. An MRI taken of plaintiff’s cervical spine at that time revealed a focal central posterior disc protrusion at C5-6. Several days later, plaintiff underwent a bone scan of his whole body, which was normal. At the time of the accident, plaintiff was unemployed. Two months afterward, he was incarcerated and thereafter confined for approximately three years. While in prison, plaintiff received no medical treatment, was able to perform calisthenics despite some discomfort, and was able to lift lumber and remove trash when requested to do so. Following his release from jail, plaintiff visited a fourth doctor who noted, in a report dated three years and approximately two months post-accident, that plaintiff’s x-rays showed degenerative disc disease while the MRI showed a central posterior disc herniation in the C5-6 area. He concluded that although the studies involved the same area of the body, they were very different. He stated that the plain radiographs simply visualized bony areas and their relationships to each other. The fact that plaintiff had a moderate narrowing at the cervical 5-6 disc space did not translate into his having a herniated disc in that area. Therefore, the demonstration that plaintiff had a degenerative disc from plain radiographs did not prove that he had a herniated disc in that same region of the cervical spine. He stressed that the tests were very different and were used to evaluate different tissues in the spine. Defendant filed his motion for summary judgment at about this same time, three years post-accident. The judge granted the motion because plaintiff failed to show a causal connection between his disc herniation and the accident. Plaintiff immediately sought another report from the last doctor, which was rendered one and one-half months after the doctor’s last report. He concluded that the cervical disc herniation noted on the MRI scans was, within a reasonable degree of medical certainty, caused by the subject accident. Plaintiff sought reconsideration on the basis of the new report, but the judge denied the motion, concluding that the new report contained previously ascertainable facts. On appeal, the plaintiff did not challenge the trial judge’s first conclusion � that plaintiff had failed to show a nexus between his disc herniation and the accident � but, instead, focused on the judge’s alleged error in refusing to grant oral argument on the motion for reconsideration and his denial of that motion. The appellate panel affirmed, finding no abuse of discretion in the judge’s determinations. The rules gave the judge the latitude to grant a rehearing or to consider the papers submitted in deciding whether he should amend or add to his findings, and amend or alter the judgment. Here, before denying the motion, the judge aptly decided the motion on the papers submitted and, in fact, considered and referred to the expanded medical reports plaintiff submitted. Moreover, plaintiff did not present new or additional information, but merely presented information that could have been presented at the initial motion. Plaintiff’s efforts to show causation between the accident and his injuries came too late. In addition, the panel opined that even if plaintiff had met the first prong of Oswin and the objective, medical evidence of his injury was sufficient, he failed to demonstrate that his injury had a serious impact on his life. The trial record, in fact, contained no certification by plaintiff of his subjective limitations � although he did note for the first time in his appellate brief that he was unable to ride a bicycle or have sexual relations with his wife after the accident. Two months after the accident, however, and for three years thereafter while he was imprisoned, plaintiff received no further medical treatment for his alleged injuries. There was no constraint against his receiving such treatment, but he received none. Additionally, he was able to lift lumber and trash. There was no evidence that plaintiff’s injuries had a serious impact on his prison activities. 4. Etlinger v. D.L. Peterson Trust Co., A-0806-01T2 DDS No. 23-2-2621 Judges Fall and Weissbard Jan. 23, 2003 Procedural issue; pre-AICRA case. On Dec. 24, 1997, plaintiff was a passenger in her own car, which was being driven by her husband. Their vehicle was stopped in traffic waiting to make a left turn when it was struck from behind by defendants’ vehicle. Plaintiff complained of neck and back injuries at the scene, and was transported to a local hospital, where she was treated primarily for an asthma attack apparently brought on by the accident. According to plaintiff, because it was Christmas Eve and she had four children, she chose not to remain in the hospital. Thereafter, plaintiff sought medical treatment from a number of doctors for neck and back pain. In particular, she received chiropractic treatments on a regular basis starting two months after the accident and continuing for almost two years. Almost three years post-accident, plaintiff also went to a physiatrist for evaluation and treatment. When the defendants moved for summary judgment, plaintiff requested and received, with the consent of defense counsel, an adjournment. At some point near the new return date, plaintiff’s counsel again sought an adjournment with consent of defense counsel; however the judge refused to grant the request. As a result, on the day before the scheduled return date, plaintiff’s counsel filed a brief and certification in opposition to the motion. In the certification, counsel summarized plaintiff’s medical treatment and her deposition testimony. From a medical standpoint, plaintiff placed primary reliance on a report of the physiatrist dated after the filing of the summary judgment motion. On the return date of the motion, the judge entered an order granting summary judgment to the defense and dismissing plaintiff’s complaint with prejudice; there was no oral argument, as none had been requested. The order contained no findings of fact and the judge did not place any on the record. The order, further, did not indicate whether the court considered plaintiff’s opposition papers. Plaintiff filed a motion for reconsideration, supporting the application with a certification that again attached the documents that counsel had delivered to the court on the day before the return date of the adjourned summary judgment motion. Before the reconsideration motion was returnable, plaintiff’s counsel sent to the court an updated report from the physiatrist, which disclosed the results of an EMG conducted 12 days after the summary judgment was granted, and an MRI conducted 26 days thereafter. At argument of the reconsideration motion, it did appear that the judge had considered plaintiff’s late submission when he initially granted summary judgment to the defense. However, plaintiff sought to have the court reconsider its earlier ruling based on the updated physiatrist’s report containing the recent objective test results. Although the judge appeared to have considered the new material at one point, at another point he clearly said, “I’m not going to redo the past,” and denied the motion. It may be that he considered the test results, but not the doctor’s report; the record is not clear. Plaintiff appealed, arguing that the judgment should be reversed because the judge failed to make the required findings of fact and conclusions of law. Plaintiff further asserted that the appellate court itself should review the submissions she provided to the motion judge and rule on the merits of the summary judgment motion. Defendants contended that summary judgment had been appropriately granted based on the proofs submitted as of the date of the original motion, and that the court below properly denied reconsideration. While they did concede that the judge had not made any findings in support of his ruling, they asserted that a review of the transcript of the argument of the reconsideration motion revealed findings sufficient to support entry of the order. The appellate panel agreed that the original summary judgment order could not stand because of the lack of findings as required by the court rules. Nor did the panel feel that the reconsideration motion transcript contained any express findings to support the order. Instead, the transcript revealed that, at the conclusion of the hearing, plaintiff’s counsel asked the judge to make such findings, but the judge simply responded that counsel could “have them by ordering a copy of the transcript.” The appellate panel declined the trial court’s apparent invitation, echoed by defendants, to search the motion transcript and thereby reconstruct findings that were never explicitly made. The appellate judges stressed that it was not their responsibility, but that of the trial court in the first instance, to make appropriate findings. As a result, the court vacated the order granting summary judgment and remanded the matter for such findings. The judges noted their agreement with defendants that plaintiff’s attorney appeared to have manipulated the motion process so that medical reports could continue to be generated in an effort to overcome summary judgment. No reason appeared in the record as to why the necessary tests and reports could not have been completed earlier and submitted in a timely fashion; the case was about 18 months old at the time of the initial summary judgment motion, and nearly three and one-half years had passed since the accident, which was ample time for plaintiff to have received all necessary evaluations. Nevertheless, since the matter needed to be remanded, the appellate court saw no purpose at this late date in restricting plaintiff to only those reports and test results generated before the initial motion was granted. On remand, the trial court was directed to consider the most current information available so that a fair result could be obtained on the merits. By the same token, however, the panel held that defendants should, in reciprocal fairness, be permitted to update their own submissions, as well. The panel left the exact contours of the motion on remand to the good judgment of the trial court. 5. Cooper, Sr. v. Harvey, A-2986-01T5 DDS No. 23-2-2646 Judges King and Wefing Jan. 27, 2003 No specific type; pre-AICRA case. Plaintiff was stopped in his GMC Sierra pickup truck at a red light when defendant, driving a Ford pickup truck, struck plaintiff from the rear. The force of the impact was not strong enough to drive plaintiff’s truck forward into the car stopped in front of him at the light. The police arrived at the scene, and the report prepared by the responding officer noted that plaintiff’s truck suffered “minor damage,” and defendant’s truck sustained none at all. Plaintiff drove himself to the hospital and told the emergency room personnel that he had a severe headache, a sore right hand, and pain in his neck and lower back. He was examined and released. At the time of the accident, plaintiff was already under the care of a chiropractor for a lower back problem. He was treated by the chiropractor for almost two years after the accident, and was eventually referred to an orthopedic surgeon specializing in spinal surgery. The surgeon noted that plaintiff had pre-existing degenerative disc disease that was aggravated by the accident. His diagnosis was that plaintiff suffered from cervical myelopathy, which accounted for plaintiff’s complaints of neck pain and weakness in his right arm. Plaintiff told the orthopedic surgeon that he had been asymptomatic prior to the accident. The doctor recommended surgery on plaintiff’s cervical spine but, as of the time he was deposed, two and one-half years after the accident, plaintiff had opted not to undergo the operation. Plaintiff last saw this physician two years post-accident, and six months before his deposition. Plaintiff, a retired air traffic controller, testified at his deposition that he had been very active before the accident and that his favorite activities had been motorcycling, boating, flying and golf. In the year following the accident, he stated that he drove to Florida to visit a friend. From there, he and the friend drove cross-country to Spokane, Wash., for a motorcycle convention. They then drove to British Columbia, Canada and on to South Dakota for other conventions, winding up driving back to New Jersey. Shortly before his deposition, plaintiff had attended two more motorcycle events, one of which involved riding his motorcycle from Philadelphia to Atlantic City. He also testified at his deposition that he was planning to attend another such event in Washington, D.C., over an upcoming holiday weekend. Plaintiff also related that he was a gun enthusiast, belonging to a gun club, making his own bullets and shooting pistols on a monthly basis. He stated that he used to shoot competitively, but could no longer do so because of the weakness in his right hand from the accident. However, he did admit that he had not participated in a national shooting competition for several years prior to the accident. As for his boating interests, plaintiff owned two vessels: one, a 21-foot inboard-outboard that he kept in Florida; the other, a 16-1/2-foot center console he kept in New Jersey. He testified at his deposition that he last used the boats in the year after the accident, but found driving the larger boat painful. He hoped to be able to continue to boat in the future, but stated that he would have to do so in a lesser way, because there were a lot of strenuous activities associated with taking a boat in and out of the water that he couldn’t do by himself anymore. As a result of the accident, plaintiff also asserted that he had given up golf. Although he had purchased an expensive set of clubs and was taking lessons from a professional in the year of the accident, there was no evidence that he had played golf before that year. Finally, plaintiff said he had given up flying after the accident. Although he maintained his active pilot’s license, he felt that he would no longer be able to pass the required physical because of the pain medication he was taking. Defendant moved for summary judgment, asserting that plaintiff had not established that the accident had resulted in a significant impact upon his life. In connection with the application, the defense submitted a surveillance videotape that showed plaintiff, essentially unassisted, putting his boat into the water and taking it out. The tape, the accuracy of which plaintiff did not challenge, showed him launching his boat and later replacing it on the trailer and hauling it out of the water, removing and later replacing the tarpaulin cover, climbing in and out of the boat, checking its underside and, finally, hosing it down completely, all with no apparent difficulty or restriction. The trial court granted the motion, and dismissed plaintiff’s case. Plaintiff appealed, urging that the trial judge had erred in granting the motion, and stressing that the issue of the impact of the accident upon his lifestyle was a question that should have been submitted to a jury. The appellate court disagreed and affirmed the dismissal of the case. The court reviewed those cases in which it had been held that a party’s inability to engage in a recreational activity as a result of a motor vehicle accident did constitute a “significant impact” for purposes of verbal threshold requirements. Here, however, the judges stressed that plaintiff was able to continue to participate in the activities he enjoyed, albeit at what he considered a reduced level. They found the facts of this case to be more akin to those in Sherry v. Buonasonti, in which the plaintiff’s limitations on his ability to swim and dance were held to be insufficient to meet the serious impact standard. As a final comment, the court noted that it could hardly disregard the plaintiff’s admitted ability, after the accident, to drive thousands of miles to participate in motorcycle events. It also highlighted what was shown in the surveillance videotape, which obviously showed an individual enjoying his recreational activities without physical restriction. 6. Green v. Leja, A-3305-01T2 DDS No. 23-2-2714 Judges Stern and Alley Feb. 3, 2003 No specific type; AICRA case. In the physician’s certification submitted by plaintiff’s treating chiropractor pursuant to AICRA, the doctor concluded that plaintiff had sustained a cervical disc bulge as shown on an MRI report, “coupled with symptomatic expression for over five months.” It was not clear from the record, but it appeared that the chiropractor’s report was attached to the certification in which he found that plaintiff had sustained the following injuries in the accident: (1) C5-C6 disc bulge, as per MRI report; (2) left-sided radiculopathy, as per needle EMG report; (3) paravertebral myofascitis; (4) subluxations of the cervical spine; and (5) lumbar subluxation complex. The hospital emergency room report and a report from plaintiff’s neurologist were also apparently appended to the certification submitted to the court pursuant to AICRA. The trial court dismissed plaintiff’s complaint, finding that she failed to meet the new standard of “severe” or “extremely severe” soft tissue injury under the new verbal threshold statute. The plaintiff appealed, contending that the judge applied the wrong standard and that, had he applied the proper standard, he would have found that plaintiff did establish that she had met the statutory requirements and was entitled to recovery. The appellate panel disagreed, citing Rios v. Szivos, in which the court rejected arguments similar to those plaintiff made in this case. The panel affirmed the judgment substantially for the reasons set forth by the trial judge. 7. Giacobbe v. Mehta, A-3270-01T5 DDS No. 23-2-2773 Judges Bilder and Kimmelman Feb. 7, 2003 Type 9; non-AICRA case. Plaintiff, a full-time college student, was involved in an automobile accident on May 9, 1998, in which she sustained soft tissue injuries to her neck, back, shoulder and arms. She was also involved in a subsequent accident a year later, on May 10, 1999. In an oral opinion rendered almost three years after the second accident, the trial judge found that plaintiff had failed to produce objective, medical evidence of any injury that met the requirements of Oswin. In his opinion, he considered four types of injuries with respect to which plaintiff might be claiming an entitlement to noneconomic losses: Types 6, 7, 8 and 9. On appeal, plaintiff claimed error only in the court’s finding as to the absence of proof of a Type 9 injury. The appellate panel affirmed, satisfied that the trial judge’s findings and conclusions were supported by substantial credible evidence in the record. As the trial judge had noted, plaintiff was a full-time college student who never missed any classes as a result of any accident-related injuries. 8. Castillo v. Bedoya, A-2961-01T1 DDS No. 23-2-2849 Judges Lisa and Fuentes Feb. 18, 2003 No specific type; pre-AICRA case. The plaintiff was a passenger in one of the cars involved in the accident in this case. After the collision, he was taken (unconscious) from the scene to the emergency room of a local hospital. He began chiropractic treatment two days later and continued receiving such treatment for just over four months. During this period, he complained of headaches and upper and lower back pain, radiating down into his buttocks. Approximately five weeks post-accident, plaintiff underwent MRI tests of his cervical and lumbar spine, which revealed minimal disc bulging at C5-6 and C6-7; degenerative disc changes and changes suggestive of trauma at L1 and L2; decreased height and intensity at L1-2; miminal disc bulging at L3-4; posterior central disc herniation at L4-5; and minimal posterior central disc herniation at L5-S1. About two weeks after the MRI tests, plaintiff underwent a neurological examination, which included electrodiagnostic (EMG) testing. The neurologist reported that plaintiff suffered from post-traumatic cervical and lumbar sprain/strain with myofascitis; blunt head trauma with resolving headaches; post-traumatic peripheral vestbulopathy; post-traumatic convergence insufficiency; and possible allergic conjunctivitis. He also found “evidence of posterior demyelinating radiculopathy, both at the cervical and lumbar regions,” and noted that plaintiff was partially disabled at the cervical and lumbar spine. The defense doctor reviewed plaintiff’s chiropractic and other medical reports on behalf of defendants, and opined that plaintiff had been grossly overdiagnosed and overtreated. He concluded that plaintiff had not sustained any discernible injury to his cervical or lumbar spine, discs or nerve roots. An orthopedist also examined plaintiff for the defense. He concluded that plaintiff had suffered a cervical and lumbosacral sprain as a result of the accident; however, he found no permanency or limitation as required by the verbal threshold statute. He also concluded that the disc herniations and bulging were pre-existing conditions. When the defense moved for summary judgment, the judge granted the motion. He found that plaintiff had sustained primarily soft tissue injuries and had not received any significant medical treatment for those injuries in the past three or four years. He found an absence of objective, medical evidence as to the minimal posterior central herniation at L4-5, and no evidence causally relating that herniation to the accident. Further, he noted that there was no objective, medical evidence of persistent muscle spasm sufficient to vault plaintiff’s injuries over the verbal threshold; nor was there any muscle spasm associated with any permanent loss of use or permanent consequential limitation of use as set forth in the statute. The appellate panel reversed and remanded for trial, concluding that the motion judge erred in finding that plaintiff failed to present sufficient objective, medical evidence to create a genuine and material issue of fact. The panel reviewed the nine categories of injury under the verbal threshold statute and noted that, in this case, plaintiff argued that he suffered from severe muscle spasms and lumbar disc herniations as qualifying injuries. Plaintiff argued on appeal that the trial court, in granting the motion for summary judgment, ignored the MRI reports as objective, medical evidence showing that he suffered herniated discs. The panel noted that a herniated disc detected by a physician’s reading of an MRI does constitute objective, medical evidence sufficient under the verbal threshold when it is causally linked to the traumatic event. Here, plaintiff’s treating physicians concluded that he had suffered disc herniations causally related to the automobile accident. Moreover, his treating physicians also diagnosed him, through objective EMG studies, as suffering with radiculopathy resulting from the disc herniations. Since the record reflected that the defense experts held a diametrically opposite medical view as to whether plaintiff had disc herniations and whether they could be attributed to the accident, a genuine issue of material fact existed that needed to be submitted to the jury for resolution. 9. Yansick v. Hoch, A-2959-01T1 DDS No. 23-2-2993 Judges Ciancia and Axelrad March 5, 2003 Type 9; pre-AICRA case. In the collision with defendant, plaintiff sustained significant soft tissue injury, including disc involvement. The record indicated that she suffered with severe back and leg pain, but she didn’t define the type of injury she claimed until the defendant moved for summary judgment. In response to that motion, plaintiff alluded only to a type 9 injury. Defendant filed a response to plaintiff’s opposition, referencing all nine types of statutory injury. The defendant also argued that plaintiff had failed to show a significant impact on her life. At oral argument, there was no further refinement of the type of injury plaintiff was claiming. The motion judge stated that it was plaintiff’s burden to establish four separate propositions to make out a prima facie case to hurdle the verbal threshold: first, that the allegation of serious injury was based on objective, credible medical evidence; second, that the objective, credible medical evidence supported a causal relationship between the injury and the accident; third, that the disability had the objective capacity to have a serious impact on the plaintiff’s life; and fourth, from the subjective point of view, that the disability did have such a serious impact on plaintiff’s life. Viewing the evidence in a light most favorable to plaintiff, the judge concluded that she had met three of the four prongs, but had not convinced him that she had met the fourth. By that, apparently the judge meant that plaintiff had not raised an issue of material fact demonstrating that her injuries had an actual serious impact on her life. Plaintiff continued to assert on appeal that she had sufficiently demonstrated the elements of a type 9 injury. The appellate panel reversed the grant of summary judgment, concluding that the problem was that the trial court applied an erroneous standard in evaluating plaintiff’s type 9 claim � while the serious impact test was applicable to injuries claimed to fall within categories 6, 7 or 8 of the statute, it did not apply to injuries claimed under category 9. The appellate court reviewed the difference as explained in Jefferson v. Freeman. The first eight categories of injury � ranging from death to serious limitation of bodily function � each concerned a degree of permanency. At trial, a plaintiff must prove a qualifying injury by objective, credible medical evidence as well as showing a serious impact upon her life. Because permanency is involved, it is expected that the serious impact on the plaintiff’s life will also have permanency. However, the ninth category differs, because, by statutory definition, the concentration is on the effects of the injuries on events and limitations on plaintiff’s usual and customary daily activities occurring in the six months immediately following the incident; it is not expected that these limitations will be permanent or significantly impact plaintiff in the future. Given the lack of clarity in the existing record as to what category of injury plaintiff was advancing and defendant was attacking � and, indeed, whether the motion judge understood which category or categories were under scrutiny � the panel was loath to place itself in the shoes of the motion judge for purposes of deciding the issue on the merits. The judges were careful not to find on the merits that plaintiff’s proofs were adequate to permit the action to proceed on a type 9 claim, believing it preferable to remand the matter to the trial court for consideration of the claim under the correct standards. The panel left it to the discretion of the trial court whether additional proofs might be submitted by the parties. 10. McMahon v. Woltz, A-2994-01T3 DDS No. 23-2-2994 Judges Carchman and Parrillo March 5, 2003 No specific type; pre-AICRA case. Following the accident with defendant, plaintiff consulted with her dentist for pain and clicking in her jaw. About three weeks post-accident, he referred her to a face and head pain specialist for those complaints. She was treated by the specialist on nine occasions over a period of approximately three months, after which she was discharged. Also during this three-month period, plaintiff was examined by another physician who conducted an electromyograph, which revealed findings typically associated with head and facial pain and related temporomandibular joint (TMJ) inflammation. The physician also conducted an EMG, taken four months post-accident, which revealed evidence indicative of spasm. As treatment progressed, the pain specialist noted that plaintiff’s jaw pain and tinnitus were almost gone, and the clicking had reduced. Following treatment, plaintiff reported a reduction in her jaw pain and, in fact, upon her discharge, executed a “change in symptoms” report confirming that the pains in her face and jaw were gone. Since her discharge, she had not received any further treatment for her TMJ condition. Without the benefit of any follow-up examination of plaintiff, the pain specialist issued a post-treatment report for the litigation three years and two months after plaintiff’s discharge. In that report he concluded that, despite the reduction in plaintiff’s jaw pain, the probability was that her condition was permanent and likely to recur throughout her life, particularly during times of stress. He stated that this conclusion was made based on objective clinical evidence using valid diagnostic testing and was not dependent entirely on patient response. He further explained that, once a ligament was stretched because of trauma, it could never return to its normal length, resulting in “laxity and hypermobility.” He felt that plaintiff’s ability to masticate (chew), the first stage of digestion, would be permanently impaired. Despite not having examined plaintiff in over three years, the pain specialist went on to suggest some potential general limitations which plaintiff might experience, such as extending her neck for any length of time, as might be done in shampooing her hair, or painting above her head. He felt that it would be best for her to avoid lifting, pulling or pushing anything heavy, and any activities, such as gardening or desk work, that would accentuate a forward head posture or cause the neck to be held in the extended position. Additionally, the doctor noted that, in all probability, chewing harder foods, such as steak, would cause fatigue and pain in the muscles of plaintiff’s face and TMJ in the future. Hard foods such as apples could not be bitten, but needed to be cut into small pieces. When yawning, plaintiff needed to be careful and control the opening of her mouth, and should also avoid excessive talking and gum chewing. As to plaintiff’s actual limitations, however, her own testimony was that, while she continued to experience “jaw popping” and tenderness, the only associated limitation she had was being careful when chewing certain foods. She remained employed in her sales job, although she had relocated to New York from Princeton, and now received a higher salary. The record contained no indication that she lost any time from work as a result of the injuries sustained in the accident. Although plaintiff filed the pain specialist’s report with the motion judge shortly before the return date of defendant’s motion for summary judgment, it was apparently not considered by the judge, and summary judgment was granted to the defense. Plaintiff moved for reconsideration, again attaching the report, but, even though the judge considered the contents of the report, he still denied the motion. The judge indicated that he had difficulty fitting plaintiff’s claim into any of the statutory categories. He found that the things that she stated that she could not do did not have a really significant impact upon her lifestyle. Even those limitations generally discussed by the doctor, such as difficulty chewing steak, painting ceilings, having to cut up apples and avoiding wide yawning, excessive talking and gum chewing, didn’t seem significant in plaintiff’s life. The appellate panel agreed with the trial judge, noting that plaintiff’s TMJ injury was not sufficiently connected to one of the statutory classifications as required to satisfy the verbal threshold. There was also no proof that the disability suffered had the objective capacity to have a serious impact on plaintiff’s life, or even that it had such an impact. Reviewing a number of cases addressing the issue of serious impact, the court considered Mack v. Passaic Valley Water Commission, a case cited by plaintiff, in which the plaintiff’s TMJ injury had pierced the threshold of the Tort Claims Act. There, however, the court noted that the plaintiff was diagnosed with cerebral concussion with post-concussion syndrome; post-traumatic headaches; traumatic TMJ dysfunction; and post-traumatic carpal tunnel syndrome. That plaintiff also had subjective complaints of constant headaches; dizziness; total loss of taste and smell; facial twitching; ringing in her ears; intense pain in her jaw bone; neck pain; and numbness in her extremities. The appellate court in that case held that plaintiff’s injury pierced the Tort Claims Act threshold because she had undergone extensive treatment for her condition. Her complaints were not minor, especially her contention that she had suffered for some two years from “total loss of taste and smell;” could only eat soft foods; could not bend; could not walk longer than 20 minutes; could not tolerate sitting or standing for a long time; and could not work longer than four hours a day. While the appellate court in the present case did not deprecate the seriousness of plaintiff’s injury and the discomfort she suffered, the judges were not persuaded that the combined impact of the limitations described by her specialist even remotely approached those of the plaintiff in Mack or rose to the level described in the other cases discussed. Plaintiff here remained employed in sales and missed no time from work. She was treated for a mere three months and was discharged with her principal symptoms substantially reduced. Significantly, the only evidence from plaintiff herself as to her limitations was that she had to exercise caution when eating certain foods; she did not state that she was prohibited from eating these foods. Even the general limitations suggested by the specialist in his report did not establish that plaintiff’s life had been significantly or seriously impaired within the contemplation of the verbal threshold statute. 11. Tomlinson v. Patel, A-1180-02T2F DDS No. 23-2-3052 Judges King, Wecker and Lisa March 10, 2003 No specific type; AICRA case. The issue in this case was whether the doctrines of substantial compliance and equitable estoppel applied to permit the late filing of plaintiff’s physician’s certification of permanency, where the certification filing was overlooked by plaintiff’s counsel and was submitted late, but was entirely consistent with medical reports which had been furnished earlier � both before and after the filing of the complaint. The appellate court referred to a recent published appellate case on this point � Casinelli v. Manglapus (Feb. 2003) � and found that the doctrines applied. It was disputed which party ran the red light causing the intersectional accident in this case. A month and a half post-accident, defendant’s insurance carrier, AIG, denied plaintiff’s claim on the basis of two statements from witnesses that defendant did not cause the accident. Plaintiff’s counsel sent a letter to AIG two months thereafter asserting that plaintiff had obtained a statement from a witness that defendant had run the red light, and advising AIG that plaintiff had sustained serious physical injuries, for which he was receiving medical treatment. One year and seven months post-accident, plaintiff was examined by a so-called independent medical examiner at the direction of his PIP insurer. The examiner, a doctor associated with a pain management center, concluded that plaintiff had sustained severe neurological injuries; that he had received reasonable treatment; that the injuries were caused by the accident; and that they were most likely permanent in nature. One year and 11 months post-accident, defendant filed a negligence complaint against plaintiff in the Law Division; plaintiff filed suit against defendant a month later, just before the running of the statute of limitations. The suits were consolidated on motion of the defendant. Although there were several procedural glitches in the early part of the case, discovery ensued and progressed. Plaintiff answered defendant’s interrogatories by providing medical reports and correspondence exchanged between plaintiff’s treating physician and various specialists covering a period spanning from four months post-accident through 15 months post-accident, and detailing his injuries and ongoing treatment. Twelve days after answering interrogatories, plaintiff attempted to obtain a certified statement concerning the nature and extent of his injuries from his treating physician; however, the certification erroneously referenced the doctor as a chiropractor, and a corrected certification had to be prepared and forwarded to her. Less than one month later, defendant moved to dismiss plaintiff’s complaint for failure to timely provide a physician’s certification of permanency as required by AICRA. Meanwhile, plaintiff received the completed certification two days later and filed it. The judge subsequently denied defendant’s motion. The defendant appealed, arguing that because plaintiff’s physician certification was untimely filed, dismissal of his claim was required and the denial of defendant’s motion to dismiss should be reversed. The appellate panel disagreed and affirmed the judge’s denial of the motion to dismiss. Reviewing the pertinent provisions of AICRA, the panel noted several recent appellate opinions construing the physician’s certification requirement. It was noted that there was “no consensus as to which level of compliance required for filing the physician’s certification satisfie[d] AICRA.” What was clear from the opinions, however, was that the legislative purpose for the imposition of the requirement was fraud prevention. Therefore, while it had been suggested that either substantial compliance with the statute or principles of estoppel might save a complaint from dismissal, the requirement of providing a physician’s certification, in itself, could not be overlooked or avoided. It was also noted that AICRA contained a stringent enforcement mechanism that reflected the seriousness of the certification requirement. In the matter before the court, the judges admitted that plaintiff’s untimely filing of the certification failed to strictly comply with the requirements of the statute. However, the question was whether the untimely filing sufficiently complied with the statute such that it was acceptable. The court reviewed the definition of substantial compliance and case law further explaining it. It also noted that the doctrine had recently been permitted in AICRA cases because “failure to strictly comply with the time requirements for filing a physician’s certification does not go to the heart of the cause of action as defined by the Legislature.” The court then articulated the Supreme Court’s five-part test for implementation of the doctrine of substantial compliance, noting that whether noncompliance with the technical requirements of the statute is excusable must be determined on a case-by-case basis. First, the judges noted that the defendant would not be prejudiced by the motion judge’s denial of the dismissal motion. Defendant’s insurance carrier had reports from plaintiff’s physicians, including the independent medical examiner and treating physician, which stated the nature and extent of his injuries early-on. Plaintiff’s complaint specifically stated that he was claiming that the nature and extent of his injuries were such that they fulfilled and complied with the requirements of N.J.S.A. 39:6A-8a. Second, the judges highlighted the fact that plaintiff did take steps in an attempt to comply with AICRA. He was under the continuous care of his treating physician, who promptly produced a report based on her treatment of plaintiff and who ultimately produced a proper certification. Plaintiff also provided the report of the independent medical examiner well before it was requested � one year and seven months before defendant filed his lawsuit against plaintiff. Finally, when plaintiff answered defendant’s interrogatories, he attached substantial correspondence between his treating physician and several specialists to whom she had referred him. The court then defined the third element of the substantial compliance analysis, compliance with the purpose of the statute � which was to lower insurance premiums by deterring frivolous and fraudulent claims. Since plaintiff had already provided medical records fully addressing the nature and extent of his injuries, his claim could hardly be seen to be fraudulent or frivolous. Fourth, the judges considered whether defendant had reasonable notice of plaintiff’s claim and determined that he did, since his insurance carrier, AIG, received early and full cooperation from plaintiff’s counsel on the nature of the claim. Finally, the court considered whether there was a reasonable explanation for plaintiff’s failure to strictly comply with the statute. The judges noted that plaintiff was corresponding with defendant’s insurance carrier, attempting to reach an amicable agreement, well before filing his complaint. Meanwhile, plaintiff was continuously under the treatment of various physicians, receiving pain shots, therapy, diagnoses and other forms of treatment for his ongoing neurological injuries. Plaintiff’s counsel’s failure to timely seek a physician’s certification, as best the court could discern, was simply an oversight. The panel stressed that the focus of a substantial compliance analysis should be on whether the actions taken by the plaintiff have furthered the overall, underlying legislative purpose in the same or similar manner that the physician’s certification would have done had it been timely filed. Here, the panel found that counsel’s lack of diligence or forgetfulness was not harmful to defendant or to the legislative purpose of fraud prevention. Therefore, the judges held that plaintiff did substantially comply with AICRA; his belated physician’s certification, coupled with the reports provided in the ordinary course of pre-suit investigation and discovery, were sufficient to satisfy the purpose of the statute. The court noted that the pertinent statute did not explicitly preclude a judicially-crafted exception for substantial compliance. With no suggestion of fraud and an ostensibly meritorious claim, plaintiff’s tardy (attributable to counsel’s fault only) but good faith compliance permitted the court to allow the claim to proceed, consistent with the purpose and design of the Legislature. The court then addressed plaintiff’s alternative argument, to wit, that the doctrine of equitable estoppel also applied to avoid a dismissal of his complaint. The gist of this argument was that defendant never requested the physician’s certification nor complained about not receiving it, and thus should be barred from asserting that plaintiff’s failure to timely file should result in dismissal. The appellate judges reviewed the definition of equitable estoppel, noting that to succeed, plaintiff need only show that defendant’s conduct induced him to engage in conduct to his detriment or, stated more precisely, conduct that resulted in his claim being dismissed for failure to satisfy the statutory requirements. The court noted that in the context of a verbal threshold case, the primary distinction to be discerned between the equitable doctrines of substantial compliance and estoppel was the focus of the inquiry, the former examining the conduct of the plaintiff and the latter scrutinizing the conduct of the defendant. The court further noted that the doctrine of equitable estoppel might, in certain cases, present an even more effective basis for affirming the judge’s decision to deny defendant’s motion to dismiss than substantial compliance. The court stressed that during discovery, the exchange of documentation and the scheduling of depositions, defendant never made mention of any insufficiency in the doctors’ reports plaintiff had already provided. Defendant issued 27 subpoenas to plaintiff’s doctors and medical and administrative personnel whose names were revealed in discovery, at least 12 of which were plaintiff’s treating physicians. Then, only six days after sending out those subpoenas, defendant filed his motion to dismiss. Two days after that, plaintiff produced an appropriate certification and served it on defendant and the court. The panel found it hard to believe that any people involved in this litigation seriously believed that plaintiff’s claims of injury were fraudulent or frivolous. Both the independent medical examiner and plaintiff’s treating physician stated that plaintiff was thrown against the driver’s side window in his car, rendered unconscious and taken by ambulance from the scene of the accident to the hospital. He suffered some head injuries and began suffering a complete loss of feeling in his right arm within two days of the accident. His treating doctor began her care of plaintiff three days post-accident, and she continued treating him for almost three years. If any of plaintiff’s medical reports were believed, plaintiff’s claimed injuries were not fraudulent. As of the date of defendant’s motion to dismiss, therefore, the panel found that plaintiff had presented a sufficient amount of reliable evidence to support a claim that he sustained permanent injuries as a result of the subject accident. Although defendant might ultimately not be found liable for those injuries, N.J.S.A. 39:6A-8a was established to bar fraudulent claims, not cases that might ultimately not be successful; and the instant action did not have a fraudulent aura to the panel. Accordingly, it found that plaintiff had substantially complied with the certification requirement of AICRA, despite his attorney’s technical filing mistake, and followed Casinelli in affirming the trial judge’s denial of defendant’s dismissal motion. 12. Sexton v. Dutch, A-1971-01T2 DDS No. 23-2-3134 Judges Conley and Carchman March 17, 2003 No specific type; pre-AICRA case. This case involved a rear-end collision. Plaintiff first sought medical treatment the day after the accident. Nine months later, still complaining of neck and back problems, plaintiff changed doctors and underwent a round of MRIs and EMGs. These revealed positive cervical and lumbar findings, including a lumbar disc herniation. Although plaintiff was involved in another motor vehicle accident about one year after the subject accident, his treating chiropractor and his orthopedic expert, both of whom were videotaped de bene esse, opined that the second accident aggravated the disc involvement and that all of the underlying conditions had been caused by the subject accident, as reflected in the objective testing. The defense expert, who saw plaintiff for 20 minutes two years and eight months post-accident, opined that his review of the MRIs and EMGs showed no disc or nerve involvement � apparently reading the MRIs and EMGs differently than did the radiologists. He concluded, therefore, that plaintiff had sustained no permanent injury. The liability of defendant was determined as a matter of law. In the damages-only trial, however, the jury found that plaintiff had not sustained a substantial injury proximately caused by the automobile accident and issued a verdict of no cause. The issues on appeal were characterized by the court as “generated by not uncommon lax discovery deficiencies which, in light of the “Best Practices” rule amendments, [were] increasingly becoming fatal to the deviant party.” Under the circumstances here, the court was convinced that while the trial judge’s initial exercise of discretion during the trial with respect to plaintiff’s late expert reports was appropriate, his subsequent actions were not. What occurred during trial was triggered by plaintiff’s late amendment to interrogatories, four years and two months post-accident, which included a report dated two months earlier from plaintiff’s orthopedic expert and another, later report from this expert. Previously, plaintiff had supplied defendant with a report from this expert dated three years earlier. That report had addressed only the second accident, however. The late report closely followed the de bene esse deposition of defendant’s doctor, opined not only that he found no evidence of any injuries during his 20 minute examination of plaintiff two years and eight months post-accident, but disagreed with the readings of the MRIs and EMGs performed by the radiologists. His opinion was not that the second accident was the causal event for plaintiff’s injuries, but that plaintiff had no permanent injuries at all. The supplemental reports of plaintiff’s orthopedic expert focused upon the subject accident and opined that plaintiff sustained a disc herniation and other injuries therefrom, which were aggravated by the later accident. These opinions were, of course, different from the doctor’s earlier report concerning plaintiff’s second accident. During the de bene esse deposition of plaintiff’s treating doctor, four years and three months post-accident, defense counsel brought out the existence of the earlier report of the orthopedic expert. The clear thrust of the questioning suggested that plaintiff’s orthopedic expert had concluded that plaintiff’s injuries were caused by the second accident. This was inaccurate and, on redirect, plaintiff’s counsel, over the objection of defense counsel, questioned the treating doctor on the two later reports and the opinions set forth therein, which causally related the disc herniation and other conditions to the first accident. All of this happened after the close of discovery, which was to have occurred a year earlier. Also, the supplemental reports of plaintiff’s orthopedic expert were issued after the defense expert had been deposed. However, the defense expert felt that plaintiff sustained no permanent injuries at all and, thus, was not concerned with the impact of the second accident. The supplemental reports of plaintiff’s orthopedic expert, therefore, should have been of no concern to him. Nonetheless, when trial began about three months after service of plaintiff’s last round of reports, defense counsel moved to bar the videotaped deposition of the orthopedic expert. The judge apparently allowed the admission of the videotape, conditioned upon defendant’s right to conduct a supplemental videotaped de bene esse deposition of the defense expert, at plaintiff’s expense, which the court set at $2,350 � the cost of the doctor’s charge for the initial deposition. The appellate panel paused to note that the defense was only entitled to a supplemental deposition limited to the two late reports that had not been in existence at the time of the expert’s initial deposition. Since the defense expert’s opinion was that no permanent injuries were sustained at all, regardless of whether the first or second accident was considered, the panel found it difficult to see the need for anything other than a deposition wherein the expert gave a brief acknowledgment of the new reports and a reinforcement of his opinion that his findings revealed no permanent injury. Moreover, as the court previously indicated, when plaintiff took the videotaped deposition of his treating physician, the orthopedic expert’s supplemental reports and their contents were disclosed by that doctor � primarily in response to defense counsel’s focus only upon the earlier report and his misimpression that the orthopedic expert had considered plaintiff’s injuries to have been caused by the second accident. Defense counsel had objected during that deposition to the doctor’s testimony as to the two later reports, but he did not move prior to trial � pursuant to R. 4:14-9(f) � to redact those portions of the treating doctor’s de bene esse videotaped deposition. The panel felt, therefore, that it was evident that, when deciding whether to accede to the conditions imposed by the trial judge upon the use of the de bene esse videotaped deposition of the orthopedic expert, plaintiff’s counsel reasonably thought that any objection to the treating doctor’s videotaped deposition, part of which included reference to the orthopedic expert’s reports, had been waived. In light of the cost and the apparent unlimited scope of the proposed defense expert’s supplemental deposition, plaintiff and counsel declined those conditions, opting for their treating doctor’s testimony as sufficient. The trial judge thought otherwise, not unreasonably viewing that strategy as one of counsel “getting in through the back door what he could not through the front door.” The appellate court then set forth a colloquy between plaintiff’s counsel and the court on the second day of trial, which illustrated this interpretation of what had occurred. The appellate court highlighted a discourse that occurred on whether the treating doctor had indicated reliance upon the orthopedic expert’s supplemental reports, and noted that he had not, as they post-dated his report. Indeed, the court noted that testimony on direct examination did not refer to any of the orthopedic expert’s reports. It was defense counsel who opened the issue on cross-examination by questioning the doctor on the earlier report and its contents which, unfairly, suggested plaintiff’s orthopedic expert’s opinion was other than what it really was. Plaintiff’s counsel, on redirect, of course, clarified that misimpression by reference to the two later reports. The trial judge did not scrutinize the redaction issue from that perspective and directed that all references to the two later reports be redacted, leaving the misimpression as to the earlier report. Faced with that, plaintiff’s counsel then indicated to the judge that he would be forced to change his strategy and would have to use the orthopedic expert, but the judge stated that he would not allow a change of strategy and the trial proceeded with the improperly redacted videotaped deposition of the treating doctor, which included the unfair impression that the orthopedic expert was of the opinion that plaintiff’s injuries arose from the second accident. On plaintiff’s appeal from the adverse jury verdict, the panel found no abuse of discretion in the trial judge’s denial of a mistrial or in his imposition of conditions upon the use of the orthopedic expert’s de bene esse videotaped deposition. However, the panel did find that the judge erred in refusing to permit counsel to accept those conditions after the redaction ruling. The panel first cited the purpose of the “Best Practices” rule amendments, and noted that the language of R. 4:17-7 clearly established that late amendments to answers to interrogatories were only to be permitted when the party seeking to amend certified that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the end of discovery. No such certification was filed by plaintiff here, nor could one be filed, as there seemed to have been no reason why the two supplemental reports could not have been timely obtained. The trial judge, however, did not bar the expert’s deposition entirely, but simply conditioned it upon a supplemental deposition of defendant’s expert, to be paid for by plaintiff. While the panel indicated that it might question the apparent open-ended nature of the supplemental deposition, and the cost therefore, it could not say that the conditions were an abuse of discretion on the part of the judge, particularly since he could have barred the deposition entirely. The panel found troublesome what happened next. First came the court-generated redaction of plaintiff’s treating doctor’s de bene esse videotaped deposition, which left the unfair impression that the orthopedic expert had opined only on the later accident. Counsel was clearly surprised by that turn of events, having thought � correctly or not � that defense counsel could not, at trial, redact the video deposition because he had not moved to do so earlier. Then came the judge’s withdrawal of the conditions when counsel, recognizing the prejudice that would arise from the redaction, sought to accept those conditions. The record did not reflect that a midtrial supplemental videotaped deposition of defendant’s expert was not then possible. If reasonable not long before, the panel could not see why the conditions became less reasonable after the redaction ruling, which was clearly unanticipated by plaintiff. To give credit to the trial judge, the appellate panel noted that he appeared to think that plaintiff’s counsel was playing “fast and loose” with the court in attempting to convey the substance of the expert’s reports to the jury through the treating doctor’s videotaped deposition. That obviously was the strategy, but the panel did not believe that it was anything other than efficient trial strategy in light of the absence of a proper pretrial redaction motion by defense counsel. In the end, the panel found itself left with a sense that, because of the partial redaction of the treating doctor’s videotaped deposition, and the court’s refusal to allow plaintiff to accede to the two previously-offered conditions upon the orthopedic expert’s videotaped deposition, the jury decided this case with the mistaken impression that one of plaintiff’s own doctors had found injuries caused only by the second accident. If that was the basis for the verdict, it would be a miscarriage of justice as that clearly was not the doctor’s opinion. Since the panel could not tell whether that did have a role in the verdict, a reversal of the verdict was required. 13. Saijwani v. Cohen, A-3349-01T3 DDS No. 23-2-3148 Judges Lefelt and Winkelstein March 18, 2003 Type 8; pre-AICRA case. The collision in this case took place in a parking lot when the rear of defendant’s vehicle hit the right rear of plaintiff’s vehicle, apparently as defendant was backing out of a parking space. About a month later, plaintiff represented to her physician that she had experienced headaches and lower back and neck pain since the accident. The doctor found spasm of plaintiff’s neck and lumbar paraspinal muscles, and concluded that she had suffered both lumbosacral and cervical strain as a result of the subject accident. Plaintiff was also evaluated by another doctor on the same day. X-rays taken at that time were “benign,” and the diagnosis was cervical whiplash and lumbar strain attributed to the automobile accident. Although she attended physical therapy on 18 occasions starting two months post-accident and continuing for two and one-half months, plaintiff sought no additional medical treatment until two years after the accident, when she returned from studying abroad in France. When examined by her regular physician at that time, muscle spasms were noted in plaintiff’s neck area, although an MRI and EEG were negative. Plaintiff was also examined by a neurologist almost two years and two months post-accident; she told him that it was not until she had returned from France that she noted the onset of pain over her neck, shoulders and arms. She denied any recent trauma, and a review of her records revealed that her complaints subsequent to her automobile accident had “resolved.” The neurologist’s examination was within normal limits. When the defendant moved for summary judgment, the judge granted the motion, analyzing plaintiff’s claim under the statute and concluding that she was unable to meet the objective prong of the Oswin test. He held that the fact that spasm was found within a month after the accident by two examining physicians, and then found on two isolated occasions over two years later � with no sustained findings of spasm at all during the interim period � did not qualify to present the level of objective indicia of injury that was required for a type eight injury. The appellate panel agreed, noting that two doctors had found that she was suffering from muscle spasms in her cervical spine one month after the accident. Thereafter, however, it was not until two years later that plaintiff again experienced such spasms. Additionally, at that time, she told the examining neurologist that, once her symptoms following the accident had resolved, she had been relatively pain-free until her return from France. As to the objective tests given at that time, the MRI was negative for disc involvement and the EEG was negative for nerve involvement. The isolated findings of spasm were insufficient to meet the objective criteria required by Oswin. 14. Hart, Jr. v. Compaine, A-1211-01T1 DDS No. 23-2-3255 Judges Wallace Jr. and Hoens March 28, 2003 No specific type; AICRA case. The defendant filed a motion to dismiss plaintiff’s automobile negligence complaint for failure to provide a physician’s certification of permanent injury, as required by AICRA. Plaintiff filed no opposition, and the motion judge entered an order dismissing the complaint with prejudice. Plaintiff filed for reconsideration, asserting that the certification was late because it was apparently lost in the mail and had to be re-requested. Plaintiff still, however, did not submit a certification with his motion. Nevertheless, a different motion judge granted plaintiff’s motion and reinstated the complaint. Thereafter, defendant filed his own motion for reconsideration, contending that plaintiff still had not served the required certification and had not presented any argument addressing the statutory deadlines. In opposition to this motion, plaintiff submitted an undated certification from a dentist, attached to which was a report dated approximately 10 days post-accident, which directly correlated the subject accident and plaintiff’s TMJ problems. The report also stated that approximately 85 percent of all TMJ sufferers recovered from this type of injury within six months to one year, and that plaintiff’s prognosis was good. On that record, the original motion judge reinstated his prior order dismissing plaintiff’s complaint for failure to timely provide a physician’s certification of permanency. Plaintiff again filed for reconsideration, but only defense counsel appeared at oral argument. The judge reviewed the certification submitted and noted that the certification was out of time but, because of its date, it would have been timely if filed properly. As such, the judge went on to review the merits of the certification for the record, and still found it insufficient. He noted that the dentist did not state that plaintiff was suffering with any permanent injury and that, indeed, his prognosis was good. Unfortunately, the motion judge signed the wrong order and the complaint was reinstated. Upon receipt of the erroneous order, defense counsel wrote the judge, with a copy to his adversary, informing the judge of the mistake. The judge corrected his error and entered an amended order, denying plaintiff’s motion for reconsideration. The end result was that plaintiff’s complaint was dismissed with prejudice. Plaintiff appealed, contending that he was denied due process resulting from defense counsel’s inappropriate ex parte communication with the court about the final order, and that he had, in fact, provided an appropriate physician’s certification as required by the statute. He also contended that, at the very least, the dismissal of his complaint should have been without prejudice. The appellate court first rejected plaintiff’s due process argument. Although minor procedural mistakes were made, the mistakes were ultimately corrected. The mere fact that counsel did not serve the order on opposing counsel did not lessen the order’s vitality. Further, the judge considered the several motions for reconsideration, thus eliminating any possible prejudice to counsel’s failure to receive a copy of the order. The judge had the authority to correct the clerical error in the order by virtue of R. 1:13-1, and the fact that he did so after receipt of a letter from defense counsel was of no consequence. The judge amended the order on his own initiative. The court then addressed the substantive merit of plaintiff’s physician’s certification and found it lacking. The court rejected plaintiff’s argument that the late acceptance of the certification should be allowed because the failure to timely file was not due to a lack of diligence on the part of his attorney, but rather because of the physician’s delay in filing the document. The judges reviewed the history and purpose of AICRA, the salient portions of the statute dealing with the physician’s certification of permanency, and recent case law construing the requirement. While they agreed with the motion judge that, on this record, plaintiff failed to demonstrate good cause to excuse the late filing of his physician’s certification, they disagreed with his conclusion that the dismissal should be with prejudice. Contrasting the Affidavit of Merit statute in medical malpractice cases, which made the affidavit an essential element of the cause of action, the panel noted that the AICRA certification requirement was procedural in nature, and related to the sufficiency of the pleadings; it was not intended to go to the establishment of a cause of action. The appropriate remedy for failure to meet the certification requirement was a dismissal without prejudice. The panel cited several recent cases that were not available to the motion judge at the time he made his ruling, including cases that discussed the applicability of the doctrines of equitable estoppel and substantial compliance in connection with the late filing of physician’s certifications. While those issues were not raised in this case, and the panel found that it did not need to express its view on such applicability, it felt that the cases’ teachings about a dismissal without prejudice should be applied to this case. The matter was remanded for the Law Division to enter a dismissal without prejudice. 15. Casperson v. Ivancich, A-4143-01T1 DDS No. 23-2-3421 Judges Wefing and Lisa April 14, 2003 Type 6, 7 and 8; pre-AICRA case. About two years prior to the automobile accident in this case, the plaintiff had been involved in another motor vehicle accident, and was still under treatment for the injuries she sustained in that accident. In that prior accident, plaintiff’s vehicle was struck from the rear and she sustained a cervical strain secondary to whiplash injury, C7 radiculopathy, and neck and right arm trauma. About two months prior to the recent accident, a cervical MRI revealed some positive findings, including osteophyte formation at C5-6 and a bulge at C6-7. Seven months before the recent accident, the plaintiff was deposed with respect to her lawsuit arising out of the first accident. She testified that her symptoms from those injuries continued to worsen. She could not resume her job as a waitress because she had lost too much strength and was unable to lift and carry the heavy items required. She stated that she could not drive more than 20 to 30 minutes; could no longer ride her bicycle at all; and could not walk very far because of pain and pressure in her head, neck and upper back. She had daily headaches and she could not lift anything heavy or move furniture. At the time of the recent accident, plaintiff was 40 years old. In her deposition in this case, she testified that she attempted to return to work just prior to the recent accident, but lasted only three weekends because she could not handle the weight of carrying plates stacked on her arm, which bothered her neck and back. Following the recent accident, plaintiff was treated and released in the emergency room of a local hospital. Cervical and thoracic X-rays were negative. No lumbar X-rays were taken. Plaintiff’s next medical visit, 12 days later, was with the doctor who was treating her for injuries from the prior accident. He commented in a report dated two weeks after the recent accident that plaintiff had had periods of remission and/or relapse following her first accident, but that, at some point, she was starting to stabilize. He further commented that, subsequent to the recent accident, plaintiff had experienced a “re-exacerbation of her symptomology, plus new symptomology localized to the left side with severe pain referring up to the head now associated with bilateral headaches.” He now noted left arm involvement, as well as right arm involvement from the prior accident. He also noted plaintiff’s subjective complaint of tenderness in the lumbosacral area. Plaintiff asserted the following injuries from the recent accident: lumbar bulging disc at L4-5; lumbar radiculopathy; misadjustment of the thoracic spine at T5-6, T6-7, T7-8 and T8-9, leading to subluxations; chronic traumatic lumbar sprain/strain; chronic traumatic thoracic spine injury; lumbosacral paraspinal muscle injury; back pain radiating down into her legs with numbness and tingling into her lower legs; headaches; neck pain radiating into her shoulders; and numbness and tingling in her right arm and into her right hand. In addition to the treatment provided by her physician, plaintiff underwent an extensive course of chiropractic treatment beginning four months post-accident. Over the ensuing months, plaintiff also underwent various evaluations, some for treatment purposes and some as a part of independent medical examinations. The defendant moved for summary judgment and plaintiff opposed the motion by filing a certification itemizing the limitations on her life that she attributed to the accident. She acknowledged her prior accident, and admitted that her activities had been somewhat limited due to the injuries she sustained in that prior accident, but stressed that the pain from the injuries she suffered in the recent accident caused further restrictions on those activities. More specifically, plaintiff indicated that she now was having trouble walking up stairs, which was a problem because she lived in an upstairs apartment and could only go up and down a couple of times per day. She stated that she was only able to drive short distances, about 15 minutes at a time, whereas before she was able to drive for longer distances. She complained that the pain in her legs kept her awake at night, and that her sleeping had become very erratic; she could only sleep for a couple of hours per night. She could also no longer walk long distances or go for bike rides. She testified to having difficulty carrying packages and cleaning. The trial judge granted summary judgment to the defendant, finding plaintiff’s proofs insufficient in three ways: (1) her failure to provide an adequate Polk comparative analysis to demonstrate which injuries were caused by which accident; (2) her failure to establish her injury by objective, credible medical evidence; and (3) her failure to establish a serious impact on her life. The panel agreed and affirmed, noting that plaintiff’s asserted limitations from the subject accident were minor and virtually identical to those described by plaintiff in her deposition for her prior accident several months before the recent accident took place. Moreover, as noted by the judge, plaintiff failed to provide the court with the required comparative analysis of residuals from each accident, which is necessary when aggravation of a pre-existing condition is asserted as the basis for overcoming the verbal threshold. The conclusory statement of her primary care physician about the “re-exacerbation of her symptomology” did not suffice as objective, credible medical evidence. The panel found that any of plaintiff’s claimed injuries to her thoracic spine were disqualified from consideration because the objective tests � namely the thoracic MRI conducted seven months post-accident � found only degenerative disc disease, normal thoracic cord and no definite evidence of disc herniation or stenosis. What remained was plaintiff’s asserted injury to her lumbosacral spine. It did not appear that plaintiff sustained any injury to this area in her first accident, therefore no Polk analysis was required as to this injury. The only objective, medical evidence suggestive of permanence or significant disability in the medical records was a lumbar MRI taken six months post-accident, which showed “a suggestion of small bulging annulus at L4-5 with no compression of the thecal sac” and “prominence of the ligamentum flavium at L4-5 with secondary moderate spinal stenosis at this level.” The panel noted, however, that there was no medical evidence relating this finding to a disability or serious life impact. 16. Martinez v. Shevchuk, A-4579-01T5 DDS No. 23-2-3458 Judges A.A. Rodriguez, Wells and Payne April 17, 2003 No specific type; non-AICRA case. The defendant’s vehicle rear-ended the plaintiff’s vehicle in the accident in this lawsuit. On the following day, plaintiff went to a local hospital because of the onset of pain in his neck. Three days after the accident, because of the continuing pain in his neck, radicular symptoms and pain in his lower back and both shoulders, he went to another hospital where he was evaluated. The doctor performing the evaluation conducted a physical examination that revealed tenderness upon palpation and restricted range of motion of the cervical and lumbar spine; diminished sensory function of the arms and hands; and contusion, swelling and tenderness of both shoulders. Physical therapy was commenced, but did not yield significant results. Due to continuing symptoms that did not resolve with traditional physical therapy, plaintiff was referred for various objective diagnostic testing. MRI testing revealed two focal lumbar disc herniations at L4-5 and L5-S1, cervical disc bulging at the C5-6 level, and a tear at the insertion of the supraspinatus tendon of the right humerus. Upon discharge, the doctor opined that plaintiff’s condition was chronic, and that he would require surgical intervention to repair the tear of the tendon if it continued to be symptomatic. As a result of the accident, plaintiff continued to suffer from his various injuries. His specific complaints were pain, stiffness and soreness in his back, neck and shoulders, radiating down into his arms and fingertips and giving him difficulty twisting, bending, turning and moving. He had difficulty raising his arms to dress, could not lift anything heavy and required help from others because of the pain. This affected him in his occupation. He could also no longer drive for any length of time and had difficulty sleeping. The trial judge granted summary judgment to the defendant on the ground that plaintiff’s evidence did not meet the objective, medical evidence requirement of the verbal threshold. The appellate panel affirmed, but for a different reason. The panel felt that there was sufficient objective, credible medical evidence to raise a jury question about the injury and its connection to the accident in question. It concluded, however, that the evidence of a significant impact on plaintiff’s life was lacking. The panel went on to note that the accident itself was not a serious one; plaintiff’s course of treatment was relatively short; and he lost no time from work as a result of the accident. His complaints as detailed were of subjective pain, and the limitations were occasioned by that pain. While the panel did not minimize plaintiff’s pain and limitations, it stressed that they also had not resulted in any expressed diminution in plaintiff’s lifestyle or in his activities of daily living. 17. Leogrande v. O’Sullivan, A-4825-01T1 DDS No. 23-2-3459 Judges Ciancia and Axelrad April 17, 2003 No specific type; pre-AICRA case. The plaintiff in this case had been in a prior, and apparently significant, motor vehicle accident approximately two years before the recent accident with defendant. Much of the debate in the present litigation centered around whether plaintiff’s current complaints were the result of her first accident or the second accident, and whether her medical documentation adequately demonstrated the causal relationship between the more recent accident and plaintiff’s current medical deficits. Most of plaintiff’s injuries could be fairly classified as soft tissue. There was an issue as to whether a disc bulge at C5-6, which existed after the first accident, was aggravated or, indeed, herniated, as a result of the subject accident. At argument on defendant’s motion for summary judgment plaintiff sought to emphasize additional radiculopathy, which allegedly did not pre-exist the second accident. Plaintiff was a single mother with two children who shared a house and household responsibilities with a female roommate who cleaned houses for a living. She was not employed at the time of the accident, but thereafter took a job at a post office located approximately 40 miles from her home. She drove to work and put in about 33 hours per week, mostly sorting letters. She stated that she could not lift packages, but the restriction was self-imposed rather than physician-directed. With respect to other life impacts, plaintiff also complained of leg pain and asserted that, on occasion, her legs would “go out on her.” She testified that she could no longer work out at the gym, but then admitted that she had not done so since the first accident. She had difficulty sleeping and occasionally experienced weakness in her arms. She had problems lifting her four-year-old son and had pain when wrestling with both children. She also had anxiety about driving. Her neck bothered her when she vacuumed, and standing for a long period of time affected her neck and lower back. Ultimately, the motion judge ruled in favor of defendant for two reasons. First, she found that plaintiff had failed under Polk to present an adequate medical evaluation comparatively analyzing plaintiff’s medical status before and after the most recent accident. The judge also found that plaintiff had failed to meet the second prong of Oswin in that she had not raised an issue of material fact demonstrating that her injuries resulted in a serious impact upon her life. Because the appellate panel was satisfied that plaintiff failed to demonstrate a serious impact on her life, even assuming that all current medical complaints were a product of the second accident, the panel did not address the “more complex and somewhat closer question” of whether plaintiff produced objective, medical evidence adequately establishing aggravation or causation of injuries from the second accident. The panel noted that the evidence presented a picture of a person who performed all the normal functions of life, albeit with some pain and discomfort at a certain level of exertion. No functions were eliminated that were performed prior to the subject accident. There were no vocational pursuits that plaintiff could no longer perform. Indeed, her employment, including the 80-mile daily round-trip commute, was added to her schedule subsequent to the recent accident. The appellate court was therefore satisfied that plaintiff’s proofs, as a matter of law, failed to satisfy the requirement that she show that any disability or impairment arising from the subject accident resulted in a serious impact on her life as that term has been interpreted in our case law. On the present facts, the panel held that plaintiff’s limitations did not rise to a level that a jury could find constituted a serious impact on her life. Defendant’s motion for summary judgment was properly granted. 18. Torres v. Olivares, A-3659-01T5 DDS No. 23-2-3527 Judges Lintner and Parker April 25, 2003 No specific type; pre-AICRA case. Plaintiff asserted that she sustained injuries to her back and neck in the accident with defendant and, as a result, was unable to care for her husband, who had multiple sclerosis. She claimed that she had to dress and feed him day and night, and that, after the accident, she was unable to do so without the help of her 83-year-old mother. At the trial, plaintiff sought to introduce the expert testimony of an anesthesiologist who treated her following the accident. The doctor specialized in pain management through medication, physical therapy and nerve block injections. He treated plaintiff almost monthly, starting three weeks post-accident and continuing for a year and a half. After the first three treatments, from which plaintiff experienced limited improvement, the doctor referred her for MRI studies of her cervical and lumbar spine, which were performed approximately two months post-accident. The doctor also ordered neurological tests, which were done about two weeks later. The doctor specifically referred to these tests in his treatment reports on five occasions. The plaintiff’s discharge report, dated one and one half years post-accident, indicated a final diagnosis of post-traumatic syndrome; cervical spine derangement with paravertebral inflammation, disc herniation at C3-4, disc bulging at C4-5, disc dessication from C2-3 through C4-5 and straightening of normal lordotic curvature, consistent with underlying paravertebral muscle spasm; thoracic spine derangement with paravertebral inflammation; lumbar spine derangement with paravertebral inflammation, disc herniation at L1-2, L3-4, and L5-S1, disc bulging from levels L1-2 through L4-5, disc dessication at L1-2, L2-3, L4-5, and L5-S1, and anterior meningocele at S2, L5-S1 radiculopathy; and abnormal curve conduction studies indicating S1 radicular dysfunction. The report specifically stated that the diagnoses were documented by the tests read and evaluated by the radiologist and neurologist. It further stated that there was a definite causal relationship between the onset of plaintiff’s symptoms, impairment and limitations, and the reported accident, and that the herniated discs as documented by the MRI, were permanent. Disability caused by the herniated discs was noted to be very severe and permanent, and was stated to be usually the result of recurrent inflammation, causing swelling of the disc with pressure on the nerve roots. At the outset of his testimony, the doctor acknowledged that he was not an expert at interpreting MRIs and that he personally did not review plaintiff’s MRI films. Rather, he based his treatment and opinion on the reports of the doctors who had performed the tests. Defense counsel objected to the doctor testifying as an expert, and sought to have his testimony limited to his administration of nerve block shots to plaintiff. Defense counsel also objected to the doctor testifying as to the radiologist’s interpretation of the MRI films because it was hearsay; he argued that, as an anesthesiologist, the doctor was not qualified to testify with respect to the permanency of plaintiff’s injuries. The trial judge granted defendant’s motion limiting the anesthesiologist’s testimony, and then dismissed plaintiff’s complaint on the ground that, without a doctor to testify regarding the permanency of her injuries, plaintiff could not meet the verbal threshold. The appellate panel disagreed, citing the applicable rule, N.J.R.E. 703, which addresses the bases of opinion testimony by experts. The panel found that the defendant’s objection to the anesthesiologist’s lack of expertise in interpreting the MRIs and his testimony with respect to the radiologist’s interpretation of the MRI, was unfounded. The court noted that an expert opinion may be based on facts or data derived from (1) the expert’s personal observations; (2) evidence admitted at the trial; or (3) data relied upon by the expert which is not necessarily admissible in evidence, but which is the type of data normally relied upon by experts informing opinions on the same subject. The court stressed, however, that results of generally accepted scientific tests are not conclusive evidence, and the jury is free to weigh the expert’s testimony and accept all of it, some of it or none of it. As a result, the court found that the trial judge erred in limiting the anesthesiologist’s testimony to the nerve block shots he administered to plaintiff and also erred, therefore, in dismissing her case. The rule cited is specifically intended to allow an expert to rely upon generally accepted scientific tests in formulating his opinion. Thus, the court reversed and remanded the matter for trial. The court made a final note that it was not making a determination as to whether the doctor’s testimony, together with the remainder of plaintiff’s evidence, would suffice to surmount the verbal threshold. This decision was for the jury to make after weighing the evidence and making its decision as to whether plaintiff’s injury met one of the verbal threshold criteria set forth in the statute. 19. Morejon v. Manwaring, A-5428-01T3 DDS No. 23-2-3542 Judges Skillman and Cuff April 28, 2003 No specific type; AICRA case. The plaintiff, injured when the defendant’s vehicle struck the rear of her vehicle, was taken to the emergency room from the scene of the accident but was not admitted to the hospital. Just over two weeks later, she obtained a neurological evaluation. A cervical MRI performed a month post-accident revealed focal disc herniation posteriorly at the C3-4 level. Plaintiff also began chiropractic care one month after the accident. Plaintiff was not able to work after the accident for a period of just over two months; since the accident occurred at the end of June, and she resumed working just after Labor Day, this basically involved the entire summer. She missed no time from work since she returned as a result of her injury. Her typical workweek was 40 hours, but she also performed approximately 15 hours of overtime each week. In addition to her missed time from work, plaintiff testified at her deposition to other limitations on her lifestyle as a result of the accident. Before the accident, she stated that she used the treadmill at a gym she attended and occasionally participated in aerobics classes; afterward, she was able to do neither. The defendant moved for summary judgment. In response, relying on a Superior Court case, Compere v. Collins, which held that AICRA did not incorporate the serious impact requirement, plaintiff argued that the recent amendments to the verbal threshold statute eliminated the need to show a serious negative impact on one’s life. The trial judge disagreed with plaintiff and granted summary judgment to the defense, finding that the serious impact requirement was still applicable to verbal threshold cases under AICRA, and that plaintiff failed to raise a genuine issue of material fact that the injury caused by the subject motor vehicle accident did, in fact, have such a serious impact on her life. While plaintiff’s appeal was pending, the Appellate Division decided James v. Torres, in which it held that the Legislature clearly intended to continue the requirement that a plaintiff must demonstrate a permanent and a serious injury to satisfy the amended verbal threshold. In so doing, the court disapproved of the holding of Compere. Therefore, plaintiff was required to establish both a permanent and a serious injury. Although defendant conceded for purposes of the motion for summary judgment that plaintiff’s injury might be permanent, he contended that she had failed to establish that the injury had a serious impact on her life. The appellate panel agreed, and affirmed the motion judge’s order. 20. Herrera v. Caruso, A-5697-01T3 DDS No. 23-2-3543 Judges Kestin, Eichen and Fall April 28, 2003 No specific type; AICRA case. In the subject accident, plaintiff’s vehicle was struck in the rear by a vehicle owned and operated by defendant. Plaintiff received no medical treatment until 11 days later, when he was examined by a chiropractor. Plaintiff complained of a constant burning pain in his lower leg; parathesia into the left leg; intermittent cervical pain radiating across his shoulders; headaches; and episodes of dizziness. He was treated by the chiropractor for 11 months. An MRI taken of his lumbar spine two months post-accident disclosed a small posterior bulge at the L3-4 level. A neurological examination of plaintiff was performed five and one-half months after the accident. It revealed soft tissue cervical injuries and the lumbosacral disc bulge that had been disclosed by the MRI. An electromyography and nerve root conduction study completed eight and one-half months post-accident by a neurophysiologist was abnormal, consistent with left S1 root dysfunction. In his report dated almost one year after the accident, plaintiff’s chiropractor concluded that plaintiff had suffered the lumbar disc bulge and the various soft tissue injuries as a result of the subject accident. The doctor executed a certification of permanency pursuant to AICRA, causally relating the diagnosed injuries with the accident and further concluding that the injury to the lumbar spine was permanent in nature. When the matter came on for trial, the parties agreed to dispose of the verbal threshold issue by summary judgment procedures. The judge reviewed the various medical reports and records and entertained oral argument on the scheduled trial date. He reserved decision, and later issued a written decision granting summary judgment in favor of the defendant, dismissing plaintiff’s complaint for failure to meet the verbal threshold requirements imposed by AICRA. More specifically, the judge noted that plaintiff’s injuries were essentially soft tissue and that he did not go to a doctor for days after the accident. He had only six to eight months of chiropractic treatment, and lost only three days from work. Although plaintiff complained of having a burning sensation down his left leg almost every day, and that it interfered with his work and family duties, no evidence was presented as to any medical treatment for his injuries after he ceased chiropractic treatment. Therefore, he did not show by objective, medical evidence, that he sustained any “permanent consequential limitation” or “significant limitation” of use of a body organ or member. The trial judge cited with agreement a 2001 Law Division case, Jacques v. Kinsey, which stated that the intention of the Legislature in enacting AICRA was to tighten the verbal threshold standards in order that they serve as an important barrier to suits involving relatively minor injuries, as here. He also disagreed with plaintiff’s position that the filing of a physician’s certification of permanency automatically barred a court from dismissing a plaintiff’s complaint prior to trial on the ground that the AICRA threshold had not been met. The legislative history, the judge found, unmistakably demonstrated that the Legislature was attempting, in enacting AICRA, to halt the proliferation of automobile negligence actions in which the injuries were not serious. On appeal, the plaintiff attempted again to press the theory that the new verbal threshold statute set forth a completely new standard for permanent injury, which did not include a requirement that the injury be severe or extremely severe, and did not incorporate the requirements set forth in Oswin. Plaintiff argued that the clear and explicit language of the new statute precluded the necessity of looking to the legislative history, introductory statements or preamble to the statute. He finally argued that, applying the proper standard, he had established that he had met the requirements of the new statute and was entitled to recovery. The appellate panel reviewed the record and affirmed the trial judge’s determinations. The panel noted that one of the primary changes to the verbal threshold statute in the enactment of AICRA was the telescoping of the former injury categories five through nine into a single category, defined as “a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” Moreover, the court noted that 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. It was clear to the panel that, in enacting AICRA, the Legislature intended to require that an injury be both permanent and serious to permit recovery. The filing of a treating physician’s certification that complies with AICRA’s requirements did not, by itself, require the denial of a motion for summary judgment. Additionally, the panel found that AICRA intended to retain the summary judgment model articulated by the Supreme Court in Oswin. The panel finally noted that, despite plaintiff’s argument, the trial judge did not rule that AICRA required him to meet a standard of severe or extremely severe soft tissue injury. Rather, the judge applied the evaluative criteria set forth in Oswin, and properly concluded that plaintiff had failed to establish by objective, medical evidence that he had sustained a permanent injury that had a serious impact on his life. 21. Quigley v. May, A-5092-01T2 DDS No. 23-2-3554 Judges Havey, A.A. Rodriguez and Wells April 29, 2003 No specific type; pre-AICRA case. As a result of the impact in the motor vehicle accident in this case, plaintiff was thrown about inside of her vehicle. She struck her head on the windshield and her knees on the dashboard. She experienced pain in her neck, lower back and knees, and was taken by ambulance to a local hospital. There, she was diagnosed with a head injury. Following the accident, plaintiff was treated by her family physician. He diagnosed trapezius strain, thoracic sprain/strain, lumbosacral sprain/strain and cephalgia. He prescribed Cataphlam and Skelaxin and placed plaintiff on a course of physical therapy. One month after the accident, plaintiff moved to Florida with her family. There, she commenced treatment with a board-certified orthopedic spine surgeon. This doctor noted restricted range of motion and tenderness about the lumbosacral spine. He diagnosed sciatica, lumbar sprain/strain and lower extremity pain, and prescribed physical therapy. Eventually, the doctor recommended an MRI; this test revealed a small joint fusion, a mild cartilage injury at the medial femoral chondial, and bone cartilage bruising. Three years post-accident, another board-certified orthopedic surgeon examined plaintiff and concluded that she was a good candidate for arthroscopic debridement of her right knee. The motion judge granted summary judgment to the defendant, concluding that plaintiff’s injuries failed to surmount the verbal threshold. The appellate panel affirmed, finding that the record amply supported the judge’s conclusion that there was no objective credible medical corroboration of the type of injury defined by the statute. The panel noted that the record also supported the conclusion that there was no serious impact on plaintiff’s life. Thus, she failed to meet her burden under the statute. 22. Lettman v. Marius, A-2460-01T1 DDS No. 23-2-3555 Judges Fall and Landau April 29, 2003 No specific type; pre-AICRA case. The accident in this case occurred when plaintiff was operating her vehicle on Route 280 in East Orange. She was stopped in traffic going eastbound when her vehicle was struck from the rear by defendant’s vehicle. The next day, plaintiff went to see a chiropractor, complaining of neck pain and stiffness; restriction of motion in the neck; headache, insomnia, tension and anxiety; pain behind her right eye; lower back pain and stiffness; ringing in her ears; pain radiating into her neck, the base of her skull, shoulders, arms and legs; difficulty in lifting her young daughter; and difficulty in twisting or turning. Notably absent from the chiropractor’s report of this first visit was any complaint of knee pain. The doctor diagnosed plaintiff as suffering from cervical sprain/strain; encephalgia (skull trauma resulting in headaches); lumbosacral sprain/strain; sprain/strain to the shoulder or upper arm; and acute costochonritis (inflammation of cartilage of the ribs). A course of mild spinal manipulation and soft tissue massage therapy was prescribed. One month post-accident, an MRI of plaintiff’s right knee was ordered by an orthopedist consulted by plaintiff because of her continued right knee pain. A report of that MRI revealed degenerative changes and an otherwise normal study with no medial meniscus tear. At the time of the accident, plaintiff was employed as a hospital administrative assistant at the University of Medicine and Dentistry in Newark. Nine and one-half months post-accident, she was examined by an orthopedic joint reconstruction specialist at that hospital for the pain in her right knee that “seem[ed] to have resolved on its own.” Plaintiff reported to the doctor that she now had a several month history of pain in her left knee that did not appear to be resolving. The doctor noted in his report that the pain was anterior in nature and occasionally relieved by Advil. However, plaintiff stated that she did not like to take this medication. She apparently denied any trauma to the knee, and denied any new increase in her activities, though she occasionally exercised. The doctor diagnosed plaintiff as suffering from pes bursitis, or inflammation of the muscles and tendons of the knee. He prescribed Relafen, an anti-inflammatory medication, and physical therapy. The orthopedic joint reconstruction specialist saw plaintiff again for another evaluation approximately six weeks later. Plaintiff reported continued pain and an occasional lump at the back of her knee. The doctor ordered an MRI study of the left knee, which was completed just about a year after the accident. This test disclosed a partially-ruptured popliteal cyst located at the back of the knee, with swelling adjacent to the medial aspect of the medial gastrocnemius muscle � the muscle at the head of the femur; a large free-edge tear of the posterior horn medial meniscus � the cartilage attached to the lateral surface of the end of the tibia; and a 1×1 cm. mass adjacent to the anterior horn of the lateral meniscus, which was thought to be either a meniscal cyst or a vascular tumor � a benign lesion formed of blood cells. After reviewing the MRI, the doctor recommended arthroscopic medial meniscectomy surgery of the left knee. Plaintiff underwent the arthroscopic procedure at UMDNJ one year and two weeks post-accident. The operative report indicated no evidence of a medial meniscus tear or a lateral meniscus tear that needed debridement, repair or removal of dead tissue. Grade II chondral changes, or softening of the cartilage, were discovered, and some of the frayed edges and scar tissue were debrided. The meniscal cyst found had been ruptured, and sections taken from it disclosed that it was benign. The last report from the orthopedic joint reconstruction specialist about two weeks after the surgery stated that plaintiff was doing well post-operatively with no pain reported. Six months after her knee surgery, and one year and seven months after the subject accident, plaintiff was involved in another rear-end motor vehicle accident. At that time, she was five months pregnant. She again sought treatment from her chiropractor for injuries to her neck, lower back and rib cage, and asserted that she sustained a pelvic sprain in the accident. She later testified at her deposition, however, that she did not injure either of her knees in this second accident. About a month after the second accident, plaintiff filed her complaint against defendant seeking damages for the injuries she sustained in the first accident. In her answers to interrogatories, plaintiff asserted injuries as described above in the chiropractor’s report of her initial visit, as well as “internal derangement of the left knee with torn medial meniscus and partially ruptured popliteal cyst.” The chiropractor issued a second report in connection with the litigation, dated approximately 22 months post-accident, which repeated her findings and the diagnoses contained in her first report. She also stated that the injuries suffered by plaintiff, as noted in that prior report, had been sustained as a result of the first accident. She offered no diagnosis or opinion concerning either of plaintiff’s knees. The defendant moved for summary judgment, contending that plaintiff had failed to meet the requirements of the verbal threshold. Plaintiff submitted a certification in opposition to the motion, claiming that, by virtue of her injuries, she was prevented from participation in athletic events, including activities she previously enjoyed, such as running, jogging, walking, playing softball, going to the health club, and participating in step aerobic classes at that club. She stated that she continued to suffer lower back pain and pain in the area of her ribs. She could not do simple tasks, like lifting her children, or carrying laundry from her home to her car. In granting the motion, the judge focused on the significant impact prong of the Oswin test. He noted that plaintiff’s certification, dated 10 months after the second accident, made no reference to the second accident. In reading the certification, the judge found it impossible to ascertain whether plaintiff’s claims of limitations were attributable to the first or second accident, since the certification was dated after the second accident but did not differentiate between the incidents. The judge also felt that the injuries asserted in plaintiff’s answers to interrogatories were significantly less than the allegations of injury contained in her certification. He reasoned that, since the greater recitation of problems contained in the certification followed the second accident, they were attributable to that second accident, and not the subject accident. Looking solely at the allegations of injury and limitations contained in plaintiff’s answers to interrogatories, the judge found that they did not constitute a significant effect on her lifestyle and granted the defendant’s motion. He invited a motion for reconsideration, in which plaintiff could present a “proffer of something to distinguish” the accidents and the injuries sustained in each. He noted that such proffer should “address the issue between the right and the left knee, and what it is that causes her the problems that she refers to in her certification.” Following this ruling, plaintiff was examined by an orthopedic surgeon, approximately two and one-half years post-accident. In his report, the doctor stated that plaintiff suffered from chronic cervical strain syndrome with chronic myofascitis as well as a chronic lumbosacral strain syndrome with chronic myofascitis. He opined that these conditions resulted from the first accident, and were permanent in nature. With respect to his examination of the right knee, the doctor stated that plaintiff showed evidence of a “traumatically-induced chondromalacia patella,” chronic and permanent in nature. Concerning his examination of the left knee, he noted that plaintiff had undergone surgery, and had the residuals of traumatic arthritis and significant fluid accumulation. His examination revealed a painful popliteal cyst behind plaintiff’s left knee, which he found was a result of the trauma sustained in the subject accident. He noted that plaintiff also had arthrofibrosis of the left knee and limited motion due to the traumatic arthritis and fluid accumulation. The doctor’s impression was that the traumatically-induced arthritis in the left knee was a progressive condition that would cause plaintiff to have permanent limitations of function and, in all probability, would require further surgical intervention with an ultimate total knee replacement. There was no mention in the doctor’s report of the second accident. With this report as support, plaintiff moved for reconsideration. The judge heard oral argument but denied the motion, still finding that the plaintiff had failed to provide the requisite comparative analysis between injuries sustained in the two accidents, as required by Polk. Plaintiff filed yet again for reconsideration, attaching a certification in which she herself stated that she did not injure her knees in any accident other than the first accident. The judge again denied the motion, finding that there was no new information submitted. On plaintiff’s appeal, the appellate court affirmed the judge’s grant of summary judgment to the defendant and his denial of both of plaintiff’s reconsideration motions. The panel noted that there was nothing in the treating chiropractor’s reports or the notes of the orthopedic joint reconstruction specialist that causally related plaintiff’s left knee condition to the subject accident. In fact, the latter physician stated in his report that plaintiff had specifically denied any trauma to her left knee. As for the orthopedic surgeon’s report, obtained and submitted only after summary judgment had been granted, the report did causally relate plaintiff’s knee problems to the subject accident; however, the doctor failed to mention or discuss the subsequent accident. Moreover, as the trial judge had noted, this information could have been obtained before the original motion was argued, and it was inappropriate for plaintiff to search for new evaluations to correct proof deficiencies after the grant of summary judgment. Additionally, the panel noted, as did the motion judge, that no medical evidence or other proof had been submitted, as required by Polk, that would have provided the court with an analysis comparing the injuries sustained in each of the two accidents or stating whether there was any aggravation of a pre-existing injury, and establishing to which accident the claimed impacts on plaintiff’s life were attributable. Finally, the court noted that, while the trial judge never considered or addressed the objective prong of the Oswin test � the issue of whether plaintiff had presented objective, credible medical evidence of a permanent injury that was causally related to the subject accident � it felt that the record was clear that such evidence had not been submitted to the trial court at the time of the argument of the original summary judgment motion. Accordingly, the grant of summary judgment in favor of the defendant was appropriate. 23. Vastardis v. Farber, A-6530-01T3 DDS No. 23-2-3717 Judges Axelrad and Hoens May 19, 2003 Types 6, 7, 8 or 9; pre-AICRA case. In the motor vehicle accident upon which this case was based, the 32-year-old plaintiff was the driver of a car that was disabled on the shoulder of the Garden State Parkway ramp when she was struck by the defendant’s vehicle. Two days thereafter, complaining of headaches and associated dizziness, nausea, lower back pain and neck pain, plaintiff sought treatment with a medical and rehabilitation group and underwent a course of physical therapy for six to eight months. She received no other medical treatment as a result of injuries sustained in the accident. Cervical and lumbosacral MRIs were performed seven months and 10 days after the accident. These objective tests revealed a focal disc herniation of the cervical spine at the C6-7 level and muscle spasm of the lumbar spine. There was no finding of impingement or compression. Two and one-half years after the accident, an orthopedic independent medical examination of plaintiff was performed. This doctor diagnosed cervical and lumbar strains, but found no permanency. Based on his review of the MRI films, the doctor found a disc bulge at C6-7 without impingement, as opposed to a disc herniation, and opined that the findings did not produce pain or disability and did not alter what he concluded was an excellent prognosis. He concluded that plaintiff had subjective complaints, but no objective findings, and that she had received maximum medical benefits. At the time of her deposition just six days after the independent orthopedic medical examination, plaintiff testified to complaints of pain in her neck and lower back, soreness in her upper back and arms, some migraine headaches and an inability to sleep comfortably. She stated that she took over-the-counter medications for these symptoms, and had to “baby” her right side. She also said that she had gained weight because of a decrease in her level of activity, and was unable to perform household chores the way she had prior to the accident. She stated that she could no longer go to the gym or teach dance at her church, but then admitted that she had not participated in these activities for one and a half years prior to the accident (due to complications with a pregnancy). With respect to her job, plaintiff stated that she had been working as an independent insurance consultant at the time of the accident, but took a salaried job with a different company right after the accident because it paid better and was more flexible and suited her lifestyle. About two years and eight months post-accident, plaintiff was examined, but not treated, by an orthopedist who opined that the disc herniation was causally related to the subject accident, as was plaintiff’s “ongoing right-sided lumbar pain exacerbated with extension and right rotation, consistent with facet joint syndrome.” He concluded that, considering that plaintiff’s injuries were over two and one-half years old, it was highly probable that she would have ongoing problems with her neck and back, and that her injuries were permanent in nature. He also felt that the restrictions that plaintiff had described with respect to her daily activities were also probably permanent. Plaintiff sought recovery for injuries allegedly qualifying under categories 6, 7, 8 or 9 of the verbal threshold statute. The motion judge found, however, that she had presented insufficient objective, credible evidence to create a jury issue as to the first, objective prong of the test articulated in Oswin. On plaintiff’s appeal, the appellate panel agreed with the motion judge’s grant of summary judgment to the defense. The judges noted that, even if there were a question to withstand summary judgment as to whether plaintiff had a disc herniation at C6-7 that was permanent, as her experts claimed, or merely a disc bulge with no impingement as the defense doctor claimed, plaintiff’s proofs failed as a matter of law on the subjective prong of Oswin. More specifically, the court noted that the limitations asserted by plaintiff were minor and not sufficient to constitute a serious impact on her life. She was treated medically for only six to eight months, with those treatments consisting solely of physical therapy sessions. Although she was evaluated by a neurologist and an orthopedist, she was never treated by either physician. She was able to work after the motor vehicle accident and, in fact, moved immediately to a better paying job. Although plaintiff alleged that she experienced back and neck pain and that her activities were, at best, curtailed, she did not demonstrate that she was unable to substantially perform her customary daily activities. The panel felt that no rational factfinder could find for plaintiff on this record, requiring dismissal of her complaint. Finally, the appellate panel noted that plaintiff, in her certification in support of her motion for reconsideration of the grant of summary judgment, had attempted to add information about her work history in support of her claim of a type 9 injury. The panel noted that the judge correctly denied this motion on the ground that this evidence, while newly-presented, was not newly-discovered, as it was known to plaintiff when she opposed the original summary judgment motion. 24. Kimble v. Ehrich, A-6254-01T1 DDS No. 23-2-3760 Judges Wallace Jr. and Ciancia May 22, 2003 No specific type; pre-AICRA case. While traveling on the highway, plaintiff’s vehicle was hit from behind by defendant’s vehicle. Plaintiff claimed injuries to her neck, back and right shoulder as a result of the collision, and sought treatment with her family physician and a chiropractor. After suit had been filed, one and one-half years after the accident, defense counsel subpoenaed the records of plaintiff’s doctors. He received the records from the chiropractor, but not the family doctor. He did not realize this until just prior to trial � over a year later � when he was preparing for the de bene esse videotape deposition of plaintiff’s expert. He immediately issued another subpoena and obtained the records. They revealed that plaintiff had two documented episodes of prior neck pain and right shoulder pain before the subject accident, and had received an injection in her right shoulder some three years before the accident. At plaintiff’s expert’s de bene esse videotaped deposition, which occurred one year and eight and one-half months after the accident, the doctor testified that he had reviewed plaintiff’s chiropractor’s records and was aware that, just prior to the subject accident, plaintiff was already receiving chiropractic treatment for her back from that physician. During cross-examination of this witness, for the first time, defense counsel presented copies of plaintiff’s family physician’s records to plaintiff’s counsel, and gave the expert time to review them off the record. Plaintiff’s counsel objected to the late submission of these records, but defense counsel explained that he had only just received them. Following his review of the records, the expert testified that the indications of pain in plaintiff’s right shoulder prior to the accident did not change his medical opinion that her present pain was caused by the motor vehicle accident. Two days later, the de bene esse deposition of defendant’s medical expert was taken. This physician had previously concluded, in a report dated almost one and one-half years post-accident, that plaintiff suffered some mild permanency and mild disability in the form of lumbar sprain with lumbar disc herniation, cervical sprain and radiculopathy, lumbar radiculopathy, and shoulder sprain with impingement syndrome � all caused by the motor vehicle accident with the defendant. During his deposition, the expert was asked to review the records of plaintiff’s family physician and chiropractor, which he had not previously been shown. Based on the family physician’s records, which showed that plaintiff had received treatment for her right shoulder three years before the subject accident, and the chiropractor’s records, which showed that plaintiff had received treatment for back pain in the months prior to the accident, the expert testified that he could no longer opine to a degree of reasonable medical certainty that plaintiff’s injuries were caused by the subject vehicular accident. During pretrial motions, plaintiff’s counsel sought to strike those portions of the defense expert’s de bene esse deposition testimony related to his change in opinion concerning the cause of plaintiff’s injuries. He claimed unfair surprise and argued that he had no prior knowledge that the expert would change his opinion from his earlier report. However, the trial judge accepted defense counsel’s assertion: that he had not received the plaintiff’s family physician’s records, although previously requested, until he was preparing for the plaintiff’s expert’s deposition; that plaintiff was aware of the original subpoena for those records; and that plaintiff’s expert had also had the opportunity to review the records and testify accordingly. Consequently, the judge permitted both experts to consider the family physician’s records, and denied plaintiff’s motion to strike. The case was tried to a jury. While the jury determined that defendant was 100 percent negligent for the motor vehicle accident in question, it also concluded that plaintiff did not sustain a permanent injury qualifying to meet the verbal threshold statute. On appeal, plaintiff argued that the trial judge had abused his discretion in allowing the defendant’s medical expert to express a new and different opinion concerning medical causation and permanency at his de bene esse deposition videotaped for use at trial. Plaintiff argued that the judge should not have allowed any evidence of plaintiff’s prior medical conditions or injuries because there was no expert testimony providing a relationship between the prior medical conditions or injuries and the issues tried before the court. Plaintiff also argued that the trial judge erred in instructing the jury that she was subject to the verbal threshold, and submitting this issue to the jury, “as the defendant [had] failed to present any evidence at trial relative to this affirmative defense and had not requested this charge in his pretrial information exchange pursuant to Court Rule 4:25-7.” The Appellate Division rejected plaintiff’s arguments and affirmed. The judges noted that expert testimony that deviated from a pretrial expert report could be excluded if the court found the presence of surprise and prejudice to the objecting party. Factors for the trial judge to consider, in the exercise of his or her discretion, include: (1) absence of a design to mislead; (2) absence of the element of surprise if the evidence were to be admitted; and (3) absence of prejudice that would result from the admission of the evidence. Here, the court noted that the trial judge had accepted defendant’s explanation for failing to provide plaintiff with copies of the subpoenaed records earlier, and it found no reason to disagree. Clearly, there was no evidence of a design to mislead. Further, the records were received from plaintiff’s own physician, prior to trial, and plaintiff had ample time to address them. Consequently, there was neither an element of surprise nor prejudice to warrant exclusion of the medical records and the related testimony. The appellate court also rejected plaintiff’s contention that it was error to allow evidence of plaintiff’s prior medical condition because there was no expert testimony to establish a relationship between the prior injuries and her recent ones. The court noted that, in general, a plaintiff in a personal injury case could be cross-examined as to prior injuries to show that her present condition did not result solely from defendant’s negligent act, but was caused, wholly or partially, by an earlier accident or a pre-existing condition. Here, the court noted that the defense expert’s testimony that there was a correlation between plaintiff’s prior injuries and her recent complaints amply supported the admission of the evidence. Finally, the court found no merit in plaintiff’s argument that the trial court erred in submitting the verbal threshold issue to the jury. Defendant raised the verbal threshold defense in his answer to plaintiff’s complaint. Plaintiff clearly had the burden to prove that she crossed the verbal threshold. While failure to meet the threshold is a matter for the defense to plead, proof that the threshold has been met is the plaintiff’s burden. Beyond that, the judge noted that both attorneys stipulated that this was a verbal threshold case for the purpose of jury selection; plaintiff’s counsel even gave the court the form of the charge to give to the jury. 25. Brickner v. Campbell, A-5592-01T2 DDS No. 23-2-3782 Judges Cuff and Lefelt May 23, 2003 No specific type; pre-AICRA case. Following the rear-end collision in this case, plaintiff was examined at a local hospital emergency room, diagnosed with cervical sprain/strain, and released the same day. A CT scan was negative. Three days later, plaintiff sought treatment from a doctor who referred her to another physician. She first saw this second physician about two weeks after the accident. The physician observed paravertebral muscle spasms and rendered a diagnosis of severe cervical sprain and strain, and lumbar sprain and strain. X-rays of the cervical spine were negative. Plaintiff continued to treat with the doctor for 10 months. During this period, two MRIs of her cervical and lumbar areas were performed, with normal results. In a narrative report dated 13 months after plaintiff ceased treatment, the doctor reported that over time, plaintiff’s cervical sprain and strain had improved to “near normal,” however, her lumbar spine did not improve. The doctor related that muscle spasms persisted and plaintiff’s range of motion decreased to 60 percent of normal during the course of treatment. She noted, however, that plaintiff’s neurologic examination was normal. The treating doctor referred plaintiff for physical therapy, chiropractic treatment and acupuncture. The chiropractor, in turn, referred plaintiff to a pain management specialist. Eight months post-accident, he reported muscle spasms in both lumbar paraspinal muscles, more on the right side than the left. He administered trigger point injections, which plaintiff did not tolerate well, and also prescribed aqua therapy. Plaintiff ceased all treatment 11 months post-accident. At the time of the accident, plaintiff was 20 years old. She was a full-time college student, a part-time intern at the Federal Economic Development Agency and also served as the assistant director of an adult education program. She missed two days of work at her internship as a result of the accident. In high school, plaintiff had been a three-sport athlete; however, in college, she did not play sports on the varsity level. Recreationally, plaintiff did participate in a softball league, and also worked out regularly at a gym. Following the accident, plaintiff testified that she still worked out at the gym but did not run and only used light weights. When the defendant moved for summary judgment, the judge granted the motion. She found that plaintiff had presented objective, medical evidence of injury, namely, persistent spasm over a 10-month period. She held, however, that plaintiff had failed to present a genuine issue of material fact that the injury had a serious impact on her life. On appeal, plaintiff argued that the medical evidence and her recitation of her level of activity before and after the accident demonstrated a serious impact on her life. The appellate court disagreed, and affirmed the motion judge. While noting that the existence of muscle spasm could serve as objective, medical evidence of injury � particularly if the observation of spasm persisted for a considerable time after the accident � the court noted that the spasm had to be sufficiently connected to one of the statutory classifications to satisfy the verbal threshold. Here, the court found that it did not need to determine whether plaintiff had presented sufficient objective evidence to raise a genuine issue of material fact that she had suffered a compensable injury. The judges noted that the objective medical evidence revealed nothing about plaintiff’s condition even one year after the accident, because she ceased all treatment approximately 10 months afterward. Further, all objective radiographic tests reported no abnormality. The panel did agree with the motion judge’s assessment of the subjective impact of the injury on plaintiff’s life. Although plaintiff appropriately referred the court to Owens v. Kessler and other cases, which stood for the proposition that the impact of an injury on a person’s life should be considered in relation to their age and level of activity prior to the accident, the court found that, factually, each of the cases cited by plaintiff was distinguishable, and proceeded to discuss how. The panel found the record devoid of any evidence that plaintiff’s injury had limited her ability to pursue her educational or employment activities. Moreover, her participation in competitive sports had already decreased markedly before the accident when she attended college, which the court found to be “natural as a person matures and engages in different educational and vocational activities.” To be sure, the panel noted, plaintiff could not exercise at the vigorous level she did before the accident; nevertheless, she was still able to use a treadmill and light weights. The court found, in summary, that the level at which plaintiff was able to perform her daily activities, including full-time employment with no loss of time attributable to her injuries, and her ability to participate in recreational activities, albeit at a less vigorous level, demonstrated that her injuries did not have a serious impact on her life in terms of satisfaction of the verbal threshold. Therefore, the trial court’s order granting summary judgment was affirmed. 26. Miranda v. Velasco, A-6805-01T2 DDS No. 23-2-3783 Judges Ciancia and Bilder May 23, 2003 No specific type; AICRA case. Following the initial exchange of pleadings and some amount of discovery in this automobile collision case, defendant filed for summary judgment claiming that plaintiff had not suffered a permanent injury within a reasonable degree of medical probability � as that language was used in the verbal threshold statute as amended by AICRA. Although plaintiff had filed a physician’s certification, it was disputed by defendant. The papers submitted by both sides on the motion included briefs and attachments, but neither side addressed the question of whether the “serious impact” requirement, as discussed in Oswin, remained in place after AICRA’s amendments to the verbal threshold statute. When defendant’s motion came before the court, the trial judge noted that there were, at the time, conflicting trial court opinions as to whether a plaintiff subject to AICRA was still required to show a substantial impact on his or her life. Then, without argument and without discussion of whether plaintiff’s injury was permanent, and without making any findings, the trial judge dismissed plaintiff’s complaint without prejudice. The judge held that the complaint could be reinstated within a year “if the Appellate Division turn[ed] out to say that substantial impact [was] not a part of the requirement that the plaintiff” must show. The judge added that he did not think that the substantial impact test still applied, but gave no reasons for that conclusion. The appellate panel held that the summary judgment granted to the defendant in this case must be reversed because the trial judge failed to hear oral argument or consider the substantive issues. It found the trial judge’s disposition clearly deficient. The parties were entitled to argue their respective positions. The trial court was obligated to rule on the law and set forth its factual and legal conclusions in detail sufficient to provide the parties with a reasoned decision and to permit the higher court to perform its appellate function. Since none of that occurred, and the panel was not inclined to review the record de novo to decide those issues that should have been addressed by the trial court, reversal and remand were ordered. As to the judge’s unexplained conclusion that the substantial impact test no longer applied under AICRA, the panel noted that the question of substantial impact was not even the focus of defendant’s motion nor, for the most part, of plaintiff’s response thereto. The issue being debated was, instead, permanency. Additionally, the panel noted that the question of whether the post-AICRA version of the verbal threshold statute continued to incorporate the principles of Oswin had been consistently answered in the affirmative by the Appellate Division. Accordingly, summary judgment in favor of defendant was reversed, and the matter remanded for further proceedings. 27. Goode v. Whittaker, A-4052-01T3 DDS No. 23-2-3801 Judges Conley and Newman May 27, 2003 No specific type; pre-AICRA case. In the accident in this case, plaintiff was stopped at a red light when defendant’s Jeep Wrangler struck her vehicle from behind. Apparently, there was no damage to plaintiff’s vehicle and only a scratch to defendant’s fender. Plaintiff complained that she was jerked forward and backward upon impact, and experienced radiating pain and headaches following the accident. She was transported to the hospital by ambulance after being secured in a neck brace and strapped to a backboard. X-rays taken at the hospital were negative, and she was discharged without any further tests or treatment. Plaintiff did not seek any further medical advice until four to six months later, when she went to her family physician, who referred her to a neurologist for treatment. The neurologist found that plaintiff suffered injuries from the accident that were described as lumbar and cervical strain on the left side, indicating possible nerve damage or neck injury causing problems with her arms. He also diagnosed plaintiff with cervicogenic headaches and headaches associated with temporomandibular joint disorder (TMJ). In letters subsequent to the examinations, the neurologist added that plaintiff suffered from a post-concussive disorder associated with cognitive loss because she exhibited a fuzzy thought process and was unable to organize her day. As a result of these findings, the doctor referred plaintiff to a psychologist. The psychologist prepared a report of his examination of plaintiff dated a year and a half post-accident. He opined that it was entirely possible that the nature of plaintiff’s injuries had created subtle cognitive impairment that manifested itself in very tangible ways, and that some of the injuries might be related to trauma to the brain stem or intracranial insults to the brain as it moved back and forth during a violent impact. The neurologist reviewed the psychologist’s report and stated that his findings were consistent with the post-concussive disorder that he (the neurologist) had diagnosed. He also stated that plaintiff continued to suffer from concentration deficits and memory loss, and that the neurological problems he had first diagnosed were also still present. Finally, he stated that it was within a reasonable degree of medical probability that plaintiff would have permanent residuals from her injuries. The neurologist also referred plaintiff to a dentist specializing in TMJ injuries. The dentist observed that plaintiff had problems opening her jaw to a normal range, and heard her jaw making a clicking sound. He diagnosed plaintiff with TMJ and determined that this injury was a result of her automobile accident with defendant. At trial, defendant produced dental records of plaintiff that pre-dated the accident, and indicated that she possibly suffered from TMJ prior to the subject accident. When confronted with those records at trial, plaintiff’s treating dentist stated that they did not alter his diagnosis that plaintiff currently suffered from TMJ. Plaintiff was also examined by another physician, who diagnosed her with sprain and strain of the back and neck muscles, as well as traumatic TMJ. He stated that she had abnormal range of motion in her neck and back, and muscle spasms. He indicated that plaintiff’s condition was chronic and did not show signs of improvement. He also indicated in his report that plaintiff had suffered brain damage leading to memory problems, although, at trial, he was not allowed to reference the memory problem because he did not conduct any objective tests to arrive at these conclusions and had not relied on the tests of the psychologist. He related all of plaintiff’s conditions to her accident. Just over three years post-accident, plaintiff was examined by defendant’s dental expert, who was also provided with copies of the records of plaintiff’s former dentist. The defense expert found that plaintiff did not suffer from TMJ as a result of the subject accident because, according to the prior dental reports, she had experienced a clicking of her jaw prior to that accident. Another doctor who had conducted a physical examination of plaintiff testified for the defense. He opined that the results of plaintiff’s neurological, sensory and lumbar examinations were normal. He did admit that plaintiff had suffered soft tissue injuries in the accident, but stated that these injuries were not permanent in nature. Because plaintiff’s medical history revealed that she was treated for the same injuries from prior accidents, and because his testing did not show any objective changes, the doctor concluded that plaintiff did not sustain any permanent injuries in the accident. Plaintiff had been involved in a prior accident at some point in the prior decade. Also, she had suffered injuries to her lower back and neck when she was broadsided on the passenger’s side in an automobile accident in the year prior to the subject accident. Plaintiff received treatment for those injuries, however, according to plaintiff, six months prior to the subject accident, she had discontinued all treatment for the injuries she received in her earlier motor vehicle accident. Defendant stipulated liability and the jury trial focused on the injuries plaintiff allegedly sustained as a result of the accident. The jury found that the automobile accident was not a proximate cause of any injury to plaintiff. The jury did not even reach the questions on the verdict sheet relating to the soft tissue categories of the verbal threshold statute. Following the no-cause verdict, plaintiff moved for a new trial. The trial judge denied the motion, and plaintiff appealed both the order entering the judgment of no cause and the trial judge’s denial of her new trial motion. She asserted that the trial court: erred in not granting her motion for a new trial; improperly permitted the admission of her prior dental records and the testimony of defendant’s dental expert; erroneously barred the testimony of her psychologist without conducting a Rule 104 hearing; erroneously barred her medical experts from testifying or relying upon the psychologist’s report and test results; erroneously barred her medical expert and treating neurologist from testifying as to plaintiff’s cognitive losses; and erroneously denied her motion in limine seeking to bar any reference to her prior occupation as an exotic dancer. The appellate panel first rejected plaintiff’s argument that the trial judge erred in denying her motion for a new trial. From the evidence submitted, the panel stated that the jury could have reasonably found that plaintiff’s injuries did not proximately result from the subject accident. The testimony of both defense experts was that plaintiff’s TMJ injury pre-existed the subject accident, and was, therefore, not caused by it. The defense doctor’s physical examination of plaintiff resulted in normal findings. Additionally, plaintiff had previous accidents where she had suffered similar neck and back injuries which were determined to be permanent at the time. The jury could have believed, as it did, that plaintiff’s injuries were the same as the prior injuries. Finally, plaintiff’s experts were attacked on cross-examination, and the jury could have reasonably found them not to be credible. The jury verdict was supported by the trial evidence, and the panel found that its intervention was not warranted. Next, the panel addressed plaintiff’s contention that the testimony of the defense’s dental expert should have been barred by the trial court because his report was not provided in a timely fashion under the discovery rules. Analyzing the pertinent court rules, the court noted that the report was untimely, as it was submitted on the first day of trial, but stressed that it was within the trial judge’s discretion whether the expert’s testimony should be allowed, and what sanction, if any, should be imposed for the technical failure to meet the rule. The court reviewed the factors that the judge was required to analyze. First, nothing in the record indicated that the late submission was part of a plan to mislead plaintiff. To the contrary, the trial judge noted that the reason the expert’s report was not procured and provided to plaintiff sooner was because plaintiff did not fulfill her own discovery obligations in a timely manner. Plaintiff was aware, at least when her examination with the expert was scheduled, that a report from him would likely be forthcoming; therefore, she could claim no surprise. Further, plaintiff did not suffer any prejudice because her experts had had the opportunity to review the expert’s report and respond to it when they testified. The trial court also afforded plaintiff an opportunity to depose the expert, which plaintiff chose not to accept. Therefore, the panel found no error in the trial court’s admission of this expert’s testimony. The appellate court next addressed plaintiff’s contention that the trial judge should have conducted a Rule 104 hearing to determine whether her psychologist’s opinion was grounded in reasonable medical probability. In support of her position, plaintiff relied on authority where the question was whether the expert used methodology that was generally accepted in the scientific community to arrive at his or her conclusions. In that context, the court held that a hearing should be conducted to determine the actual methodology used by the expert. The court also recognized that the decision to hold such a hearing is at the discretion of the trial court. The case cited by plaintiff, however, involved a situation where the court had not been given a full picture of the expert’s opinion, and the only testimony available to it was plaintiff’s expert’s deposition taken by defendant. As such, the court in that case lacked a more complete view of the expert’s testimony and should have conducted a full hearing. This was not the situation in the case before the court, however. Nothing in the record indicated that the court did not have a complete picture of plaintiff’s psychologist’s expert opinion. He had submitted a detailed report, discussing his impressions and findings; the report contained factual data on which the findings were based; and the psychologist then stated his conclusions in terms of a possibility. Under the circumstances, the trial court was not required to hold a Rule 104 hearing, and its discretionary ruling not to do so was appropriate. Plaintiff argued that the trial court erroneously prohibited testimony by her psychological expert because the doctor did not phrase his opinion on causation in terms of a reasonable medical probability. Rather, he stated simply that it was “entirely possible” that plaintiff’s cognitive injury resulted from the accident and that the cognitive injury might be related to her accident. The appellate panel agreed with the trial judge’s determination, noting that expert testimony must be excluded if it is based merely on unfounded speculation and unquantified possibilities. The failure to ground expert opinion as to causation in medical certainty or probability would lead to a conclusion that the opinion is nothing more than an inadmissible “net opinion.” The language of plaintiff’s expert here spoke only in terms of probabilities, which did not convey the notion of a reasonable medical probability required before an expert’s opinion as to causation could be admitted into evidence. While the precise language of “reasonable medical probability” was not inflexibly required, the phrases “entirely possible,” and “might be related” were not analogous to the phrase “strong relationship and connection,” which had been found in another case to be sufficient. Therefore, the trial judge’s decision to prohibit the psychologist’s testimony and his finding that the report was inadmissible was proper. Plaintiff argued further that her neurologist should have been permitted to testify as to plaintiff’s cognitive injury because he diagnosed this injury independently of the psychologist’s report. Alternatively, plaintiff argued that the neurologist should have been permitted to testify as to plaintiff’s cognitive injuries, even if he did rely on the psychologist’s report, because an expert is permitted to base his opinion on the opinions of other experts, even if they do not testify at trial. The court noted that expert opinion must be supported by a factual and scientific basis; lacking same, an opinion is net and inadmissible. One expert is permitted to rely on facts and data that are not admissible, if those facts and data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. The testifying expert must have relied on the nontestifying expert’s opinion in forming his or her own conclusions and in pursuing a course of treatment; simply parroting the nontestifying expert’s opinion because it conforms to the testifying expert’s opinion should not be permitted. The court found that plaintiff was correct in stating that the evidence showed that the neurologist � before the psychologist examined plaintiff � had already diagnosed plaintiff with cognitive loss. However, when stating this conclusion, the neurologist did not delineate any supporting factual basis; nor did he conduct any objective tests to support his conclusion. In fact, it was he who referred plaintiff to the psychologist to determine and confirm if cognitive loss was actually present. Consequently, the neurologist was properly barred from testifying as to any cognitive loss suffered by plaintiff because his own statement constituted a net opinion. Additionally, contrary to plaintiff’s contention, the trial court did permit the neurologist, as well as other experts, to testify to the conclusions they reached based on the testing performed by the psychologist. Each was permitted to rely upon the raw data used by the psychologist in arriving at his opinion. What they were prohibited from testifying to was the actual conclusion reached by the psychologist, and the numerical score he attached to plaintiff’s test, which had already been ruled inadmissible because of the psychologist’s failure to state that this opinion was a reasonable medical probability. Plaintiff also argued that the trial court erred in ruling that defendant could comment on her prior occupation as an exotic dancer. She argued that because she had not been employed as an exotic dancer for at least one month prior to the accident, and her prior occupation was not relevant to any issue involved in the trial, it was improper for the trial judge to permit any reference to her previous occupation during trial. She contended that the prejudicial nature of the information outweighed its probative worth, which was low, and therefore, the information should not have been provided to the jury. She also pointed out that this ruling necessitated her consent during voir dire to question the jury as to their bias for or against exotic dancers, and required her to bring this fact to the jury’s attention during direct examination to soften any harmful effects that might result from this fact being adduced on cross-examination. The panel noted that the evidence that plaintiff was an exotic dancer was probative as to the cause of her injuries. While being an exotic dancer may have been prejudicial because such an occupation might not be looked upon favorably, the prejudicial aspect of the evidence was not sufficient to divert the jury from a reasonable and fair evaluation of the case. While such evidence might cast plaintiff in a bad light to some, because it was probative as to causation, it was admissible. Plaintiff failed to discharge her burden of proving that the probative value of the evidence was substantially outweighed by its prejudicial nature. Therefore, the trial court did not abuse its discretion in admitting this evidence. As a parting remark, the appellate court noted that plaintiff’s prior occupation was only referenced once at trial, during plaintiff’s direct testimony. This fleeting reference to her prior job was not mentioned again throughout the remainder of the trial, including the closing arguments. Thus, even if such a reference was erroneously admitted, it was harmless. 28. Cabrera v. Levine, A-5951-01T1 DDS No. 23-2-3811 Judges Newman and Parrillo May 28, 2003 No specific type; AICRA case. One month after the accident in this case, plaintiff commenced a course of medical treatment for his injuries, which continued for four months. During this time, an MRI was performed that revealed central disc herniations at L4-5, and L5-S1. Plaintiff’s treating physician related the injuries to the accident and certified them as permanent. Plaintiff offered no proof that his injuries had a serious impact on his life, however. Consequently, when the defendant moved for summary judgment, the trial court granted the motion on the basis that plaintiff had not met the second, or subjective, prong of the verbal threshold test. On appeal, plaintiff did not challenge the court’s finding as to the lack of evidence of a serious impact on his life. Rather, his sole contention on appeal was that the motion judge erred in applying the serious impact prong of Oswin, which he contended did not survive in the AICRA amendments to the verbal threshold statute. The appellate panel disagreed, and affirmed the trial judge’s dismissal of plaintiff’s complaint. Contrary to plaintiff’s contention, the panel cited cases that had held that AICRA did not alter the requirements of Oswin and its progeny that injured motorists must show both a permanent injury and a serious impact on their lives to assert a claim for noneconomic damages. It was clear, the panel stated, that the amended verbal threshold statute incorporated the limitations embodied in interpretative case law prior to the statute’s amendment. Accordingly, having found no evidence that plaintiff’s injuries had a serious impact on his life � a finding not challenged by plaintiff on appeal � the appellate court found that the motion judge had properly granted defendant’s motion for summary judgment dismissing plaintiff’s complaint for noneconomic damages. 29. Semchessen v. Stone, A-6810-01T3 DDS No. 23-2-3812 Judges Wells and Payne May 28, 2003 No specific type; AICRA case. The accident in this case occurred when plaintiff was 27 years old. She was seen at a local hospital emergency room within an hour of the collision, complaining of pain in her left side and injury to her right foot. X-rays proved negative for fractures. Over the next five months, plaintiff saw a number of doctors and the consensus on her diagnosis was lumbosacral sprain and residual myofascitis of the shoulders. She also exhibited signs of sciatica. Ten months post-accident, an MRI of plaintiff’s lumbar spine showed minimal degenerative disc bulging at L1-2, L2-3 and L5-S1. Thirteen months after the accident, a physician expert in pain management diagnosed plaintiff with sacroiliac joint arthropathy and administered steroid injections an injection of an anesthetic, which she continued to receive. Plaintiff’s continuing complaints for purposes of this lawsuit included severe pain in her right side; her hip “locking” or cramping; and numbness and tingling in her feet. She claimed that she could not stand for more than 20 minutes without experiencing pain. She could no longer do yard work, and was restricted in swimming to doing only the backstroke. She could no longer go camping or do her aerobic exercises. Plaintiff had a long history of right knee, pelvic and back pain. Some 12 years before the subject accident, she had presented to her physician because she had fallen and injured her right knee. Approximately 10 years before the subject accident, she presented with pelvic and back pain. She was in a prior motor vehicle accident, also 10 years before the subject accident, wherein she sustained injuries to her neck with pain radiating down into her shoulders, as well as suffering lower back pain. Plaintiff was previously treated by an orthopedic surgeon and her family physician. In a report issued by the latter approximately nine years before the subject accident, he noted that plaintiff had aggravated her existing injuries some seven months prior while working, when she was lifting inventory and stocking shelves. Just over two years before the subject accident, plaintiff submitted to an intravenous pyelogram, which revealed a “slight scoliosis with convexity to the left,” and “tiny calcification [was] seen in the pelvis on the right.” Plaintiff was employed as a substitute teacher at the time of the accident. She also worked part time doing billing and filing. She missed about two weeks from work immediately following the accident. Defendant moved for summary judgment, and the judge granted the motion. He found “a lot of problems with this case,” which he declared to be the classic soft tissue injury case that the verbal threshold was designed to “take care of.” Notably, plaintiff had not provided the required Polk comparative analysis of her pre- and post-accident residuals through any of her medical experts. Moreover, the judge found that plaintiff, a very young woman, showed a host of degenerative problems which he did not feel could be the result of this very minor, relatively low-impact motor vehicle accident. Finally, the motion judge found, as a matter of law, that the limitations plaintiff asserted on her activities did not rise to the required level of having a truly significant serious impact on her life. The appellate panel affirmed, substantially for the reasons articulated by the motion judge. The panel found that the judge’s application of the tenets of Oswin, both objective and subjective prongs, was unassailable under the facts of this case. 30. Buckley v. Engel, A-6825-01T5 DDS No. 23-2-3872 Judges Ciancia and Hoens June 3, 2003 No specific type; pre-AICRA case. The plaintiff asserted that he suffered injuries to his neck, shoulder, arm and hand in the automobile accident with defendant. He claimed to have been evaluated and treated in a hospital emergency room immediately following the accident, but he produced no emergency room records. Plaintiff also asserted that he consulted informally with several physicians starting six to eight weeks after the accident; that they offered advice and suggested treatment regimens; and that he continued to consult with them throughout the nearly two years following the accident � but he produced no records of any of these consultations. Plaintiff’s first documented medical consultation was with one of the health care providers with whom he stated he consulted informally; however, the doctor’s records did not refer to any treatment or consultation, formal or informal, prior to the documented examination, which took place nearly two years post-accident. Nor did this doctor’s records include any opinion that any of plaintiff’s injuries were caused by the subject accident. The records did refer to the accident, as well as the injuries complained of, but only in the history provided to the doctor by the plaintiff himself. Additionally, the doctor’s records also referred to plaintiff’s having been involved in two prior motor vehicle accidents, but made no comparative analysis or attribution of either the injuries or an aggravation of the injuries to the subject accident, as opposed to the other accidents. None of the reports in any sense constituted an expert opinion that plaintiff’s injuries were caused by the subject accident. Following extensive discovery, defendant moved for summary judgment, contending that plaintiff could not demonstrate that any of his claimed injuries were causally related to the accident, and that plaintiff’s claim was therefore barred by the verbal threshold statute. The trial judge granted defendant’s motion, finding that plaintiff had failed to produce any objective, medical evidence that the injuries he complained of were caused by the subject accident. The appellate panel affirmed, noting the total absence of expert evidence attributing the injuries of which plaintiff complained to the subject accident. Moreover, as the motion judge correctly noted, because plaintiff had also been involved in other motor vehicle accidents before the subject accident, he was required to demonstrate, through the opinion of an expert, that his complaints were caused by this accident rather than either of the others. Having failed to demonstrate the causal connection by objective, medical evidence, plaintiff could not meet the test of the verbal threshold. 31. Miskelly v. Lorence, Jr., A-2026-02T3 DDS No. 23-2-3873 Judges Stern and Alley June 3, 2003 No specific type; AICRA case. When the defendant moved for summary judgment in this case, the trial judge denied the motion, concluding that defendant was equitably estopped from moving to dismiss plaintiff’s complaint on the basis of his failure to provide both a physician’s certification of permanency and objective evidence of a substantial impact on his life. In any event, the judge held, a jury question was presented as to plaintiff’s back injury. The judge also denied defendant’s motion for summary judgment with respect to plaintiff’s alleged psychological injury without prejudice, pending the submission of a report based on a third neuropsychological evaluation that was pending. Defendant argued on appeal that the trial court had erred because it did not follow the clear legislative intent and controlling case law governing AICRA, since plaintiff had (1) failed to file a physician’s certification of permanency, and (2) demonstrated no permanent physical injury which had a substantial impact on his life. Plaintiff insisted that one of his doctor’s reports, issued seven months before suit was filed, substantially complied with the certification requirement and that, in any event, the doctor eventually did supply a qualifying certification a year and four months after defendant filed his answer and 10 months after the co-defendant filed his answer. Plaintiff also noted that his third neuropsychological evaluation had now been completed, and the doctor had prepared a report and a certification of permanency, which plaintiff moved to have considered on appeal. The appellate court reviewed the extensive 12-page “treatment summary” that had been prepared and issued by plaintiff’s treating physician seven months before plaintiff filed suit. It stated that plaintiff had primarily complained of ongoing lower back pain associated with the strenuous activities of his job. An MRI scan demonstrated a disc bulge at L4-5, “consistent with the injury of that significance and his chronic complaints.” The doctor further noted that plaintiff had persistent complaints regarding neurologic deficits for which he was under the care of a neurologist. Apparently plaintiff had undergone a neuropsychological evaluation that was not available for the treating doctor’s review; the doctor, therefore, referred his readers to the neurologist’s office to obtain those records and diagnoses regarding the extent of plaintiff’s head injuries. The treating doctor opined that plaintiff had obviously suffered a significant and permanent limitation in the use of body function, and, as of the date of his last evaluation, was still symptomatic. The doctor noted that the injuries related to plaintiff’s spinal area, which were found to be significant and permanent, included orthopedic residuals of a chronic post-traumatic lumbar sprain/strain with MRI scan evidence of a bulging disc at L4-5. The doctor causally related these injuries to the accident and stated that they would cause plaintiff chronic pain in his back and chronic neurologic deficits. The doctor stated that plaintiff would no longer enjoy the same lifestyle he had prior to the accident. The court noted that there was no dispute that this report was supplied to the defense carriers before the complaint was filed and was supplied again in answers to interrogatories. Depositions were taken in the matter, and no issue was raised by the defense concerning the need for a physician’s certification of permanency until the motion for summary judgment was brought much later. The court also noted that plaintiff advised that the third neuropsychological evaluation, which he attempted to add to the appellate record, could not be completed earlier because of the period of time necessary to do a comprehensive evaluation of the impact of the accident. The panel cited Watts v. Camaligan, a 2001 case in which it had been held that a dismissal for failure to comply with the certification requirement should be without prejudice because, unlike an affidavit of merit in a malpractice case where the malpractice is completed, an injury can develop or progress. In the subject case, however, the statute of limitations ran before the certifications were filed, and the trial judge declined to dismiss the case either with or without prejudice. In these unique circumstances, the appellate panel declined to disturb the trial judge’s exercise of discretion. It noted that the case law under AICRA was first evolving while this case was being processed. While plaintiff did fail to timely provide a certification of permanency, defendant also failed to file a timely motion to dismiss. Moreover, while the complaint was filed only five days before the statute of limitations ran, the panel cited the Watts holding for the clear proposition that a dismissal for failure to serve the certification did not prevent a new filing with the requisite certification. The panel found it unnecessary to speculate what it might have done had the complaint been dismissed and the statute of limitations run before plaintiff re-filed the complaint and submitted a qualifying certification. Here, the trial judge articulated reasons for not dismissing the case for the failure to supply the physician’s certification. The panel was satisfied that, in the aggregate of circumstances, there was no abuse of discretion to permit the late filing. The panel remanded the matter for further proceedings, noting that the trial judge had denied the defendant’s motion to dismiss because the threshold was satisfied with respect to plaintiff’s back injury. He reserved decision, pending the receipt of the third neuropsychological evaluation, on the psychological injury, and the panel did not pass on those issues. Since the neuropsychological evaluation had now been completed, the appellate court held that the issue concerning the verbal threshold should be reconsidered as a whole, with the trial judge articulating his reasons. 32. Aldaghestani v. Mulero, A-5483-01T3 DDS No. 23-2-3929 Judges Wells and Payne June 9, 2003 No specific type; pre-AICRA case. The plaintiff was about 35 years old at the time of the motor vehicle accident with defendant. Beginning on the evening of the accident, she commenced a four-month course of conservative chiropractic care, including heat therapy and electric muscular stimulation. An MRI taken approximately a month and a half after the accident revealed a disc bulge at C6-7; partial degeneration of all of plaintiff’s cervical discs; reversal of the lordotic curve; and spondylosis at all cervical levels. The diagnosis was “herniated disc with radiculopathy.” Apparently, at the time of her discharge, the chiropractor told plaintiff that she “was O.K., but had to be careful.” Plaintiff underwent a brief resumption of treatment a year and four months post-accident, over five visits. It was noted that plaintiff had been involved in a prior accident in the year before the subject accident, wherein she sustained injuries to her back and was treated for those injuries over a two-month period. Plaintiff worked part-time at a dress shop, where she continued to work following the accident. She quit that employment at some point thereafter, however, and worked for a bank for a period of time. Eventually, she quit that position as well for unexplained reasons. She then returned full-time to the dress shop one year and seven months after the accident. She worked there for three more months, at which time she cut back to part-time because of claimed, but medically-unsubstantiated, limitations on her physical abilities resulting from the accident. As to those limitations, plaintiff asserted that she was always tired and experienced continuous pain, stiffness and limitation of motion throughout her treatment and thereafter. She claimed that this limited her activities of daily living and the exercise, such as swimming and walking, which she had formerly done to keep fit. She also stated that while she could still vacuum, she could not move about like she did before. Her husband had to move furniture for her. When she shopped, her husband had to carry the groceries. While her treatments ameliorated some of these problems over time, she said that they never completely resolved. The defendant moved for summary judgment and the judge granted the motion. He found that while plaintiff had met her burden under the objective prong of Oswin, she failed to meet the burden of the subjective prong. The judge noted that plaintiff had only four months of treatment by her chiropractor, and was told that she “was OK, but had to be careful” upon discharge. She had not presented any evidence of medical treatment for her injuries after her brief resumption of treatment a year after her discharge. Citing cases that had construed the serious impact requirement, the judge listed plaintiff’s asserted lifestyle limitations, and found that these were not sufficient to meet the serious impact requirement of the verbal threshold. He noted that she had not lost any time from her work as a result of the accident. The appellate panel affirmed for substantially the reasons given by the trial judge. The panel agreed that a genuine issue of material fact was not raised relating to the significant impact prong of Oswin. The limitations that plaintiff suffered, particularly in her employment, were self-imposed rather than dictated by duly diagnosed disabilities arising out of her injuries. Further, she stopped treatment after four months and only briefly resumed treatment a year later. While the panel was persuaded that plaintiff did experience some limitations in her activities of daily living arising out of her discomfort and pain associated with the injuries from the accident, the panel found, as did the motion judge, that these did not rise to the magnitude warranting a conclusion that they were significant within the intendment of the verbal threshold statute. 33. Chew v. Bell, A-6468-01T2 DDS No. 23-2-4009 Judges Wecker and Lisa June 16, 2003 No specific type; AICRA case. Immediately following the motor vehicle accident with defendant, plaintiff was taken by ambulance to the hospital for X-rays. These revealed a straightening in her cervical spine, consistent with muscle spasm in the neck. Plaintiff also underwent an MRI of the lumbar spine, which revealed no abnormalities. Following her emergency care, plaintiff began treatment with her doctor. After several months, he referred her to specialists for treatment of what he diagnosed as right temporomandibular joint syndrome and lower back pain. Plaintiff continued to suffer from TMJ and experienced a loss of muscle strength, particularly in the lumbar area. In support of her lawsuit, plaintiff filed a certification by her doctor, purportedly to meet AICRA’s requirements; however, the trial judge found that this certification did not contain the required finding of permanency, and dismissed the case. In reaching this decision, the judge stated that plaintiff would not have needed to show a serious impact on her life had the certification supported a finding of permanency. The appellate panel noted that the trial judge did not have the benefit of more recent case law which make it clear that, in order to meet the verbal threshold, an injury must be both serious and permanent, and the impact on a plaintiff’s life must also be serious. In any event, the panel found that plaintiff had failed to establish, by objective clinical medical evidence, that her injuries were either serious or permanent, or that they had a significant impact on her life. The panel noted that since the accident, plaintiff had given birth to a child, returned to work, and was, essentially, leading a normal life. The court was satisfied that no reasonable jury could conclude that the restrictions she complained of in her affidavit constituted a permanent injury that had a serious impact on her life under the standards of Oswin and its progeny. 34. Landwehr v. Hallowell, A-6258-01T3 DDS No. 23-2-4069 Judges Skillman and Cuff June 20, 2003 No specific type; AICRA case. After the automobile accident with defendant, plaintiff received treatment for neck spasm and pain and temporomandibular joint dysfunction. In her deposition, she testified that she had difficulty moving her head, neck and shoulders, and missed eight days of work immediately after the accident. Within two to three weeks thereafter, however, the restriction of movement had resolved. Plaintiff remained on medication to address her chronic headaches. She was able, however, to perform all of the activities that she performed before the accident. The defendant moved for summary judgment and made two arguments. She first asserted that plaintiff failed to establish that any injuries sustained in the accident caused a serious impact on her life. Second, she contended that the medical certificate plaintiff submitted as required by AICRA was insufficient. Plaintiff responded to the defendant’s motion by arguing that the AICRA amendments to the verbal threshold statute had eliminated the serious impact prong of the verbal threshold analysis, and that her doctor’s certification was sufficient under the new statute. The motion judge concluded that the recent statutory amendments did eliminate the serious impact prong of the verbal threshold analysis, but plaintiff’s physician’s certification was insufficient. Accordingly, she granted the defendant’s motion for summary judgment. The appellate court noted that since the date of the trial court’s decision, the appellate courts had decided that AICRA did require a plaintiff to establish that a permanent injury sustained in an automobile accident had had a serious impact on his or her life. The court stressed that AICRA did not modify the rule announced in Oswin that a person seeking to recover for a permanent injury must present evidence of serious impact. Further, the court noted that, in Rios v. Szivos, a 2002 case, the Appellate Division held that the medical certification requirement was designed by the Legislature to supplement, rather than streamline, the existing summary judgment procedure and standards. However, the court found that it need not reverse the trial judge’s order granting summary judgment � even though the judge erred in his serious impact findings � because it agreed with the trial judge’s second holding that the certification provided by plaintiff was insufficient as a matter of law. Reviewing the statutory requirements for the filing of a physician’s certification of permanency, the court noted that the certification should be based on, and refer to, objective clinical evidence that might include medical testing and the use of valid diagnostic tests. A certification by a physician merely stating that the plaintiff has sustained an injury that fell within one of the statutory categories is insufficient. The court then reviewed the certification filed by plaintiff’s treating doctor. It stated that he was a licensed physician of the State of New Jersey; that he was familiar with plaintiff’s claims in the subject lawsuit; and that, based upon the facts, within the realm of reasonable probability, the plaintiff’s injuries sustained in the subject automobile accident were permanent in nature. The court noted that this certification contained a conclusion unsupported by the required objective clinical evidence. The reader of this certification would not know what injury or injuries plaintiff had sustained in the accident. As such, the certification failed to satisfy the basic statutory requirements. Due to this deficiency, plaintiff failed to present objective, credible medical evidence of injury in opposition to defendant’s motion for summary judgment. Therefore, the appellate court affirmed the trial judge’s order of dismissal. In closing, the court also affirmed the order denying plaintiff’s motion for reconsideration. The court noted that plaintiff’s motion contained reports from two treating physicians that had not been supplied in response to the original motion for summary judgment. The court noted that a reconsideration motion was not designed to be a procedure for the introduction of new evidence in order to cure the inadequacies of the record on the original motion. In any event, the court found that the record in this case, in its entirety, still failed to demonstrate that any injury sustained by plaintiff had a serious impact on her life. She missed only eight days from work, and all of the restrictions of movement resolved within three weeks of the accident. Although she remained on medication for her headaches, she was able to perform every activity she performed before the accident. The motion for reconsideration was, therefore, properly denied. 35. Phillips v. Piotti-Ryder, A-6728-01T5 DDS No. 23-2-4129 Judges Pressler and Hoens June 26, 2003 No specific type; AICRA case. The plaintiff claimed to have sustained soft tissue injuries to his back, neck and elbow as a result of the accident, in which the van he was driving for his employer was rear-ended by an automobile owned and operated by defendant. Plaintiff underwent various diagnostic procedures, including MRIs, which showed no definite objective evidence of serious injury. He also had some physical therapy that gave him some, but not full, relief from his symptoms. He asserted continuing discomfort in his daily activities, but missed no time from work. When defendant moved for summary judgment, the motion judge was satisfied that, despite the physician’s certification of permanency which plaintiff submitted, he had failed to present a prima facie case of either objective, medical evidence of disability, or of a substantial lifestyle consequence from his injuries. Accordingly, he granted the defendant’s motion. The appellate panel reviewed the record and agreed with the motion judge. The panel noted that AICRA’s requirement of a physician’s certification of permanency was not meant to eliminate the former statutory requirements that a permanent injury be shown by objective medical verification, and that the injury also be shown to have seriously affected a plaintiff’s ability to carry on with his pre-accident life. The panel reviewed post-AICRA case law that addressed the issue of whether a physician’s certification alone was dispositive of the question of a plaintiff’s surmounting the verbal threshold. Although the issue had not been definitively decided at the time the motion judge rendered his decision in this case, the appellate panel noted that the judge had nevertheless fully addressed the serious impact question, concluding that plaintiff had failed to make a prima facie case of having met that standard. He consequently applied the correct rule and the record fully supported that application and his subsequent decision. While the panel, therefore, agreed that plaintiff’s claims for noneconomic damages were barred, it embraced plaintiff’s alternative argument that his viable claims for economic damages were not barred by AICRA. On the existing record, the panel was unable to determine exactly what plaintiff’s claim of uncompensated economic loss consisted of. The trial judge did not address this question, because it appeared not to have been raised in the trial court. As a matter of fairness, therefore, the panel felt that plaintiff should have the opportunity to proceed with that claim if he did, indeed, sustain any such losses. Accordingly, to the extent that the judgment entered by the trial court dismissed plaintiff’s claims for noneconomic damages, the panel affirmed. To the extent, however, that it dismissed his economic claims, the panel remanded for further proceedings. 36. Outterbridge v. Cathey, A-715-02T1 DDS No. 23-2-4295 Judges Weissbard and Parrillo July 16, 2003 Type 8; pre-AICRA case. The plaintiff and defendant were involved in an automobile accident in Atlantic City. On the same day, plaintiff went to a local hospital emergency room complaining of pain in his neck, back, left rib area and left leg. X-rays of plaintiff’s cervical and lumbar spine, as well as a cervical spine CT scan, revealed degenerative disc disease, but were negative for fracture. Two days after the accident, plaintiff began treating with his doctor for soft tissue injuries, and was seen on three additional occasions over the next seven months. A lumbar MRI taken about five days after the accident revealed a central disc herniation at L5-S1, the same level at which X-rays taken some nine years earlier had revealed degenerative disc disease. A cervical MRI taken two months post-accident indicated only degenerative changes. Plaintiff also saw another physician approximately two weeks after the accident, complaining of neck, left shoulder, and lower back pain radiating to the left leg. This physician noted that X-rays of plaintiff’s cervical spine revealed osteoarthritis, and X-rays of plaintiff’s lumbar spine revealed spondylosis at multiple levels. This physician’s examination of plaintiff was within normal limits, and his diagnosis was that plaintiff sustained soft tissue trauma as a result of the subject motor vehicle accident. Plaintiff last treated with this second physician five months post-accident. At that time, he complained only of intermittent discomfort in his lower back with a radicular component, and soreness in his left groin. The physician recommended further diagnostic testing � a myelogram with a CT scan � but plaintiff refused to get this test. Plaintiff also failed to appear at his next scheduled visit one month later. The physician concluded that, as a result of the subject car accident, plaintiff sustained soft tissue injuries, especially to his lower back, which were superimposed on both pre-existing degenerative disc disease and injuries from a previous motor vehicle accident some six years before the subject accident. The physician, however, never made a comparative analysis of plaintiff’s various injuries; nor was he able to directly correlate his objective findings with the MRI indication of disc herniation at L5-S1. Therefore, this physician stated that he was “not at all certain of the direct effect the [latter] finding . . . [had] had on plaintiff’s overall condition.” About five weeks post-accident, plaintiff went to a third doctor complaining of back pain radiating down the back of his right leg, but with no left leg symptoms. An EMG and nerve conduction studies revealed no lumbar or S1 radiculopathy, but were abnormal and indicative of mild to moderate polyneuropathy, a condition that the doctor opined was not accident-related, but rather related to plaintiff’s history of heavy alcohol intake. Plaintiff returned to this doctor just short of two months later, complaining of neck and left shoulder pain, and pain radiating to both sides of his upper back, but no lower back pain or lower extremity pain. An EMG/NCV of plaintiff’s upper extremities on the occasion of this last visit revealed borderline carpel tunnel syndrome, a condition that had been previously indicated in another EMG/NCV test performed about five years before the subject accident. Plaintiff’s first complaint of left groin pain was on his last visit to his regular physician almost seven months after the accident. For this condition, plaintiff was referred to yet another physician, who he saw four months later. This physician diagnosed plaintiff as suffering with a left inguinal hernia. Despite this diagnosis, plaintiff did not refer to this physician until over two years later, after defendant filed his motion for summary judgment in this lawsuit. It was at this time that this physician first opined that plaintiff’s hernia condition was related to the subject motor vehicle accident. As indicated above, plaintiff had a significant medical history predating the subject accident. As far back as nine years earlier, in 1990, plaintiff had begun receiving chiropractic treatments for neck and back pain that lasted about two years. At the time he began these treatments, he was certified disabled from working for about two weeks due to severe back pain accompanied by sciatic neuralgia down the back of his left leg. This condition was complicated by degenerative disc disease at L5-S1, which was revealed on X-rays taken at that time that also showed degenerative disc disease of the cervical spine. Three years later, in 1993, about six years before the subject accident, plaintiff was involved in a motor vehicle accident and suffered injuries to his neck and middle and lower back; his doctor at the time diagnosed these injuries as permanent about a year and a half later, some four years before the subject accident. Plaintiff was still suffering from neck, back, left shoulder, and knee pain three years before the subject accident. X-rays taken of the plaintiff’s cervical spine after this accident revealed degenerative joint disease unchanged from that shown on the X-rays taken in 1990. Also as noted, an EMG performed about five years before the subject accident revealed mild bilateral carpal tunnel syndrome, a precursor to identical EMG findings rendered five years later after the subject accident. Plaintiff claimed an aggravation of these pre-existing injuries and conditions as a result the subject accident. He stated that, since the subject accident, he experienced much more pain and discomfort in his neck and back, and consequently had reduced his activities considerably. For example, he claimed that he was now unable to take short or long walks, and had extreme difficulty going up and down steps. He could no longer participate in hobbies such as bowling, gardening and home repair, which he admitted had already been greatly reduced after his car accident six years earlier. In addition, although not a pre-existing condition, plaintiff suffered from his inguinal hernia and experienced occurrences of “popping a bulge” when he coughed, laughed, rose and gripped things, and stated that he had to be constantly on guard not to exacerbate this condition. He could no longer lift or do tasks or activities that required sudden exertion. The defendant moved successfully for summary judgment, the judge finding that plaintiff had not surmounted the verbal threshold. The judge classified plaintiff’s injuries into two categories: (1) soft tissue injuries that were claimed to have been aggravated by the subject accident; and (2) the recently diagnosed hernia condition. As to the former, the judge found no objective, medical evidence either linking the disc herniation to the subject accident or distinguishing the other soft tissue injuries from plaintiff’s pre-existing conditions. The only category that the motion judge found might fit plaintiff’s injuries � specifically his back, neck and leg injuries � was category eight, for a “significant limitation of use” of a body function or part. The judge felt this way because he found that there was simply no opinion of permanency in any of the doctors’ reports. However, he also felt that plaintiff could not prevail before a jury, even as to this type of injury, since he had not presented the required comparative analysis of his residuals after the subject accident with those from his prior injuries and accidents. Without such an analysis, the factfinder could not determine whether plaintiff met the verbal threshold as a result of the injuries sustained only in the subject accident. As to plaintiff’s hernia condition, the motion judge found neither a qualifying injury nor a serious impact on plaintiff’s life. The judge found that the hernia did not satisfy the verbal threshold requirement that there be some loss of function or limitation of use. While plaintiff might have pain in the area of the hernia and might hesitate to move a certain way, there was no indication that he could not function or do anything because of the injury in satisfaction of one of the statutory category definitions. The judge also found that the hernia was not a serious injury, even if it could be fit into one of the statutory categories; plaintiff could not show a reasonable jury that his hernia problem had a serious impact on his life. The appellate panel reviewed the entire record and was in agreement with the decisions of the motion judge. Noting that disc herniation could certainly be considered objective, medical evidence of injury, the court agreed with the motion judge that the disc herniation in this case was not shown by any physician to be casually related to the subject motor vehicle accident. Nor was there objective, medical evidence that either the disc herniation or any of plaintiff’s other soft tissue injuries � even if attributed to the subject accident, and whether considered singly or in combination � were associated with any “permanent loss of use,” “permanent consequential limitation of use,” “significant limitation of use” or nonpermanent disabling injury within the meaning of the verbal threshold statute. Highlighting the other deficiency in plaintiff’s proofs, the panel noted that plaintiff’s injuries also had not been shown to be related exclusively to the car accident in question when compared to both the injuries resulting from his 1993 car accident and plaintiff’s pre-existing degenerative disc disease, which predated even the 1993 accident by three years. For this reason alone � the failure of an appropriate comparative analysis � plaintiff’s soft tissue injuries did not cross the verbal threshold. The court concluded similarly with respect to plaintiff’s recently diagnosed hernia condition. As with plaintiff’s other injuries, the hernia was not sufficiently connected to one of the statutory classifications to satisfy the verbal threshold. There was also no proof that whatever the extent of the disability suffered, it had the objective capacity to have a serious impact on plaintiff’s life, or that even from plaintiff’s subjective point of view, the disability did have such a serious impact. Simply stated, the limitations described by plaintiff did not establish that his life had been significantly or seriously impacted within the contemplation of the verbal threshold. Accordingly, the panel was satisfied that, on the facts presented, summary judgment was properly granted in favor of defendant. 37. Kelly, Jr. v. Hickerson, A-6147-01T2 DDS No. 23-2-4381 Judges Axelrad and Lisa July 28, 2003 Types 7 and 8; pre-AICRA case. In the accident in this case, the vehicle plaintiff was operating was struck in the rear by defendant’s vehicle. The impact moved the car forward, dented the back and broke the back window. Plaintiff, his wife and their three children were in the car at the time of the accident. Plaintiff and his wife were transported to the hospital by ambulance, while plaintiff’s mother took care of the children. Upon arrival at the hospital, plaintiff complained of tightness in his lower back. He had X-rays taken, which were negative for fracture, and was discharged later that day. On the following day, plaintiff and his family left for a pre-arranged, week-long vacation in the Poconos. After the vacation, plaintiff returned to his full-time job as a forklift operator at a packing plant. Eleven days after the accident, plaintiff sought treatment with a chiropractor, complaining of a constant, severe lower back pain with occasional radiation into his buttocks, and a stiff, sore neck. The chiropractor’s impressions were post-traumatic sprain and strain of the cervical and lumbar spine, and muscle spasms, all of which he related to the accident. Plaintiff received chiropractic treatment for seven months. The chiropractor also referred plaintiff to an injury center where he was seen and treated by two physicians beginning 18 days post-accident and continuing for seven months. In the initial report from this medical facility, it was noted that plaintiff had a prior injury to his cervical spine as a result of another motor vehicle accident some four years earlier; but he suffered no permanent residuals or pain therefrom. The diagnosis was thoracic and lumbosacral sprain and strain, and right shoulder AC joint sprain and strain, which were related to the accident. At a follow-up visit to the injury center about a week later, plaintiff indicated a persisting right shoulder pain and reported that his cervical, upper thoracic and lumbar regions were improving. Plaintiff was evaluated at the injury center five weeks after the accident, and complained of increased lower back pain and some right leg pain. The doctor’s assessment included “possible right lumbar radiculopathy” in addition to the diagnoses contained in the prior evaluation report. Just over 10 weeks post-accident, plaintiff again was evaluated at the injury center. On this occasion, he continued to complain of lower back pain and sharp, stabbing, radiating pain down his left leg. The doctor’s assessment at this visit was cervical and lumbosacral sprain and strain and “possible left lumbar radiculopathy.” An MRI performed about this time, however, revealed normal findings. At another visit to the center three months and 10 days after the accident, plaintiff continued to complain of persistent low back pain. The doctor’s assessment was “lumbosacral sprain and strain, and post-traumatic lumbar myofascitis.” Two months later, the persistent back pain had localized and plaintiff denied any radicular symptoms. The assessment was “lumbar sprain and strain syndrome, improving” and “post-traumatic lumbar fascitis, resolving.” At plaintiff’s final examination at the injury center, some seven months and two weeks after the accident, he complained of continued severe lower back pain, which he stated was constantly present and only changed in degree of severity. According to plaintiff’s chiropractor’s report issued at about this time, plaintiff’s most dominant symptom was “shooting, spastic and throbbing pain in the low back bilaterally.” Plaintiff told the chiropractor that the pain occurred between 75 percent and 100 percent of the time he was awake, and also caused serious diminution in his capacity to carry out his daily activities. The pain was aggravated by his bending in any direction, standing, sitting and lifting. The chiropractor determined that plaintiff’s past medical history had not contributed to his present condition. His diagnosis was lumbosacral sprain and strain, resolving, myofascitis and muscle spasm. The doctor noted a “total combined whole-person spinal impairment: 19 percent.” Plaintiff was evaluated and discharged from the injury center about eight months post-accident. According to the discharge report, plaintiff was then reporting a general resolution of his symptoms. He stated that he occasionally experienced lower back discomfort; however, he denied any sharp pain. He stated that he was now able to participate in all of his work and home activities. All range of motion studies were noted as normal. The final diagnosis was “resolving lumbosacral sprain and strain” and “resolving lumbar myofascitis.” Just short of two years after the accident, plaintiff underwent a surgical procedure for avascular necrosis of the right hip, a condition unrelated to the accident. His orthopedic surgeon opined that plaintiff’s hip condition was the result of his beer drinking. In a medical report issued at that time, the surgeon stated that plaintiff’s lumbar spine examination was normal. There was no evidence of lumbar radiculitis. More specifically, he noted “lumbar spine nontender, excellent range of motion.” Plaintiff filed suit the month following his surgery. Defendant stipulated liability and the parties executed a consent order for the court to conduct an expedited jury trial to resolve the damages issue, which was done about two years later. Under the parties’ agreement, the only live witnesses who testified were plaintiff, his wife and his daughter. Plaintiff submitted the medical reports referred to above and the defense submitted the defense medical examination of its expert. At trial, plaintiff testified that he had problems performing his job as a forklift operator � particularly sitting on his forklift � as a result of the injuries he sustained in the accident. He claimed that he had to walk around and stretch during his work day, and that his back was stiff at the end of the day to the extent that, when he bent over, it was difficult for him to straighten up. He denied the discomfort he felt was related to his hip surgery. With respect to his recreational and household activities, plaintiff testified that his injuries affected his ability to play basketball with his son and do yard work. He denied that he told one of the doctors at the injury center on the occasion of his last visit that his symptoms were generally resolving, that he did not have sharp pain in his lower back and that he was able to participate in all of his home and work activities. When asked about his claim that the sharp pain in his back still lingered, he replied, “It came back, I guess.” At the close of plaintiff’s case, defense counsel made a motion to dismiss, asserting that plaintiff had failed to surmount the verbal threshold. The court reserved decision, and the defense offered its reports into evidence. The case was then submitted to the jury. Following deliberations, the jury returned a verdict of $35,000 in favor of the plaintiff. According to the verdict sheet, the jury found that plaintiff had sustained an injury caused by the accident consisting of a “permanent consequential limitation of use of a body member” and a “significant limitation of use of a body function or system” which would have a serious impact on plaintiff’s life. The trial judge then rendered his reserved decision on the defense motion, granting it and dismissing plaintiff’s complaint, ruling that he had failed to present credible, objective medical evidence of a permanent or a significant injury. The trial judge stated that he found all of plaintiff’s complaints to be subjective. Plaintiff moved unsuccessfully for reconsideration. The judge noted that, at the time defendant made its motion, he had reserved decision hoping that the jury would “see the light and no-cause it. They didn’t, so I ruled on the motion.” The judge found that plaintiff’s subjective complaint of occasional low back pain was not enough to surmount the verbal threshold. The appellate panel noted that its review of the involuntary dismissal was based on the same standard that the trial judge employed when reviewing a motion for summary judgment. Because plaintiff’s injuries failed to meet the elements of both the objective and subjective prongs of the Oswin test, the panel agreed with the trial judge’s granting of defendant’s motion to dismiss. Plaintiff’s injuries were of the soft tissue type. His medical reports included subjective complaints of pain, moderate tenderness and slight range of motion deficits. X-rays taken at the hospital immediately following the accident revealed no fractures, and the MRI taken of plaintiff’s lumbosacral spine three months after the accident was normal. The only objective, medical evidence plaintiff could produce was the observance of muscle spasm; however, the spasm did not persist over time. While the chiropractor included the finding of spasm in his final diagnosis, there was no discussion of it in any of his progressive reports, nor did either of the physicians at the injury center allude to muscle spasm in any of their reports. Moreover, the orthopedic surgeon noted that plaintiff’s lumbar spine was normal when he examined plaintiff nearly two years after the accident. The appellate panel also did not observe any credible medical evidence that plaintiff’s injuries had the objective capacity to seriously impact his life. Reviewing pertinent case law, the panel found that plaintiff’s complaints simply were not found to measure up, as a matter of law, to those serious impacts that had been held to satisfy the subjective prong of Oswin. The court noted that, on the day after the accident, plaintiff and his family left for a week’s vacation. He did not miss any work as a result of the accident. Although his doctors diagnosed varying degrees of sprains and strains, no specific activities were delineated that plaintiff should avoid. To the contrary, the medical reports indicated a general resolution of his symptoms, only occasional back discomfort, normal range of motion and an ability to participate in his normal activities. Based on its independent review of the record, therefore, the panel agreed with the trial judge’s finding that there was insufficient objective, credible medical evidence of a significant injury or a permanent injury, or a permanent or significant impact upon plaintiff’s life, to create a jury issue in this case. 38. Dunlap v. Falkeborn-Sjoquist, A-708-02T3 DDS No. 23-2-4405 Judges Parker and Payne July 31, 2003 No specific type; AICRA case. The 18-year old plaintiff, who was not wearing a seat belt, was injured in a two-car intersectional accident with defendant. Immediately following the accident, he was treated at a local hospital and released. Two days later, he was seen at a walk-in medical facility known as “The Doctor Is In.” Plaintiff had visited this facility some four months before the subject accident, complaining of lower back pain. He had also undergone lumbar X-rays prior to the accident. At the time of his visit to the medical facility two days after the accident, plaintiff exhibited some paraspinal spasm on the left side. Some 18 days later, plaintiff again went to the same medical facility, complaining of lower back pain that he described as feeling like “something grinding together.” He denied radiation of pain or any neurological deficits. On examination, he was found to have no paraspinal tenderness or spasm. A diagnosis of lumbar strain was made, and he was referred for an MRI to rule out disc herniation. An open MRI was conducted two months post-accident. The report of that procedure disclosed disc dessication at L4-5, and a diffuse mild posterior osteophyte which was associated with central disc protrusion but which did not result in any significant central or neural foraminal narrowing. The impression of the radiologist was “diffuse mild posterior hard disc at L4-5 with superimposed central disc protrusion without central stenosis.” Plaintiff was then seen by another physician two days after the MRI. The doctor reported that, at this point, approximately two months after the accident, plaintiff felt better overall, with no leg pain. He could flex and extend his lower back without much difficulty, and the physical examination disclosed no spasm or tenderness. Plaintiff was referred to physical therapy and was advised to schedule an additional appointment with the doctor in about a month. The doctor declined to give his impression of the injury in his report at that time, stating only that a discussion was held with plaintiff regarding the doctor’s impression. Plaintiff underwent physical therapy at a rehabilitation institute on seven occasions over the next month, although he missed one other scheduled appointment. The physical therapist reported that plaintiff’s lower back pain was “abolished,” and that he offered no new complaints or difficulties. Objective findings included: improved trunk range of motion; all trunkal planes within full limits, except extension, which had minimal restrictions; lower back pain no longer present with position change; sitting posture with slightly protruded shoulders and forward head, but plaintiff could self-correct with verbal cues; and plaintiff could tolerate a 60-minute exercise protocol in the clinic. Plaintiff received no further medical treatment associated with his alleged injuries after these physical therapy appointments. At his deposition, plaintiff testified that he still experienced pain when lifting anything, walking for extended periods of time, playing soccer or working out at a gym, and occasionally when riding a bike. However, it was disclosed that plaintiff had attended a gym class on a daily basis for the school semester after the accident, and played both field hockey and baseball. He was currently employed as a mechanic, fixing lawn mowers, although he stated that this occupation caused him pain. The defendant successfully moved for summary judgment, and plaintiff argued on appeal that the medical certification of permanency that he had filed pursuant to AICRA was sufficient to establish a prima facie verbal threshold case requiring submission of his personal injury claims to a jury. Thus, he argued that the trial court erred in granting defendant’s motion. Alternatively, he claimed that he had met the requirements of the verbal threshold applicable prior to the passage of AICRA. The appellate panel disagreed with plaintiff, citing a series of recent cases � admittedly, decided after plaintiff’s appeal was filed � in which the Appellate Division had rejected the position that, in passing AICRA, the Legislature significantly modified the conditions as set forth in Oswin for meeting the verbal threshold in a case alleging permanent soft tissue injuries. When the panel viewed plaintiff’s injuries and their impact on his life in the light of Oswin‘s standards, it found clear evidence to support the trial court’s determination to grant summary judgment to the defendant. In the present case, the plaintiff had failed to offer any objective evidence whatsoever that the disc bulge at L4-5 caused any residual symptoms, and he had produced no objective evidence that any such residual symptoms, if they did exist, still remained. The reports of plaintiff’s treating physicians and therapist offered nothing that would suggest that any objective manifestations of plaintiff’s injury from the accident continued to exist. Under these circumstances, the panel agreed with the motion judge that the subjective complaints that plaintiff reported, even when combined with objective evidence of a disc bulge in his lumbar spine, provided insufficient evidence to permit a determination that the threshold had been met. Summary judgment to the defendant was affirmed. 39. Camargo v. Mansilla, A-551-02T1 DDS No. 23-2-4433 Judges Axelrad and Lisa Aug. 5, 2003 Types 3, 6, 7 and 8; pre-AICRA case. The plaintiff was a passenger in the rear seat of a vehicle that was struck by a train in Baltimore, Md. He exited the car without assistance after the collision, and walked around until the police and emergency medical personnel arrived at the scene. He refused treatment at the scene, but did go to the emergency room for the purpose of checking on the condition of the driver of his vehicle, his cousin, who was seriously injured. While there, at the suggestion of a police officer, plaintiff was examined. He complained only of a bump on the head, and was diagnosed with an abrasion and contusion to the head, and released. Plaintiff next sought medical care a month later, when he began a course of chiropractic treatment that lasted six months. His complaints related mostly to his head and cervical and lumbar spine; but he did include complaints of pain in both shoulders and weakness in both arms. The treatment provided was exclusively to the spinal regions, including spinal manipulation; galvanic therapy; mechanical vibration-oscillation therapy; trigger point therapy; and use of cervical and lumbar supports and cold packs. The chiropractor’s diagnosis was: cervical sprain and strain; cervicobrachial syndrome; subluxations of the cervical spine; post-traumatic cephalgia; cervical disc displacement; lumbosacral sprain and strain; lumbar subluxation complex; lumbar radiculitis; contusions of the shoulders; and lumbar disc syndrome. Fifteen months after the accident, plaintiff underwent MRIs of the shoulders. Neither exhibited any evidence of rotator cuff tear. The left shoulder showed fluid in the glenohumeral joint and in the subacromial and subdeltoid bursa, suggestive of bursitis. The left shoulder study also concluded that there was slight acromioclavicular joint disease with hyperintensity within the joint. The right shoulder study merely revealed a small amount of fluid in the glenohumeral joint. An orthopedic surgeon operated on plaintiff’s left shoulder approximately 17 months post-accident, and on his right shoulder six weeks later. The operative report for the left shoulder indicated a pre-operative diagnosis of impingement syndrome and a post-operative diagnosis of the same, plus “osteochondral defect, glenoid.” The operation consisted of surgical arthroscopy; thermal chondroplasty; glenoid arthrotomy; release of coracoacromial ligament; acromioplasty; bursectomy; and intra-articular injection. The operative report for the right shoulder indicated a pre-operative diagnosis of impingement syndrome and a post-operative diagnosis of the same, plus synovitis. The operation consisted of surgical arthroscopy; synovectomy; bursectomy; arhtrotomy; release of coracoacromial ligament; acromioplasty; and intra-articular injection. The orthopedic surgeon reported that plaintiff tolerated the procedures well, and he was referred post-operatively for physical therapy; however, plaintiff never went to physical therapy, contending that he did his own therapy at home. Plaintiff never obtained any further medical treatment from the surgeon or any other physician. At the time of the accident, plaintiff was 20 years old and had been unemployed for several months. He did not obtain employment until approximately two years after the accident, but candidly admitted that the accident and his injuries had nothing to do with his unemployed status. Plaintiff had graduated from high school two years before the accident, where he had been on the track team his freshman year, the baseball team for three years and the football team for two years. During the summer after he graduated, he played baseball in a community league, but that team had since disbanded. When the accident happened, plaintiff was not a member of any sports teams, nor had he been for two years. Since the accident, plaintiff had joined a soccer team and played some occasional pick-up basketball games. He complained that, because of his shoulder and arm pain, weakness and tingling, he could no longer pitch or play outfield in baseball as he did in high school, and that now could only play goalie on the soccer team, instead of his usual position as fullback. He was afraid to play football, and contended that he could not work out at the gym and do certain exercises, but he produced no evidence that he was actively engaged in those pursuits at the time of the accident. Plaintiff also complained of occasional pain in his shoulders when he woke up or lifted something heavy. His back also sometimes hurt him upon sitting or walking too long. However, he did not describe how these intermittent discomforts affected his life activities. Since the accident, plaintiff traveled by air to California, made a number of car trips to Baltimore, and vacationed for a week in Wildwood. He had helped his mother paint her house, although he stated that he was not able to help cutting sheet rock. The motion judge found that plaintiff’s evidential materials were sufficient to create a jury issue as to whether plaintiff’s soft tissue injuries were permanent; however, the judge concluded that no reasonable factfinder could find that the injuries had a serious impact on plaintiff’s life. On appeal, plaintiff argued that (1) evidence of his diminished ability to participate in athletic and recreational activities was sufficient to withstand summary judgment, and (2) the motion judge erred by not considering surgical scars on his shoulders as a type 3 injury. The appellate panel rejected these contentions and affirmed. The judges found that the limitations asserted by plaintiff were minor and not sufficient to constitute a serious impact on his life. The panel was unpersuaded by plaintiff’s reliance on a line of cases dealing with serious life impact resulting from an inability to engage in recreational activities. In each of these cases, the plaintiff was actively engaged in the activity at the time of the accident, and the activity was an extremely important aspect of the plaintiff’s life. That was simply not the case here, where plaintiff had not played sports actively for years before the accident. Further, plaintiff was not completely unable to engage in his sports activities; he merely had to participate at a reduced level or in a different position on the field. The appellate court then reviewed the record with respect to plaintiff’s claim of a type 3 injury for his surgical scars. The operative reports described longitudinal incisions of 2.5 cm. on the right shoulder and 2.0 cm. on the left, each less than an inch. In plaintiff’s deposition testimony, he had referred to his scars as “ugly” and stated that he wore a shirt at the beach to conceal them. He felt that they stuck out from the surface of his skin “like a big lump.” He displayed the scars to the attorneys at the deposition. Plaintiff’s attorney described one scar for the record, saying, “It’s on the top part of your shoulder. It’s like around two inches long. Maybe about an inch wide.” Plaintiff did not personally appear at the summary judgment motion hearing to display the scars to the judge, nor did he produce photographs of the scars. To constitute a type 3 significant disfigurement, the appellate court noted that scars must be judged by objective factors, including appearance, coloration, size, shape, characteristics of the surrounding skin and remnants of the healing process. Location on the body is obviously very important. Those scars that would impress a reasonable viewer as unattractive, objectionable or worthy of pity or scorn would meet the test for a significant disfigurement. Not all scars could meet such a standard, and a plaintiff’s subjective feelings about a scar were not controlling. Here, the court noted that the trial judge did not address plaintiff’s type 3 argument when granting summary judgment to the defendant. The appellate panel deemed it appropriate, however, to exercise its original jurisdiction and decide this issue on the record before it. The judges noted that a plaintiff intending to resist a summary judgment motion as to a scar must appear in court on the date of the hearing to display the scar to the judge or, at the very least, produce authenticated professional-quality photographs or videotapes of the scar. Plaintiff did neither here. Plaintiff’s subjective testimony about his scar and the meager description in the deposition transcript were found by the panel to be insufficient to raise a jury issue that the shoulder scars of not more than two inches objectively met the significant disfigurement standard. 40. Royal v. Gaines, A-1027-02T2 DDS No. 05-2-4570 Judges Braithwaite and Ciancia Sept. 3, 2003 No specific type; AICRA case. At the trial of this automobile negligence matter, plaintiff sought to have her treating chiropractor testify about an MRI that was performed by another physician and a thermogram that was done by another chiropractor; neither the other physician nor the other chiropractor testified at trial. The trial judge ruled that the chiropractic expert could not testify with respect to these other doctors’ reports because such testimony would constitute hearsay. Further, he found that the issue in the proposed testimony � the extent of plaintiff’s injuries � was a major issue that was hotly disputed by defendant’s expert. As a result of this ruling, plaintiff was unable to satisfy the requirements of the verbal threshold. Defendant successfully moved for a directed verdict, and plaintiff’s complaint was dismissed. Plaintiff appealed, contending that her treating physician should have been allowed to testify, pursuant to N.J.R.E. 703, as to his use of the MRI report in diagnosing and treating plaintiff. The appellate panel rejected plaintiff’s contention and affirmed. The panel noted that, although MRI and thermogram reports are often relied upon by chiropractors, the reports constituted hearsay because they were prepared by others. The treating chiropractor never saw or reviewed the underlying test or films that formed the basis for the reports. To allow him to testify about the reports on such a critical and disputed issue in this case would have greatly prejudiced the defendant, who would have had no opportunity to cross-examine the medical professionals who prepared the reports. Without the evidence contained in these reports, plaintiff could not cross the verbal threshold and her complaint was properly dismissed. 41. Taffaro v. Leiser, A-910-02T1 DDS No. 23-2-4608 Judges Wells and Alley Sept. 10, 2003 No specific type; pre-AICRA case. The accident in question took place when plaintiff was stopped in a line of traffic, as was the driver behind him. Defendant, however, did not stop, and hit the driver behind plaintiff in the rear, causing him to be impelled into the rear of plaintiff’s car. As a result, plaintiff was injured. Plaintiff went to his treating physician, a chiropractor, three days post-accident, complaining of headaches as well as pain in his neck and back. Several days later, he complained to the doctor that the neck pain was radiating down into his right arm and hand. He also complained of continuing lower back pain. The doctor diagnosed plaintiff as having sustained acute traumatic hyperflexion and extension injuries into the cervical, thoracic and lumbar spine, along with spasm of the paravertebral musculature, with resultant back and neck pain. A cervical MRI was performed four months post-accident, which revealed that the normal lordotic curve of plaintiff’s cervical spine was straightened consistent with spasm. In addition, the report of the MRI noted the cervical disc bulge at C3-4. The treating physician noted this finding in his undated report. He also noted that plaintiff had been previously injured in another motor vehicle accident about five years before the subject accident. The chiropractor noted that plaintiff sustained cervical injuries in that accident as well, and that an MRI taken after that accident had also shown a cervical disc bulge at C3-4. Plaintiff continued to see his chiropractor for 10 months, continuing to suffer, however, with persistent neck and arm pain during the course of these treatments. The lower back pain, however, did resolve. The doctor noted limited range of motion in the cervical spine on flexion, extension and rotation. As a result, the chiropractor found that, based upon the length of treatment, plaintiff’s persistent, objective complaints of cervical and right arm pain, the positive findings on the MRI with respect to the cervical disc bulge, and the plaintiff’s previous cervical injury, plaintiff had a poor prognosis. The doctor added that the injury in the subject accident was an aggravation of the prior injury, and would be functionally limiting at times. In his answers to interrogatories, plaintiff stated that, since the subject accident, he had extremely bad pain in his neck and back, and this caused him to stop working for his employer, a paving company. He claimed that he was out of work for a year after the accident, noting that he had tried to do his job, but found that his injuries were such that he could no longer drive a truck and “do laboring.” He stated that he had to be trained for other kinds of work, and that he was forced to work with other companies where no “laboring” was required. Plaintiff also complained of difficulty sleeping and an inability to swallow food, which he attributed to the disc bulge in his neck. When defendant moved for summary judgment, the parties submitted the case to the motion judge on the medical records and briefs. In a comprehensive and thorough, 14-page written opinion, the judge reviewed the facts and the applicable law, and concluded that plaintiff failed to surmount the verbal threshold. The judge referred to a medical report of plaintiff that was issued after his first motor vehicle accident, and about two years prior to the subject accident. That report noted the disc bulge at C3-4, which had been found after that first accident, but related that two years later, plaintiff’s cervical spine was “essentially normal.” The judge also noted that muscle spasm could be objective evidence of a serious injury for verbal threshold purposes, and that plaintiff’s chiropractor had noted some muscle spasm in plaintiff’s lumbar spine during his examination in the days immediately following the subject accident. However, the doctor then noted that plaintiff’s back pain had resolved a few months later. Consequently, there was no evidence of any persistent spasm, which was required to show a serious injury under verbal threshold law. Next, the trial judge noted the fact that most of the chiropractor’s reports indicated only plaintiff’s subjective reactions to pain during testing, which did not suffice as the required objective, medical evidence of injury. Further, while the chiropractor stated that the subject accident aggravated plaintiff’s prior injuries, this was merely a conclusory statement, without any substantive comparative analysis supported by objective findings, as required by Polk. Indeed, the reports of the objective tests themselves showed that the cervical MRI following plaintiff’s prior motor vehicle accident and the one following the subject accident showed essentially the same findings. This negated the conclusion that there was an aggravation of a pre-existing condition. Plaintiff’s subjective complaints were also noted to be the same following both accidents. Even if there had been an aggravation of plaintiff’s prior injuries, the judge concluded, it was not an aggravation of a serious or significant nature, evidenced by objective, medical testing � as required by the verbal threshold. The appellate panel affirmed substantially for the reasons set forth in the trial judge’s thorough opinion, finding his statement of the facts and his analysis of the law to require no additional comment. 42. Hidalgogato v. Minervini, A-527-02T2 DDS No. 23-2-4621 Judges A.A. Rodriguez and Carchman Sept. 11, 2003 No specific type; AICRA case. Plaintiff was a passenger in a motor vehicle involved in an accident and suffered soft tissue injuries when defendant’s vehicle struck the vehicle he was riding in from the rear. Although he did not seek treatment immediately following the accident, plaintiff subsequently was treated by a number of physicians. One of plaintiff’s physicians reported that his prognosis for a full recovery was poor. He had a lumbar disc protrusion at L5-S1, which was found to be a permanent injury, and which the physician noted would continue to interfere with his activities of daily living as well as with his working capacity. Future trauma could exacerbate the injury, causing increased pain and suffering. The doctor then causally related these injuries to the motor vehicle accident, based upon plaintiff’s history, physical examination and MRI studies. Another physician concluded that plaintiff was suffering from post-traumatic hyperextension/flexion injury to his cervical and dorsal spine, with sprain and strain and residuals of diffuse cervical dorsal myositis and fibromyositis; post-traumatic hyperflexion/extension injury to the lumbosacral spine with sprain and strain and disc protrusion at L5-S1; and residuals of diffuse lumbosacral myositis and fibromyositis with neurosensory changes. This doctor opined that the injuries had diminished plaintiff’s ability to carry out various important activities of work, sports, housekeeping and personal matters. He felt that the problems created by the accident, although they could be perceived as minor when viewed separately, rose to a level of significant impact on the patient’s lifestyle when viewed in the aggregate. The doctor’s prognosis was that injuries to the joints that accompanied injuries of this nature almost universally led to chronic synovitis, followed by a slow onset of traumatic arthritis in the facet joints of the spine and in joints that were involved in, or around, the areas injured. Intermittent pain with stiffness was not an unusual result. Excessive activity in the scar tissue of the muscles, caused by the trauma, would cause dull aching in the muscles involved. The doctor opined that plaintiff would, in all medical probability, require further evaluation and treatment � up to and including surgery � in the future for flare-ups of pain in the damaged areas. Plaintiff himself indicated that, as a result of the accident, he could no longer lift heavy items nor participate in sports activities, including basketball and soccer. He was limited in his ability to run, as well as his ability to read, due to neck pain. The judge granted defendant’s motion for summary judgment, concluding that plaintiff met neither prong of the verbal threshold analysis. He found that even though plaintiff experienced pain and tenderness from his soft tissue injuries, his complaints were subjective and his injuries nothing more than acute sprains, and not of the permanent and serious nature envisioned by the Legislature in the enactment of the verbal threshold statute. In addition, under the subjective prong of Oswin, the judge found that plaintiff had failed to show a serious impact on his life. He listed plaintiff’s recitations of limitations: his inability to perform household chores, such as moving furniture, dusting, cleaning, vacuuming and carrying garbage outside; his inability to lift heavy objects; his inability to bend; difficulty sitting for any length of time and concentrating; his inability to engage in recreational ball games at the park; his inability to travel any length of time in the car; and the fact that he had to take medication. Even if plaintiff was able to satisfy the objective test of the verbal threshold, the judge found that these lifestyle limitations were not serious or significant, and thus were insufficient to surmount the subjective prong of the test. Plaintiff had not missed any time from school and was not a member of any organized sports team. He was also working at the time of the accident, and did not miss any time from his job. The appellate panel concluded that the trial judge had correctly applied the Oswin standard under AICRA, and rejected plaintiff’s arguments on appeal that he had met both tests. The grant of summary judgment to the defendant was affirmed. 43. Iarrapino v. Reszkowski, A-1336-02T3 DDS No. 23-2-4789 Judges Pressler and Ciancia Oct. 7, 2003 No specific type; AICRA case. In the opinion in this case, the appellate panel first pointed out significant procedural irregularities attending to the judge’s grant of the defendant’s motion for summary judgment. First, it noted that the judge erred by deciding the motion on the papers without affording the parties an opportunity to be heard by way of oral argument � even after defendant had made it clear in her motion papers that she was requesting argument in the event plaintiff opposed the motion, a technique provided for in the rule. Plaintiff, in opposing the motion, was not obligated to make a separate request for oral argument and was entitled to rely entirely on defendant’s request. Compounding the judge’s error in failing to afford oral argument was his decision of the motion without an adequate statement of reasons in contravention of the rules. While the panel noted that it could simply reverse and remand for reconsideration by the trial court, it also noted that it had the option of exercising its original jurisdiction as a matter of judicial economy, and chose to do so. The court was satisfied that the oral argument on appeal constituted a congruent substitute for the oral argument denied by the trial court. Since both parties agreed and, in fact, urged the appellate court to exercise its original jurisdiction, it found that it was appropriate for it to do so. First, the panel addressed plaintiff’s argument that the enactment of AICRA had substituted a physician’s certification attesting to permanency of the injury in statutory terms for the former soft tissue and temporary injury categories of the verbal threshold formulation. Plaintiff argued that she was no longer obligated to demonstrate the substantiality of her injuries by a showing that her consequent disability had a substantial impact on her normal life and its routines. Citing recent cases discrediting that position, the panel rejected plaintiff’s argument. The remaining question was whether plaintiff had made a prima facie showing of permanent injury within the intendment of AICRA, as well as a showing that the resulting disability had a substantial impact on her life. With respect to such permanent injury, the court noted that plaintiff’s motion papers included a certification from her physician reporting a finding of a disc herniation attributable to the accident, as well as attesting to the permanency of that injury and the disability resultant therefrom. The panel was satisfied that the certification, at least for summary judgment purposes, did meet the objective requirements of the verbal threshold statute. With respect to whether plaintiff’s injuries had a substantial impact on her life, the court cited plaintiff’s certification and deposition testimony, wherein she asserted that she experienced fairly constant pain and attendant difficulty in bending and lifting, and thus, difficulty in performing those many activities of her daily routine as a mother and homemaker that required those bodily movements. She also stated that she had difficulty sleeping. What persuaded the appellate panel of the viability of plaintiff’s cause of action, however, was plaintiff’s reluctant and embarrassed deposition testimony respecting the effect of her lumbar injury on her marital relations with her husband, which had not only become painful to her, but whose frequency had been substantially reduced since the accident, causing both her and her husband continuing emotional pain. The panel noted that it had been held that a substantial effect on marital relations, particularly when coupled with generalized chronic pain and its attendant limitations, could be found by a jury to constitute the required substantial impact. The summary judgment dismissing plaintiff’s complaint for noneconomic damages was reversed, and the matter remanded for trial. 44. Michaelson v. Oliver, A-909-02T2 DDS No. 23-2-4891 Judges Wefing and Fuentes Oct. 21, 2003 No specific type; AICRA case. In the accident with defendant, plaintiff’s car was struck on the front driver’s side by defendant’s vehicle. Plaintiff lost consciousness for a brief period and was taken to a local hospital, where he remained for two days. After a CT scan, he was diagnosed with a right frontal lobe contusion. Complaining of pain near his ribs, he underwent X-rays, which revealed no rib fractures; he was further diagnosed with a contusion to his chest wall. Several days after the accident, plaintiff continued to suffer with headaches and began a course of treatment with a board-certified neurologist. The doctor performed a complete neurological examination, the results of which were normal. He prescribed medication for plaintiff. Two months post-accident, a follow-up CT scan was performed, the results of which were normal; the contusion had apparently resolved. Plaintiff treated with his neurologist for about two years for his continuing complaints of headache and vertigo. His neurological examinations, however, were consistently normal. Plaintiff had suffered three head injuries prior to the subject accident, but reported that his headaches following those injuries had resolved. In addition, approximately eight months after the subject accident, plaintiff fell, striking his head. The defendant moved for summary judgment, premising his motion upon plaintiff’s failure to satisfy the verbal threshold. The trial court agreed, and granted the motion. The appellate panel agreed with the trial court that plaintiff’s claim for damages was legally insufficient, noting that plaintiff produced no objective, medical evidence in the form of diagnostic studies to support his subjective complaints of headache. All of his neurological examinations were normal, as were all CT scans after the initial one. The contusion to his right frontal lobe had resolved. That the plaintiff complied with AICRA’s requirement in filing a physician’s certification of permanency did not relieve him of the evidential burden of presenting objective, medical evidence to prove his injury. 45. McNeil v. Miller, A-0714-02T2 DDS No. 23-2-4900 Judges Coburn and Fisher Oct. 22, 2003 No specific type; AICRA case. The accident in this case occurred on the Garden State Parkway. A few months after the accident, plaintiff underwent a series of MRI examinations of her cervical spine, which revealed a loss of cervical lordotic curvature due to the soft tissue injury or muscle spasm. The test was also positive for a disc bulge at C5-6. MRI examinations of her lumbar spine noted disc bulges at L4-5 and L5-S1. Plaintiff’s physician and chiropractor each issued a report that causally related the disc bulges to the automobile accident. The chiropractor also opined that the injuries were permanent. When the defendant moved for summary judgment, the motion judge granted the motion, holding that while plaintiff’s medical experts had demonstrated the existence of the cervical and lumbar disc bulges through objective, medical evidence, a disc bulge, without impingement of the thecal sac, was insufficient to allow the cause of action to pass the verbal threshold. The appellate panel did not necessarily endorse the motion judge’s reasoning as to the disc bulge without impingement on the thecal sac, but found that this question did not need to be resolved because the judges were satisfied that plaintiff failed to demonstrate a serious impact caused by the alleged injury. Plaintiff apparently asserted that she could no longer bowl, although she admitted that she had not tried because she was afraid it might cause pain. She also stated that she had difficulty crocheting. The panel found these alleged limitations to be nothing more than a mild inconvenience, and not a serious impediment on plaintiff’s daily activities. For that reason, plaintiff’s case did not surmount the verbal threshold; and summary judgment was properly granted to the defendant. 46. Mateyka v. Soto, A-0042-02T3 DDS No. 23-2-4911 Judges Axelrad and Winkelstein Oct. 22, 2003 Type 3; AICRA case. The 27-year-old plaintiff was a pedestrian when she was struck by an automobile driven by defendant. She was examined at the emergency room that day, where she was diagnosed with a right leg contusion; X-rays of the leg were normal. Plaintiff sought treatment for her leg injury with an orthopedist, and was first seen by him about three weeks after the accident. On the occasion of that first visit, a physical examination of her right knee revealed no swelling, erythema or ecchymosis. She had some tenderness in her right quadriceps and some right knee pain. The doctor’s impression was that plaintiff had sprained her “MCL” (medial collateral ligament), and she was placed on a course of physical therapy and given a knee brace. At plaintiff’s next visit to the orthopedist a month later, she had mild right knee tenderness without instability, effusion or erythema. The impression was “resolving right knee pain.” At the next month’s visit, the doctor observed that plaintiff had made good progress with therapy, although she continued to have some mild intermittent complaints of discomfort. The examining physician noted that plaintiff had been “skiing without difficulty in the recent past.” A physical examination revealed full range of motion in both knees. On the occasion of the last visit, four months post-accident, the physical examination was unchanged, but plaintiff continued to complain of discomfort in her right knee and the orthopedist ordered an MRI of her right knee. The results of this test, however, were normal. Plaintiff did not return for any further orthopedic examinations or treatments until two years and two months after the subject accident. She complained at that time of pain and discomfort in her upper thigh. She underwent an ultrasound test, which documented a hematoma in that area. She also complained of “clicking and popping” in her knees. A physical examination at that time revealed atrophy of her right quadricep when compared to the left, with a slight amount of right patella grinding. Plaintiff had “a palpable knot in the vastus lateralis,” which was directly over the area where she had suffered the contusion and hematoma in the automobile accident. After this examination, the impression of the examining physician was that plaintiff had suffered contusion to her right knee and thigh, with hematoma. Residual scarring was noted, with a lump in the vastus lateralis that could occasionally give plaintiff some pain and discomfort. She had no effusion in her knee, and no focal deficits. The doctor saw no instability or mechanical difficulties, but plaintiff’s vastus medialis was noted as being weak; and the doctor felt that plaintiff needed to do strengthening exercises. The doctor causally related these conditions to the automobile accident, but saw no need for further orthopedic intervention. He opined that plaintiff was certainly capable of working. When examined by another physician some 11 months later, now three years post-accident, plaintiff was noted to have a small, palpable mass in the mid-portion of her vastus lateralis muscle, with moderate atrophy of the right thigh. There was no evidence of instability of the knee, and range of motion was noted as “physiologic.” Plaintiff had moderate retropatellar crepitus (clicking) of the knee. Her diagnosis included “residuals of contusion of the right thigh with intramuscular hematoma; permanent scarring of the right vastus lateralis; chronic atrophy of the musculature of the right thigh; and history of contusion of the right knee, resolved.” The defendant moved successfully for summary judgment in plaintiff’s personal injury lawsuit. The trial judge declined to equate plaintiff’s hematoma to muscle spasm. He found that the hematoma, or bruise, was not sufficient to allow plaintiff to meet the verbal threshold requirement of serious and permanent injury. Regardless of whether the appellate panel considered the hematoma objective evidence of disability akin to muscle spasm, it affirmed the trial judge’s grant of summary judgment because plaintiff had failed to meet the serious impact prong of the verbal threshold test. The panel noted that at the time of the accident, plaintiff was working on a per diem status at a hospital, but eventually she was offered a full-time position. Since the accident, she had continued to work on a regular basis as a CT scan technician, working 40 hours per week, and sometimes more. As a result of the accident, she missed only about a week from work, plus some additional time to receive physical therapy. When asked at her deposition what activities she was prevented from doing as a result of the accident, plaintiff replied, “squatting.” When asked what activities were limited, she indicated that she was unable to do all of the repetitions at her exercise class and that, after exercising, she had pain in her thigh. However, as early as three months after the accident, she had indicated to her examining orthopedist that she had recently been skiing without difficulty. Reviewing some of the cases construing the serious impact requirement of the verbal threshold, the panel found that any injury plaintiff had sustained in the automobile accident did not have a sufficiently serious and significant impact on her life to pass the threshold � it had virtually no impact on her occupation, and she was still able to pursue her recreational activities, albeit in a more limited manner. The appellate court noted that plaintiff had moved for reconsideration of the summary judgment order, accompanying her counsel to the courtroom and asking the judge to view the bruising on her thigh. She argued that this was a significant disfigurement so as to qualify for a type 3 injury, which argument she had not presented in opposition to defendant’s initial motion. The panel noted that reconsideration was not a vehicle by which to assert a new theory and, more particularly, a theory that had been available when plaintiff responded to defendant’s original motion. As such, the trial judge correctly applied his discretion to deny the reconsideration motion. 47. Mazyck v. Sanchez, Jr., A-242-02T2 DDS No. 23-2-4983 Judges Coburn and Wells Oct. 31, 2003 No specific type; pre-AICRA case. The plaintiff was 41 years old at the time of the rear-end collision with defendant. Both vehicles were driven away, and the reporting police officer noted that there were no injuries reported at the scene. Plaintiff was apparently asked by the officer if he needed medical attention, but declined to go in the ambulance. The police report also noted that plaintiff’s vehicle sustained minor damage and that defendant’s vehicle sustained moderate front-end damage. Plaintiff apparently still had the same car at the time of the appeal, and had never had it repaired following the accident. On the same day of the collision, plaintiff began experiencing pain and stiffness in his neck and back, headaches and difficulty bending at the waist, lifting, pushing, pulling and grasping. This pain and discomfort, which increased throughout the day, prompted plaintiff to get an evaluation and treatment from his chiropractor. Plaintiff had previously seen the same chiropractor for neck and back injuries sustained in another automobile accident some four years earlier, when he was diagnosed with disc bulges at C5-6, L3-4, L4-5 and right upper extremity radiculopathy. However, his symptoms from these injuries were in remission at the time of the subject accident. The chiropractor’s initial impression on the date of the subject accident yielded the following diagnosis: cephalgia; cervical sprain and strain; cervical neuralgia; thoracic sprain and strain;, lumbosacral sprain and strain; and lumbar neuralgia. Treatment began immediately and included spinal manipulation, adjunctive therapeutic modalities and therapeutic exercises. Plaintiff was given cervical and lumbosacral pillows, and a lumbosacral belt to render support to his spine and help maintain alignment in light of what the chiropractor believed to be extensive spinal instability. Subsequent range of motion tests revealed significant limitation to both the cervical and lumbar spine. About three months post-accident, the chiropractor referred plaintiff to another physician for examination. This doctor was aware of plaintiff’s pre-existing injuries related to the prior motor vehicle accident, having himself evaluated plaintiff for those injuries as well; his report reflects his review of the various objective tests performed on plaintiff that were used in diagnosis of these prior injuries. He also recorded plaintiff’s representations that, prior to the subject accident, his pain associated with those prior injuries had resolved, and he was able to function in a normal manner. Based upon his diagnosis following the subject accident, the doctor diagnosed plaintiff with dorso-cervical sprain and strain, lumbosacral strain, fibromyositis and mild stress-related anxiety syndrome. As to the limitations on plaintiff’s activities, the doctor recorded that plaintiff remained frustrated by his continuing pain and difficulty performing work and his recreational activities. He reported that plaintiff had missed work for about five weeks following the accident, and that his job as a maintenance worker in an apartment building had become nearly impossible. He also reported that plaintiff continued to experience pain associated with extensive lifting, bending, sitting and standing; that simple household chores, such as cooking, cleaning and laundry, had become more difficult; and that plaintiff’s activities with his then five-year old grandchild had been altered. The doctor recommended continued chiropractic rehabilitation, continued monitoring and additional diagnostic studies, including an MRI of the neck and lower back. When plaintiff was re-evaluated by this same physician two months later, over five months after the accident, the doctor noted some improvement of the neck pain, but significant continuing lower back pain. A lumbar MRI taken on that date established the existence of disc bulges at L3-4 and L4-5, and facet hypertrophy and encroachment upon the neural foraminal at L4-5 and L5-S1. The doctor prescribed the narcotic analgesic Zydone for plaintiff’s back pain. About one month later, plaintiff was given a comprehensive neurological examination. The neurologist noted plaintiff’s prior history, but concluded that he suffered the following injuries secondary to the subject accident: cervical, thoracic and lumbar sprain and strain; aggravation of the underlying disc bulges; and radicular pain. Treatment recommendations included the ongoing chiropractic care, continued fluromethane spray stretch treatments, evaluation for trigger point injections, monitoring of work status and continued medication. Significantly, the neurologist also conducted EMG and nerve conduction studies of plaintiff’s legs and lumbar paraspinals. The EMG displayed decreased recruitment in the L5 innervated musculature of the left lower extremity; and the doctor concluded that the results were consistent with left L5 radiculopathy. The neurologist subsequently provided a certification of permanency for plaintiff to file in his lawsuit, pursuant to AICRA. Plaintiff was re-evaluated at a comprehensive health-care facility several times during the subsequent months. Permanent and chronic injuries secondary to the subject accident, including aggravation of the previously-existing injuries and left L5 radiculopathy, were consistently noted. Plaintiff continued to treat with his chiropractor until about nine months after the accident. The chiropractor’s discharge diagnosis was: disc bulges at L3-4 and L4-5; left L5 radiculopathy; and chronic lumbosacral sprain and strain. In a report dated some seven months after plaintiff ceased treatment, the chiropractor noted that plaintiff had, in fact, suffered permanent impairment as a direct consequence of the subject motor vehicle accident. He opined that the accident had caused severe exacerbation of plaintiff’s prior injuries, and that the injuries resulting from the subject accident rendered plaintiff’s lumbosacral spine permanently unstable and prone to chronic spasm and vertebral misalignment upon engagement in strenuous activity. In his final report, dated about one year and eight months post-accident, the chiropractor reviewed all of the prior medical reports, studies and evaluations of plaintiff, and concluded that he had suffered from a “permanent impairment to his lumbosacral spinal region and left lower extremity as a direct consequence of the [subject] accident.” At his deposition almost three years after the accident, plaintiff reported that his injuries had affected numerous aspects of his work, marital, family and recreational life. He stated that the injuries had decreased the frequency of his sexual relations with his wife, and that he had difficulty sleeping. He was also no longer able to do the yard work at his home, practice karate or exercise like he used to. With respect to his job, he was unable to do certain tasks as maintenance repairman at the apartment complex where he worked. Specifically, he could not use any heavy equipment, could not install or remove refrigerators, and was not able to do the plumbing that he had previously been able to do before the accident � all because of the back pain it caused him. As a result of his inability to perform these tasks at his job, plaintiff reported that his co-workers were required to do his share of the work. The defendant moved for summary judgment and the judge entered an order granting the motion, highlighting the references in the medical reports to plaintiff’s prior medical history of significant injury to the same areas of his body injured in the subject accident � his neck and back. Although plaintiff claimed that his symptoms had totally resolved before the subject accident, the judge noted a portion of plaintiff’s deposition testimony in which he admitted that his back and neck injuries from the first motor vehicle accident still bothered him “a little” before the second accident. He went on to say that the injuries were not hurting him as much as they used to, about “half the time during the day.” The judge cited Polk wherein the Appellate Division gave specific instructions and guidance on what constituted an appropriate comparative analysis when a plaintiff asserted aggravation of prior injuries. Although plaintiff claimed that he was not alleging an aggravation of his prior injuries, which he asserted had resolved, the judge found that his deposition testimony belied this fact. If he still had some pain, and was not symptom-free, a Polk comparative analysis was required, and was absent here. Even assuming that plaintiff had presented an appropriate comparative analysis, however, the judge found that he had not surmounted the second, subjective prong of the verbal threshold test. He only missed five days from work and, although he was limited in what he could do upon his return, he received help and could still do his job. Also, with respect to the limitations on his recreational activities, the judge noted that there was no evidence presented as to how frequent or significant these activities had been in plaintiff’s life; therefore, the judge could not determine whether the limitations constituted a serious impact on plaintiff’s life. On appeal, the plaintiff argued that the judge erred in concluding that he had not provided an appropriate Polk comparative analysis and that his injuries had not had a significant impact on his life. The appellate panel affirmed, substantially for the reasons articulated by the trial judge. The panel’s review of the record, the briefs and the applicable law satisfied it that the arguments made by plaintiff were without sufficient merit to warrant its further comment. 48. Pinkus v. Rudd, A-156-02T3 DDS No. 23-2-5040 Judges King, Lintner and Bilder Nov. 7, 2003 No specific type; pre-AICRA case. Plaintiff had been involved in another motor vehicle accident approximately seven years prior to the automobile accident in this case. The medical records presented showed that many of her complaints from the subject accident existed before it occurred, and further � and of particular significance � that she was essentially housebound. The trial judge concluded that plaintiff had failed to meet her burden of showing an injury connected to the subject accident. Even if she had, the judge also found that she had not proved that any consequences from her injury had a serious impact on her life. Thus, he dismissed her complaint for failure to meet the verbal threshold, and the appellate panel affirmed. 49. Benson v. Coca, A-6815-01T3 DDS No. 23-2-5056 Judges Coburn, Wells and Fisher Nov. 10, 2003 Types 6, 7 and 8; pre-AICRA case. The plaintiff and defendant were involved in a two-car collision, during which the plaintiff’s vehicle rolled over on its left side. Plaintiff, 54 years old at the time, did not lose consciousness, was not hospitalized and suffered only minor physical injuries. Within hours of the accident, however, he noticed a ringing in his ears for the first time in his life, predominantly on the right side. When the symptom failed to abate after the accident, plaintiff contacted his family doctor, who recommended that he see an ear, nose and throat specialist. A hearing test (audiogram) was performed, which revealed a neurosensory high frequency hearing loss primarily in his right ear. The ringing in his ears could not be objectively confirmed. After defendant unsuccessfully moved for summary judgment on the ground that the verbal threshold had not been met, the case was tried to a jury. Plaintiff testified as to how the ringing in his ears impacted his life. He stated that it was a “24/7 thing” which affected everything he did. He gave specific examples, such as the fact that listening to rock and roll music had become “physically annoying,” and that he could no longer go to the movies, because the loud sound track caused his ears to “bang” for hours afterward. Additionally, plaintiff was also affected by other sounds, such as traffic noise. Engine noise, because it was sustained, would drive him crazy for about three hours after the noise itself ceased. Anything with a loud volume would also drive him “right through the roof.” Plaintiff also stated that he had trouble sleeping because of the ringing in his ears, and had to turn on the television nightly at a low volume to mask the noise in his ears when trying to get to sleep; his physician had apparently recommended this technique to aid plaintiff with his tinnitus problems. Plaintiff worked as a computer consultant, and noted that computer programming was a job that was normally done in absolute silence because of the need for concentration. Because of his ear problems, however, he could not concentrate, and had to use a radio to mask the ringing at work, as he did with the television to help him sleep at home. This extraneous noise helped mask his tinnitus, but caused him to have some problems with his concentration. He felt that he was less productive because he needed to take more breaks and often had to start a computation over because he had lost concentration. The ear, nose and throat doctor diagnosed plaintiff as suffering from tinnitus associated with asymmetrical neurosensory high frequency hearing loss. When asked to explain that condition, he indicated that the affected ear was communicating information to the brain at a lower rate by about 20 decibels. He also testified a bit more technically about the results of plaintiff’s audiogram. Plaintiff had no prior history of tinnitus prior to the accident, no history of continuous exposure to loud noises, and had not suffered from childhood infections, which were often related to the onset of the condition. Therefore, the doctor concluded that the accident was the cause of the condition. He also opined that, because the symptoms had not resolved within six months of the accident, the condition was permanent. Another ENT specialist, who examined plaintiff for the defense, noted that there was no objective way to test for tinnitus, or to prove or disprove that a person suffered from it; the condition was diagnosed by accepting the patient’s subjective symptomology, which fit the profile for that condition. The doctor performed a physical examination of plaintiff’s ear, nose and throat, which he found to be normal. He then performed an audiogram, which did confirm some vital upper frequency hearing loss. Nevertheless, the doctor opined that plaintiff’s hearing was basically “normal.” He stated that, in the general course of normal living, one would not notice any real loss of hearing and that plaintiff’s hearing, overall, was “perfectly adequate for day-to-day activity.” The defense doctor did not opine as to what had caused plaintiff’s condition, but stated that it was quite common. As to the impact of the condition on plaintiff’s life, the doctor found that plaintiff was able to function in most areas of conversation and get along quite well, even though some higher-pitched sounds might be confusing to him. He felt that the tinnitus condition was annoying to plaintiff, and bothersome, but that it did not change his activities or prevent him from doing anything. The defendant unsuccessfully moved for judgment at the end of plaintiff’s case and at the close of all of the testimony. The judge reasoned that a jury question was presented as to whether the tinnitus caused a significant impact on plaintiff’s life. He comprehensively charged the jury on all of the issues in the case, and as to the two prongs of the verbal threshold using the model jury charges framing those issues. After a period of deliberation, the jury returned a verdict in favor of plaintiff as to liability and awarded him $55,000 in damages. Defendant then moved for a judgment notwithstanding the verdict, which the trial judge denied. The judge noted that, although the doctors stated that plaintiff’s condition was diagnosed from subjective complaints, it was a condition known to exist medically; there just was no objective medical test for it. The judge did not see how he could foreclose the plaintiff from relief simply because he could not objectively prove a condition that both doctors acknowledged, but which could not be objectively proved. Although the doctors differed as to causation, the judge found the plaintiff and his physician credible. As to the effect on plaintiff’s life, the judge stressed plaintiff’s testimony that he suffered with the condition for 24 hours a day, seven days a week. He also noted his sleeping and concentration difficulties. Although plaintiff had not lost any time from work, and had stopped treatment with his physician, the judge nevertheless found that he had shown a significant impact on his life sufficient to meet the verbal threshold. The defendant appealed, and the panel framed the issue as whether a claim of neurosensory high frequency hearing loss, accompanied by tinnitus (ringing in the ears), qualified as an injury sufficient to vault the pre-AICRA verbal threshold statute. The panel noted that while the experts who testified at trial agreed that, in some cases, tinnitus could be very debilitating, it nevertheless held, as a matter of law, that on the facts of this case, plaintiff’s complaints did not overcome the threshold. The appellate panel was satisfied that the judge erred in denying defendant’s pretrial verbal threshold motion, and noted that this case should not have reached the jury. Although the claim of injury was unique, the applicable principles of Oswin governing whether the injury met the verbal threshold were not. The court noted that plaintiff’s injuries could only qualify if they satisfied the more subjective verbal threshold categories, six, seven or eight, and defined these categories. Applying Oswin to the facts here, the court initially concluded that plaintiff’s high frequency hearing loss, considered alone, did not meet the threshold. While such loss was demonstrated objectively through the audiograms, it was a condition that did not have a real impact on plaintiff’s life, let alone a significant one. In any ordinarily understood meaning, plaintiff was not rendered deaf or even hard of hearing as a result of the accident. He made no complaints about hearing loss to his doctors, and was even unaware that he had a hearing loss until it was revealed by the testing. However, the court acknowledged that both experts agreed that a loss of high frequency hearing was so commonly accompanied by tinnitus that, even though the latter condition could not be objectively established, they were both of the opinion that plaintiff did suffer from it. The appellate court found that these medical opinions bore a parallel to medical opinions reporting that a plaintiff was suffering from pain from a physical injury. Accordingly, the court held that, where a person has an objectively established high frequency hearing loss and also complains of tinnitus, such a complaint satisfies the objective, credible medical evidence requirement necessary to meet the first Oswin prong. In this respect, the court agreed with the 1999 New York opinion of Congdon v. Preisman, wherein a trial court ruling was affirmed which had dismissed a claim of injury where the plaintiff had only subjective complaints of tinnitus unaccompanied by any evidence of hearing loss. However, as in the case of pain unaccompanied by significant limitations in bodily function, which does not meet the threshold, the panel also held that plaintiff’s tinnitus did not otherwise result in significant limits on his hearing or his daily functioning. Plaintiff’s own testimony was found to be illustrative: he had lost no time from work; lost no sleep, although it was difficult to fall asleep; and continued his regular activities of daily living, perhaps at a less enjoyable level, but no more than one suffering the painful residuals of a sprain and strain of the neck or back. Further, while plaintiff had, to some unspecified degree, indicated that he had reduced his activities that entailed loud sounds, such as boating or movies, he had not testified that he had stopped such activities altogether. Continuing its reasoning, the panel announced its departure from Preston v. Young, another New York opinion, to the extent that it suggested that tinnitus was sufficient to vault the verbal threshold. In that case, apparently the jury found sufficient evidence that the plaintiff’s tinnitus constituted a significant limitation in the use of his ear, and awarded him $25,000. While the appellate court affirmed this verdict, its opinion, unfortunately, did not describe the evidence that it found to support that verdict. The New Jersey appellate court in the subject case was unsure what disability the New York plaintiff, a firefighter, was claiming, although it did note that his condition was said to be correctable with a hearing aid and no invasive surgical procedure or hospitalization was required. The New Jersey court was mindful that the experts in the subject case had agreed that tinnitus in some patients could be debilitating, and the court stressed that it did not exclude such cases from favorable consideration under the pre-AICRA verbal threshold statute entirely. However, the court was convinced that the evidence did not raise a jury question on the set of facts adduced here. Since the panel was satisfied that plaintiff’s injuries did not meet the verbal threshold, and the judge erred in denying the defendant’s pretrial motion, it reversed the judgment entered for plaintiff on the jury verdict, and remanded for an entry of judgment notwithstanding the verdict in favor of the defendant. 50. Roth v. Krevsky, A-649-02T3 DDS No. 23-2-5096 Judges Skillman and Wells Nov. 14, 2003 No specific type; pre-AICRA case. The record in this case revealed that plaintiff had a lengthy medical history of left neck and upper arm pain � starting approximately four years prior to the subject accident � together with a good deal of treatment, including surgical procedures for reflex sympathetic dystrophy and chronic cervical radiculopathy. In addition, plaintiff had thoracic outlet syndrome, carpal tunnel syndrome and was treated surgically for both of those conditions prior to the subject accident. In the automobile accident in question, the 30-year-old plaintiff’s vehicle was struck in the rear by defendant’s vehicle. Her car suffered only minor damage, and she drove it from the scene after declining medical treatment. Nevertheless, after the accident, she began to experience a worsening of her neck and arm pain. The pain radiated from her neck and shoulder, down her arms and into both of her hands. She also suffered from upper back pain radiating into her lower back and the onset of headaches. Later in the month of the accident, an MRI performed of plaintiff’s neck and back showed a congenital fusion of C-2 with C-3. The MRI report also noted “some minimal disc herniation at C3-4 without significant impingement upon either the subarachnoid space or nerve roots.” Another MRI performed about six months after the accident, with and without gadolinium contrast, resulted in a finding of “unremarkable gadolinium enhanced cervical spine.” Another doctor reviewing the MRI described it as “absolutely pristine.” About two years after the subject accident, plaintiff also suffered from a fall on the ice. This accident resulted in her having constant headaches, as well as injuries to her right wrist and left hip. When the defense moved for summary judgment, the motion judge reviewed the relevant case authorities in detail, including Polk, with its requirement of a comparative analysis of pre- and post-accident residuals. He also reviewed the MRI studies and a detailed report from plaintiff’s examining physician, and concluded that there were no objective signs of injury from the subject accident, and that plaintiff had failed to provide the required Polk comparative analysis sufficient to weed out those conditions caused by the subject accident from those caused by her prior and post-accident traumas, all of which affected the same areas of her body. The appellate panel affirmed substantially for the reasons given by the motion judge, noting that he had correctly stated the applicable criteria emerging out of the 11-year history of the reported litigation under the former verbal threshold statute, beginning with Oswin. The panel felt that the judge obviously had a detailed grasp of the relevant facts of the accident, plaintiff’s complaints arising out of that accident and of her prior medical history. Accordingly, his dismissal of her case for failure to vault the verbal threshold was appropriate. 51. Ciaglia v. Garber, A-2255-02T1 DDS No. 23-2-5138 Judges Lintner and Landau Nov. 18, 2003 No specific type; AICRA case. Plaintiff’s vehicle was struck from the rear. He did not go to the hospital, but instead saw his chiropractor on the date of the accident, complaining of left shoulder pain with tingling in his left hand, as well as neck pain. The chiropractor placed plaintiff on a conservative treatment modality consisting of ultrasound; interferential current; hydrocollation; myofascial release; and specific spinal adjustments. At the time of his follow-up examinations, the doctor found that plaintiff, whose medical history was noted as being negative for any problems to the affected areas, demonstrated ongoing cervical and shoulder pain, as well as decreased range of motion. He diagnosed acute cervical sprain and strain; cervicalgia; cerviobrachial syndrome; cervical myalgia; subluxation of the right sternoclavicular joint; and left periscapular muscle strain. In a report dated over two years post-accident, the doctor concluded that plaintiff’s condition was permanent, since he had ample time to recover from his injuries and was still symptomatic. He also noted that plaintiff experienced a limitation in his daily activities, and that his injuries had affected his part-time job and his income. The chiropractor referred plaintiff to a board certified orthopedic surgeon to address his shoulder problems. The orthopedist reported about two months post-accident that plaintiff was in “no acute distress.” He found that there was no atrophy of either upper extremity, and that plaintiff held his left shoulder higher than his dominant right shoulder. There was minimal tenderness noted, full cervical motion, and full range of motion of the shoulders, elbows, wrists, hands and fingers. The doctor noted, however, that plaintiff had left cervical soft tissue ache on extension, left rotation, and side bending of the neck. He also found tenderness upon palpation of the lower interscapular area and at the inferior scapular bony prominence. The orthopedist’s impression was: (1) bilateral periscapular muscle strain; (2) post-traumatic cervical sprain and strain, left; and (3) subluxation, right SC joint. He placed plaintiff on 25 milligrams of Vioxx and recommended continued physical therapy with the chiropractor. He failed to mention permanency in his report, but did note that he wanted to see plaintiff again following six weeks of physical therapy and chiropractic treatment. The record did not reflect whether plaintiff returned to the orthopedist, and no subsequent report was issued by that physician. In a certification dated almost two and a half years post-accident, plaintiff stated that he still continued treating with his chiropractor at least once per month, and continued to experience pain in his neck, upper back and left shoulder. He was employed full-time as a lab technician, and also worked part-time as a machine operator for a newspaper. Prior to the accident, he worked at his part-time job three to four nights per week; however, he was now rarely able to work more than two nights per week because of his injuries. Since the accident, he also stated that he could no longer do yard work or assist his wife with household chores. He complained that his social activities were limited because dancing aggravated his injuries. The defendant successfully obtained summary judgment and plaintiff appealed. He argued that he met both the objective and subjective criteria of the verbal threshold and, alternatively, that AICRA did not require him to establish that his injuries had a serious impact on his life. The appellate panel rejected plaintiff’s contentions and affirmed. The court noted that AICRA had significantly revised the prior verbal threshold by replacing categories six through nine and requiring proof of “a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” An injury would be considered permanent under AICRA when the body part or organ, or both, had not healed to function normally and would not heal to function normally with further medical treatment. The panel noted that, in its preamble, the Legislature described the type of suits it intended to exclude, by revisiting the lawsuit threshold, specifically eliminating suits for injuries that were not permanent or serious, including those for soft tissue injuries. The appellate court found it unnecessary to discuss whether AICRA required a showing of serious impact on one’s lifestyle because it found that the record amply supported a finding that plaintiff’s injuries, if believed, were not of the serious or permanent type that would vault his case over the verbal threshold as delineated by the AICRA amendment. Although alleged and described as permanent by plaintiff’s treating chiropractor, his injuries consisted of soft tissue sprains and strains. Simply put, the court found that these were not the type of injuries intended by the Legislature to qualify for tort exemption. While the panel did not disparage the gravity of plaintiff’s injury and his subsequent discomfort, it was not persuaded that the type of injury he suffered rose to the requisite level of seriousness necessary to pierce the AICRA threshold. 52. Aro v. Aviles, A-0575-02T3 DDS No. 23-2-5146 Judges Petrella and Collester Nov. 19, 2003 No specific type; pre-AICRA case. The plaintiff was traveling on Route 80 eastbound when a car driven by defendant collided with the rear of his vehicle. The plaintiff experienced no pain or discomfort at the scene and declined transportation to the hospital. He returned to his vehicle, drove himself home, and went to work the following day. Eight days after the accident, feeling some pain in his back, plaintiff consulted with a neurologist and continued treatment with him for about nine months. MRIs performed on plaintiff revealed a straightening of the normal lumbar and cervical lordosis; paravertebral muscle spasms; anterior bulging of the C5-6 disc; and a broad, thin herniated disc at C3-4, with thecal compression. The neurologist’s diagnosis was post-traumatic herniated cervical disc with radiculitis, and post-traumatic lumbar sprain and strain. He opined that plaintiff suffered permanent impairment as a result of the accident. After his last visit with the neurologist nine months post-accident, plaintiff received no further treatment for these injuries. He was evaluated, however, by a neurological surgeon, who diagnosed “status post cervical flexion/hyperextension, sprain and strain injury with broad thin herniated disc at C3-4 and post-traumatic cervical fibromyositis, plus status post hyperflexion, sprain and strain injury involving the lumbar spine with lumbar fibromyositis.” The surgeon opined a direct causal relationship between the accident and plaintiff’s condition. The neurological surgeon further found that the injuries resulted in a significant impact on plaintiff’s life. He had difficulty driving; lifting; bending; sitting for a prolonged period of time; playing basketball and baseball; doing aerobics; lifting weights; and getting up or down from a chair or bed. Plaintiff had apparently played basketball and worked out at a gym approximately five times per week before the accident, and was forced to reduce these activities to once a week after he was injured. He stated to the doctor that he was unable to swing a bat or lift free weights any longer. Plaintiff had told the doctor that he had to do many of these activities to participate in life; however they were done with significant pain and only for short periods of time before plaintiff had to rest. The doctor opined that these life limitations were created by the accident, and although they might be perceived as minor when viewed separately, they rose to the level of significant impact in the patient’s lifestyle when viewed in the aggregate. The neurological surgeon concluded that plaintiff was left, as a result of the accident, with both a significant and permanent loss of function and use to the areas noted in the physical examination. The overall prognosis for significant improvement was limited, since injuries of this nature were precursors to progressive arthritic changes in the joints adjacent to and involved in the area injured. In summary, as a result of the subject accident, the patient suffered the injuries noted with the significant residuals noted. In all medical likelihood, he might suffer acute and intermittent flare-ups that would require further evaluation and treatment in the future. Plaintiff acknowledged that he only missed two or three days of work because of the accident. Although his job required him to sit for long periods of time and to drive within a 60-mile radius, his injuries did not limit his job performance, despite “spasms and tingling in his fingers” after prolonged sitting. However, plaintiff contended, as he had to the neurological surgeon, that his injuries significantly limited his non-work-related activities, specifically his ability to work out, play basketball and dance. He said that before the accident, he would work out five times a week for one and a half to two hours, play basketball two or three times a week, and take dance lessons three or four times a week. After the accident, he worked out only two or three times a week for 45 minutes, played basketball once a week, and danced once a week. Subsequently, he certified that he could not exercise at the gym or lift weights because of physical discomfort, and his injuries cut down on his dancing, so that he danced only occasionally. After plaintiff obtained partial summary judgment on liability, the defendant successfully moved for judgment on the grounds that plaintiff failed to meet the requirements of the verbal threshold. The motion judge found that plaintiff did not meet his burden of establishing that his injuries significantly interfered with his lifestyle. Plaintiff appealed, contending that his injuries vaulted the verbal threshold established by the Automobile Reparation Reform Act. Based on the record, the appellate panel concurred with the judge’s conclusion, noting that plaintiff had not proved that he suffered an injury that resulted in a serious impact on his life by preventing him from performing substantially all of his usual and customary activities. He continued to work in the same job and with the same employer; received no medical treatment for his injuries beyond nine months post-accident; and, while some of his non-work-related activities were curtailed, plaintiff did not adequately demonstrate that the impact on his life thereby was serious and significant. 53. Soloway v. Hoff, A-3534-02T2 DDS No. 23-2-5147 Judges Cuff and Lario Nov. 19, 2003 Type 6; AICRA case. In the accident in this case, plaintiff was stopped in her motor vehicle when she was struck from behind by a motor vehicle operated by defendant. She alleged injuries to her neck and back, specifically disc herniations at C5-6 and C6-7, as well as lumbar radiculitis at L4-5. She obtained certifications from her current physicians, both certifying that the injuries to plaintiff’s cervical and lumbar spine were permanent and would not heal to function normally with further medical treatment. Prior to the subject accident, plaintiff had a history of back, neck and upper arm problems and had been treated by different physicians at a medical group. The group’s records indicated that, two years and nine months pre-accident, she was diagnosed with L-5 radiculopathy right. Four months later, her right shoulder was noted as “progressively worsening” with pain radiating from her shoulder to her elbow, with intermittent occasional parasthesia of the right forearm, extending to the fourth and fifth finger. She also had intermittent discomfort that was severe enough to cause her to drop heavy objects from her right hand. Right shoulder pain with radiculitis and trapezius muscle spasm were also noted, and a cervical collar was recommended. Two weeks after that, severe right shoulder pain was noted and diagnosed as rotator cuff syndrome with probable tendonitis. There was a notation that plaintiff was apparently taking naprosyn in the past for her back problems. Finally, in a notation six days later, it was recorded that plaintiff was troubled by shoulder tendonitis, worse on the right than the left, for which she had been seeing the orthopedists. Sciatic pain was also noted, but was noted as being “now resolved.” As to the effect of the accident on her lifestyle, plaintiff indicated that her ability to participate in her exercise classes had been compromised. However, she was still able to participate twice a week, doing sit-ups and other exercises. Defendant obtained summary judgment from the trial court. The trial judge first found that plaintiff had produced objective evidence of an injury, and an impact on her life via the restrictions in her physical activities; however, he found that she had not shown that the restrictions caused by the injury had a serious or significant impact on her life. Second, the court held that plaintiff failed to present a comparative analysis of her pre-existing condition and her injuries sustained in the current accident, as required by Polk. The appellate panel reviewed the proofs in the record and affirmed. Although plaintiff’s life was affected by the injuries she sustained in the accident, the panel agreed with the motion judge that she was still able to continue with her activities, although on a more limited basis. Thus, the accident did not have a sufficiently serious impact on her life to carry her claim over the verbal threshold. The panel also agreed with the judge’s conclusion that plaintiff’s case was deficient for its failure to present the required comparative analysis. Although the panel noted that plaintiff herself had tried to distinguish the injuries which were caused by the subject accident from her previous condition, it noted that her treating physicians’ certifications did not address her previous condition at all, much less how that condition had or had not been affected by the accident. It seemed from the record, in fact, that plaintiff’s treating physicians were unaware of her prior medical history, at least some of which was related to the same parts of her body. As the trial judge had noted, without a comparative analysis, there was no indication that plaintiff’s limitations were even causally related to the injuries that she alleged to have sustained in the accident. 54. Kim v. Laferriere, A-1765-02T5 DDS No. 23-2-5206 Judges Winkelstein and Lario Nov. 26, 2003 No specific type; AICRA case. The plaintiff was a front-seat passenger in a motor vehicle owned and operated by her husband. While they were traveling on Route 17 in Paramus, plaintiff’s husband was forced to stop the vehicle quickly when a truck operated by the defendant suddenly merged into the lane of traffic directly in front of plaintiff’s vehicle. The car in back of plaintiff’s could not stop in time and rear-ended plaintiff’s vehicle. At the scene, plaintiff neither requested nor received treatment of any kind. Although she stated that she felt pain in her lower back and neck, she hoped it would dissipate and did not seek any medical attention for 10 days following the accident. Plaintiff began treating with her doctor, who noted tenderness and a limitation of motion in her lumbar spine. He re-evaluated her about once a month for the next 17 months. An MRI taken about one month after the accident indicated the posterior disc herniation at L4-5 and L5-S1. The “functional” section of the doctor’s report of each examination indicated that plaintiff’s endurance of daily activities was impaired due to lower back pain. In most of his medical reports, the doctor stated that plaintiff had suffered “multiple sustained injuries” from the motor vehicle accident, including a lumbar sprain with disc herniations at L4-5 and L5-S1, and a right S1 radiculopathy shown on an EMG, as well as bilateral sciatica. Plaintiff, a registered nurse, returned to work full time in the surgical department of a hospital following the accident; however, after working for approximately one month, she discontinued working for the next month. She then voluntarily transferred from the surgical department to the hemodialysis department, in order to avoid the heavy lifting and ambulation of post-surgical patients, which was required of the surgical department nurses. After her transfer, plaintiff worked the same number of hours. Her rate of pay also remained unchanged, and later increased. As a result of continuing lower back pain that radiated down into her leg when it became severe, plaintiff testified that she was unable to walk for long periods; to do heavy lifting in the workplace; to play ball with her five-year-old son; and to do household chores, such as vacuuming. She stated that her husband and sister, who lived with her, helped with the household chores. Just short of two years post-accident, plaintiff underwent a neurological examination for the defense. This physician found that plaintiff’s history indicated that the onset of her symptoms, 10 days after the accident, was not in “immediate temporal relationship to the accident.” He found no permanent neurological injury as a result of the accident and no further need for neurologic investigation or treatment. His review of plaintiff’s lumbar MRI was “unimpressive for any post-traumatic disc abnormalities.” He determined from the film that there disc bulges at L4-5 and L5-S1, but no disc herniations and no nerve root impingement. The doctor noted that disc bulges were seen commonly in the general asymptomatic population, even in the absence of trauma, and were not considered significant. The doctor felt that it would be “highly improbable” for the accident as described to have resulted in two separate disc herniations. The motion judge held that a genuine issue of material fact existed in regard to the permanency of plaintiff’s injuries. She found a dichotomy in the plaintiff’s and defendant’s doctors’ diagnoses of plaintiff’s injuries, particularly in light of plaintiff’s treating physician’s certification of merit, dated about a year after the accident, which concluded, within a reasonable degree of medical probability, that plaintiff had sustained injuries that would have permanent residual sequelae. Next, however, the judge concluded that plaintiff’s injuries did not have a serious impact on her life, as required by Oswin, and granted the defendant’s motion for summary judgment. She noted that plaintiff had continued her employment as a nurse with the same number of hours and at the same pay, albeit in a less demanding position. Although she could no longer take long walks, lift heavy objects, or play ball, she continued to shop for groceries and to perform some household chores, albeit with assistance from her family members. She could still play other games with her son. She could exercise and walk, although not strenuously or for long distances. Her lifestyle also had to be considered concomitantly with her age of 45 years at the time of the motion. The appellate panel reviewed the motion judge’s opinion with approval, citing the litany of serious impact case law. While the panel agreed with plaintiff that her injuries did have an impact on her life, it also agreed with the motion judge that plaintiff was able to continue with her daily activities, even though her participation might be more restricted than it was prior to the accident. Thus, the court concurred with the motion judge’s holding that the injuries sustained by plaintiff in the accident did not have a sufficiently serious impact on her life to carry her claim over the verbal threshold. 55. Notte v. Ensana, A-1314-02T3 DDS No. 23-2-5256 Judges Carchman and Weissbard Dec. 4, 2003 No specific type; AICRA case. In accordance with AICRA, plaintiff was required to file a certification of permanency from his treating physician within 60 days of defendants’ answers. Instead of filing the certification, however, plaintiff forwarded medical reports to defendants, including a detailed report from his physician setting forth the nature of plaintiff’s injuries and an opinion of permanency. Defendants moved to dismiss and, in response, plaintiff submitted a proper certification; by this time, however, 120 days had elapsed since the filing of defendant’s answers, and more than two years had passed since the accident. The trial judge originally dismissed plaintiff’s complaint without prejudice, but thereafter dismissed it with prejudice. Plaintiff appealed, contending that the proper remedy should be dismissal without prejudice. He also argued that the statute of limitations should not bar subsequent reinstatement of the complaint under the substantial compliance doctrine. Defendants countered that plaintiff had failed to strictly comply with the statute by filing a physician’s certification after the allowed time period had expired. The appellate panel reversed. It reviewed the statutory language concerning the requirement for the filing of a physician’s certification of permanency, and noted that plaintiff’s certification was clearly filed beyond the statutory time period. The initial issue, therefore, was what sanction or remedy lay for such failure. The court reviewed Watts v. Camiglian. The plaintiff in that case had submitted his certification 150 days late. The appellate panel had first determined that the certification was procedural in nature and related to the sufficiency of the pleadings, and was not intended to go to the establishment of an action. The appellate panel in Watts concluded that dismissal with prejudice was not the appropriate remedy for non-compliance with the time limitations of the statute. Unless other impediments existed, the appropriate remedy, therefore, was dismissal without prejudice. The panel noted that the statute of limitations was not an issue in Watts because the certification was filed within two years of the accident. In the present case, however, defendants’ motion to dismiss was filed more than two years after the accident. Plaintiff argued that he had substantially complied with the certification requirement and that the certification of permanency was a “regurgitation of the doctor’s already-produced records.” In the present case, the court rejected plaintiff’s argument that her timely service of a report by her treating chiropractor that established permanency, combined with service of that chiropractor’s certification (containing essentially the same information) fifteen months later, constituted substantial compliance with the certification requirement. The court determined that the certification requirement not only acquainted the defense with the nature and severity of plaintiff’s alleged injuries, but also served as an enforcement mechanism to prevent fraud by providing the legal foundation for a charge of perjury. Additionally, the court noted that the intent of AICRA was to limit automobile negligence personal injury actions to those that met the verbal threshold criteria. The court noted that the physician’s certification requirement was only one of several means employed by the Legislature to prevent fraud. The focus of a substantial compliance analysis should be on whether the actions taken by the plaintiff had furthered the overall, underlying purpose legislative purpose in the same or similar manner that the physician’s certification would have done, had it been timely filed. The court felt that allowing plaintiff to invoke the substantial compliance doctrine in this case would not render the statute meaningless, as defendants argued. At a minimum, the court felt, plaintiff must have submitted documents that substantially complied with the certification requirement within the statutory 60-day period – and plaintiff always bore the “heavy burden” of establishing the requisite elements. Since the certification requirement is a procedural requirement, substantial compliance with that requirement in an action timely filed should preclude a dismissal of the action or application of the statute of limitations bar. If plaintiff is able to show the elements of substantial compliance with the physician’s certification requirement, the statute of limitations will not bar plaintiff’s claim from proceeding. The court’s review of the record in this case failed to disclose whether plaintiff did, in fact, meet the elements of substantial compliance. The motion judge did not address the issue substantively and did not consider the elements of substantial compliance. The court deemed the appropriate disposition to be a remand to allow plaintiff to demonstrate such compliance. This determination made it unnecessary to consider the additional issues raised by plaintiff. The trial judge’s dismissal of plaintiff’s compliant was reversed and the matter remanded for further proceedings consistent with the court’s opinion. The panel did not retain jurisdiction. 56. Seretis v. Calderon, A-2495-02T5 DDS No. 23-2-5272 Judges Parrillo and Hoens Dec. 5, 2003 No specific type; AICRA case. Plaintiff claimed injuries to her neck, back and shoulder in the automobile accident with defendant. After the collision, she was taken by her son to a hospital emergency room, where X-rays taken of her shoulder were negative for fracture. Starting the next day, plaintiff went to see her chiropractor for the pain in her neck and lower back, and began six months of treatment. Three months after the accident, her chiropractor referred her for an MRI, which revealed degenerative changes in her cervical spine, but which identified no traumatic injuries in that area. An independent medical examination conducted six months post-accident, apparently in connection with plaintiff’s claim for PIP benefits, resulted in findings that were essentially normal. The examining doctor elicited some complaints of tenderness on palpation in plaintiff’s cervical spine, but detected no evidence of spasm there, and found no evidence of tenderness or spasm in her dorsal or lumbar spine. That doctor concluded that plaintiff had sustained some injuries in the accident, but that they were not permanent; that there was no compromise of her activities or lifestyle; and that she had already reached the maximum chiropractic benefit from the treatment that she had already received. Plaintiff ceased treatment with her chiropractor after the six months of visits, and had received no further treatment of any kind for her injuries since that time. Also six months post-accident, plaintiff was examined for the defense by an orthopedist. He noted that, throughout the time when plaintiff was being treated by the chiropractor for the injuries she attributed to the accident, she was also under the care of an orthopedic surgeon for unrelated injuries sustained in an accident at work. The doctor noted that it was significant that plaintiff never mentioned any of the injuries to her neck, shoulder or back to her orthopedist, in spite of the fact that her chiropractor had suggested that she do so. During the defense orthopedic examination, plaintiff voiced mild subjective complaints of tenderness on palpation of her shoulder, and she subjectively complained of weakness, but the doctor found no objective, medical evidence of any injury related to the subject accident, and opined that plaintiff’s injuries therefrom were fully resolved. The plaintiff contended that her injuries were permanent, and in support of that contention, submitted a certification and report from her chiropractor dated 11 months post-accident, in which he also opined that her injuries were permanent. It appeared that the chiropractor did not physically examine plaintiff on the date of that report, because it referred only to prior examinations and treatments. The opinion on permanency was based, in part, on a telephone call from plaintiff on the day before the report was written, in which she reported, but did not independently verify, weakness in her arm, headaches and pains in her neck and shoulder. Finally, the plaintiff relied upon the opinion of another physician who had examined her almost two years post-accident. This physician took X-rays and opined that, because those films showed that plaintiff had arthritis in her cervical spine, that condition would have been exacerbated by the accident. He, too, concluded that her injuries were permanent. Defendant moved for summary judgment, arguing that plaintiff’s proofs were insufficient to demonstrate any permanent injury within the meaning of AICRA. In opposition to defendant’s motion, the plaintiff produced the medical records of her treatment and a certification describing the impact of her injuries on her life. The motion judge agreed with the defendant, and granted the motion, determining that plaintiff’s injuries were neither serious nor permanent, either objectively or subjectively. The appellate panel considered plaintiff’s appeal in light of the record and applicable legal principles, and affirmed for substantially the reasons set forth by the motion judge. First, the panel noted that there was no objective, medical evidence that plaintiff suffered any injury in the accident that was either serious or permanent. To the extent that one of her experts opined that she must have suffered an exacerbation of a prior condition in the subject accident, the panel found that this opinion failed to qualify as a comparative analysis to meet the test established in Polk, which still governed the exacerbation or aggravation analysis under AICRA. Second, to the extent that plaintiff’s treating chiropractor and her expert opined that her injuries were permanent, both of those opinions were found to be net opinions, based on no objective, medical evidence. Finally, the panel stressed that it had previously put to rest plaintiff’s argument concerning the continued vitality of the pre-AICRA verbal threshold test established in Oswin. 57. Mozee v. Gaffney, A-2880-02T3 DDS No. 23-2-5315 Judges Carchman and Weissbard Dec. 11, 2003 No specific type; AICRA case. Plaintiff was a passenger in a vehicle that was involved in a collision with another vehicle driven by defendant. As a result of the accident, plaintiff suffered injuries which, according to her treating physician, included: bilateral carpal tunnel syndrome; cervical, dorsal and lumbar sprain and strain; lumbar disc bulge; lumbar radiculitis; post-traumatic cephalgia; and probable trigemenial neuralgia. Various diagnostic tests, including an EMG and MRI, confirmed mild to moderate carpal tunnel syndrome and mild disc bulging at L4-5 as well as some spasm and limitation in range of motion. As to the impact of these injuries on her life, plaintiff indicated that, although she had to wear a bracing device on her hands at night, and had occasional difficulty holding items, she was still able to work, cook, clean, do laundry and generally engage in her normal activities, with some limitation on her exercise regime. On defendant’s motion for summary judgment, the motion judge dismissed plaintiff’s complaint, concluding that plaintiff had not suffered a serious injury or an injury having a serious impact on her life, as required by AICRA. He reviewed plaintiff’s medical records and noted that they did contain some objective testing, but that the tests showed mild to moderate carpal tunnel syndrome and mild disc bulging, with no disc herniation and no other abnormalities. There was no spinal stenosis; the exit foramina were “patent bilaterally”; the facet joints and conus appeared normal; and the bone marrow maintained normal signal. As far as plaintiff’s activities went, she had missed no time from work, and there was nothing that she could no longer do since the accident. Some activities were a bit more complicated, such as bending, but, other than that, there was no major impact. Thus, she failed to meet either prong of the verbal threshold statute. The appellate panel recognized that plaintiff’s claim must be considered under AICRA, but noted that the analysis set forth under the prior law in Oswin still survived and dominated any discussion. Applying the Oswin standards in the subject case, the panel found that, even if it were to conclude that plaintiff met the first, objective prong and established the presence of a serious injury, the motion judge correctly held that there was no showing of serious impact sufficient to sustain plaintiff’s burden. She was able to function as before and maintained her daily schedule, with limited exceptions. The court felt that her reduced leisure activity, and even the inconvenience of having to wear wrist pads and braces, was insufficient to meet the serious impact test. 58. Mason v. Morris, A-2674-02T5 DDS No. 23-2-5336 Judges Wefing and Fuentes Dec. 15, 2003 No specific type; AICRA case. The 69-year-old plaintiff was stopped at an intersection, waiting to make a left turn, when his automobile was struck in the rear by a car driven by defendant. He claimed injuries to his lumbar spine as a result of the collision. According to the police report prepared by the officer who responded to the scene, defendant’s vehicle had damage to its front bumper and grille, and had to be towed away. Plaintiff’s car, on the other hand, received only minor scratches to its rear bumper. Plaintiff treated with an orthopedist for the lower back injuries he sustained in the accident. His physician certified that the accident caused “new herniations, protrusions and bulges” in plaintiff’s lumbar spine. In his deposition, plaintiff, a self-described “loner,” testified that his back bothered him when he walked, at times when he sat, and when he had sex. He claimed that the pain in his back also prevented him from caring for, and participating in activities with, his 10-year old grandson; previously, he testified that he would see his grandson once a week, and they would go bowling, shoot baskets and throw around a football or baseball. Plaintiff was a truck driver by occupation, but was not working at the time of the accident. He had earlier injured his knee and fractured his heel in an accident at work, was recovering from that incident, and had returned to work on a light duty basis when he suffered another work-related injury to his shoulder. He was out of work as a result of the shoulder injury at the time of the collision with defendant. Although he anticipated returning to his job as a truck driver, he was unable to do so. Plaintiff underwent surgery to his shoulder several weeks after the motor vehicle accident with defendant. He subsequently was unable to use his right arm to any real extent as a result of the shoulder injury, but there was no contention that the subject accident aggravated the shoulder problem or that the accident led to plaintiff’s not being able to return to work. The motion judge granted defendant’s motion for summary judgment, finding that plaintiff had not showed that he sustained a permanent injury in the accident which had a serious impact on his life; thus, he failed to surmount the verbal threshold. The appellate panel affirmed, noting that plaintiff’s inability to engage in the only activity he had enjoyed � playing various sports with his grandson � appeared to be related to his shoulder condition, as opposed to the condition of his lumbar spine. While the nature of the interaction between plaintiff and his grandson may have changed, the record did not indicate that the accident interfered with or interrupted the relationship. While there were periods when plaintiff would go for long stretches of time without seeing the boy, this was due to plaintiff’s daughter-in-law’s refusing to permit plaintiff to see the boy, and was unrelated to the accident. Thus, the motion judge correctly determined that plaintiff had failed to satisfy the verbal threshold. 59. Buitrago v. Amato, A-2575-02T5 DDS No. 23-2-5348 Judges Wells and Fisher Dec. 16, 2003 No specific type; AICRA case. The 25-year-old plaintiff was involved in a motor vehicle accident with defendant, and went to a local hospital that same day. X-rays taken of her neck and spine were negative for fractures. She received a diagnosis of cervical strain, and was treated and released. Five days after the accident, plaintiff sought treatment from her doctor, who instituted a course of conservative treatment. He also referred her to a neurologist, who ordered and MRI and an EMG. The former test revealed a straightening of the cervical spine suggestive of muscle spasm, but no disc herniations. The EMG revealed mild carpal tunnel syndrome. About three months later, plaintiff’s treatments had ended, and her doctor reported her condition as “significantly improved.” Later neurological tests failed to reveal continuing evidence of the carpal tunnel syndrome. In her deposition taken during the course of discovery, plaintiff complained that she got a lot of headaches and backaches; she had pain in her right wrist; and her left knee made noises and hurt in cold weather. She also had to move her neck frequently to keep it loose, or it hurt. All of these problems interfered with her ability to function at home and at work. She could not spend a lot of time vacuuming or mopping because, if she did, her back would hurt. She had difficulty lifting her three-year-old child and picking up heavy things, because they would sometimes fall from her hands. She also stated that she could no longer exercise because it would increase her pain. Finally, she asserted that she had trouble sleeping after the accident due to the persistent pain. The judge granted summary judgment in favor of the defendant. Although he found no doubt that the plaintiff might be experiencing some pain in the activities she described, she had not shown that her pain or resultant limitations had a serious impact on her life. She was not told by her doctors to take any time off from work as a result of her injuries, and her subjective complaints of headaches and proclivity to experiencing lower back pain, stiffness and weather sensitivity were not sufficient to meet the verbal threshold The appellate panel noted the continuing viability of Oswin and its progeny after the effective date of AICRA, and found no factual or legal basis on the present record to disagree with the motion judge in this case; the injuries here, and the resultant impact on plaintiff’s life simply did not give rise to a jury question as to the seriousness of her injury under AICRA. 60. Herekar v. Freeman, A-2477-02T5 DDS No. 23-2-5355 Judges Fall and Parrillo Dec. 17, 2003 No specific type; AICRA case. Plaintiff was traveling northbound when his vehicle was struck by an automobile that crossed over the double yellow line and began traveling southbound in the northbound lane. Plaintiff complained of neck and back pain at the scene, and was transported by ambulance to the emergency room of the hospital. There, X-rays of his spine showed no fractures. Plaintiff was treated with medication for his pain, and released. Thereafter, plaintiff sought treatment from a chiropractor and an orthopedic surgeon. An MRI examination of his lumbar spine, ordered by the latter physician, was performed about a month post-accident. It disclosed a posterior disc herniation at the L3-4 level, with compression on the spinal nerve roots and the thecal sac, as well as an anterior-superior oblique, nondisplaced fracture of the L4 vertebral body. Also a diagnostic X-ray about six weeks post-accident confirmed positive findings of the small fracture of the superior end plate of the L4 vertebral body, non-displaced. In connection with plaintiff’s lawsuit, and in accordance with AICRA, plaintiff’s treating physician executed a physician’s certification dated over three years post-accident. This stated that plaintiff suffered the lumbar fracture and disc herniation as a result of the subject motor vehicle accident, and that his lumbar injuries were permanent in nature. The doctor had also made the same findings in a narrative report about five months earlier, along with a conclusion that plaintiff would continue to have residual disc problems due to the injuries sustained in the automobile accident. Plaintiff saw another orthopedist at about the same time as plaintiff’s doctor’s narrative report referred to above. Upon examination, he found muscle spasms in the lumbar and cervical regions of plaintiff’s spine persisting almost three years after the accident. He diagnosed plaintiff as suffering from chronic post-traumatic cervical and lumbosacral sprain and strain; status post L4 vertebral body fracture; herniated nucleus pulposos L3-4; lumbar radiculitis; right upper extremity radiculitis; and cervical and lumbar myofascial pain syndrome � all causally related to the accident. The plaintiff indicated that his injuries gave him difficulty and severe pain in doing just about every activity in his life. His neck pain radiated into his shoulder, resulting in numbness in his hand, and he had shooting pain in his lower back on a daily basis. He was prevented from performing his job functions and even indicated that he cried at work from the pain. He was unable to bend properly, walk properly or lift any type of weight. Plaintiff’s orthopedist also noted that plaintiff had suffered certain lifestyle limitations as a result of the injuries sustained in the accident. He noted that plaintiff could not sit or stand comfortably for any length of time and had difficulty sleeping, bending, lifting weight greater than 20 pounds, reaching overhead and driving. Consequently, the doctor opined that plaintiff’s injuries had resulted in restrictions in plaintiff’s daily activities, which connoted a permanent disability. Defendant filed a motion seeking summary judgment for plaintiff’s failure to meet the requirements of the verbal threshold. While this motion was pending, however, the case was submitted to mandatory automobile negligence arbitration. The arbitrators concluded that defendant was 100 percent liable for the accident, and that plaintiff had suffered damages in the amount of $50,000. The award contained the usual language which noted that any party desiring to reject the award was required to file for a trial de novo within 30 days. Defendant’s summary judgment motion was argued in the Law Division two days after the arbitration award was entered. The judge concluded that the “serious impact” requirement of the Oswin test was not required under AICRA, but even if it were, it would be an issue for the trier of fact as to whether or not there was a serious impact on plaintiff’s life. Accordingly, the motion judge entered an order on that date, denying defendant’s motion. The defendant filed a trial de novo request more than 60 days after the entry of the arbitration award, and more than 30 days after the summary judgment motion had been argued. Because it was late, the request was rejected. About a week later, plaintiff filed a motion seeking to confirm the arbitration award. On that same day, defendant filed another motion seeking permission to file the late trial de novo request and relief from the 30-day filing requirement due to extraordinary circumstances. Defense counsel stated that his former legal assistant had been instructed to file the de novo request, and had assured him that she had done so when, in fact, she had not. Defendant also stressed that plaintiff would suffer no prejudice if the untimely filing were accepted. Nineteen days after filing for relief from the 30-day filing requirement, the defendant filed a second motion seeking summary judgment, again based on plaintiff’s alleged failure to surmount the verbal threshold. All of the motions were argued in the Law Division. The judge denied defendant’s request to file for a late trial de novo, ruling that the concept of extraordinary circumstances did not encompass carelessness or negligence by an attorney’s staff. He also denied defendant’s motion for summary judgment on the verbal threshold issue, noting the objective, medical evidence of lumbar disc herniation, with compression on the spinal nerve and thecal sac. The judge also noted the doctors’ causally relating plaintiff’s injuries and resultant disability to the accident. What was left was the serious impact issue. The judge felt that from plaintiff’s subjective viewpoint, the injuries certainly did have such an impact on his life. He therefore denied the motion and, in essence, granted plaintiff’s motion by confirming the arbitration award and entering judgment in favor of plaintiff in the amount of $50,000, plus prejudgment interest, in accordance with that award. The appellate panel affirmed on defendant’s appeal from the judge’s rulings. The panel found that defendant’s myriad claims essentially fell into two groups: those challenging the denial of her motion to file the late trial de novo, and those challenging the denial of the summary judgment motion. As to the former, the court cited several cases construing the extraordinary circumstances requirement and agreed with the motion judge’s holding that the defendant’s attorney’s mere carelessness or lack of proper diligence did not constitute the required extraordinary circumstances necessary to relax the 30-day rule. While the court was sympathetic to counsel’s difficulties following the departure of his legal assistant, his failure to effectively supervise his staff and ensure the timely filing of the de novo request could not be characterized as either exceptional or compelling enough to warrant such relief. This was particularly so since problems with this particular staff member were brought to counsel’s attention as early as nine days prior to the expiration of the original 30-day period; counsel even logged onto the staff member’s computer the very next day, and could have ascertained that the de novo request had not been filed as represented. Thus, the panel found that the motion judge properly rejected defendant’s application seeking relaxation of the rule. As to the defendant’s motion for summary judgment, the panel also agreed with the motion judge’s decision to deny same, since genuine issues of material fact existed as to both the permanency and seriousness of plaintiff’s injuries. As to the former issue, objective, medical evidence from two sources � the MRI and diagnostic X-ray one month after the accident, and the orthopedic examination finding muscle spasm three years post-accident � objectively established plaintiff’s injuries and their long duration. As to the seriousness of the injuries, the court noted plaintiff’s subjective complaints of pain and lifestyle impact on a daily basis in everything he did. The court also cited plaintiff’s orthopedist’s recitation of plaintiff’s lifestyle limitations, and his conclusion that the injuries from the accident had resulted in restrictions on plaintiff’s daily activities, which connoted a permanent disability. Thus, defendant’s motion for summary judgment was properly denied. 61. Markowitz v. Heim, A-3858-02T3 DDS No. 23-2-5508 Judges Wells and Fisher Dec. 26, 2003 No specific type; AICRA case. Three and one-half months prior to the accident with defendant, plaintiff was treated for chronic neck pain and had an MRI performed on her cervical spine. The MRI revealed disc degeneration at multiple levels, as well as disc protrusions. In the accident with defendant, plaintiff allegedly sustained further injuries to her neck, including cervical sprains and strains. The motion judge concluded that the nature of the plaintiff’s injuries did not meet the requirements of the amended verbal threshold statute codified in AICRA, and granted summary judgment to the defendant. As a result of her prior complaints and treatments, it was incumbent upon plaintiff, under Polk, to produce a comparative analysis of the injuries claimed to have been caused by the accident in question and those which pre-existed. Since she failed to produce such an analysis, she did not meet her burden under the statute. The appellate panel affirmed, agreeing with the motion judge that plaintiff failed to sustain her burden, and noting that the rule of Polk was still applicable under AICRA. The panel also agreed that the degenerative changes to plaintiff’s two cervical discs, and the claims of cervical sprains and strains allegedly caused by this motor vehicle accident, did not constitute a permanent injury within the intent of the verbal threshold statute. 62. Pagan v. American Honda Finance, A-2844-02T2 DDS No. 23-2-5439 Judges Newman and Fall Dec. 30, 2003 No specific type; AICRA case. The plaintiff was 43 years old at the time of the motor vehicle accident with defendant, which was caused by defendant’s making a left turn across plaintiff’s path of travel. According to the police report of the incident, plaintiff refused treatment at the scene of the accident. Afterward, however, he felt pain throughout his body, experienced muscle spasms in his shoulders, and a “pins and needles” sensation in his right foot. As a result of plaintiff’s symptoms, he missed two weeks and a day from his job as a driver and delivery person for a commercial door company. He sought treatment from Sall Myers Medical Associates, where an X-ray of his neck and right foot were taken. The neck X-ray revealed disc space narrowing at C5-6; the one taken of his right foot revealed no abnormalities. An orthopedic surgeon associated with Sall Myers diagnosed plaintiff with “hyperextension synovitis of the right first great toe with secondary medial hallux bursitis.” Plaintiff was also evaluated by a neurologist at Sall Myers, who diagnosed plaintiff with “flexion and extension injury of the cervical spine with fibrosis and fibromyositis; and probable tarsal tunnel syndrome.” Plaintiff’s treatment at Sall Myers consisted of physical exercise, manual therapy, hot packs, electrical stimulation, therapeutic activities and trigger point injections. Plaintiff was discharged from treatment with Sall Myers about three months after the accident. On the same date, he filed a physician’s certification of permanency pursuant to AICRA. His discharge report, dated 19 days later, stated that plaintiff was left, as a result of the accident, with both a significant and permanent loss of function in his neck, back and right foot. Still not feeling relief from his pain, plaintiff sought chiropractic treatment one year and seven months post-accident. The treatments consisted of spinal manipulation, galvanic therapy, mechanical vibration-oscillation therapy, and trigger point therapy. While undergoing these treatments, plaintiff was referred for MRI tests of his neck and back; these revealed small disc bulges at C5-6 and L4-5. Plaintiff was also referred to another doctor for a neurological evaluation. The doctor performed needle EMG tests of the bulging disc at L4-5, which objectively verified severe pathology of “bilateral L4-5 (R7L) active, subacute anterior root axonal radiculopathy with minimal proximal and (questionable) minimal distal reinnervation of the right side.” In the same report, the doctor explained the “reinnervation” process in medical detail. Plaintiff’s chiropractor discharged him about 13 months post-accident, concluding that he had reached the maximum chiropractic benefit. The discharge report stated that plaintiff’s injuries had created a “permanent partial disability along with a loss of significant function, especially to the cervical and lumbar spine and associated nerve roots” and that plaintiff’s “physical activity and manual dexterity” would be limited. About two years and four months after the accident, plaintiff sought treatment from a pain management consultant. This physician administered epidural injections on three separate occasions, spaced out over approximately one month’s time, to relieve plaintiff’s back pain. He reported that plaintiff’s symptoms had improved post-treatment, affording him a temporary respite from his pain. As a result, plaintiff was able to resume his normal activities and sleep normally at night. The pain management consultant’s diagnosis was that plaintiff was more vulnerable to development of disc herniations in his lumbar spine with minimal trauma, and that premature osteoarthritic changes would lead to spondylosis, which would further increase his lower back pain. He went on to say that “disc displacement” was a permanent injury, resulting in a decreased ability in plaintiff’s cervical and lumbar spine to absorb shock. Within a reasonable degree of medical certainty, he opined that plaintiff was likely to suffer from partial prolonged impairment of function with disability of the lumbar spine. The doctor was of the opinion, as well, that the injuries were causally related to the accident. As to the effect of these problems on his life, plaintiff submitted a certification in which he stated that, as a result of the accident, he was forced to change jobs because he could no longer lift the heavy commercial doors required in his position. He became employed thereafter as a truck driver, where he was not required to do any lifting; however, he stated that he could not work as much overtime in this new position. Plaintiff also indicated that he could no longer follow the active exercise regimen that he had followed since his discharge from the National Guard; he could not do push ups and sit ups three to four times per week; run two miles per day three times a week; or engage in any type of exercise program. He also asserted that his marital relations with his wife had significantly decreased. Insofar as plaintiff’s recreational activities were concerned, he indicated that he could no longer go dancing with his wife on the weekends and at family functions, which had been an activity that had brought him enjoyment previously. Other activities that had been substantially limited by his injuries included assisting with domestic chores, walking with his wife, sitting for long periods of time and playing with his grandchildren. The motion judge granted summary judgment to the defendant, concluding that plaintiff did not clear the first prong of the verbal threshold. He cited the pain management doctor’s medical reports, which indicated that, after three lumbar epidurals, plaintiff’s chief complaint � lower back pain � had improved. Plaintiff described his pain at that time as mild and stated that, after pain management therapy, he was able to resume his normal activities and sleep normally at night. The judge felt that this report negated any conclusion that plaintiff currently suffered from a serious and permanent injury, despite the prior diagnoses of “permanent injury” in the other medical reports. Further, the judge noted that, although the MRI reports did reveal small disc bulges, the doctors noted that the tests were “generally unremarkable.” Therefore, he concluded that they did not reflect serious or permanent injury to the cervical or lumbar areas. The Sall Myers orthopedic follow-up report indicated that the plaintiff had improved. Even though there was some mention of plaintiff’s being left with some moderate residual symptomology, the judge opined that such could hardly be characterized as the serious type of injury required by AICRA. With respect to the cervical spine, the judge noted that Sall Myers reported that plaintiff stated that his cervical injuries were quiescent about a month after the accident; while there was cervical spasm, there was fairly good range of motion. The judge did not even reach the issue of whether plaintiff’s injuries had a substantial impact upon his life. Plaintiff moved for reconsideration, including an additional report prepared by his pain management specialist about three years post-accident, which was intended to clarify his prior report of six months earlier. The doctor noted that plaintiff’s lumbar disc bulging had severe pathology that was profound enough to cause verified objective changes on the needle EMG tests, which he noted was currently the “gold standard of medicine in diagnosing radiculopathy.” The painful disc bulging, he opined, had permanently changed the internal structure and morphology of the intervertebral disc, which would progress and degenerate in the future, and cause plaintiff to likely have a return of his symptoms with physical activities or weather changes. Within a reasonable degree of medical certainty, plaintiff was “likely to suffer from permanent partial impairment of function to his lumbar spine.” The doctor opined that the injuries were serious in nature, and would require future pain management, physical therapy, chiropractic care or, eventually, a more definitive surgical intervention. All of the injuries were causally related to the subject automobile accident. The motion judge denied the reconsideration motion, using the standard under R. 4:50-1. He found that the pain management specialist had the benefit of all of the medical records and the benefit of his own treatment of plaintiff before the original summary judgment motion was argued; nothing had occurred between the initial report and the subsequent submission other than plaintiff’s seeking a report in more favorable language. There was no newly-discovered evidence. On appeal, the plaintiff challenged the motion judge’s use of the R. 4:50-1 standard of review on the reconsideration motion, and the continuing viability of the serious impact test under AICRA. He also argued that service of the physician’s certification under AICRA satisfied the lawsuit threshold such that the case should proceed, and that, in any event, his injuries otherwise met the verbal threshold requirements. The panel summarily rejected plaintiff’s argument about the judge’s standard of review. Further, the panel noted that the argument concerning the continued viability of Oswin‘s serious impact test and the argument regarding the sufficiency of the service of the physician’s certification to state a claim were both made to preserve those issues for appeal should the Supreme Court ultimately disagree with the current decisional case law on those issues. Addressing in more substance whether plaintiff’s proofs vaulted the verbal threshold, the court reviewed the AICRA amendment to the prior verbal threshold statute, and the continued viability of the Oswin two-prong test. It disagreed, however, with the trial judge’s conclusion that plaintiff had failed to present objective, credible medical evidence of a permanent injury to satisfy Oswin‘s first prong. The court noted that plaintiff had been in good health and very active prior to the accident. Subsequently, however, he experienced pain in his back and neck, and his injuries were confirmed in objective medical testing showing: loss of both cervical and lumbar lordosis on X-ray; cervical and lumbar muscle spasms; paraspinal muscle spasm from C3-7; severe paraspinal muscle spasm from L-1 to S-1; positive EMG/NCV findings confirming denervation of the paraspinals bilaterally and distal muscles on the right side; small posterior disc bulge at C5-6; small posterior disc bulge at L4-5; and losses of range of motion in both the cervical and lumbar spine. Of particular relevance to the court were the results of the EMG nerve conduction velocity studies performed about 11 months post-accident, which reported the presence of bilateral L4-5 active, subacute anterior root axonal radiculopathy, with minimal bilateral proximal and minimal distal reinnervation on the right side. This pathology was significant, the court found, because it reflected that denervation had occurred since reinnervation was present. While peripheral motor neuropathy was ruled out, the right-sided interior root axonal radiculopathy and left L5 sensory group axonopathy was present. The EMG nerve conduction velocity study also confirmed that the paramount spinal muscles were in spasm, all almost a year after the accident. The motion judge made no findings whatever with respect to these objective findings, which tied into the results of the evaluation conducted by the pain management consultant, who found that plaintiff suffered from a partial prolonged impairment of function with disability of the lumbar spine. To be sure, the panel noted that plaintiff did secure some relief from his symptoms after he received three separate epidural injections. These were given under monitored anesthesia care with fluoroscopic guidance. The court noted that they were not the proverbial “shot in the arm” that was commonly associated with an injection, but rather, they were more akin to surgical procedures. Notably, the pain management specialist’s assessment that plaintiff had a lumbosacral radiculopathy bilaterally at L4-5 was documented by the EMG velocity studies. Plaintiff’s lumbar spine no longer functioned normally, nor had it healed; and it was not likely to function normally in the future even with further medical treatment. The lumbar spine injury was causally related to the accident; since it was documented by objective, medical evidence, the panel held that it created a disputed issue of material fact sufficient to withstand summary judgment. At oral argument, the panel inquired whether counsel considered the record complete enough to address whether the serious impact prong of the Oswin test could be decided on the existing record. The parties agreed that the issue could be reached, and had been adequately briefed. Rather than remand, the panel exercised its original jurisdiction and addressed the issue. It also felt that remand would be pointless, because the record only supported one conclusion in the judges’ view, and that was that the extent of the substantial impact on plaintiff’s lifestyle was consistent with the pain and limitations emanating from his lumbar region. The court cited Natale v. Kisling, where a material decrease in marital relations, coupled with the inability to work overtime and significant lifestyle restrictions, reflected that the plaintiff’s injuries had seriously impacted her life. The court found that plaintiff’s limitations in this case paralleled those in Natale: his marital relations with his wife had greatly decreased; he was compelled to change jobs to eliminate any lifting, and his new position offered him less overtime; and domestic chores, walking with his wife, sitting for long periods of time, and playing with his grandchildren had all been curtailed. In addition, like in Natale, plaintiff’s recreational activities had been suspended: he could no longer participate in the exercise program that he had consistently followed. And his weekend dancing activities with his wife had been eliminated, as well as dancing at family functions. In short, the plaintiff’s work life, home life, recreational activities and social pursuits had all been materially affected by the injuries sustained in the automobile accident. The lifestyle plaintiff formerly led no longer existed for him. Therefore, the appellate panel was satisfied that the serious impact prong of the Oswin test has been met, as well as the objective prong, and the case was remanded for trial. 63. Johnson-Williams v. Parrish, A-3308-02T5 DDS No. 23-2-5452 Judges Parrillo and Hoens Dec. 31, 2003 No specific type; AICRA case. After the accident with defendant, plaintiff reported immediately to the emergency room, complaining of pain and injuries in her neck, lower back and both of her shoulders. X-rays taken at the hospital demonstrated degenerative changes in her neck and right shoulder, but also noted “inferior glenohumeral spurring” in her left shoulder. She was treated at the hospital, and released. A few days later, plaintiff followed up with her regular physician, and continued under his care thereafter; the focus of the treatment was plaintiff’s shoulder injuries. She was referred to a physical therapist, who noted that she had symptoms that included not only the left shoulder, but also complaints related to her left wrist. Seven months post-accident, EMG nerve conduction studies demonstrated that plaintiff had bilateral carpal tunnel syndrome. After a conservative course of treatment, she was referred to an orthopedist for evaluation. Two years post-accident, he had confirmed that plaintiff’s bilateral carpal tunnel syndrome arose from the subject motor vehicle accident. A year and two months later, he performed carpal release surgery on her left wrist. The medical records further demonstrated that plaintiff had been extensively treated for an injury prior to the subject accident. One year and three months prior, she fell on a wet floor at her place of employment and injured her right shoulder, right arm, left leg and left knee. Because she pursued a workers’ compensation claim, her injuries and her treatment for those injuries were well-documented. The focus of her compensation petition was on her right shoulder injury. MRI studies performed within a month of the work-related accident, and repeated one month thereafter, while of poor quality, were entirely directed toward a diagnosis of her right shoulder injury. While she had initially complained about injuries relating to her left leg and knee as well, those injuries were diagnosed as contusions, which quickly resolved without treatment. Plaintiff’s entire course of treatment thereafter was directed toward her right shoulder, arm and hand, with the principal focus being whether or not she had suffered a torn rotator cuff in her shoulder. A secondary aspect of her treatment and evaluation related to complaints she voiced about her right wrist, where carpal tunnel syndrome was first suspected. EMG and nerve conduction studies performed six months after the work-related accident revealed C6 radiculopathy on plaintiff’s right side, but found no evidence of the suspected carpal tunnel syndrome. A follow-up test, however, resulted in a diagnosis of carpal tunnel syndrome, but no surgery was suggested for plaintiff’s right wrist. Instead, there were abundant references in the medical record to the use of a splint on the wrist, designed to provide plaintiff relief from her symptoms. Much of the evaluation and treatment of plaintiff after her work-related accident was complicated by the fact that she was morbidly obese. As a result, certain tests were difficult or impossible to perform, and many of the diagnostic films obtained were of poor quality. Nevertheless, following treatment for the work injury, plaintiff’s doctors did clear her to return to work, first on light duty status, and thereafter without restrictions. She did return to work prior to the automobile accident with defendant. In granting the defendant’s motion for summary judgment, the judge reasoned that plaintiff had suffered injuries in the subject accident that amounted to exacerbations of her pre-existing injuries. Consistent with Polk, the judge noted that a comparative analysis was required, which plaintiff had not provided. On appeal, the plaintiff argued that the judge erred in dismissing her case for failure to meet the Polk requirements, since she had no permanent residuals from her prior, work-related accident, and was not contending that there was any aggravation of any prior injuries in the subject accident. Further, she argued that even if a comparative analysis was required, the objective tests and her doctors’ reports clearly demonstrated an exacerbation of the carpal tunnel syndrome condition which she may have previously had, as well as demonstrating new injuries to her wrist and shoulder. The appellate court was constrained to reverse the trial judge’s grant of summary judgment to the defense. It concluded that, while the injuries sustained in the prior work-related accident bore some similarity to, and, in a limited way, overlapped with the injuries plaintiff sustained in the subject automobile accident, there were significant distinguishing features that required a more complicated analysis of the applicability of the Polk decision than was undertaken by the motion judge. In great part, this arose from the severity of the prior work injuries and the attendant complicated course of diagnosis and treatment for those injuries. In lesser part, it related to plaintiff’s articulation of complaints both after the work accident and again following the motor vehicle accident. Carefully read, the panel found that the records of the injuries and treatment arising from plaintiff’s work-related accident were concerned with the effects of that accident on the right side of her body. The primary focus at that time was the effort to accurately diagnose her right shoulder, particularly whether she had torn her rotator cuff, all of which was complicated by the difficulty in performing the needed diagnostic tests. While there were, admittedly, references in the reports to a complaint from plaintiff about her left shoulder � notably a complaint to her family doctor, repeated to her orthopedist � there was no testing or follow-up with respect to the left shoulder. Further, while there was a brief reference to bilateral shoulder complaints in an orthopedic report dated about four months before the automobile accident, the reporting doctor nevertheless concerned himself only with plaintiff’s right shoulder complaints. He was unable to reach any conclusion, given the poor quality of the diagnostic films of the right shoulder, but opined that no surgery was indicated. Finally, there was a reference to nerve conduction studies relating to the right wrist, and a follow-up study relating to the left wrist seven months before the motor vehicle accident, which indicated carpal tunnel syndrome at that time � but no treatment or follow-up was suggested. Notwithstanding the passing references to left-side complaints arising from the work accident, the records of treatment from that time period made it plain that plaintiff’s injuries at the time did not include any injury to her left wrist. Rather, the left wrist injury arose only after the subject motor vehicle accident. To be sure, there was a reference in plaintiff’s medical records to an EMG study seven months pre-automobile accident, purportedly of her left wrist. The court found that reference puzzling, because the records included no indication that plaintiff had ever voiced complaints about her left wrist. There was, therefore, no explanation about why anyone would have performed that diagnostic procedure. Moreover, the report itself purported to be a repeat study, following up, apparently, on the earlier study of her right wrist. Indeed, it was her carpal tunnel complaint relating to her right wrist that led to her use of wrist splints, a form of treatment that apparently afforded her relief. No such recommendation as to her left wrist was ever made. Even if the pre-automobile accident EMG study accurately portrayed a mild carpal tunnel injury to plaintiff’s left wrist, however, the court found it analytically significant that no treatment of any kind was prescribed for that wrist, and plaintiff returned to work thereafter without any complaints about that wrist, and without any restrictions on her activities. For purposes of the Polk analysis, in light of the fact that there was neither a complaint of a symptom nor a diagnosis of an injury to her left wrist prior to the motor vehicle accident, and in light of her subsequent surgery on that wrist for carpal tunnel release, the panel thought it plain that, for purposes of summary judgment, plaintiff demonstrated a sufficient injury or exacerbation of an injury. The court felt that the same was true of plaintiff’s left-sided shoulder complaints. There were two passing references to complaints either bilaterally or in the left shoulder prior to the motor vehicle accident. In the absence of any diagnostic testing or treatment for those complaints, however, particularly in light of the extensive testing, evaluation and treatment of her right-sided shoulder complaints � and particularly in light of her return to work prior to the motor vehicle accident � the panel thought it plain that plaintiff demonstrated that she had produced, for summary judgment purposes, sufficient evidence of a qualifying injury to her left shoulder related to the subject motor vehicle accident to withstand summary judgment. 64. Nwabuoku v. Paglia, A-3469-02T3 DDS No. 23-2-5453 Judges Axelrad and Winkelstein Dec. 31, 2003 No specific type; AICRA case. The 60-year-old plaintiff sustained injuries in the automobile accident with defendant and underwent six months of chiropractic treatment. An MRI revealed a disc herniation, and there was no dispute that plaintiff met the first, objective prong of the Oswin test. As to the second, serious impact prong of the test, plaintiff contended that his ability to engage in his customary daily activities was restricted because of his injuries. He claimed, for example, that he could no longer play tennis or jog, and had difficulty with some household chores. He also contended that he voluntarily resigned from his employment as a security guard because of his injuries. The trial judge found that plaintiff’s proofs were insufficient to overcome the second prong of the verbal threshold as a matter of law, and granted summary judgment to the defendant. He noted that the limitations plaintiff experienced subsequent to the accident were insufficient to create an arguable issue as to whether they had a serious impact on his life. On appeal, the plaintiff urged the appellate court not to follow James v. Torres, which preserved the two-pronged test of Oswin and required a plaintiff to demonstrate that his or her injuries had had a serious impact upon his or her life. Plaintiff further argued that the motion judge did not give him his fair inferences in finding that the injuries he sustained in the automobile accident did not satisfy the serious impact requirement of the verbal threshold statute. The appellate panel was not persuaded by plaintiff’s arguments. It was satisfied that the matter was ripe for summary judgment and that the trial court applied the appropriate law. Therefore, the panel affirmed substantially for the reasons articulated by the trial judge. Plaintiff did not produce sufficient evidence for a jury to conclude that the injuries he sustained in the accident impacted on his ability to handle the demands of his job and necessitated his resignation.

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