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1. McNeally v. Perez, A-3832-02T2 DDS No. 23-2-8829 Judges Wefing, Fall and Payne Jan. 3, 2005 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arises out of an automobile accident on July 1, 2001, when plaintiff’s vehicle was rear-ended by defendant’s vehicle. The 43-year-old plaintiff went home after the accident, but shortly thereafter went to the emergency room. Medical Testing and Treatment: Emergency Room: Presented with complaints of neck pain, but no mention made of any back discomfort or involvement. Normal cervical X-ray. Diagnosed with cervical sprain and discharged with prescription for pain medication and instructions to follow up with his own doctor. Chiropractor: First visit on July 20, 2001, with complaints of neck and back pain. Cervical X-ray showed straightening of the lordotic curve, but no disc pathology. Lumbar X-ray showed similar straightening and a mild herniation at L5-S1. Treatment ended in March 2002. Radiology: MRI examination of cervical and lumbar spines in December 2001. Although both MRI reports noted an increase in lordosis, the cervical MRI showed no disc pathology. The report of the lumbar MRI noted degenerative disc changes, as well as the mild herniation at L5-S1. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: At the time of the accident, plaintiff was self-employed as a plumbing subcontractor, a job that required lifting, carrying and installing heavy items such as piping and equipment. He lost one and one-half weeks of work due to the injuries he sustained in the accident, but returned thereafter, working as he had before. He testified that it might take him a little longer to perform certain tasks post-accident, but he did not assert that there was anything job-related that he could no longer do. Current complaints: Continuous mild back pain that would subside after he had worked a few hours. Also described a sharp, stabbing pain in his lower back once or twice a week, that lasted one to five minutes, as well as intermittent pain in his shoulder. Other Lifestyle Impact: Plaintiff is unable to: � exercise as before on his home gym (weight machines, stair stepper) � play one-on-one basketball with his teenaged son, although he can play “shoot around” � bowl as frequently as he had in the past Plaintiff claims difficulty with: � snow shoveling Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Plaintiff failed to establish through objective medical evidence that the accident resulted in injuries that caused a serious impact on his life. Summary judgment granted to defendant. Appellate Court Determination(s): Affirmed. (Assuming the Oswin test is still applicable under AICRA.) Objective prong: plaintiff’s medical records do not indicate that there is any nerve root impingement associated with the mild disc herniation noted at L5-S1. Subjective prong: there is no evidence that plaintiff’s reduction in his exercise program is anything other than self-imposed. Minor pain and discomfort may have caused him to modify his activities to some extent; however the panel’s sympathy cannot justify a disregard of legislative will. 2. Burns v. DiBlasio, A-6794-02T5 DDS No. 23-2-8840 Judges Wefing, Fall and Payne Jan. 4, 2005 Result: Summary judgment in favor of defendant. Facts/Background: This case arises as a result of a head-on automobile accident on Dec. 26, 1999. The 23-year-old plaintiff was an unrestrained back-seat passenger in one of the vehicles, and her head struck the right side window on impact. She declined transport to the hospital. Medical Testing and Treatment: Chiropractor: First visit on Dec. 31, 1999, with complaints of headache, dizziness, neck pain radiating to her shoulders and arms, shoulder pain, right hand pain, low back pain radiating to the legs, and leg pain with numbness. Symptoms increased in intensity from date of accident until time of chiropractor’s report dated July 6, 2000. Chiropractor reported that plaintiff still suffered from intermittent symptoms which precluded performance of her normal activities. The doctor causally related to the accident: cervical IVD displacement; cervical disc herniations at C4-5 and C5-6; bilateral C6 nerve root irritation/radiculopathy; cervical sprain and strain; subluxation of multiple cervical vertebrae; post-traumatic headaches; post-concussion syndrome; lumbar IVD displacement; lumbar disc bulge at L3-4; lumbar sprain and strain; subluxation of multiple lumbar vertebrae; sciatica; chronic cervical acceleration/deceleration syndrome secondary to the motor vehicle accident; and chronic cervical ligamentous instability. Treatments at the rate of three and then two times per week continued for approximately one year. Radiology: March 22, 2000, Cervical MRI: focal disc herniations posteriorally at C4-5 and C5-6 with straightening of the cervical lordotic curve consistent with spasm. Nerve roots appeared patent. Lumbar MRI: diffuse bulging of the L3-4 disc with decreased hydration, together with straightening of the lordotic curve. Neurologist: Performed EMG which disclosed bilateral C6 nerve root irritation or “mild” radiculopathy. Lower extremity study was normal. Prior Injuries: Plaintiff had treated with another physician for shoulder tightness prior to the accident. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was employed as a pharmaceutical consultant assigned to one client at time of accident. She lost no time from work due to the accident. By the time of her deposition on Sept. 18, 2002, she was working as a sales representative for the pharmaceutical company Pfizer, calling on 10 to 12 physicians per day in a territory encompassing municipalities from Union to Piscataway and carrying an eight-to-ten pound case. Current complaints: While there are days that she is pain-free, she also experiences periods of a week or two when she is in significant pain, with sleep disturbances, at which time she returns to her chiropractor. She has not treated with any other physicians. Other Lifestyle Impact: Plaintiff denied that there was anything that she used to do that she is now unable to do. Plaintiff claims difficulty with: � lifting; � driving; � sitting; � sleeping; Plaintiff has modified: � her workout schedule, from 3 to 4 times per week to twice a week, doing treadmill, walking and weight training (dumbbells and machines); � the types of machines she now uses; � the amount of weight she now lifts Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): The trial judge also rejected plaintiff’s claim for unreimbursed medical expenses; such a claim is barred by Roig v. Kelsey and N.J.S.A. 39:6A-12. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to demonstrate a significant impact on her life, since she continued to work at a physically strenuous job (albeit with some difficulties) and to go to the gym. Appellate Court Determination(s): Affirmed. Plaintiff failed to demonstrate a nexus between her injuries from the accident and a resultant loss and disability that has had a serious impact on her life. 3. DelPizzo v. Testa, A-2436-03T5 DDS No. 23-2-8895 Judges Weissbard and Hoens Jan. 11, 2005 Facts/Background: This case arises out of an automobile accident on July 5, 2000. The 29-year-old plaintiff was examined at the scene by responding emergency personnel, but he declined transport to the hospital. Medical Testing and Treatment: Chiropractor: First visit on July 14, 2000, with complaints of pain in his neck and right shoulder. Dr. noted trapezius paravertebral spasm and sterno-cleidomastoid spasm on the right side, and positive findings from a cervical compression test. Treated through December 2000. Radiology: August 2000, Cervical MRI: disc bulges at C4-5 and C5-6, along with possible congenital cyst. August 2000, MRI of right shoulder: partial thickness tear of the supraspinatus tendon. Orthopedic surgeon: Treated for six months, beginning September 2000. At least one injection into the affected shoulder. Dr. recommended surgery, but plaintiff declined because he was fearful that the time needed for recovery would adversely affect his ability to support his family. Neurological Consult: September 2000, revealed normal results. The examining neurologist commented that plaintiff’s accident-related injuries were orthopedic, rather than neurological in nature. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was employed as manager at a pest control company at time of accident. He lost one and one-half weeks of work due to the injuries he sustained in the accident. Thereafter, he began to take steps to change his employment, establishing a delivery and painting business. Eventually, he was laid off from the pest control manager’s job, and worked full-time in his new business. Part of this work required him to lift and carry boxes, and paint commercial premises. By January 2003, he was no longer able to continue because his symptoms had grown worse, and closed his business. A month later, he started a residential and commercial pest control company, employment which he conceded was within his current physical capabilities. Other Lifestyle Impact: Plaintiff is unable to: � throw a ball � perform maintenance on his multi-family house � pick up his daughter �lift trash bags weighing more than thirty pounds � go fishing Plaintiff claims difficulty with: � helping with household chores Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. Objective prong of the verbal threshold test: plaintiff’s two bulging discs were insufficient to demonstrate an objective injury, and plaintiff’s failure to undergo shoulder surgery as recommended by his orthopedic surgeon transformed that condition into a self-inflicted injury for which he could have no recovery. Subjective prong of the verbal threshold test: plaintiff’s injuries were insufficient to meet the subjective prong of the verbal threshold test for serious injury. Appellate Court Determination(s): Reversed. (Assuming the Oswin test is still applicable under AICRA.) Objective prong: (a) plaintiff presented ample evidence that he sustained a qualifying injury in his torn rotator cuff (partial tear of supraspinatus tendon), which did not resolve after conservative treatment, which was still painful after injection therapy, and for which surgery was recommended. (b) Motion judge erred in concluding that plaintiff’s failure to follow through with the recommendation for surgery turned his condition into a self-inflicted injury for which recovery was entirely barred. His choice may affect or reduce the quantum of his damages, but does not bar recovery. Respecting mitigation in general, the Supreme Court has held that it is the defendant who bears the burden of proving that the refusal to avail oneself of a surgery is unreasonable, and that there is a causal link between plaintiff’s refusal and the extent of his damages. Subjective Prong: Motion judge’s view of the impact on plaintiff’s life was inappropriately overshadowed by her erroneous analysis of the evidence before her on the first prong. Appellate Division concludes there was sufficient evidence of a serious impact to survive summary judgment, where plaintiff’s injuries: � impacted his ability to pursue his chosen line of work; � limited his ability to maintain his multifamily home; � decreased his ability to interact with his child and assist his wife; and � deprived him, at least to some extent, of being able to participate in his fishing hobby. 4. Vasquez v. Gully, A-0130-03T2 DDS No. 23-2-8896 Judges Rodriguez and Hoens Jan. 11, 2005 Result: Summary judgment in favor of defendant. Facts/Background: This case arises as a result of an automobile accident on Aug. 1, 2001. The 22-year-old plaintiff was a front seat passenger in one of the vehicles. Following the accident, he was taken to the hospital by ambulance. Medical Testing and Treatment: Emergency room: X-rays were taken. Plaintiff was not admitted for treatment, but was released with a prescription for pain medication. Chiropractor: One visit only. Pain management specialist: Plaintiff treated for six months, and was discharged early in 2002. Radiology: Cervical MRI showed findings of a herniated disc at C3-4, impinging on the thecal sac; a disc herniation at C6-7; and a disc bulge at C5-6. Lumbar MRI included findings of disc herniations at L4-5 and L5-S1, impinging on the thecal sac; and bulging discs at L2-3 and L3-4. Another physician saw plaintiff in January 2003, and essentially concurred with the pain management specialist, opining that plaintiff had sustained herniated discs in his neck and back, which were caused by the accident, and which were permanent. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was employed as a radiology technician at the time of the accident. He complained of being plagued by pain, which affected his work. Other Lifestyle Impact: Plaintiff is no longer able to: � play soccer � run � lift weights Plaintiff claims difficulty with: � National Guard activities � driving � sitting � doing laundry Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, although plaintiff had presented sufficient objective, credible, medical evidence of a qualifying injury, he had failed to demonstrate that the injury had a serious impact on his life. The judge pointed out that plaintiff had given up soccer two summers before the accident, and that his allegations concerning an inability to lift weights and run were unsupported by the medical evidence. Moreover, there was no showing that any of the activities that plaintiff claimed were adversely affected as a result of the accident had been an important part of his life. Appellate Court Determination(s): Affirmed. Adhering to the dictates of Oswin for the purposes of this appeal, the panel agrees that plaintiff’s MRI studies sufficed as objective medical evidence of injury in satisfaction of the first prong, showing multiple herniated discs with evidence of thecal sac impingement. It also agrees with the motion judge’s conclusion that there was no evidence that: (1) plaintiff had to give up soccer as a result of the accident; (2) the other activities plaintiff complains were affected by the accident were important in his life; and (3) plaintiff’s employment and National Guard limitations were in any way correlated with any medical restrictions. 5. DeSimine v. Galezniak, A-5194-03T3 DDS No. 23-2-8942 Judges Rodriguez and Hoens Jan. 14, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of an automobile accident on Oct. 7, 2000, which occurred when plaintiff was attempting to make a right turn. As she slowed to do so, and while she had her turn signal on, defendant attempted to pass her by using the right-hand shoulder of the roadway, and the collision occurred. Plaintiff continued to a previously scheduled appointment, and then returned home. She then began to feel pain in her neck and head. Medical Testing and Treatment: Chiropractor: First visit three days after the accident, which was a previously scheduled appointment (see “prior injuries” below). Complaints of headaches; severe pain and stiffness in head and neck, extending into shoulders; upper back and shoulder pain and stiffness; and lower back pain and stiffness and spasm. Continued treating three times per week, as she had before the subject accident, until Oct. 24, 2001. Radiology: Cervical X-ray: evidence of mild degenerative changes. Lumbar X-ray: normal. March 2004 MRI of jaw: normal on left, but “nonreducing anteriorly displaced disc” on left. Neurologist: December 2000: complaints of pain in right chest, shoulder, and neck; worsening back pain. Neurologist recommended she continue with chiropractic treatments. January 2001: doctor noted that radicular symptoms had become quiescent; no pain in right shoulder; however, neck and lower back pain remained, although improving with chiropractic care; persistent spasm and tenderness in neck and back with 10 to 15 percent restricted range of motion; neurological examination same. Discharged plaintiff back to chiropractor, noting her improvement. Dentist: Eight months post-accident, plaintiff went to see a dentist for checkup and cleaning and because she had developed jaw pain. The dentist diagnosed a TMJ injury and referred plaintiff to an oral and maxillofacial surgeon. Oral surgeon: Plaintiff denied striking her head in the accident, and said jaw symptoms had developed gradually following the accident. Diagnosis: right-sided myofascial pain dysfunction, clicking, closed locking, clenching and myospasm. Treatment: Phase I TMJ therapy, consisting of fabrication and insertion of a TMJ craniomandibular orthopedic appliance, coupled with implementation of a soft diet and use of hot, moist compresses for pain. Second oral surgeon: Report dated April 20, 2004 (submitted over defendant’s objection in opposition to summary judgment motion): Saw plaintiff July 2003 for an impacted wisdom tooth and was told of her TMJ complaints; Phase I appliance not alleviating pain. Sent her for MRI (see #2 above) and recommended she continue Phase I therapy. Current Complaints: At time of deposition plaintiff stated that she: continued to use the appliance at night several times a month; occasionally had jaw pain, but did not take medication; was careful with what she ate and how she chewed. Prior Injuries: Lower back injury sustained in August 2000. Was treating with her chiropractor three times a week for this injury at the time of the subject accident. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed as photographer at time of accident. No indication of time lost as a result of the accident. Continued to work full-time, but claimed difficulty carrying her cameras and equipment. Other Lifestyle Impact: Plaintiff claims difficulty with: lifting weights, bending, pulling, working, running, exercise, sports activities, standing, and sleeping, due to neck and back pain. Alsp claims difficulty with eating and chewing, due to TMJ injury. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that: Objective prong: Cervical and lumbar MRIs showed no herniations or disc bulges to support plaintiff’s back and neck symptoms, only degenerative changes; Jaw MRI, although showing some displacement, not sufficient to qualify as evidence of a serious, permanent injury, where plaintiff responded to conservative treatment. Subjective prong: insufficient evidence where plaintiff: � continued to work full-time; � worked out at the gym daily, although modifying her routine; � stopped no activities; � had to be careful chewing and eating. Appellate Court Determination(s): Affirmed. (Assuming the Oswin test is still applicable under AICRA.) �No objective, credible, medical evidence of permanent neck or back injury; regardless of lifestyle limitations respecting ability to lift and carry weight, cause of action fails in absence of objective medical evidence. �While some objective medical evidence of TMJ injury, no evidence injury either serious or permanent; expert called for no more than conservative treatment, which had ended except for sporadic wearing of appliance; also no evidence of subjective impact where plaintiff has no more than occasional pain and had stopped treatment. 6. Stanziale v. Jaccarino, A-4333-03T5 DDS No. 23-2-8968 Judges Wecker and Graves Jan. 19, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: The plaintiff was a pedestrian when he was struck by defendant’s automobile on Nov. 12, 2002. He suffered a torn medial meniscus in his right knee and a medial collateral ligament injury. Medical Testing and Treatment: Orthopedic surgeon: Performed arthroscopic surgery involving “synovectomy major with partial medial meniscectomy” on Dec. 12, 2002; Report, based on last post-operative orthopedic evaluation on April 9, 2003, indicated continuing discomfort, persistent swelling, and plaintiff’s difficulty in climbing stairs; opined that injury was permanent, causally related to accident, and had serious impact on plaintiff’s life. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed as construction supervisor for a masonry repair firm at time of accident. Out of work thereafter for five months, until April 2003. Upon return, could not walk normally, or climb stairs as necessary to supervise workers. Other Lifestyle Impact: � Plaintiff unable to: take baths; walk properly; dance. � Plaintiff claims difficulty with: playing basketball or football weekly with grandchildren. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not met subjective prong of Oswin test. Appellate Court Determination(s): Reversed. Court concluded, without elaboration, that plaintiff presented sufficient evidence of a serious, permanent injury to withstand summary judgment. 7. Esposito v. Newsome, A-3865-03T3 DDS No. 23-2-8994 Judges Lintner and Yannotti Jan. 21, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of an automobile accident on Nov. 23, 1999, following which plaintiff was treated at the emergency room of a local medical center. Medical Testing and Treatment: Family Physician: On the day after the accident, plaintiff presented with complaints of neck, back and chest pain. Diagnosis: mild whiplash with trapezius spasm and low back sprain. Plaintiff referred to pain management specialist and orthopedist. Final diagnosis: chronic neck and back sprain, characterized as permanent injury. Orthopedist: Initial visit two weeks after accident. Diagnosis: cervical and lumbar radiculopathy. Referred to physical therapist. Doctor indicated plaintiff could work. Second visit Feb. 14, 2000. Range of motion 50 percent improved and strength reported 35 percent better. Normal neurovascular examination; no numbness; no instability; and decrease in pain. Doctor found that plaintiff had significantly benefited from physical therapy. Radiology: Cervical MRI on March 17, 2000: mild disc bulging at C5-6 with no evidence of focal disc herniation, cervical cord compression, or foraminal stenosis. Cervical spine otherwise unremarkable. Another physician: May 4, 2000, diagnosed cervical sprain with spasm of the right trapezius muscle and cervical radicular symptoms and chronic low back pain. Chiropractor: Plaintiff seen and treated 44 times between May 24 and Oct. 20, 2000, at Wellness Center, primarily by chiropractor. At conclusion of treatment, doctor diagnosed plaintiff with chronic neck pain associated with chronic cervical strain, muscle spasm, and myofascial trigger points complicated by C5-6 disc bulge. Also, chronic intermittent low back pain associated with chronic lumbar strain, muscle spasm, and myofascial trigger points complicated by L3-4 and L5-S1 disc bulges. Opined that plaintiff’s cervical injuries subjected her to advanced disc degeneration and spondylosis at adjacent levels in future, along with predisposition to accelerated arthritic changes, which would further limit her capacity to function normally. Prior Injuries: None Serious Impact on Plaintiff’s Life:: No issue. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. Appellate Court Determination(s): Affirmed. Although plaintiff’s injuries were alleged and described as permanent by her treating family doctor and chiropractor, and while the panel did not disparage the gravity of the injuries or plaintiff’s discomfort, the injuries were essentially soft tissue sprains and strains, and did not qualify as the serious type of injury intended by the Legislature for tort exemption. 8. Sharma v. Hutter, A-5345-03T2 DDS No. 23-2-8995 Judges Axelrad and Holston Jr. Jan. 21, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: On April 17, 2000, plaintiff was involved in a three-vehicle intersectional collision. She was stopped for a traffic light, was rear-ended, and her vehicle pushed forward into the vehicle ahead of her. Plaintiff was transported by ambulance to the hospital, where she was diagnosed as having a neck sprain. Medical Testing and Treatment: Physical therapy: 24 visits for complaints of sharp pain, limitations in bending forward at the waist, mild tenderness and guarding, loss of balance, impairment of muscle performance, sore neck, pain when sleeping, daily headaches and slight dizziness. Some mention of knee surgery, but unclear whether related to accident. Family physician: Treated for 18 months. Final diagnosis: cervical strain. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff claimed she was out of work for nine months as a result of her inability to work because of injuries sustained in the accident. Her physical therapy reports indicated that she advised the therapist of this fact, but there was no report from a medical doctor opining such causation. She submitted a claim for lost wages, supported by an affidavit from her employer. Other Lifestyle Impact: None. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Lost wage claim. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not produced objective medical evidence of a serious injury. Plaintiff’s motion for partial summary judgment on the lost wage claim also denied, and judge then affirmatively dismissed the claim. Appellate Court Determination(s): Affirmed as to plaintiff’s failure to vault the verbal threshold; reversed as to the judge’s dismissal of the lost wage claim. While the motion judge did not abuse his discretion in refusing to grant plaintiff partial summary judgment on the issue � declining to rule as a matter of law that she was entitled to her wage loss in view of her failure to produce a medical opinion corroborating her subjective statement and her employer’s affidavit � he erred in granting total summary judgment to defendant. Defendant only sought summary judgment on the verbal threshold issue and denial of plaintiff’s partial summary judgment motion on the economic loss issue. Such relief was granted, and the judge should not have turned his denial of plaintiff’s motion into an affirmative ruling in favor of the defense on the claim. He erred in applying the verbal threshold requirement of objective medical evidence to defeat plaintiff’s wage loss claim on summary judgment, and to deprive her of her day in court. 9. Burchett v. Armwood, A-4701-03T1 DDS No. 23-2-9134 Judges Coburn and Graves Feb. 3, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: Plaintiff did not request medical attention at the scene of the automobile accident with defendant on Jan. 27, 2001; however, later that day he drove himself to the hospital. Medical Testing and Treatment: Emergency room: Presented with complaints of being stiff all over and pain in right leg. Was discharged with instructions to elevate the leg, apply ice, take Tylenol for pain, and either see his own doctor within 24 hours or return to the hospital if his condition worsened. Chiropractor: Initial visit Feb. 8, 2001: heat treatments and stimulations for sore neck, back and right knee. Also complained of headache. Started treating three times per week; at some point reduced to two times, then once a week as he improved. Treat for approximately five months and was discharged. Radiology: X-rays of lumbar spine and right knee revealed no fractures, dislocations or osseous pathology. MRIs of lumbar and cervical spine and right knee on July 17 and 18, 2002 (after subsequent accident � see below). Knee MRI showed: (1) moderate-sized complex tear of the posterior horn of the medial meniscus with bucket-handle component; (2) small joint effusion without a small ganglion or popliteal cyst; and (3) normal lateral meniscus, cruciate and collateral ligaments. Lumbar MRI was normal. Prior Injuries: None. Subsequent Injuries: Involved in second automobile accident on April 24, 2002. Claimed he did not suffer further knee injury, but did go to an orthopedist about three weeks after this second accident, and that doctor reported that plaintiff presented with continued swelling and pain in his right knee. Had full range of motion, but discomfort on the extremes of flexion. Tenderness noted, but knee was stable. MRIs scheduled, and plaintiff given Vioxx. Knee improved, plaintiff noting pain with excessive activity and after work; rested and used heat packs for relief. Medial joint line tenderness and a “questionable McMurray sign” still noted. Orthopedist told plaintiff he would be a candidate for knee arthroscopy, but noted that, since he seemed to be functioning well, he recommended holding off on that, and told plaintiff to continue with his present regimen. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff, a police officer, lost two days of work as a result of the accident. Other Lifestyle Impact: Plaintiff only claims difficulty with jogging. Physician’s Certification: No issue Polk Analysis: Defense counsel noted that, while plaintiff’s orthopedist claimed that the second accident exacerbated plaintiff’s right knee injury, he failed to provide any comparative analysis of the injuries from the two separate accidents. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge agreeing with defense counsel that plaintiff had failed to produce the required comparative analysis of the injuries from his two automobile accidents. Appellate Court Determination(s): Affirmed. Comparative analysis of plaintiff’s condition pre- and post-accident required whenever previous injury to the same body part is involved. Also, plaintiff’s proofs of occasional discomfort and stiffness, and limitations on his jogging, do not amount to a serious or significant impact on his life. He is still able to perform his regular duties as a police officer, and did not suffer the loss of a bodily system or function, the hallmark of a serious injury. 10. Zaremba v. Lauriston, A-5705-03T5 DDS No. 23-2-9162 Judges Conley and Winkelstein Feb. 7, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arises out of an automobile accident on Sept. 30, 2000. Medical Testing and Treatment: Plaintiff saw a chiropractor and an orthopedist, but no details are given. Prior Injuries: None Serious Impact on Plaintiff’s Life: No details given. Physician’s Certification: Plaintiff filed her complaint within the statute of limitations, but, because she was still undergoing treatment for her injuries and had no final reports or notes from her treating physicians, and no physician’s certification as required by AICRA, she decided not to serve defendant with the complaint, and it was administratively dismissed for lack of prosecution on March 1, 2003. On June 29, 2001, plaintiff retained her current counsel, who made multiple attempts to obtain records from plaintiff’s two primary physicians over the next two and a half years. While it is unclear when counsel received the required physician’s certification from either of the doctors, defendant was not served with the complaint until Feb. 26, 2004, after which plaintiff moved to reinstate the complaint. Polk Analysis: No issue Miscellaneous Issue(s): Dismissal for lack of prosecution. Trial Court Determination(s): The trial judge denied plaintiff’s motion to reinstate, noting that plaintiff had not shown good cause for her failure to earlier serve the defendant. Moreover, she had served defendant with a complaint after her case had already been dismissed. Thus, the judge even questioned whether she had jurisdiction over a defendant served with an invalid complaint. Plaintiff moved unsuccessfully for reconsideration, the judge finding that plaintiff’s delay in serving defendant was not the sort of inadvertence usually claimed on such motions, but rather a concerted effort to not serve defendant promptly after filing her complaint in order to buy time to get the physician’s certification. She found that this not only did not constitute good cause, but appeared to be an improper attempt to make an “end run” around the statute of limitations in a willful disregard of the court rules. Appellate Court Determination(s): Reversed. The appellate panel noted that an application to reinstate a complaint that has been dismissed for lack of prosecution must be viewed with liberality. On the specific facts here, the panel found three reasons to reinstate the complaint: Almost immediately after being retained by plaintiff, counsel attempted to obtain the doctors’ notes in an effort to determine whether plaintiff’s injuries were serious enough to warrant filing suit. There was no evidence that defendant would be prejudiced by reinstatement. After the judge decided this case, the Supreme Court concluded, in Casinelli v. Manglapus, that a physician’s certification was neither a fundamental element of the AICRA cause of action, nor analogous to a pleading, and, therefore, that neither dismissal with prejudice nor without was compelled. 11. Ozbas v. Potere, A-1210-03T5 DDS No. 23-2-9188 Judges Reisner and Graves Feb. 9, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arises out of an intersectional accident plaintiff had with a pick-up truck on Jan. 5, 2000. The 47-year-old plaintiff � a native of Turkey who spoke broken English � was propelled both forward and upward on impact, and both knees hit the panel, with the right hitting harder than the left. His chest hit the wheel and his head hit the windshield. He denied any loss of consciousness, but did note immediate pain in his neck, mid-back right knee and chest. The police report confirmed that plaintiff’s vehicle had extensive front-end damage. Medical Testing and Treatment: Emergency room: Plaintiff was placed on a hardboard and put in a cervical collar, then transported by ambulance to a nearby hospital. X-rays of his cervical spine and chest were taken. He was released with instructions to use Motrin. Doctor No. 1: Six days post-accident, doctor reported that plaintiff was on medications for cervical sprain, left finger contusion and left knee contusion, and could not function well enough to work yet. Doctor prescribed additional medications, but plaintiff “still had problems.” Two visits total. Doctor No. 2: Feb.16, 2000, plaintiff presented with continued complaints of right knee pain, stiffness and pressure, but denied buckling, locking or giving way. He also complained of chest pain and soreness, especially on the right, and especially when he sneezed or coughed. Plaintiff had pain along the last digit of his middle finger, with mild swelling that he had noticed since the accident. His neck, mid- and lower back pain had improved, with only mild stiffness in those areas. March 10, 2000: doctor reported that an X-ray of plaintiff’s hand had been performed and there was an oral report of a fractured distal phalanx. He referred plaintiff to an orthopedist due to continued complaints of worsening right knee pain and swelling, plaintiff being unable to bend or squat, with occasional episodes of the knee giving way and locking. May 12, 2000: reported that plaintiff had difficulty kneeling and squatting, and a clicking sensation was noted in the knee. Pain in plaintiff’s left hand still noted. Prepared physician’s certification for purposes of lawsuit, noting, to a reasonable degree of medical probability, based on objective clinical and diagnostic findings, that knee injury caused by the accident was permanent, had not healed to function normally and would not heal to function normally with further medical treatment Orthopedist: Diagnosed (1) fracture of finger; and (2) post-traumatic chondromalacia patellae, right greater than left, with probable chondral fracture of the right knee with accompanying click. Recommended use of a stack splint for the finger. Opined that plaintiff would probably experience some degenerative joint disease in this area in the future. Noted that, as to knee, damage to patella articular surface might or might not be disclosed on an MRI, but it was there nonetheless “clinically and by area of complaint and mechanism of trauma.” Knee would require additional therapy, close kinetic chain exercises and phonophoresis. If these did not help, then arthroscopic surgery was indicated. May 31, 2000: Doctor noted finger healing, but some deformity present, with tenderness and swelling still noted, with mild extension lag and reduced flexion, and significant loss of motion. Plaintiff could not clasp his fingers to his palm. As to the knee, doctor felt it had not improved, was still symptomatic and that the clinical and MRI findings were irregular. Diagnostic operative arthroscopy recommended. June 19, 2000: surgery performed on knee, following which plaintiff increased his activity gradually with physical therapy to strengthen the knee and improve range of motion. May 20, 2002: plaintiff discharged with advice to continue home-strengthening and range of motion exercises for knee. Was told right knee would never function like the left, and that the injuries he sustained and subsequent surgery had caused permanent changes to the right knee. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff had been employed as a gas station attendant, but could no longer work on cars because of his inability to grasp tools. Other Lifestyle Impact: Plaintiff claimed disfigurement from his finger injury. Since he was unable to make a fist, he was precluded from grasping and gripping objects. He also experienced numbness and coldness in the finger. Plaintiff claimed difficulty with: � opening jars and bottles � sports (since he could not use his dominant hand, and also because of knee and back pain) � walking, standing and sitting for prolonged periods of time � shoveling snow � with respect to his knee injury, plaintiff experienced numbness and swelling in his legs, and buckling, clicking, popping and locking of the knee � difficulty bending and standing. Medications � both over the counter and prescription � taken on a daily basis, allowed plaintiff to function on a limited basis, but he was relegated to a sedentary existence. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to present sufficient evidence of a permanent injury as required by the verbal threshold and also failed to demonstrate that his injuries had a serious impact on his life. Appellate Court Determination(s): Reversed. Plaintiff provided sufficient evidence to raise genuine issues of material fact based on the findings of his primary physician and orthopedist, who supplied objective, credible, medical evidence of permanent injury to his middle finger and right knee. Moreover, a factfinder could conclude that the injuries have had a serious impact on plaintiff’s life, where he continues to experience pain on a daily basis, and, while he has some limited ability to function, his job duties and every day activities have been seriously compromised because of his injuries. Also, he was unable to engage in recreational activities he enjoyed, and which had been an important part of his life, including golf, walking, running, riding a bicycle and soccer. 12. Wang v. Livingston, A-3426-03T1 DDS No. 23-2-9203 Judges Conley and Winkelstein Feb. 10, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arises out of an accident on Dec. 20, 1999, which occurred when plaintiff, while stopped at a red light, was rear-ended by defendant’s vehicle. She had been in a prior accident over two and a half years earlier. Because the main issue in this case was whether plaintiff sustained new injuries in the subject accident and/or aggravated injuries sustained in the prior incident, the court discussed plaintiff’s prior injuries first. Medical Testing and Treatment: Psychologist: Saw plaintiff three days after subject accident. Complaints of significant physical pain related to “further injuries” as well as increase in anxiety and depression. Still had symptoms of depression including sleep disorder, irritability, memory and concentration problems, tearfulness, hopeless feelings, and anxiety symptoms such as heart palpitations, sweating, and tightness in chest. Diagnosis: adjustment disorder with mixed anxiety and depressed mood. Doctor testified that there was some exacerbation of plaintiff’s symptoms and her complaints of physical pain. Opined that subject accident increased the severity of plaintiff’s depression and anxiety, but attributed the cause of her adjustment disorder to both accidents, noting that there seemed to be a “vicious cycle” going on between plaintiff’s pain and emotional responses. He opined that the long-term prognosis was not good, as plaintiff had not made much progress, despite having been to “many different physicians” and physical therapists. He also noted that plaintiff’s ability to find part-time work was decreased after the subject accident because over the years, when her pain increased, her depression, anxiety and memory problems also seemed to increase. Pain management specialist: Psychologist referred plaintiff in 2001 due to continued pain, and plaintiff treated with specialist on numerous occasions from February 2000 through January 2002. Initial complaints depression, insomnia, dizziness, headaches, numbness radiating into left leg and right arm, as well as neck and low back pain. Diagnosis: cervical, trapezius and lumbar sprain and strain with myoligamentous injury, post-concussion syndrome, post-traumatic cephalgia and a herniated cervical disc. Plaintiff reported prior accident to pain management specialist but said she had no residual injuries. Because he had none of her prior records, he could make no determination as to which of plaintiff’s complaints came from the earlier accident as opposed to the current accident, except as she told him. Specialist read MRI reports (see below) and noted that stenosis is usually a chronic condition and could be caused by one event, multiple events, or normal aging. May 4, 2000: full range of motion in cervical spine. Trigger points of pain in lower back. Doctor diagnosed cervical, trapezius, and lumbar myofascial pain syndrome, post-concussion syndrome, post-traumatic cephalgia, cervical herniated discs, lumbar degenerative spine disease, confirmed by MRI and L5 lumbar radiculopathy as noted on EMG. Over time, the pain management specialist’s diagnosis changed. His final diagnosis was post-traumatic cephalgia, post-traumatic concussion syndrome, lumbar radiculopathy (EMG), small central disc herniations at L4-5 and C3-5 and a cervical radiculopathy. Doctor opined that plaintiff sustained permanent injury in the subject accident – lumbar radiculopathy, myofascial pain, and post-concussion syndrome. Radiology: 2000 cervical MRI showed diffuse degenerative changes exacerbated by mild bulging of discs at C3-4, C5-6, and C6-7, with small central herniation at C4-5 that was not causing nerve root compression. March 1, 2000, lumbosacral MRI showed bony degenerative changes combined with mildly bulging discs at L4-5 and L5-S1, causing borderline lateral recess and foraminal stenosis, but no focal disc herniation or nerve root compression. March 15, 2002, EMG showed chronic irritation of the L5 nerve roots. Prior Injuries: Prior accident on April 6, 1997. Starting two months after this accident, plaintiff received weekly treatments from her psychologist through December 1999. Initial complaints: seizures at night, pain “like needles” in her skull, dizziness, numbness, tingling in both legs, loss of balance, worsened hearing, impaired short term memory, difficulty concentrating, understanding what was said to her, and following spoken directions or maps. Plaintiff had difficulty with: her job, initiating and completing tasks, doing household chores, balancing checkbook and paying bills. Plaintiff claimed to have nightmares about the accident, mood swings and crying spells. She became socially withdrawn and was irritable and annoyed when she interacted with her children. She was also preoccupied by thoughts of being chronically disabled and had transient thoughts of suicide. October 1997: psychologist issued report noting plaintiff continued to experience emotional distress, depression and significant discomfort from the injuries she sustained in the accident, and was seriously limited in her vocational and recreational activities, and very frustrated by her disabilities. March 1998: Medical doctor evaluated plaintiff and reported to psychologist that plaintiff suffered from lumbosacral discogenic disease, lumbosacral sprain and strain, cervical spondylosis and decreased balance of unclear etiology. Psychologist noted that this gave him some sense that plaintiff’s psychological complaints had a physical basis. He recommended that the medical doctor prescribe the anti-depressant Zoloft. By June 1999: plaintiff’s symptoms included recurrent memories and nightmares of the accident, social withdrawal, muscular tension, irritability, sleep disorder, depression and anxiety symptoms, and memory and concentration problems. August 1999: weekly anxiety attacks, symptoms of depression, including fatigue, tearfulness, memory and concentration problems. Continued significant pain, intense in the lower back, but noted as improved in the neck. Hindered her in swimming, walking more than 20 minutes, and driving more than 15 minutes. Plaintiff referred to a psychiatrist, who prescribed additional medications, another antidepressant, and two for anxiety, one with a sleep aid component. Dec. 15, 1999: last visit before subject accident, plaintiff continued to complain of confusion and forgetfulness. Doctor noted that plaintiff had showed some improvement, but would relapse when she experienced increased pain. Serious Impact on Plaintiff’s Life: Plaintiff’s psychological problems impacted on her ability to socialize and interact with others, threatened her work future and financial security. Impact of cervical and lumbar problems not discussed. Physician’s Certification: No issue Polk Analysis: Main issue in case. Miscellaneous Issue(s): De bene esse depositions of plaintiff’s two physicians were taken prior to trial, and defendant did not object to the qualifications of either expert; however, on the adjourned trial date, defendant filed an “in limine” motion to preclude the testimony of both experts. The motion was, in effect, a renewal of defendant’s summary judgment motion, which had been previously denied. The defendant argued that the pain specialist was unable to relate plaintiff’s disabilities to the subject accident and the psychologist was unable to distinguish the effects of the first accident from the effects of the subject accident. Trial Court Determination(s): Initially, the trial court acknowledged that no basis existed to preclude the testimony of plaintiff’s experts, even if their testimony was not sufficient to vault plaintiff over the verbal threshold; however, since neither doctor was able to document that plaintiff’s injuries and disabilities were caused by the subject accident, or, pursuant to Polk, that they had been aggravated thereby, the judge precluded them from testifying, and summary judgment was granted to the defendant. Appellate Court Determination(s): Reversed. Defendant’s motion provided no basis to preclude the testimony of plaintiff’s expert witnesses. Moreover, defendant failed to give plaintiff the requisite 28-day notice before filing the summary judgment motion. Substantively, genuine issues of material fact existed precluding summary judgment. Plaintiff claimed that the subject accident caused cervical disc herniation and disc bulges, and lumbosacral disc herniation, radiculopathy in her low back confirmed by an EMG, resulting in numbness and pain on her right side, radiating down to her feet. In addition, she aggravated her pre-existing adjustment disorder with an increase in her mixed anxiety and depression, memory loss and cognitive problems. The record did not reflect any test or objective evidence after the first accident which suggested that plaintiff had sustained any permanent injury to her lower back. The pain management specialist’s diagnosis changed over time to include lumbar radiculopathy (confirmed by EMG), as well as a small central lumbar disc herniation, confirmed by MRI. He opined that plaintiff’s injuries from the subject accident were permanent. In fact, her back disorder became so severe subsequent to the second accident that she underwent a nerve block procedure � the injection of cortisone and Novocain into her lumbar spine to help manage her pain. This evidence, when combined with plaintiff’s deposition testimony, in which she explained that she never injured her lower back before the subject accident, created a sufficient question to withstand defendant’s summary judgment motion. The panel also addressed plaintiff’s proofs regarding her psychological problems and found them sufficient to satisfy the comparative analysis requirement. While plaintiff undoubtedly had serious psychological problems before the subject accident, her psychologist, who had been treating her for years, through both accidents, concluded that, nevertheless, the second accident increased her physical condition and symptoms, her anxiety, and thus, her professional future and finances. Her prognosis was poor. He compared plaintiff’s symptoms as they changed over time, and based on his clinical findings, concluded that because of plaintiff’s increased pain after the second accident, her psychological symptoms also increased. 13. Hogan v. Chu, A-5850-03T2 DDS No. 23-2-9237 Judges Kestin and Fuentes Feb. 14, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: The 34-year-old plaintiff’s vehicle was struck by defendant’s vehicle traveling at approximately 35 miles per hour. He was taken from the scene to the emergency room of a local hospital. Medical Testing and Treatment: Emergency room: EKG revealed no abnormalities. Plaintiff released the same day and told to contact his own physician for follow-up care. Family physician: One week post-accident, plaintiff presented with complaints of headaches and thoracic or mid-back pain. Plaintiff referred for physical therapy for back pain and given prescription for pain and anti-inflammatory medication. Radiology: One week post-accident: chest X-rays and a CT scan of plaintiff’s head were negative for any injuries. Four months post-accident, thoracic MRI normal. Cervical MRI one month later revealed mild spondylosis, degeneration of the disc and related bony structures. Physical therapy: Plaintiff received four treatments consisting of heat, electrical stimulation, exercise and ultrasound. Orthopedist: Two months post-accident orthopedist diagnosed: (1) post-traumatic thoracic sprain and strain and a “possible” disc injury; and (2) probable post-traumatic “cephalgia” (headaches). Recommended plaintiff continue with physical therapy and obtain an MRI if symptoms persisted. Chiropractor: Plaintiff began treatment five months post-accident and received a total of one hundred and eight chiropractic treatments over a period of 34 months. Another physician: Two and one-half years post-accident, plaintiff’s attorney referred him to another physician, who noted plaintiff’s complaints of persistent low back, midback and neck pain, rated at 4 out of 10 in severity. The doctor’s impressions were that plaintiff was suffering from chronic thoracic muscular strain and ligamentous sprain, chronic cervical and shoulder girdle muscular strain, chronic lumbar and pelvic muscular strain and imbalance, headache and facial pain. Recommended continued chiropractic treatments, pain medication and vitamins, and testing to rule out anemia or other blood disorders. If symptoms continued, trigger point injections to the affected spinal areas were to be considered. Six months later the doctor performed nerve conduction and electromyogram studies at C6 which revealed chronic radiculitis of both shoulders, worse on the right side. Pain management specialist: Three years post-accident, plaintiff received four thoracic trigger point injections over a three-month period, and an epidural steroid injection in that area of the spine, as well. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff lost no time from work as a result of the accident. Other Lifestyle Impact: Claims to be less physically active than before the accident; claims sexual relations with his wife have been negatively affected. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to present objective credible medical evidence showing he sustained a “permanent injury” as that phrase is defined in the verbal threshold statute. Appellate Court Determination(s): Affirmed. Objective medical evidence, including all of the numerous diagnostic tests performed over the three years after the accident, did not support plaintiff’s persistent subjective complaints. 14. Daddario v. Burns, A-2974-03T3 DDS No. 23-2-9333 Judges Payne and Fisher Feb. 23, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on May 8, 2000. Medical Testing and Treatment: Plaintiff claimed that she sustained a herniated disc at L5-S1, and a second bulging disc at L4-5, resulting in lower back pain that radiated into her legs and, intermittently, caused her left foot to “drag.” Defendant did not dispute that plaintiff had met the objective prong of the verbal threshold test. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed at time of accident as the assistant director of volunteer services at a hospital. After the accident, her treating doctor recommended that she stay out of work and she missed the equivalent of two weeks of work, mainly because of her visits to the doctor and therapist. Plaintiff remained fully capable of engaging in her usual and customary work activities. Other Lifestyle Impact: Plaintiff also claimed difficulty with: � helping care for her ailing father; � coaching her daughter’s softball team; � going camping, hiking and bicycling; � Skiing; � working on a tree farm at Christmas; � performing household chores; � walking normally; and � engaging in sexual relations with her husband. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to show a serious impact on her life. Appellate Court Determination(s): Affirmed. The panel noted that AICRA precluded actions for certain types of injuries formerly sufficient to pass through the verbal threshold, while retaining the two-prong approach established by the Supreme Court in Oswin v. Shaw. Since defendant did not dispute that plaintiff had met the objective prong of the verbal threshold test, and the trial judge had granted summary judgment primarily because plaintiff did not meet the subjective prong, this was the only aspect of the verbal threshold test that the appellate panel addressed. The panel mentioned that the motion judge had noted certain conflicts between plaintiff’s deposition testimony and the certification she submitted in opposition to summary judgment. To the extent that plaintiff’s certification offered evidence as to her condition prior to her deposition testimony, the panel agreed with the trial judge that the deposition testimony controlled; plaintiff could not create a disputed question of fact by contradicting her own testimony. Accordingly, the panel’s analysis of the factual contentions was based on plaintiff’s deposition, not her subsequent certification. Reviewing plaintiff’s asserted lifestyle impacts, the panel held that, whether considered individually or collectively, they were inadequate to meet the requirements of the second prong of the Oswin test. First, plaintiff produced no evidence to show that her inability to help her mother care for her ailing father had anything to do with the injuries she sustained in the accident. Second, plaintiff continued to act as head coach of her daughter’s baseball team, even after the accident, which involved standing for at least six innings for every game, two games per week, while coaching third base. She did not stop coaching because of the accident, but only ceased when her daughter stopped participating. Third, plaintiff and her family went camping four or five weekends per year. During these vacations, she would ride a bicycle and walk along trails. In August 2000, four months after the accident, plaintiff took a one-week vacation to Lake George, where she “walked a lot,” including the taking of a one-and-a-half to two-mile hike. She also got on a ride at a nearby amusement park that was akin to riding a bobsled. Fourth, plaintiff had stated that she and her family previously went on one ski trip per year prior to the accident. During the winter following the accident, plaintiff went on such a ski trip with her family, skiing on two of the four days of the trip, albeit on a beginner’s slope. Fifth, each Christmas prior to the accident, plaintiff and her family would go to her uncle’s farm to cut down a tree for the holiday. While there, they would do other work as well. After the accident, while plaintiff continued to make the trip, she did not participate in cutting or lifting trees. She did acknowledge in her deposition, however, that she remained able to drive a tractor around the farm after the accident, and had done so. Sixth, before the accident, plaintiff did the family cooking, cleaning and laundry. She did not stop doing these chores after the accident, but continued with the help of family members, and also with the help of a house cleaner who came to the house one day every other week. Seventh, despite plaintiff’s complaints of intermittent foot dragging and difficulty walking, she acknowledged, in response to the defendant’s motion for summary judgment, that she attended and danced at a wedding in April 2002, doing, among other dances, the “chicken dance.” Eighth, plaintiff indicated that, prior to the accident, she had engaged in sexual relations with her husband once or twice a week. After the accident, she stated this was reduced to once or twice a month, if that. In their certifications in opposition to summary judgment, both plaintiff and her husband stated that their sexual relations had not returned to their pre-accident frequency In summarizing the impact that her injuries had had on her life activities at her deposition in October, 2002 the panel noted that plaintiff only showed that she was still able to perform all of them, albeit with some discomfort and with a more limited frequency. Even in that regard, she also noted that things had improved since immediately following the accident. While plaintiff’s allegations indicated that her life was impacted and inconvenienced by the injuries claimed in this suit, the panel, without meaning to denigrate plaintiff’s complaints, her discomfort and her inconvenience, noted that the impacts were not the sort the Legislature had in mind as being actionable when it created the verbal threshold. When plaintiff opted for this type of insurance, she tacitly agreed that such a claim would not be maintainable. Summary judgment in favor of the defendant was affirmed. 15. Farr v. Bourgeois, A-5349-03T5 DDS No. 23-2-9345A Judges Cuff and Hoens Feb. 24, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: On July 24, 2002, the 75-year-old plaintiff was driving his car in a supermarket parking lot. Defendant, who had exited the parking lot and was driving on an adjoining road, mistook his accelerator for his brake pedal, and began to rapidly move forward. He struck an automobile on the roadway, and then steered sharply to the right to avoid contact with further vehicles in the road. As a result, his car jumped the curb, drove across an island, and re-entered the parking lot. Defendant collided with plaintiff’s vehicle as he was trying to exit the parking lot for a second time. The parties disputed whether plaintiff’s vehicle was being driven in the wrong direction in the parking lot when it was struck, or whether the force of the collision spun it around so that it was facing in the wrong direction. Plaintiff declined medical attention at the scene, but went to see a doctor later the same day. Medical Testing and Treatment: Family doctor: seen on the same day as the accident, told plaintiff to go to the hospital to be evaluated at its Sports Medicine and Orthopedic Rehabilitation Center. Hospital Rehabilitation Center: Dr. Kahn reported that plaintiff complained of neck and shoulder pain and ordered cervical MRIs. The MRIs revealed: central and left-sided disc protrusion at C4-5; disc dehydration and mild circumferential disc bulge at C5-6; and a congenital defect at C3-4. Plaintiff’s complaints continued, and he returned to the Center and saw Dr. Gleimer, who reviewed the MRI films. In addition to the disc protrusion/herniation at C4-5, he found central stenosis at that level, and found bulging at the C6-7 and T1-2 level, although these levels were not described in the radiologist’s report. He also noted degenerative changes with narrowing of the disc space at C5-6, and what appeared to be a partial fusion at the C3-4 level, which may have been “congenital or acquired.” Based on the MRI findings, Dr, Gleimer recommended that plaintiff undergo electrodiagnostic studies. These were performed on January 20, 2003, and revealed that plaintiff was suffering from: chronic C8 radiculopathy; C6 radiculitis, left worse than right, with mild ulnar neuropathy left elbow; mild carpal tunnel syndrome, right worse than left; mild systemic polyneuropathy from Diabetes Mellitus II. In February 2003, plaintiff was again seen by Dr. Gleimer, who opined that all of his symptoms were consistent with the objective testing; that all were consistent with the injuries sustained in the automobile accident; and that all were permanent in nature. The doctor discharged plaintiff from treatment, but suggested that he investigate methods of pain management, including epidural injections. By the time of his deposition, plaintiff was not actively treating for his conditions, and testified that he used over-the-counter medications for pain relief, albeit on a daily basis. Prior Injuries: Prior to the accident, plaintiff suffered from significant medical conditions, including diabetes. He had also undergone a quadruple heart bypass in 1996. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was retired at time of accident. Other Lifestyle Impact: Due to his significant medical history, plaintiff had lived a relatively sedentary lifestyle prior to the accident. He contended, however, that the injuries seriously affected his life, and prevented him from such activities as walking to the store, doing housework, and playing pool, an activity in which he had engaged a few times each month prior to the accident. In addition, plaintiff contended that, because of the pain in his left shoulder, he had difficulty sleeping in his bed, and had to rest, instead, in his recliner. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Defendant moved for summary judgment, arguing that plaintiff’s shoulder injury predated the subject accident, and that any injuries related to the subject accident were insufficient to meet the verbal threshold. The motion judge, in a tentative advance ruling, first concluded that plaintiff had failed to demonstrate a qualifying injury. At oral argument, however, she determined that, even assuming that the objective medical evidence showed that plaintiff had suffered a qualifying injury, there was insufficient evidence of any impact on plaintiff’s life to permit him to overcome the verbal threshold. Appellate Court Determination(s): Reversed. For purposes of this decision, although the appellate panel was aware that the Supreme Court had recently entertained argument in two matters ( DiProspero and Serrano) which considered the continuing validity of the two-prong Oswin test after the enactment of AICRA, the panel presumed the continued viability of the Oswin test in considering this matter. Applying the test, the panel was then compelled to conclude that the motion judge erred in her application of it, and that, properly applied, plaintiff’s complaint should never have been dismissed. The panel held that plaintiff had presented ample evidence of permanent injury through (1) his MRI studies, demonstrating bulging and herniated discs, and (2) the EMG tests, revealing C8 radiculopathy. Moreover, his treating doctor related these injuries to the accident and noted that they were permanent in nature. While it was true that some of plaintiff’s conditions were congenital or degenerative, and while it was also true that his complaints concerning his left shoulder apparently pre-dated the accident, the panel found that the objective medical evidence was sufficient to meet the first prong of Oswin. As for the second prong of Oswin, the panel noted plaintiff’s prior serious medical problems and his sedentary lifestyle, and held that the trial judge erred in not evaluating the subjective impact of the injuries from the subject accident in light of that sedentary lifestyle. In that context, the limitations on his ability to walk, to assist with household chores, and to engage in pool playing as one of the few recreational activities he had enjoyed, should have been tested against, and in accordance with, the frequency with which he had previously engaged in those activities. The transcript of the judge’s reasoning revealed that she erred in evaluating plaintiff’s asserted limitations by comparing them to activities that a healthy young adult would engage in, and not, as she should have, in light of this particular plaintiff’s age and circumstances. Contrary to the motion judge’s analysis, the appellate panel felt that plaintiff had presented the court with sufficient evidence from which to conclude that the impact on his life, subjectively, of the injuries sustained in the subject accident was sufficiently serious that the motion for summary judgment should have been denied. 16. Mick v. DeValcy, A-2505-03T5 DDS No. 23-2-9346 Judges Alley and Fuentes Feb. 24, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on June 8, 2000, which occurred when plaintiff was stopped at a red light, and was struck from behind by defendant’s car. The force of the collision, which plaintiff described as “major,” caused defendant’s air bag to deploy and caused plaintiff’s vehicle to go “sideways” into the car in front of her. Plaintiff complained of head and neck pain, was placed by emergency personnel on a “flat board,” and was transported to the hospital by ambulance. Medical Testing and Treatment: Emergency room: X-rays and a CT scan of plaintiff’s head did not reveal any abnormalities. She was released with instructions to consult her own physician if her problems persisted. Chiropractor: on the day following the accident, plaintiff saw her chiropractor, with whom she had regularly had previous manipulations. She complained of stiffness in her neck and pain in her mid and lower back, radiating down into her legs. She received daily chiropractic treatments in the form of ultrasound and heat packs for approximately two months. On Dec. 28, 2000, plaintiff resumed chiropractic treatments with another chiropractor, and continued treating for six months. Family physician: during the first two months following the accident, plaintiff also saw her family doctor, who prescribed pain and muscle relaxing medication. Neurologist: first visit on July 13, 2000. Doctor described plaintiff’s medical history, noting that she suffered from carpal tunnel syndrome in her right hand; he did not indicate the duration or cause of this injury. Performed electrodiagnostic tests and opined that plaintiff exhibited evidence of “bilateral lumbosacral radiculopathy” emanating from the L5-S1 spinal region. Clinical impression was lumbar pain secondary to the accident and post-traumatic syndrome with intermittent memory lapses. During her second round of chiropractic treatment, after nerve conduction and electromyographic tests, plaintiff was treated with trigger point injections and nerve blocks by another neurologist. He opined that plaintiff’s injuries were causally related to the subject accident. Objective testing: in addition to emergency room tests and electrodiagnostic tests performed by neurologist, plaintiff underwent a lumbar MRI on Sept. 13, 2000 which showed a disc bulge at L3-4 and L5-S1. A cervical MRI performed on Jan. 17, 2001 showed an abnormal straightening of the cervical curvature and a posterior disc bulge at C6-7. During her second round of chiropractic treatment, plaintiff underwent nerve conduction studies and electromyographic tests that revealed cervical radiculopathy at C5-6, carpal tunnel syndrome of both hands, and chronic cervical, dorsal and lumbar sprain and strain. Pain management specialist: referred by neurologist for consultation. In report dated Jan. 4, 2001 doctor noted that plaintiff had fractured her tail bone (coccyx) in a fall “several years ago.” Psychologist: based on plaintiff’s subjective complaints, a licensed psychologist conducted neuropsychological tests which indicated a number of cognitive deficits associated with the accident. Prior Injuries: Carpal tunnel syndrome in right hand of unknown cause and duration. Plaintiff fell down the steps of her home and fractured her coccyx some years before the subject accident. She was treated with an unspecified injection at the hospital, but did not receive any other type of treatment. Plaintiff claimed to have no pain associated with this injury prior to the subject automobile accident. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: Motion judge dismissed plaintiff’s complaint for failure to produce Polk analysis. Appellate Division agreed as to plaintiff’s carpal tunnel syndrome, but reversed as to her other injuries. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to provide a comparative medical analysis addressing how her pre-existing injuries may have been aggravated by the injuries she sustained in the subject accident. The judge noted that plaintiff’s first chiropractor treated her for back complaints and therefore felt that a comparative analysis was necessary because plaintiff had previously injured her tail bone. Appellate Court Determination(s): Reversed. The panel found that plaintiff had amassed considerable objective medical evidence attesting to the injuries she sustained in the automobile accident, that were wholly unrelated to her previously-fractured coccyx. In fact, there was nothing in the record to show that plaintiff had any medical treatment for the fractured coccyx at all; the record was silent as to the medical significance, if any, of that prior injury. Although plaintiff had received regular manipulations with her chiropractor before the subject accident, they were apparently unrelated to any specific prior injury. The panel agreed, however, with that portion of the motion judge’s determination that held that plaintiff was required to present a Polk comparative analysis concerning her pre-existing carpal tunnel syndrome. Because the matter was being remanded as to her other injuries, the appellate panel held that plaintiff should be afforded the opportunity to cure this defect by obtaining the required comparative analysis, according to a timeframe to be established by the trial judge. 17. Avgousti v. Price, A-4640-03T2 DDS No. 23-2-9453 Judges Cuff and Weissbard March 7, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of a chain collision on Feb. 4, 2001, in which the 63-year-old plaintiff’s vehicle was struck from behind by one defendant’s car which had, likewise, been struck from behind by the second defendant’s car. The latter defendant estimated she had been traveling 50 m.p.h. at the time of impact, and plaintiff’s car was “totaled.” Medical Testing and Treatment: Emergency room: Injuries diagnosed involving her neck, right shoulder, right scapula, right upper arm and right knee. Family physician: First visit two days post-accident, complaining of pain in neck, mid- and lower back, right knee and right shoulder, radiating down her right arm. Diagnosis: � post-traumatic cervical, thoracic and lumbosacral sprain and strain; � right knee contusion; � right shoulder sprain and strain; and � right cervical radiculitis. Prognosis guarded. Regimen of moist heat, intersegmented traction and electrical muscle stimulation was recommended, three times per week. No mention of past relevant medical history. Discharged on Sept. 6, 2001, with improved pain in neck and midback, but still daily lower back pain. Decreased range of motion in cervical and dorsolumbar spines, as well as palpable muscle spasms. Concluded accident had caused: � positive bulging discs at multiple levels through lumbar spine � positive cervical and lumbar spinal stenosis � chronic traumatic cervical, thoracic and lumbar sprain and strain with myofascitis � right knee sprain and strain with moderate contusions and edema � post-traumatic headaches � exacerbated cervical radiculopathy on the right � all injuries representing permanent partial disability with moderate loss of function in the cervical spine along with its associated nerve roots Radiology: (a) Feb. 26, 2001: X-rays showed degenerative changes at C5-6 and C6-7, disc space narrowing and hypertrophic change, as well as 2mm of spondylolisthesis at L4-5, also likely degenerative. Some spurring at neural foramina at C5-6 and C6-7 with protrusion into the foramen on the right at C5-6. Lumbar X-ray also demonstrated degenerative changes including disc space narrowing and end plate spurring which increased progressively to the L5-S1 level. Right knee X-ray also revealed degenerative changes. (b) April 23, 2001: Cervical MRI showed degenerative arthritis and degenerative disc disease at C4-5, C5-6 and C6-7, causing bilateral foraminal stenosis at all three levels. No protrusions or bulges. Mild reversal of normal cervical lordotic curve resulting from either positioning while filming, or muscle spasm. Same date: Lumbar MRI showed degenerative arthritis and disc disease from L2-3 down through L5-S1, causing moderate central and bilateral foraminal stenosis at L2-3, minimal central and bilateral foraminal stenosis at L3-4 and L4-5, and left foraminal stenosis at L5-S1. Diffuse broad-based bulging of L2-3 down to and including the L5-S1 disc, with no focal protrusions. (c) July 19, 2001: MRI of right knee showed only a suggestion of some patellar chrondromalacia along posterior aspect. Physical medicine and rehabilitation specialist: April 30, 2001. Physical examination of upper and lower extremities revealed decreased sensation to right C6-7 level. Positive Tinel’s sign bilaterally; otherwise normal sensory exam. Decreased strength noted, secondary to pain. Cervical evaluation: tenderness to touch, with palpable muscle spasm throughout musculature. 75 percent restricted range of motion. Positive cervical compression test. Taut, palpable muscle bands in trapezius muscles. Thoracic evaluation: tenderness, but no deformity with forward bending. Lumbosacral evaluation: tenderness to touch, palpable muscle spasm throughout. 65 percent restricted range of motion. Negative straight leg raising sign on both sides. Right knee: tenderness with mild edema to the medial and lateral joint lines. Positive McMurray’s sign. Diagnosis: post-traumatic cervical, thoracic, and lumbosacral sprain and strain with muscle spasm; possible cervical radiculopathy; and internal derangement of right knee. Injuries related to accident. Chiropractic treatment recommended. Prior Injuries: Another motor vehicle accident on Jan. 20, 1995, resulting in similar injuries for which she also was treated by same family physician. His report of that accident indicated complaints of headaches, pain, numbness down all extremities, and severe back pain and stiffness. EMG and nerve conduction studies showed an acute C5-6 radiculopathy on the left side, as well as L5-S1 radiculopathy on the right side. A cervical MRI showed degenerative disc changes at C5-6 and C6-7 with disc bulging at both levels and large posterior osteophytes at C5-6. Diagnosis was post-traumatic cervical, thoracic and lumbar sprain and strain, cervical disc bulges, radiculopathy and myofascitis. Doctor opined that plaintiff suffered a permanent partial disability with loss of function in the cervical, thoracic and dorsal spines associated with nerve roots, and he did not expect a more permanent and eventful recovery in the foreseeable future. Plaintiff, however, claimed to have fully recovered from the prior accident with no physical limitations in the years prior to the subject accident. Serious Impact on Plaintiff’s Life: Details not discussed. Physician’s Certification: No issue Polk Analysis: Not raised by motion judge, but found to constitute another reason to justify dismissal of plaintiff’s case by appellate panel, which asserted that, “This case cried out for a Polk . . . comparative analysis.” Injuries almost identical in two accidents, and, despite plaintiff’s subjective claim that her prior injuries had resolved, a comparative analysis was called for. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, although she met the second prong of the Oswin test, she failed the first. Appellate Court Determination(s): Affirmed. Plaintiff failed to produce sufficient objective medical evidence of injury where: X-ray and MRI report on disc bulges and resulting foraminal stenosis made clear cause was degenerative disc disease. In the face of the radiologists’ findings and conclusions, the appellate panel does not find family physician’s contrary statement on causation, without explanation or analysis, sufficient to provide the necessary connection. While spasm was present upon discharge from family physician some seven months post-accident, this is not a sufficiently long enough time to show “persistent existence of spasm” as required to satisfy verbal threshold. Right knee injury not even mentioned in doctor’s recitation of permanent disability. Although not mentioned by motion judge, plaintiff failed to provide Polk comparative analysis. 18. Ranallo v. Allstate Ins. Co., A-1457-03T5 DDS No. 23-2-9515 Judges Newman, Coleman and Holston Jr. March 11, 2005 Result: Order dismissing plaintiffs’ complaint affirmed. Facts/Background: N.J.S.A. 39:6A-23 requires all insurers to provide a copy of the N.J. Auto Insurance Buyer’s Guide to buyers, explaining the various coverage options. The Commissioner promulgated regulations describing the required form of the Guide, including a model. Defendant Allstate provided plaintiff with a Buyer’s Guide identical to the model; and plaintiffs chose the verbal threshold option, which then applied when they had the subject accident. Notwithstanding a warning in the Guide which advised the buyers that the insurer would not be liable for the buyers’ choice of option, plaintiffs faulted the Guide they received in two respects: (1) that it failed to inform them that a physician’s certification was necessary to establish permanent injury; and (2) that they had the burden to prove that the injury had a serious impact upon their lives as required in James v. Torres. Plaintiffs asserted that Allstate’s failure to advise them of the additional criteria amounted to consumer fraud. They sought: (1) amendment of their Buyer’s Guide, and all Buyer’s Guides, to include the physician’s certification requirement and the James standard; and (2) reformation of their policy to the no limitation on lawsuit option; and (3) a court order permitting all insureds who selected the limitation on lawsuit option from March 22, 1999 through the present an opportunity to select the no limitation on lawsuit option. On Aug. 4, 2003, the Department of Banking and Insurance proposed an amendment to the model Buyer’s Guide form due to the enactment of the 2003 Auto Reform Legislation. The Department invited public comment, and the revision was completed on Feb. 20, 2004. The new Guide did advise potential buyers of the James standard. Defendants filed motions to dismiss the complaint for failure to state a claim upon which relief could be granted. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Main issue one of policy reformation. Plaintiffs contended that the Commissioner of Insurance did not revise the Buyer’s Guide distributed to all insureds to include the need for a physician’s certification and the holding of James v. Torres that a plaintiff must prove that his or her injuries had a serious impact on his or her life. James was decided after plaintiffs’ selection of the verbal threshold and their respective accidents. Nonetheless, they contended that they should be entitled to remedial relief and afforded the opportunity to pay the increased premium and select the no threshold option subsequent to their accidents. Trial Court Determination(s): The trial judge granted defendants’ motions, concluding that plaintiffs’ selection of the verbal threshold option on the coverage selection form gave Allstate immunity pursuant to N.J.S.A. 17:28-1.9(a). There was no exception to the immunity because the record did not indicate that Allstate’s actions were willful, wanton or grossly negligent; rather, they were in conformity with the guidelines as set forth by the Commissioner in the Administrative Code. The judge also found that plaintiffs were not entitled to reformation because they failed to set forth any facts indicating fraud or unconscionable conduct by Allstate. The trial judge found that the language in plaintiffs’ Buyer’s Guide � requiring them to establish permanent injury within a reasonable degree of medical probability � was adequate to enable plaintiffs to make an intelligent choice. Their assertion that the James standard should have been included was flawed because the insurance was obtained well before this decision was ever rendered. The Consumer Fraud Act claim was also dismissed because Allstate’s compliance with the language mandated by the Commissioner was not an unlawful practice. As to plaintiffs’ claims against the Commissioner, the trial judge concluded that the statute passed constitutional muster, and therefore the Buyer’s Guide did not deprive citizens of their constitutional rights. Further, the court found no corrupt, arbitrary or illegal conduct by the Department in developing the form and content of the Buyer’s Guide to justify judicial intervention to regulate its language. The judge observed that he did not have the authority to compel adoption of specific language because it involved the Commissioner’s administrative discretion. The judge also dismissed a sec. 1983 civil rights claim against the Commissioner predicated on an alleged lack of adequate notice and access to the courts. Appellate Court Determination(s): Affirmed. The panel elaborated on the trial judge’s conclusions, rejecting plaintiffs’ contentions that: (1) Allstate’s failure to include the serious impact requirement in its Guide, rather than being incomplete information, amount to a material misstatement of fact, giving rise to a common law fraud claim, or a claim under the CFA; or (2) alternatively, even if the misrepresentation were innocent, plaintiffs would be entitled to reformation under the doctrine of mutual mistake of fact; and (3) the immunity statute did not extend to claims for reformation, but was limited to claims for damages; or (4) if the immunity did extend to reformation claims, the plaintiffs would amend their pleading to invoke the exception to the legislative immunity on charges of willful, wanton or gross negligence. As to the immunity arguments, the panel cited MacKenzie v. N.J. Auto Full Ins. Underwriting Assn. to defeat plaintiffs’ arguments. The panel also rejected plaintiff’s assertion that MacKenzie should be overruled because it impermissibly overruled the Supreme Court’s decision in Weinisch v. Sawyer, distinguishing the Weinisch case in their rejection. Even though satisfied that Allstate was immune from an action for reformation of its policy based on plaintiffs’ election of the verbal threshold option with its reduced premium, the appellate panel noted that it was also satisfied that plaintiffs would not be entitled to reformation on equitable grounds. Plaintiffs failed to set forth the facts to establish a mutual mistake by clear and convincing evidence; nor did they establish a unilateral mistake caused by Allstate’s fraud or unconscionable conduct. Reiterating the findings of the trial judge, the panel also discussed plaintiffs’ meritless claims against the Commissioner, citing prior cases which had held that the regulations implementing the Buyer’s Guide comported sufficiently with the legislative language to constitute a valid exercise of the Commissioner’s regulatory authority. Moreover, the court had held that it could not micromanage any administrative agency, and that the agencies were afforded wide discretion in determining how best to approach legislatively assigned tasks within their own expertise. 19. Valentino v. Jeiger, A-4404-03T2 DDS No. 23-2-9581 Judges Rodriguez and Hoens March 17, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of a series of events on Oct. 28, 2001. Plaintiff was driving his pick-up truck in the left lane approaching an intersection, and was cut off by another vehicle, which left the scene. In an effort to avoid a collision with that vehicle, plaintiff pulled into the center lane, where he struck another vehicle in the rear. Plaintiff’s air bag then deployed, and he had to stop his truck in the roadway. Although plaintiff had not been injured to that point, defendant struck the truck from the rear as plaintiff was alighting, propelling it into him and causing him to fall forward onto his face on the pavement. Medical Testing and Treatment: At the scene: plaintiff was treated for a cut lip, but declined further medical attention at that time. Emergency room: later the same day, plaintiff presented himself at the local hospital, where the doctor noted tenderness and swelling in his scalp, swelling and redness on his forehead, and edema in his nasal mucous membrane. A CT scan of plaintiff’s head was normal, and the doctor determined that plaintiff had not suffered a serious head injury, although his final diagnosis also listed unspecified “head trauma.” Ear, Nose & Throat doctor: day after accident, doctor noted that plaintiff had a deviated nasal septum on the left side. Significant because plaintiff had sought treatment at the same medical office one year earlier for deviated septum, but a CT scan showed it on the right side. Radiology: December 2001, nasal CT scan identified a “slight” deviation of nasal septum towards the right. Doctor opined that the 2001 CT scan demonstrated a shift of plaintiff’s septum to the left. Surgery: Jan. 16, 2002, doctor performed a surgical procedure in which he cleared plaintiff’s left sinus and reconstructed his nasal septum. Thereafter, plaintiff developed scar tissue, and underwent further corrective surgery to address that condition. Prior Injuries: None Serious Impact on Plaintiff’s Life: No discussion. Physician’s Certification: No issue Polk Analysis: Summary judgment granted, in part, because plaintiff failed to provide comparative analysis of post-accident deviated septum and prior deviated septum condition. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge noting that (1) plaintiff’s doctor failed to opine that his condition was permanent; and (2) plaintiff had failed to provide a comparative analysis to distinguish between the injury from the subject accident and the prior deviated septum injury. Plaintiff moved for reconsideration, stating that he had recently resumed treatment for his deviated septum and was scheduled to undergo another surgery. Thus, he argued that the first motion for summary judgment was premature. He also argued that his deviated septum qualified as a “displaced fracture” such that the Oswin analysis was inapplicable. The judge denied the motion. Appellate Court Determination(s): Affirmed. First, the panel rejected plaintiff’s assertion that the defendant’s summary judgment motion was premature, since, by the time of the motion: (1) the discovery end date, already extended, had passed; (2) the matter had already been arbitrated; and (3) the initial trial date had been adjourned. Exceptional circumstances would have had to have been demonstrated in order to again extend discovery. There was nothing in the record to indicate that further treatment for the condition would have altered the verbal threshold analysis. Second, the panel concurred with the motion judge that a deviated nasal septum was not a displaced fracture, and not an injury sufficient to meet the verbal threshold. A fracture, for purposes of the verbal threshold, must involve a broken bone, and a deviated septum, which involves only cartilage, cannot therefore meet that definition. Finally, the panel rejects plaintiff’s arguments that his doctor’s reports and records sufficed under the circumstances to meet the Polk requirement. Although the two injuries were mentioned, the doctor did not make the required analysis comparing the pre-existing condition with the injury alleged to have been caused by the subject accident. 20. Zambetti v. Cardi, A-4443-03T DDS No. 23-2-9582 Judges Fall and Payne March 17, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of an automobile accident on May 4, 2001, which occurred when the 46-year-old plaintiff’s car was rear-ended. Plaintiff was five feet, three inches tall and weighed 178 pounds. She complained of an immediate onset of pain in the arms, shoulders, neck, hips and low back. She declined an ambulance, and did not seek emergency room treatment immediately following the accident. On the following day, a Saturday, she went to the emergency room, but after a period of waiting, chose to leave without being seen. Medical Testing and Treatment: Family physician, Dr. Getson (D.O.): Four days post-accident, went to see doctor who had treated her previously for six months following another automobile accident in 1995, for which she received compensation. Record contains short reports of office visits on 6/6/01 and 8/22/01, a more extensive report on discharge 6/11/02, and a physician’s certification dated 7/3/02. A report of an office visit on 11/3/02 and an additional report dated 12/9/03 addressing plaintiff’s prior 1995 accident also were in the record. There is no record of any additional consultations with the D.O. Final diagnosis on discharge 6/11/02 included post-traumatic cervical, thoracic and lumbar sprain and strain, and myofascial injury; EMG-confirmed cervical and lumbar radiculopathy at C5-6 and L5-S1; post-traumatic thoracic outlet syndrome of the left upper extremity; and a disc herniation at L5-S1. No cervical herniation was noted. The cervical and thoracic conditions were all reported to be “improved,” whereas there was no such designation associated with the lumbar radiculopathy, which was noted to be “permanent and persistent.” On the office visit on 11/3/03, doctor reported that plaintiff complained of a “grinding” pain in her lower back, increasing in severity. Contrary to his prior report, the doctor noted that the 5/11/01 lumbar MRI had shown a left-sided herniation at L5-S1. He also stated that, by this time, plaintiff had undergone unspecified injections by a pain management specialist, with some positive result, and that additional injections might be advised. He also indicated that plaintiff’s back condition “might” ultimately require surgical intervention; however, no referral to an orthopedist was ever made. Final report dated 12/9/03: addressed plaintiff’s prior injury on 2/14/95, acknowledging that she had sustained cervical and lumbar sprain and strain at that time. However, he noted that a lumbar MRI was normal. Thus, he attributed plaintiff’s current herniation at L5-S1 to the subject accident. He also attributed her cervical “disc pathology” to the present accident, noting that her symptoms in 1995 had not been sufficient to require diagnostic testing. Physical therapy: record reflects indirectly that family physician provided physical therapy through personnel in his office at first on a three-times-per-week basis, reducing to twice-a-week, then once-a-week until some time after the insurance benefits were terminated in October 2001. No records of the therapy provided, but it was noted that plaintiff took the muscle relaxant Skelaxin as necessary. Radiology: May 11, 2001, lumbar MRI demonstrated a “paracentroinferior subligamentous disc herniation at L5-S1.” Cervical MRI showed spondylosis and a right-sided herniation at C5-6, reversal of the cervical lordotic curve, and a disc bulge at C3-4 with spondylosis at the C4-5 and C6-7 levels. Electrodiagnostic testing in June 2001 revealed findings consistent with radiculopathy at C5-6 and L5-S1. Pain management specialist: unspecified injections, reported to have had “some positive result” by primary care physician. Dr. Brooks (plaintiff’s expert): Wrote to plaintiff’s attorney 5/12/02, reading lumbar MRI performed on 5/11/01 as demonstrative of the following: � chronic and pre-existing degenerative changes present at L5-S1, representing a process which would predate and be unassociated with the traumatic event in question; � superimposed upon chronic disc degeneration is a shallow central disc herniation at L5-S1, which can be associated with the accident; � no findings associated with myelopathy or radiculopathy since no compression of the spinal cord or nerve roots is present on the examination. The EMG findings to which Dr. Getson made reference were not included in the record, and do not appear to have been re-interpreted by Dr. Brooks, as was the lumbar MRI. Current Complaints: At time of deposition on 5/19/03, approximately two years post-accident, plaintiff’s complaints related primarily to her back; her neck and shoulder injuries had substantially resolved. Her back pain was intermittent, sometimes triggered by activity, and sometimes just by sitting. Prior Injuries: Prior injuries to neck and back in 1995. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed as bookkeeper and outside auditor for a union at time of accident. Was out of work two weeks after accident, and then returned part-time, working at home 13.5 hours per week for the three summer months until September 2001. Thereafter, she resumed her work full-time, spending two or three days per week on the road as a passenger in a car driven by her supervisor, and rendering bookkeeping and auditing services in a territory that extended to Harrisburg, PA, Delaware and South Jersey. Other Lifestyle Impact: Plaintiff’s daughter and mother-in law both lived with her. The daughter gave birth to plaintiff’s grandchild in 1998, and plaintiff testified that she was the child’s primary caregiver. The daughter did no child care or housework except her own laundry. Plaintiff cooked for the family of five, and did the food shopping. Plaintiff unable to: � do laundry since accident because she could not bend to pick up clothes; � play golf, which she had been learning at time of accident; � kickbox at the gym (although she had been exercising at a “circuit” gym four to five days per week for the past nine to 10 months before her deposition). Plaintiff claims difficulty with: � bending, lifting and reaching � traveling in a car for any length of time, as pain triggered by sitting � sweeping or mopping, because of problems bending. When defendant moved for summary judgment, plaintiff submitted another certification dated 3/4/04, setting forth additional restrictions on her activities. Plaintiff was unable to: � clean her home, other than light sweeping; � ride her bicycle on weekends; � participate in family ski trips; � do aerobics, sit-ups; � sit through an entire movie in a theater; � go on amusement rides; � put the leaves in her dining room table; � take a turkey or other large item out of the freezer or oven; � change the bed linens; � vacuum or shampoo rugs; � general yard work; � rearrange furniture; � hang Christmas decorations and put boxes away in attic; and � insert or remove window screens seasonally. Plaintiff had difficulty in: � assisting her grandchild in bathing and dressing until they moved out in February 2004. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s medical evidence established a permanent injury; however, her injuries did not have a significant impact on her life. Appellate Court Determination(s): Affirmed. Choosing to follow the analytical model of James v. Torres, and those cases holding that Oswin survived the passage of AICRA, the court addressed independently whether plaintiff’s injuries had a significant impact on her life in order to determine whether she had crossed the verbal threshold. Plaintiff’s own expert stated, upon review of her lumbar MRI films, that there were no findings associated with myelopathy or radiculopathy since there was no compression on the spinal cord or nerve roots. Thus, plaintiff’s medical proofs failed to demonstrate that her injury, consisting of a herniated disc at L5-S1, objectively had the capacity to have a serious impact on her life. Even if the panel were to overlook this evidential deficiency, it would find that plaintiff’s injuries had not had a sufficiently serious effect on her life to cross the threshold, where she remained fully employed and resumed full-time work with no change in her job responsibilities and, despite her complaints of being unable to sit for extended periods, rode as a passenger several days per week as her supervisor drove her through a territory covering several states. The panel also noted that plaintiff was the primary caregiver for her grandchild after the accident, when the child was a toddler under three years of age. While plaintiff indicated that she had to give up several activities, such as kickboxing, the court noted that these activities had been replaced by other gym activities that plaintiff now engaged in four to five days per week. Her interest in golf, while terminated, had been nascent; and her family ski trips were of so little importance that they went unmentioned in plaintiff’s deposition, even when she was questioned specifically about her activities and vacations. It was only in response to the summary judgment motion that she brought the ski trips up. At most, the panel concluded that plaintiff demonstrated an inability to do laundry and an intermittent ability to do other household chores. Thus, the consequences of her injuries, even when viewed subjectively, were insufficient to establish an impact on her life that was sufficiently serious to cross the verbal threshold. 21. Boothroyd v. Ho, A-6147-03T1 DDS No. 23-2-9602 Judges Coleman and Holston Jr. March 18, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of an accident on Oct. 14, 2000, which occurred when the bus that plaintiff was driving, which was lawfully stopped at a traffic light, was rear-ended by a motor vehicle being driven by defendant. As a result of injuries sustained in the accident, plaintiff received authorized medical treatment and temporary wage loss benefits through workers’ compensation. He received compensation for temporary total disability of nine and two-sevenths weeks, which represented a wage claim for missing about two and one-half months from work. Plaintiff’s claim petition for permanent partial disability in the Division of Workers’ Compensation was resolved by an Oct. 29, 2001, order approving settlement with plaintiff’s self-insured employer, N. J. Transit. The settlement recognized a permanent partial disability in the amount of 15 percent of total for orthopedic and neurological residuals of a disc bulge at the L5-S1 level, with left sciatic neuralgia, with a credit of 5 percent because plaintiff’s injury was superimposed on a pre-existing lumbar sprain and strain injury. N.J. Transit reserved its statutory lien rights. Plaintiff filed a third-party claim against defendant in the Law Division, and relied on the medical findings of the physicians involved in the workers’ compensation proceeding, and on his deposition testimony in support of his claim for damages for his pain and suffering attributable to his personal injuries. When defendant moved for summary judgment, asserting that plaintiff had not satisfied the verbal threshold, plaintiff countered that the workers’ compensation order approving settlement, by its recognition of plaintiff’s permanent partial disability pursuant to the compensation law, estopped defendant from asserting a verbal threshold defense to plaintiff’s claim. Alternatively, he claimed that he had, in fact, satisfied the verbal threshold requirements sufficiently to overcome a summary judgment motion. Plaintiff relied on Perez v. Pantasote, Inc., which held that a workers’ compensation petitioner who sought an award for permanent partial disability must (1) establish by demonstrable objective medical evidence a functional restriction of the body, its members or organs, and (2) that the injury is serious enough to merit compensation, in that it entails an appreciable impairment of an employee’s working ability or a disability in the broader sense of impairment in carrying on the ordinary pursuits of life. He argued that the Perez standard was essentially the same as that established in Oswin v. Shaw, which carried over under AICRA. Plaintiff also cited: (1) Wunschel v. City of Jersey City, where the N.J. Supreme Court ruled that a compensation court’s findings should be entered into evidence in the Law Division and accorded such weight as appropriate; (2) Bucuk v. Edward A. Zusi Brass Foundry, where it was held that the findings and order in a prior workers’ compensation proceeding, while not res judicata, were evidential and admissible in a subsequent civil action; and (3) Lefkin v. Venturini, where the Appellate Division ruled that a prior adjudication by a compensation court was binding on an insurer providing personal injury protection (PIP) benefits, and that the PIP carrier was collaterally estopped from challenging the workers’ compensation adjudication, even though the insurer was not a party to the compensation proceeding. Medical Testing and Treatment: Compensation doctor: Aug. 3, 2000, physical examination revealed marked muscle spasm and tenderness in plaintiff’s posterior cervical musculature, both trapezius muscles, and the paravertebral musculature; marked interspinous tenderness at the L5-S1 inter-space, the sacroiliac joints and notches were non-tender. Radiology: Lumbar MRI on Nov. 17, 2000, revealed disc degeneration, a disc bulge, a bilateral neural encroachment at L5-S1 Physician’s certification: included vague statement that “there will always be some aspect of residual permanent injuries experienced for the balance of [plaintiff's] lifetime.” Prior Injuries: Prior accident in March of 1998, in which plaintiff injured his neck, shoulder, lower back, and right and left hip. Based on an MRI, plaintiff’s doctor found a 40 percent permanent partial cervical disability and 50 percent permanent lumbar disability based on the disc bulge. Plaintiff missed 10 months of work following this accident. He also stopped playing softball, coaching and lifting weights thereafter. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed as bus driver at time of accident. Lost approximately two and one-half months of work as a result of the injuries sustained in the accident. Other Lifestyle Impact: Plaintiff claimed he stopped going to the gym and lifting weights. He also claimed difficulty with: lifting furniture; pushing the lawn mower; inability to climb a ladder to clean his gutters; inability to work on his car. Physician’s Certification: No issue with certification requirement being met; however, certification noted as being vague and not specifying permanent injuries sustained by plaintiff. Polk Analysis: The motion judge noted that there had never been a comparison of the MRIs following plaintiff’s first accident and the subject accident. Appellate Division agreed, and rejected plaintiff’s assertion that the compensation settlement “clearly apportioned” the injuries in satisfaction of this requirement. Miscellaneous Issue(s): Impact of workers’ compensation settlement on third-party verbal threshold claim; whether the settlement created res judicata or collateral estoppel concerns. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that the workers’ compensation award approving settlement was not binding upon him because it was an order approving a settlement between the parties, which the judge found to be fair and just. As to plaintiff’s verbal threshold proofs, the judge found that the only objective medical evidence of injury was the disc bulge at L5-S1 shown on the MRI. Given that, and the fact that there was no Polk analysis comparing plaintiff’s residuals from his first accident with the subject accident, the judge determined that the AICRA threshold had not been surmounted. Appellate Court Determination(s): Affirmed. While noting that the plaintiff was correct in stating that a compensation judge’s findings, while not binding, should nevertheless be entered into evidence and appropriately weighed, the cases cited by plaintiff involved matters where actual adjudications had been made by the compensation judge. None of those cases arose out of claim petitions that had been settled by the parties involved in the dispute, where the judge’s sole role was to approve the negotiated settlement. With respect to the PIP case cited by plaintiff, Lefkin v. Venturini, the panel also noted that the court in that case had determined that there was an identity of interest between the PIP carrier and its insured who filed a workers’ compensation petition, since the insured’s success would relieve the PIP carrier of substantial payment obligations. No such identity of interest exists here. All a compensation judge was required to do was to review the submissions and determine that the settlement reached was fair and just under all of the circumstances presented. There were no procedural requirements regarding orders approving settlements that mandated a compensation judge to determine whether petitioner’s injuries met the partial-permanent disability standard set forth in Perez before approving a settlement. In fact, no factual determinations were made. Plaintiff erroneously equated the order approving settlement with an “award” of benefits for permanent partial disability. In fact, it constituted a dismissal of plaintiff’s claim, not an award of benefits. As to the plaintiff’s verbal threshold proofs, the appellate panel also agreed with the motion judge that they were insufficient. The panel noted the dearth of objective medical evidence, and cited the vague statement in plaintiff’s physician’s certification, which shed no light on how the bodily injuries suffered by plaintiff constituted a significant or serious permanent injury as required by case law. In addition, the serious impact prong of Oswin was not met because plaintiff did not demonstrate the causal nexus between his asserted disabilities and the motor vehicle accident, nor show how his injuries had a significant impact on his life. Plaintiff’s inability to play softball and coach his daughter’s softball team stemmed from the injuries that he sustained in his earlier accident. Although he claimed he could no longer go to the gym or lift weights, likewise, he had already allowed his gym membership to expire sometime prior to the subject accident. While plaintiff indicated that, as a result of the subject accident, he had difficulty moving furniture, mowing his lawn (now requiring a riding mower), climbing ladders to clean his gutters and an inability to work on his car, he did not state that these activities had been a significant and important part of his way of life. Additionally, the panel noted that plaintiff’s occupational life had not been serious affected by the accident, since he was still able to perform his job, and his earning capacity had not been diminished. Finally, the panel agreed with the motion judge’s conclusion that plaintiff’s physician failed to render an appropriate Polk comparative analysis, since he had suffered a pre-existing injury involving the same body parts allegedly injured in the subject accident. Although plaintiff argued that the compensation settlement approved by the workers’ compensation judge “clearly apportioned” his injuries between the subject accident and the prior accident by awarding the 5 percent credit for the pre-existing condition, this again represented only what the parties had agreed to in settlement, not a factual finding or adjudication by the compensation judge. Moreover, defendant was not a party to those proceedings, and did not stipulate to such an apportionment. 22. Gratereaux v. Vroman, ATL-L-3808-04 DDS No. 23-3-9793 Law Division Judge Higbee March 18, 2005 Result: Court grants plaintiff’s motion to amend her complaint to add her insurance carrier, Allstate, seeking reformation of her policy without the verbal threshold option. Facts/Background: This case arose out of an automobile accident in which plaintiff claimed to sustain injuries. Plaintiff sued defendant, and later moved to amend her complaint to add her PIP insurer, Allstate Insurance Company. Counsel certified to the court that it would be necessary to assert a cause of action to reform plaintiff’s insurance policy because she maintained that, had she been advised of the serious impact portion of the verbal threshold, she would have pursued the zero threshold option. Defendant opposed the application, claiming that the issue of insurance contract reformation should be handled in a separate matter from the instant tort action. He argued that he would lose time and money being involved in complicated reformation litigation. He did, however, acknowledge that the resolution of the reformation issue would affect the outcome of the underlying tort matter. He suggested that the matter should either be dismissed without prejudice or stayed until the reformation issue was resolved. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed, except to note that it was plaintiff’s dissatisfaction with this aspect of the verbal threshold that caused her to seek reformation of her policy. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Insurance policy reformation. Trial Court Determination(s): The trial judge granted plaintiff’s motion, noting that reformation of a contract was an equitable remedy. While such actions were normally brought in the Chancery Division of the Superior Court, the judge noted that the Law Division also had plenary jurisdiction to render both legal and equitable relief, as a given case might require, so that the entire controversy between the parties would be expeditiously, completely and finally determined in one unified action. Appellate Court Determination(s): None. (Law Division opinion). 23. Pedreira v. DeJesus, A-2541-03T1 DDS No. 23-2-9717 Judges Graves and Landau March 30, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of an accident on July 13, 2000. The 45-year-old plaintiff was a pedestrian attempting to cross the street on a marked pedestrian crosswalk at an uncontrolled intersection. Before crossing, she made observation of the traffic conditions, and noted that traffic was heavy and all vehicles were completely stopped. She proceeded into the intersection and was almost completely across when defendant pulled his vehicle out of the stopped lane of traffic and proceeded into the bus lane, attempting to make a right turn at the intersection. The front bumper of his vehicle struck plaintiff’s right leg, knocking her to the ground, and causing her injuries. Plaintiff was taken to the hospital by ambulance., and was examined. X-rays were taken of her right ankle, knee and tibia. Medical Testing and Treatment: Emergency room: plaintiff was examined and X-rays were taken of her right ankle, knee and tibia. They were negative for fracture or dislocation, and plaintiff was given a brace and crutches, and discharged the same day. Plaintiff continued to use the crutches for about 3-4 weeks thereafter. Orthopedic surgeon: Three weeks post-accident, on Aug. 3, 2000, the doctor recommended that plaintiff undergo physical therapy and get an MRI study of her right knee (see below). In a letter to plaintiff’s attorney dated June 20, 2001, almost a year post-accident, the surgeon advised that plaintiff had initially responded well to physical therapy, and was advised to continue. By the time of an Oct. 5, 2000, visit, plaintiff still complained of pain in her knee, and the doctor noted tenderness over the medial joint line. Plaintiff claimed to be experiencing episodes of her knee “giving way,” and had stopped responding well to the physical therapy. It was at this point that the doctor suggested an MRI be obtained. Plaintiff was advised to take Valium prior to the study. The doctor reported the results of the MRI test (see below) and opined that the findings were indicative of a meniscal detachment at the periphery. The orthopedic surgeon’s diagnosis was: internal derangement of the right knee; probable meniscal detachment; and probable tear of the medial meniscus. He indicated that plaintiff’s prognosis was extremely guarded, as her injury was severe and she had not responded to conservative treatment. The doctor felt that plaintiff would benefit from surgical intervention, namely an arthroscopy/possible arthrotomy of the right knee. Based on a reasonable degree of medical probability, the doctor found plaintiff’s condition to be permanent. She would have residual limitation of range of motion of her knee and might develop a re-tear of the meniscus. She would also experience a considerable amount of post-operative pain and could develop traumatic arthritis. Physical therapy: Between Aug. 8, 2000, and Dec. 15, 2000, plaintiff received a total of 14 physical therapy treatments. Physical therapist diagnosed plaintiff with right knee sprain and strain and indicated that plaintiff’s overall rehabilitation potential was good. Radiology: In addition to emergency room X-rays, an MRI study of plaintiff’s right knee was conducted on Oct. 7, 2000. The “impression” of the doctor who conducted the test was that plaintiff had sustained an “MCL tear or sprain,” and his written report also indicated edema and swelling of the proximal aspect of the MCL on two of the films. There did not appear to be complete disruption of the ligament. Some abnormal signal at the meniscal capsular junction of the posterior medial meniscus was noted, but there was no definite meniscal tear. The cruciate ligaments were intact. The lateral meniscus was normal, and there was minimal joint effusion. The patella was normal. Dr. in Portugal: Plaintiff lived with her husband and adult daughter. The family would go “back and forth” to Portugal every year, spending most winters there. She stated that she saw a physician in Portugal for her injuries, that he took X-rays and “said the same thing” as her orthopedic surgeon. Current Complaints: At time of her deposition, more than three years post-accident, plaintiff stated that the physical therapy had helped her knee pain “a little bit,” but that she had stopped after four months because she felt she could do the exercises at home, “instead of going there all the time and just wasting money and time.” She still did the exercises to help the pain, but said that the only time the pain really went away was with medication. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed at family construction company at time of accident. Lost approximately three weeks of work after the accident. Other Lifestyle Impact: Plaintiff is unable to: � dance � exercise as she used to � wear high heels � go running with her dogs � do housework (taken over by her daughter) Plaintiff claims difficulty with: � going up and down stairs � especially down � which also affects her ability to do laundry Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had met neither prong of the verbal threshold test. Appellate Court Determination(s): Affirmed. Although plaintiff’s orthopedic surgeon stated, in a conclusory fashion, that plaintiff had sustained a permanent injury, there was no credible medical evidence to support that conclusion. The doctor referred to the one MRI study, but the radiologist’s report did not substantiate a permanent injury. Without objective medical evidence, the orthopedist’s opinion was nothing more than an inadmissible net opinion. Additionally, while plaintiff’s injuries had some impact on her lifestyle, she was able to continue with most activities in which she previously participated, albeit with some discomfort and modification. 24. Woodward v. Del Rios, A-5162-03T2 DDS No. 23-2-9736 Judges Kestin and Alley March 31, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose from an automobile accident the 77-year-old plaintiff had with defendant on Dec. 18, 2001. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: not discussed; plaintiff presumably retired. Other Lifestyle Impact: Plaintiff claimed difficulty and pain on: bending, kneeling, climbing stairs, stiffness in walking and an inability to stand for long periods. He first also claimed to be limited in his bowling and cooking activities; later, he added running and fishing to activities he could no longer pursue. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Plaintiff submitted a supplemental certification when defendant moved for summary judgment that contained further allegations of the effects of his injuries. Defendant objected to the judge’s considering the supplemental certification under the “sham affidavit” doctrine. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that the impacts alleged by plaintiff were minimal. She also found that to consider plaintiff’s supplemental certification would “defeat the integrity of the system.” Appellate Court Determination(s): Reversed. The panel’s departure from the path taken by the trial judge was not with respect to whether the plaintiff had made an adequate showing of “serious impact” without the use of the supplemental certification � indeed, the panel assumed for the purpose of its decision that the trial court was correct in that respect. Rather, the panel departed from the trial judge’s implicit conclusion that the factual allegations in the supplemental certification made it a “sham affidavit” which could not be used as the basis for raising a material issue of fact to defeat a summary judgment under a Brill analysis. The panel cited Shelcusky v. Garjulio, a case in which the Supreme Court explained the compatibility of the sham affidavit doctrine and the summary judgment standard. While noting that such an affidavit could be barred in certain circumstances, the Court stressed that the trial court was required to perform an evaluative function consistent with Brill, and should not apply the doctrine mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony. Here, the motion judge’s decision was not accompanied by an adequate analysis as required by Shelcusky. She did not even indicate whether her determination had been reached through an evaluative function of any kind. The panel, moreover, saw neither an indication that the contentions of the elderly plaintiff were viewed with the indulgence required under Brill, nor an indication that any of the alleged inconsistencies were considered with such indulgence. In the absence of an adequate analysis, the appellate panel had no basis for sustaining the trial judge’s order. It was also disinclined on the existing record to perform the evaluative function itself, and therefore remanded for a further hearing. It reminded the trial court that cases granting summary judgment based on inconsistent affidavits had generally involved clear contradictions, something that had not yet been determined to exist in this case. The panel instructed the trial court to thoughtfully evaluate plaintiff’s supplemental certification and the attendant circumstances with the indulgence warranted under Brill, and to explain whether the alleged contradictions were truly such, or whether they could be explained away. The trial court also was instructed to determine whether the certification represented an attempt to undermine the system or, on the other hand, whether it simply expanded on, or perhaps innocuously papered over, some cracks in the prior statements. 25. Press v. Walega, A-4611-03T5 DDS No. 23-2-9793 Judges Coleman and Holston Jr. April 4, 2005 Result: Summary judgment in favor of defendant affirmed; remanded as to plaintiff’s economic damages claim. Facts/Background: On April 24, 2001, plaintiff was traveling north on Route 9, with the green traffic signal, when she was struck by defendant � a clergyman driving a vehicle owned by the defendant church � who drove into the intersection contrary to a red traffic signal, and attempted to execute a left hand turn onto Route 9 South across plaintiff’s route. Defendant stated that he had been stopped at the red light, but having waited “a long time” for it to change, he decided to go through it. Plaintiff argued that defendant’s “intentional act” of proceeding without regard to the red light caused the collision, and that, because such an act was “risky, illegal and ultra-hazardous,” the costs of the accident should be borne by defendant as the party who took the risk, without regard to the limitation on lawsuit threshold defense which might otherwise be available to him. In other words, plaintiff argued for strict liability. Plaintiff sought to recover both economic and noneconomic losses sustained as a result of the accident. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Nnot discussed. Physician’s Certification: Main issue � plaintiff’s complaint dismissed for her failure to produce a physician’s certification. She conceded that her negligence claim was barred by her failure; however, she argued that the first count of her complaint sounded in strict liability, a cause of action which should not be dismissed for failure to provide a physician’s certification under AICRA. Polk Analysis: No issue Miscellaneous Issue(s): Whether plaintiff’s claim for strict liability was viable. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that the right to maintain a personal injury lawsuit following an automobile accident depended upon (1) the lawsuit option selected in one’s insurance policy, and (2) the nature and extent of the injuries suffered, not the legal theory asserted. Therefore, he found that the physician’s certification requirement applied to � and mandated dismissal of � both counts of plaintiff’s complaint. Appellate Court Determination(s): The appellate panel agreed and affirmed, noting that describing conduct as “ultrahazardous” did little to advance the analysis of the basis of liability; the “ultrahazardous activity” standard was a formulation for landowner liability, and was replaced by the “abnormally dangerous” activities test. Further, in discussing strict liability in the context of product defects, the panel noted the Supreme Court’s caution against using labels and conclusory descriptions in place of a careful examination of the facts and applicable law. The use of adjectives such as “willful” and “wanton” did not serve to remove an action for personal injuries caused by negligent operation of an automobile from the purview of AICRA. Even without such embellishment, the panel noted that left hand turns are recognized as involving an increased risk of harm necessitating an increased amount of care. A defendant’s conduct must be examined in light of all the circumstances. Still, as a threshold, an injured party must demonstrate that he or she is eligible under AICRA to maintain a cause of action, and the physician’s certification requirement is part of that eligibility. Here, plaintiff did not deny that she failed to supply the requisite physician’s certification. Although the Supreme Court has held that the certification is not a fundamental element of the AICRA cause of action, and therefore dismissal with or without prejudice is not mandatory for a late filing, it did not dispense with the statutory requirement of a physician’s certification altogether. Where, as here, there was no filing whatsoever, and no excusable neglect was asserted for the failure, a dismissal with prejudice was the appropriate ruling. The statutory requirement may not be wholly disregarded. Since plaintiff also sued for economic damages, not affected by this statutory requirement, however, and not addressed in the judge’s ruling, the matter was remanded to the Law Division for a clarification of the disposition of this claim. 26. Scales v. Foote, A-0251-04T3 DDS No. 23-2-9842 Judges Axelrad and Holston Jr. April 12, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: On Sept. 15, 1999, plaintiff was stopped in a line of traffic and was rear-ended by defendant’s truck, after defendant ran a stop sign. Plaintiff was taken from the scene by ambulance to the hospital. Medical Testing and Treatment: Emergency room: X-rays were negative for fracture or herniation. Following this visit, plaintiff did not seek additional treatment for one and half months. Then she saw five different physicians, but received minimal treatment, as follows: Dr. Lowry: three visits Dr. Lafon: two visits Dr. Gleimer: two visits. During an examination in April 2001, the doctor found spasm in plaintiff’s cervical, thoracic and lumbar spine. His impressions included cervical radiculopathy, cervical and lumbar sprain and strain, clinical lumbar radiculopathy/radiculitis and bulging cervical disc at C5-6. On May 23, 2001, the doctor reviewed plaintiff’s cervical MRI films (see below) and noted mild disc bulging at C4-5 and C6-7, in addition to the minimal disc bulge at C5-6. He also noted cervical and lumbar spasm. However, plaintiff’s range of motion was 80 percent. As of Sept. 4, 2000, about one year post-accident, although the doctor noted muscle spasm in plaintiff’s lumbar spine, he found cervical range of motion in excess of 85 percent to 90 percent of normal. Dr. Patel: three visits Dr. Sammertino: one visit Plaintiff did not follow the doctors’ repeated recommendations for extensive physical therapy for her injuries, which generally consisted of cervical and lumbar sprain and strain with muscle spasms and parasthesia. Radiology: MRI (no date given) revealed minimal cervical disc bulges and a right-sided C6-7 radiculopathy. As late as February 2000, an upper extremity electromyography was consistent with C6-7 radiculopathy. Cervical MRI on March 6, 2000, revealed C5-6 disc bulge with slight encroachment on the left C5-6 neural foramen. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff had been employed just before the accident at a deli, but quit in June of 1999, three months before the accident, because the deli went out of business. She did not seek other employment again until October, 2002, because she “did not have to.” In October 2002, plaintiff obtained a job at All Systems Engineering, which she still had at the time of the appeal. She worked twenty-four hours per week, but indicated that she would accept a full-time position if one was offered. Other Lifestyle Impact: Plaintiff unable to: � bowl – she had previously belonged to a league through her church, but discontinued this, not because of the accident, but as a result of her relocating her home. � do yard work, such as raking; however, she let that job fall upon her three sons. Plaintiff claimed difficulty with: � housework and grocery shopping, although she was able to do the work � such as mopping floors, laundry and vacuuming � with some difficulty. Her husband and/or her sons helped her grocery shop by lifting the bags. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to meet either prong of the verbal threshold test. Appellate Court Determination(s): Affirmed. The panel first expressed its opinion that the serious impact requirement of the verbal threshold remained in effect after AICRA. As to the objective prong of the test, the panel found plaintiff’s proofs to suffer from the same deficiency as those of the plaintiff in Serrano; the soft tissue injuries were not the serious or significant permanent injuries necessary to qualify for tort exemption. Given the very slight restriction in range of motion of both the cervical and lumbar spine, as verified by Dr. Gleimer, the panel was satisfied that plaintiff failed to demonstrate serious permanent injury. Although there was objective medical evidence through the MRI and EMG tests, demonstrating multiple bulging discs with encroachment on the neural foramen, the permanent injury alone was not sufficient. The injury also had to be serious. Since plaintiff’s range of motion was in excess of 85 percent, this did not satisfy the serious injury component of the verbal threshold test. The appellate panel also found that plaintiff had not demonstrated a serious impact on her life by the proofs in the record, since (1) she became employed since the accident and was willing to move to a full-time position; and (2) she did not identify any specific activity that had been an important part of her life that she could no longer engage in as a result of the accident. In conclusion, the panel held, as a matter of law, that objective evidence of minimal cervical disc bulges at C4-5 and C6-7, a right-sided C6-7 radiculopathy with slight encroachment on the left C6-7 neural foramen, and lumbar spasm, did not meet the verbal threshold requirement of serious permanent injury where plaintiff’s residuals permitted cervical range of motion in excess of 85 percent of normal and lumbar range of motion of 85-90 percent of normal, and when combined with only minimal changes in plaintiff’s lifestyle. 27. Evans v. Black, A-5631-03T1 DDS No. 23-2-0084 Judges Parker and Yannotti May 4, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: Plaintiff was involved in two motor vehicle accidents within two months. The first occurred on March 21, 2000, when her vehicle was struck in the rear by a car driven by defendant Black (the “Black” accident). Plaintiff asserted that she was “violently thrown about” and suffered “extensive bodily injuries which required medical treatment.” She reported that she did not feel pain on the day of the accident; however, on the following day, she reported that she felt pain on her left side, and in her shoulder. The second occurred on May 8, 2000, when a vehicle driven by defendant Harris struck plaintiff’s vehicle (the “Harris” accident). Plaintiff again asserted that she was “violently thrown about” and suffered “extensive bodily injuries which required medical treatment.” She again reported that she did not experience immediate pain; but, a few hours later, she began to experience excruciating headaches, as well as neck and lower back pain. Medical Testing and Treatment: After Black accident: Emergency room: on the day after the Black accident, plaintiff presented to the emergency room, where X-rays of her spine and shoulder showed no fractures or dislocations. Naprosyn was prescribed. Primary care physician: also prescribed Celebrex. Chiropractor: complaining of neck pain and pain radiating into her left shoulder and forearm, plaintiff sought treatment with Dr. Agrios, who found that she was suffering from cervical, thoracic and lumbar sprain and strain, cervical neuritis, muscle spasms and cephalgia. Dr. Fernicola: April 27, 2000, plaintiff presented for examination and treatment. The doctor noted limitations in the range of motion of her neck and lumbar spine. His impression was that plaintiff was suffering from cervical, lumbar and left shoulder sprain and strain. Radiology: May 2, 2000 � cervical MRI showed loss of the normal cervical lordosis, with torticollis � a contracted state of the neck muscles, producing an unnatural position of the head. After Harris accident: Dr. Fernicola: on the day after the accident, May 9, 2000, plaintiff returned to this doctor, again reporting that she did not experience immediate pain; but, a few hours later, she began to experience excruciating headaches as well as neck and lower back pain. In examining plaintiff, the doctor did not feel that her left shoulder had been any further traumatized by this second motor vehicle accident. Plaintiff returned to Dr. Fernicola on May 23, 2000, complaining of “exquisite left shoulder pain.” The doctor suggested that she have an MRI of her left shoulder, and also recommended that she see an orthopedic surgeon. Further visits with this doctor occurred on July 18, Sept. 7, Oct. 7, and Oct. 31, 2000. In a report dated January 5, 2001, the doctor noted that plaintiff continued to experience neck and low back pain. He noted that plaintiff had seen an orthopedist (see below). Dr. Fernicola prescribed medication for plaintiff’s pain, and a cervical home traction unit. Dr. Fernicola’s final diagnosis was cervical and lumbar sprain and strain, and left shoulder rotator cuff tear, with sub-Deltoid bursitis and tendonitis. He opined, within a reasonable degree of medical probability, that plaintiff’s injuries were caused by the first motor vehicle accident (the Black accident). Orthopedist: on May 19, 2000, plaintiff presented to Dr. Torpey. Plaintiff reported to him that, after the Black accident, she experienced persistent left shoulder pain, which intensified in the following months. She continued to experience such pain by the time of the examination, as well as pain in the anterior aspect of her arm, especially with lifting. She also complained of a crunching sensation in her shoulder following the Black accident. Plaintiff reported to the orthopedist that the second accident brought about no changes in, or exacerbation of, her left shoulder pain. The doctor’s examination produced findings that were consistent with a significant soft tissue injury to plaintiff’s left shoulder. He recommended an MRI to rule out a rotator cuff tear; however, the test results confirmed that there was such a tear (see below). The doctor found that the weakness and discomfort experienced by plaintiff with respect to overhead activities were consistent with the damage to her supraspinatus tendon. In his final report, the orthopedist opined that, within a reasonable degree of medical probability, plaintiff’s shoulder injury was caused by the blunt trauma of the Black accident, and the subsequent Harris accident had had no deleterious effect on the pre-existing injury. His opinion, he stated, was corroborated by the patient’s history, physical examination, and radiographic studies, including the MRI and intraoperative arthroscopic photographs. Because plaintiff’s symptoms persisted despite “an appropriate conservative treatment program,” the doctor reported that plaintiff underwent a successful surgical reconstruction of the left shoulder, including capsulorrhaphy to address instability issues and repairs of the rotator cuff and superior labral complex. The doctor reported that plaintiff had made significant strides while enrolled in a post-operative physical therapy program, and had gained range of motion in her shoulder, but still experienced discomfort in that area. Accordingly, he opined that her injuries were permanent, and that there was a reasonable probability that she would require further medical treatment and possible surgical intervention in the future. Radiology: July 29, 2000 � left shoulder MRI confirmed clinical findings of orthopedist, and showed a tear of the supraspinatus tendon with subtle retraction. Surgery: On Nov. 24, 2000, plaintiff underwent surgery for reconstruction of her left shoulder. During the procedure, the doctor took intraoperative arthroscopic photographs. Physical therapy: after the shoulder reconstruction surgery, plaintiff enrolled in a supervised physical therapy program, focusing on strengthening and range of motion of her left shoulder. She regained near full range of motion of the shoulder, but continued to have discomfort in that region, especially with respect to repetitive overhead activities. Prior Injuries: None before the first accident in this case, but a subsequent accident produced the comparative analysis problem in this case. Serious Impact on Plaintiff’s Life: Not detailed, except to note that plaintiff only lost one or two days from work after the Black accident, and about a month after the Harris accident. In any event, the motion judge found that plaintiff’s evidence was sufficient to show a serious impact. Physician’s Certification: No issue Polk Analysis: Main issue. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had presented sufficient evidence to raise genuine issues of material fact as to whether the injury to her left shoulder (1) was a permanent and serious injury; and (2) had a serious impact on her life. However, while the judge noted that both plaintiff’s treating physician, Dr. Fernicola, and her orthopedist, Dr. Torpey, had opined that plaintiff’s shoulder injury was sustained in the Black accident, her case nevertheless failed because she did not produce the required comparative evaluation of the injuries she sustained in the Black accident with those sustained in the Harris accident. In ruling, the judge noted that the presence of the rotator cuff tear was not discovered until the July 29, 2000, MRI, which was performed after the Harris accident. Although plaintiff’s doctors both stated that the condition occurred as a result of the Black accident, there was nothing in the record the judge felt indicated the severity of plaintiff’s injury as it existed after the Black accident, but before the Harris accident. While the orthopedist stated that he based his opinion on plaintiff’s history and diagnostic tests, the judge felt that, because the only objective test (the MRI) took place after the Harris accident, this was not sufficient. Appellate Court Determination(s): Reversed. In the appellate panel’s view, plaintiff presented sufficient evidence to raise a genuine issue of material fact as to whether her left shoulder injury was caused by the Black accident, rather than the Harris accident, where both of her treating physicians opined that her injury was caused by the Black accident, and there was no assertion by either physician that the Harris accident had aggravated the injury sustained in the Black accident. In the panel’s view, a further comparative analysis of the condition of plaintiff’s left shoulder prior to and following the Harris accident was therefore not required in this case. The panel recognized that the MRI showing the extent of plaintiff’s left shoulder injury was not performed until after the Harris accident. However, under these circumstances, the doctors could rely upon the history provided by the plaintiff and their own physical examinations to determine whether the shoulder injury sustained in the Black accident was aggravated by the Harris accident. While defendants apparently conceded this last point, they urged that the record was insufficient to support the opinion of plaintiff’s two experts that plaintiff’s shoulder injury was due entirely to the Black accident. They pointed out that plaintiff had attributed her injury to both accidents in her answers to interrogatories, stating that the Harris accident aggravated the torn rotator cuff suffered in the Black accident. In her deposition testimony, the defendants pointed out that plaintiff stated that her shoulder pain had increased after the second accident. Further in that vein, defendants noted that plaintiff reported to her physician that she had “exquisite” pain in her shoulder after the Harris accident, but made no such complaint after the Black accident. They also noted that plaintiff only lost one or two days from work after the Black accident, yet after the Harris accident, she missed about a month. These inconsistencies, they argued, thoroughly undermined the physicians’ opinions attributing the shoulder injury entirely to the Black accident. While the appellate panel agreed with the defendants that the evidence they pointed to might cast some doubt upon the factual basis for the doctors’ opinions, the panel was convinced that these issues must be resolved by the trier of fact. In its view, the doctors’ reports were sufficient to raise a genuine issue of material fact to survive summary judgment as to whether plaintiff’s shoulder injury was caused by the Black accident. Therefore, the motion judge’s grant of summary judgment in favor of defendants was reversed. 28. Jabra v. Soria, A-5001-03T3 DDS No. 23-2-0122 Judges Lisa and Winkelstein May 6, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on May 6, 2000, which occurred when defendant drove through a stop sign, and struck the driver’s side of the vehicle plaintiff was operating. Plaintiff was taken to the hospital from the scene of the accident, complaining of injuries to his neck and back. Ultimately, plaintiff later claimed that he sustained a severe sprain and strain of his cervical spine with muscle spasm, aggravating and exacerbating a prior disc problem at C3-4 and C4-5. As to his lumbar spine, he also claimed to have sustained a severe sprain and strain, together with posterior disc herniations at L3-4, L4-5 and L5-S1. Medical Testing and Treatment: Emergency room: plaintiff was treated and released the same day. Radiology: Aug. 11, 2000 � lumbar MRI revealed: L3-4 and L4-5 disc herniations, mild stenosis at L4-5, and a right posterolateral disc herniation at L5-S1. Cervical MRI on same date revealed: broad-based posterior osteophyte-disc complexes at C3-4 and C4-5, and decreased cervical lordosis, consistent with muscle spasm. Chiropractor: Plaintiff sought treatment with chiropractor in January 2001, complaining of sharp pains in the upper and lower areas of his neck, which seemed to radiate down across his right shoulder and into the arm. He also complained of headaches, numbness in his left leg, and constant low back pain. According to the chiropractor’s report of Jan. 11, 2002, plaintiff underwent therapy to his lower back, neck and right shoulder for six to seven months, two to three times per week; however, plaintiff said this did not help his pain. The doctor administered chiropractic spinal manipulations, and diagnosed plaintiff with the following injuries: lumbar disc syndrome, sciatic radiculitis, lumbar paresthesia, cervical disc syndrome, aberrant motion, cervical brachial neuralgia, cervical paresthesia, tension headache, cervical, thoracic and lumbar myospasm, thoracic segmental dysfunction, hyperflexion-hyperextension injuries to the cervical spine, and acute traumatic cervical and lumbar myofascitis with attending occipital neuralgia and cephalgia. The doctor believed that plaintiff could anticipate future recurrences of pain in the neck and back areas, which would be especially prevalent in times of stress, fatigue or emotional upset. Finally, he found that plaintiff suffered from a partial permanent disability of the lumbar spine, and that the injuries were causally related to the subject accident. While further treatment might alleviate some symptomology, plaintiff’s injuries would never resolve. Neurologist: Plaintiff saw Dr. Rosenbaum, a physician in the same group as his former neurologist, Dr. Sabato (see below under “Prior Injuries”). Dr. Rosenbaum issued a report dated Aug. 7, 2000, which noted that plaintiff had experienced complete relief of his symptoms from his prior accident, without reccurrence. His review of plaintiff’s past history did not mention the lumbar epidural injections plaintiff had received after his 1997 surgery. Upon physical examination, Dr. Rosenbaum found diminished strength with pain for all functions of the right shoulder and elbow, and diminished strength with pain bilaterally for hip and knee motions. Plaintiff’s cervical range of motion was normal, except for a limitation of his left rotation to 50 degrees, with pain in the right cervical muscles. He found “moderate cervical and lumbar spine tenderness, moderate paraspinal muscle tenderness of cervical and lumbar, right greater than the left with spasm on the right.” Dr. Rosenbaum reported that plaintiff did not experience neck problems from the 1995 accident, which was contrary to Dr. Sabato’s April 9, 1997, report. That report, and the October 1995 MRI of plaintiff’s cervical spine, showed the presence of central disc bulges at C3-4 and C4-5. According to plaintiff, Dr. Sabato told him that he had herniated discs and needed a second surgery on his lower back, but plaintiff declined another surgery because he considered it too dangerous. The medical record did not reflect or support plaintiff’s claim that an additional surgery was recommended. Prior Injuries: Plaintiff was involved in a prior automobile accident in September, 1995, when he was a passenger in a van that flipped over three or four times. He suffered cervical and lumbar disc herniations, which were confirmed by MRIs taken the following month. The cervical MRI showed mild degenerative disease and central disc bulges at C3-4 and C4-5. The lumbosacral MRI showed some mild degenerative disease at L4-5 and L3-4; a small disc herniation at L4-5; and a mild central disc herniation at L3-4. He treated in 1996 with an internist, but felt little improvement in his condition. Therefore, in March of 1997, plaintiff consulted a neurologist, Dr. Sabato, who issued a report dated April 9, 1997. He noted that when plaintiff first consulted him, he complained of severe neck and lower back pain, and heaviness, weakness and numbness in his legs. On March 20, 1997, an EMG and nerve conduction studies of both lower extremities disclosed bilateral L4-5 polyradiculopathies with acute and subacute features. Dr. Sabato recommended a lumbosacral epidural nerve block, which was performed on March 27, 1997; as a result, plaintiff received some improvement in his lower back pain. On Sept. 25, 1997, a Dr. Moore performed lumbar surgery on plaintiff; however, afterward he continued to experience lower back pain, radiating into both legs and with resultant weakness in both legs. Plaintiff underwent a series of epidural injections administered by Dr. Sabato’s staff in February, April and June of 1999. While receiving the post-surgery epidural injections, however, plaintiff worked full-time in his job as an electrician. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was employed as an electrician at the time of accident, working a forty-hour week with occasional overtime. He missed two weeks of work after the accident, but then was able to resume a full-time schedule. However, he claimed that he was no longer able to climb ladders due to back pain and dizziness. He subsequently obtained a supervisory position, where he was no longer required to perform heavy manual labor. Other Lifestyle Impact: Plaintiff claimed difficulty with: � playing with his children; � driving long distances; � lifting heavy objects; and � doing maintenance work around the house and yard. Plaintiff complained of pain when he sat, bouts of dizziness, and daily shoulder, neck, low back and left leg pain. Physician’s Certification: No issue Polk Analysis: Main issue due to plaintiff’s similar prior injuries. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to provide the required Polk comparative analysis of his pre- and post-accident injuries. She noted that, if one were to read Dr. Rosenbaum’s report, without realizing or knowing about the prior accident, one would probably not even know that plaintiff had been involved in another accident. A comparative analysis was nonexistent. Although plaintiff argued that he had sustained new injuries as well as aggravation of his old injuries, the motion judge found no medical documentation to support, by way of objective criteria, that plaintiff’s complaints were causally related to the subject accident. The judge noted that all of the medical reports referred to plaintiff’s subjective complaints and what the doctors surmised, based on their physical examinations, but there was nothing objectively to show any new injuries that were permanent and serious from the subject accident. Mentions of tenderness and spasm in the cervical and lumbar areas were not sufficient to vault the verbal threshold. As to the serious impact prong of the verbal threshold test, the judge found plaintiff’s proofs also deficient. She noted that, after missing two weeks of work, plaintiff had returned to the same job, with the modification that he was now a supervisor and no longer actively involved in doing electrician’s work. Rather than being a negative impact, in fact, the judge noted that this appeared to be a promotion for plaintiff. Appellate Court Determination(s): Affirmed. The panel concurred with the motion judge that plaintiff failed to demonstrate that he suffered new injuries in the subject accident; that his pre-existing back condition was aggravated by the accident; or that the subject accident had a serious impact on his life. The panel noted plaintiff’s surgery and post-surgical epidural injections after the first accident, but pointed out that Dr. Rosenbaum had reported that he had experienced “complete relief” of his symptoms from the prior accident, “without recurrence.” He also reported that plaintiff had no further neck problems after the prior accident. These conclusions were simply not supported by the medical record. The panel found the chiropractor’s report to be similarly unavailing. He made no mention of plaintiff’s injuries from the 1995 accident, and, in fact, claimed in the “past history” section of his notes dated Jan. 18, 2001, that plaintiff had no prior low back surgery. Additionally, even if plaintiff had met the first prong of the Oswin test, the appellate panel held that his proofs did not establish that the subject accident had a serious impact on his life. He lost no significant time from work, made no lost wage claim, and was apparently earning as much, if not more, in his new supervisory position. In fact, the accident had virtually no impact on plaintiff’s ability to work. As to his recreational activities, while plaintiff claimed that these were impaired since the accident, the impairments � not playing with his children as much, needing help doing yard work, not being able to lift heavy objects and not being able to sit for long periods of time � either individually or in the aggregate, were relatively minor, and not sufficient to constitute a serious impact on plaintiff’s life. 29. Rios v. Passarelli, A-6853-03T3 DDS No. 23-2-0158 Judges Rodriguez and Cuff May 11, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on January 9, 2002. Medical Testing and Treatment: Emergency room: cervical X-rays were normal. Chiropractor: plaintiff sought treatment due to continuing pain and discomfort. She treated from Jan. 21, 2002, until Aug. 30, 2002. In his report dated March 29, 2003, the chiropractor opined that plaintiff had sustained a permanent significant limitation of the use of her cervical and lumbar areas. He based this opinion on plaintiff’s condition at the time of her last chiropractic visit in 2002. He also indicated that her prognosis was poor, although chiropractic treatment had produced relief of her symptoms. Radiology: March 22, 2002 � cervical MRI revealed: straightening of the cervical lordotic curve, C5-6 disc thinning and disc bulge with ventral impingement of the thecal sac. March 24, 2002 � EMG and NCV tests suggested left cervical radiculopathy at C5-6 and left lumbosacral radiculopathy at L5. Pain management specialist: Between Oct. 30, 2002, and Jan. 29, 2003, plaintiff sought treatment for pain management. Physical therapy was prescribed, along with an anti-inflammatory. Plaintiff also took Aleve. Orthopedic surgeon: although plaintiff apparently did not have further medical treatment, she sought an evaluation by an orthopedic surgeon on Dec. 2, 2003. He observed that the lumbosacral area was spastic, and described active and passive range of motion as restricted. He opined that plaintiff had suffered a significant permanent injury and that she would have difficulty performing the activities of everyday life. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was employed at time of accident as a staffing assistant and she lost three days from work as a result of the accident. She was, however, then able to resume her full-time schedule, performing the same duties and working the same hours as before. Other Lifestyle Impact: Plaintiff unable to: go to the park with her 4-year-old daughter, which she used to do four times a week; and sit on the floor and play dolls with her daughter. Plaintiff claimed difficulty with housework, including food shopping. She stated that she did these jobs, but she might experience pain on exertion. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, although plaintiff had produced objective, credible, medical evidence of injury via the MRI, plaintiff had not established a genuine issue of material fact as to the subjective prong of the verbal threshold test. Appellate Court Determination(s): Affirmed. The appellate panel noted that the summary judgment procedure utilized in pre-AICRA verbal threshold cases continued to apply to cases governed by AICRA, with the physician’s certification requirement supplementing that procedure. The panel felt that the trial judge had correctly analyzed the record in this case against the verbal threshold requirements. Plaintiff did produce objective, credible, medical evidence of injury, however, she did not provide sufficient evidence to create a genuine issue of material fact as to whether her injury had a serious impact on her life. Her employment was not significantly interrupted, curtailed or modified. She was also able to perform all of the tasks of ordinary living, albeit with some difficulties. Although the panel noted that plaintiff was not able to participate in some of her former activities with her young daughter, and the panel did not minimize the enjoyment that plaintiff had derived from those activities, they found that they could not be considered a substantial part of her daily activities. 30. Jaramillo v. Stevens, A-1252-04T3 DDS No. 23-2-0237 Judges Lefelt and Fuentes May 18, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on April 11, 2001, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. The 38-year-old plaintiff claimed injuries to her cervical spine in the accident. Medical Testing and Treatment: Radiology: July 25, 2001, cervical MRI revealed: small central herniation at C5-6; mild annular bulging at C5-6, without impingement; mild disc dessication and degeneration in the C5-C7 levels. October 7 � lumbar MRI: unremarkable. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed at time of accident and able to resume full-time schedule. No indication of time lost as a result of the accident. Other Lifestyle Impact: Plaintiff unable to: work out at gym (treadmill, etc.); run; bicycle; rough-house with her 3-year-old son; and play soccer, all of which she indicated were activities she had enjoyed and partaken of prior to the accident. Also unable to clean bathrooms in her home. Plaintiff claims difficulty with: � housework, as bending, stretching, reaching and other body movements caused severe pain which made these activities virtually impossible; and � her “intimate life” with her husband, which allegedly was “compromised.” Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that: Objective prong: plaintiff submitted sufficient objective, credible, medical evidence to show that she sustained a permanent injury to her cervical spine. Subjective prong: insufficient evidence where plaintiff: � offered no explanation why she could no longer walk on a treadmill, given that (a) she had no documented injury to her lumbar spine; (b) she had been able to return to work on a full-time basis; and (c) there was no indication that any doctor recommended that she cut back on or avoid any exercise; � joined a Bally’s gym one year after the accident; and � had not been treated for her injury for almost two years by the time the motion was argued, and was not taking any medications for her injury. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the trial judge. 31. Hurtado v. Jackson, A-495-03T5 DDS No. 23-2-0238 Judges Yannotti and Bilder May 18, 2005 Result: Denial of plaintiff’s motion for reconsideration affirmed. Facts/Background: This case arose out of an automobile accident on March 1, 2000, which resulted in injuries to plaintiff’s neck and back. Medical Testing and Treatment: Not detailed. Prior Injuries: June 15, 1998: prior motor vehicle accident, which also resulted in injuries to plaintiff’s back, among other things. October 1997: work-related accident when he fell off a ladder, also resulting in injuries to his back. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk analysis: Trial judge found that plaintiff failed to meet his burden of showing that the prior accidents, rather than the subject accident, caused the condition for which he sought damages in this case. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant on the failure of plaintiff to produce a comparative analysis, as required by Polk. Plaintiff’s motion for reconsideration denied. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the trial judge. The Polk comparative analysis requirement survived AICRA, and plaintiff failed to satisfy this requirement. On reconsideration, plaintiff presented no new matters that were not, or could not have been, presented at the time of the original motion. 32. Aidee v. Fezza, A-7010-03T5 and A-0971-04T5 DDS No. 23-2-0580 Judges Parker and Bilder June 14, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: In these consolidated cases, both plaintiffs � Pennsylvania residents � were injured in a rear-end automobile accident which occurred on May 10, 2001, in New Jersey. The male plaintiff was driving and the female plaintiff, his wife, was his passenger. Plaintiffs were insured by Old Guard Insurance Company, a Pennsylvania insurance carrier not authorized to do business in New Jersey. Plaintiff had chosen the limited tort option under Pennsylvania law. Medical Testing and Treatment: Not detailed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Plaintiffs did not contest the finding that their injuries did not satisfy the verbal threshold requirements of New Jersey’s no-fault law, but contended that, as a matter of law, they were not subject to the verbal threshold because their insurance company was not authorized to do business in New Jersey and its policy, issued in Pennsylvania, was not subject to our Deemer Statute, N.J.S.A. 17:28-1.4. Trial Court Determination(s): Summary judgment granted to defendant. Appellate Court Determination(s): Affirmed, noting summarily that plaintiffs’ contentions were without merit. 33. Faragalla v. Thompson, A-2494-03T5 DDS No. 23-2-0647 Judges Stern, Wecker and Reisner June 17, 2005 Result: Grant of directed verdict on liability in favor of plaintiff affirmed; but reversed and remanded for new trial on damages. Facts/Background: This case arose out of an automobile accident on Jan. 5, 2001. Defendant, whose car was parked facing the wrong way on the opposite side of the street, suddenly pulled his car across the street, as though attempting to make a U-turn, and struck plaintiff’s vehicle. Upon impact, plaintiff hit his head on the doorframe of his car. He suffered dizziness and nausea, and sought treatment three to four days later from a chiropractor. Defendant moved unsuccessfully for summary judgment. The case was tried to a jury and, after the trial judge directed a verdict in favor of plaintiff on the issue of liability, the jury awarded plaintiff $175,000 in damages. Defendant appealed. Medical Testing and Treatment: Chiropractor: three to four days post-accident, plaintiff experienced severe pain in his neck and back and sought treatment. Doctor referred plaintiff for MRI (see below). Reported on Jan. 18, 2002, that, because of the longevity of plaintiff’s symptoms, plaintiff would have permanent residual pain and spinal dysfunction causally related to the accident, which would significantly limit the use and function of his body and restrict his daily activities permanently. Doctor was aware of plaintiff’s prior motor vehicle accident (see below), but noted that, based on plaintiff’s report to him that he had no continuing symptoms after treating with another physician for that accident, the doctor concluded that plaintiff had no residual injuries from that accident. Radiology: MRI revealed a herniated disc at C6-7, impinging on the thecal sac; bulging disc at L4-5, also impinging on the thecal sac. See “prior injuries” below for additional treatment received following prior and subsequent accidents. Prior and Subsequent Injuries: (1) 3-4 years prior to subject accident: plaintiff injured his right ankle in an accident while in Egypt. (2) April 12, 2000: injured in another motor vehicle accident and treated for headaches and back pain by a different physician. Plaintiff claimed minimal physical impact from the “light bruises in his back and neck” sustained in this accident. Diagnosed with disc bulge at C4-5, lumbar and cervical sprain, and muscle spasm. Doctor diagnosed lumbar and cervical injuries as permanent. Plaintiff indicated, however, that he felt fine and was “completely recovered” after treating for three to four months after this accident, and was able to resume working at both of his jobs, working more than 50 hours per week. (3) Dec. 10, 2001: another motor vehicle accident. By this time, plaintiff had largely stopped working as a cab driver due to his back pain, but happened to be driving a cab on this occasion to help a friend who was short-handed. Was treated by the same doctor who treated him for the 4-12-00 accident, this time for headaches, neck and back pain. Also saw a neurologist who diagnosed him as suffering from cervical and lumbar sprain and strain. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed as a taxicab driver and as a gas station attendant at time of accident, and claimed that he was unable to continue with these occupations as a result of the accident. Other Lifestyle Impact: Not discussed. Physician’s Certification: No issue Polk Analysis: Defendant moved for summary judgment, contending that plaintiff had not demonstrated a serious impact from the injuries he sustained in the subject accident. Defendant did not raise the Polk issue until appeal (see “Appellate Division determinations” below). Miscellaneous Issue(s): None Trial Court Determination(s): (1) Defendant’s summary judgment motion denied, the motion judge concluding that plaintiff had produced sufficient evidence that he was unable to work at his former occupations, constituting a serious impact. (2) Directed verdict on liability in favor of plaintiff; case tried on damages. (3) Precluded defense counsel from cross-examining plaintiff’s chiropractor about the prior and subsequent accidents. Appellate Court Determination(s): (1) Trial judge properly denied defendant’s summary judgment motion. While defendant attempted to argue on appeal that plaintiff had failed to produce the required Polk comparative analysis, defendant did not raise this issue before trial, setting stage for an error committed there. (2) Directed verdict on liability affirmed. Defendant did not testify, and the only evidence presented was plaintiff’s testimony that defendant, whose car was parked facing the wrong way on the opposite side of the street, suddenly pulled his car across the street, as though attempting to make a U-turn, and struck plaintiff’s vehicle. There was no evidence on which a reasonable jury could base a determination that plaintiff was negligent. (3) Prejudicial error committed in judge’s limiting defense counsel’s cross-examination of plaintiff’s expert, mandating reversal and remand for a new trial on damages: Plaintiff’s only medical witness was his chiropractor, who had not treated him for the prior accidents, and had stopped treating him two months before his subsequent accident; thus, he was not even aware of the subsequent accident. While defense counsel attempted on cross-examination to discredit the witness’s conclusion that all of plaintiff’s medical limitations were caused by the subject accident, confronting him with evidence concerning the prior and subsequent accidents, the trial judge sustained plaintiff’s counsel’s objections to this line of questioning on the grounds that the chiropractor could not testify about documents of which he was not aware. The appellate panel concludes that this was prejudicial error. It was entirely appropriate for defense counsel to attempt to attack the chiropractor’s credibility by showing that he had not considered all relevant facts in reaching his conclusion that plaintiff’s medical problems were entirely attributable to the subject accident. Further, it was not unusual or improper to cross-examine the witness by using hypothetical questions (based on the evidence) concerning facts he may not have considered and asking whether, if they were true, it would change the expert’s opinion. Since this case was, in large part, a credibility contest between the parties’ experts, the judge gave plaintiff an unfair advantage in precluding defense counsel from thoroughly cross-examining the chiropractor, mandating reversal and remand for a new damages trial. The panel noted, however, that defendant did not lay an evidentiary foundation for the Polk issue at the first trial. Although questioning his own expert about plaintiff’s medical records and reports from the prior accidents, neither those documents nor the underlying MRIs or X-ray films were introduced into evidence. The panel concludes that plaintiff should be required to present medical testimony on retrial concerning the impact, if any, of the prior and subsequent accidents. Even if it seems highly likely that the vast majority of plaintiff’s limitations are attributable to his most serious accident and injury � the disc herniation sustained in the subject accident � the jury cannot fairly determine the causation issue without Polk testimony. Consequently, prior to retrial, plaintiff must produce a report from his chiropractor or another expert providing the required analysis, and plaintiff must present such proofs at trial. 34. Riddick v. Washington, A-2804-03T2 DDS No. 23-2-0830 Judges Weissbard and Hoens June 30, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Feb. 19, 2002. Medical Testing and Treatment: Plaintiff saw a variety of health care providers, including two chiropractors, a neurologist, and two orthopedic surgeons. Specifics included: First chiropractor: concluded that plaintiff had sustained cervical and lumbar sprain and strain; cervical brachial syndrome; sciatica; one bulging cervical disc and one herniated lumbar disc. Plaintiff treated with chiropractor, but obtained little relief. Chiropractor concluded injuries were permanent Radiology: MRI: confirmed chiropractor’s observations First orthopedic surgeon: performed lumbar epidural steroid injection, which failed to provide plaintiff with significant relief. Second orthopedic surgeon: recommended lumbar decompression and spinal fusion surgery, which plaintiff was reluctant to undergo. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s proofs were insufficient to demonstrate a serious impact on his life. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel remands the matter to the Law Division for further proceedings consistent with this most recent Supreme Court guidance. 35. Rosania-Sullivan v. Goodwin, A-1612-04T1 DDS No. 23-2-0850 Judges Conley and Braithwaite July 1, 2005 Result: Matter remanded for reconsideration of grant of summary judgment to defendant. Facts/Background: This case arose out of an automobile accident on Jan. 7, 2003. Plaintiff saw a number of physicians within the thirty-day period following. Medical Testing and Treatment: Family physician: Day after the accident: plaintiff complained of headaches, and aches and pains throughout her body. Physical examination revealed tenderness on the left side of her ribs and questionable impairment to her left eye. No limitation of motion was evidenced on this initial visit. Plaintiff treated with anti-inflammatory medications for pain, and told to consult with an opthalmologist and a chiropractor. Opthalmologist: Two days post-accident: plaintiff complained of tunnel vision and discomfort on her pupil. Doctor recommended brain MRI, and treated plaintiff thereafter for an unspecified number of visits, but only over a period of several months. Radiology: Brain MRI, Jan. 22, 2003: revealed a small venous angioma (benign tumor). MRA performed thereafter, however, did not so indicate. No report from opthalmologist indicating that the angioma had any relationship to the accident. Cervical MRI and electrodiagnostic tests were normal. Chiropractor: Also two days post-accident: plaintiff complained of headaches and cervical and thoracic pain. Treated for 14 sessions from Jan. 9, 2003, to March 24, 2003. Final diagnoses: cervical and thoracic sprain and strain, with some associated lower back pain. Chiropractor did provide a certificate of permanency. Neurologist: Feb. 5, 2003: plaintiff complained of daily headaches, cervical pain, blurred vision, and associated anxiety. Physical examination revealed tenderness and spasm in the cervical spine, with some loss of mobility. Electrodiagnostic tests were essentially normal. Plaintiff treated over a several month period, ending May 5, 2003. Doctor noted that plaintiff’s pain was decreasing on last two visits on April 2nd and May 5th. Final diagnosis: cerebral concussion and post-concussion syndrome; headaches; and post-traumatic anxiety disorder, requiring treatment with medication. The neurologist also provided a certificate of permanency. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge noting that plaintiff only treated actively for about a month after the accident. He concluded that plaintiff’s final diagnosis was cervical sprain and strain, along with post-traumatic anxiety disorder and cerebral concussion. The previously-diagnosed thoracic and possible lumbar sprain and strain had apparently resolved. The most that could be said, on an objective medical basis, was that plaintiff had muscle spasm; however, it was not persistent, as required to surmount the verbal threshold under AICRA. Even accepting some mention of limited range of motion in her neck, which was disputed, plaintiff did pass the objective aspect of the verbal threshold. The physicians’ certifications alone were not enough to defeat the defendant’s motion for summary judgment. Appellate Court Determination(s): Remanded. The panel noted the recent Supreme Court decisions in DiProspero and Serrano, eliminating the “serious impact” prong of the verbal threshold test. While the motion judge did not indicate that he relied on this aspect of the verbal threshold analysis, the panel could not be sure that, in concluding that plaintiff’s objective medical evidence was deficient, he did not consider and use the “serious injury” element rejected in Serrano. Therefore, the matter was remanded for reconsideration in light of Serrano. On remand, the focus of the analysis should be whether the motion record, viewed favorably for plaintiff, showed that she sustained “a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement, as a result of the accident. The inquiry was whether her injury affected a body part or organ, or both, which had not healed to function normally, and would not heal to function normally with further medical treatment. 36. Roig-Vega v. Jackson, A-1412-04T2 DDS No. 23-2-1007 Judges Parker and Grall July 18, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Sept. 9, 2002, which occurred in a parking lot around 3:30 in the afternoon. Plaintiff returned to work thereafter, but began to feel neck discomfort later in the day, and went to the emergency room. Medical Testing and Treatment: Emergency room: Plaintiff complained of stiff back, numbness in her arms, dizziness and headache. X-rays revealed no broken bones, but the emergency room physician noted tenderness in the paracervical and cervical vertebral areas; no mass; and no thyromegaly. He noted that the plaintiff was unable to move her head from side to side because of the pain. Chiropractor: day after the accident, doctor noted muscle spasm and loss of range of motion. He performed a cervical distraction test, which showed nerve root compression, and the Soto-Hall Maneuver, which showed nerve irritation in the cervical and thoracic spine. Plaintiff treated for one year. Doctor’s final report indicated that the cervical spasm he observed in his initial examination continued throughout treatment. Neurologist: Three weeks post-accident, examination revealed marked limitation of head movement at the neck, with spasm of the paravertebral cervical muscles. Straight leg raising reported at 90 degrees bilaterally. Range of motion was full at the pelvis. Cranial nerves were intact. Plaintiff exhibited normal tone and strength on motor examination. Deep tendon reflexes were symmetrical. No pathological reflexes were elicited. Gait and coordination testing were normal, as was the sensory examination. The doctor’s clinical impression was that plaintiff had suffered the following injuries as a result of the motor vehicle accident: “Rule out herniated disc cervical region. Rule out cervical radiculopathy.” He prescribed Celebrex and indicated that plaintiff should continue her chiropractic treatments. Radiology: MRI in mid-December, 2002: straightening of the expected cervical lordosis, with mild kyphosis at C4-5. Heterogeneous signal within the vertebral bodies, most prominently at C4, was noted. No evidence of focal mass or fracture pattern. Diffuse degenerative disc disease is evident with disc space narrowing and loss of water signal. Axial images, although limited, demonstrated no paraspinal mass or focal atrophy. C2-3 and C3-4 were within normal limits. At C4-5, there was a small central disc extrusion with associated right lateral protrusion contributing to right lateral recess stenosis, but no significant canal stenosis. At C5-6, a moderate right lateral extrusion is noted with mass effect on the right C6 nerve root sleeve. C6-7 and C7-T1 were grossly unremarkable. The radiologist’s impression was: cervical spondylosis with right lateral extrusion at C5-6 impinging on the right C6 nerve root sleeve and small central disc at C4-5. Jan. 27, 2003: neurologist performed an EMG and nerve conduction study, and found them normal. Medemerge: In 2003, plaintiff’s upper back and left arm pain continued, and she sought treatment from physicians at this group. They prescribed medications over a period of time from February 5 through Nov. 5, 2003. Rehabilitation and pain specialist: D.O. saw plaintiff in June 2003. Diagnosis was right cervical radiculitis secondary to disc extrusion at C5-6, and cervical myofascial pain syndrome secondary to acceleration-deceleration injury. The doctor recommended a prednisone dose pack, and Flexeril for muscle relaxation. He saw plaintiff again in December 2003, and indicated that her condition was “unchanged.” Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff claimed multiple impacts, but they are not detailed in the opinion. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had presented sufficient objective medical evidence of permanent injury, but not of a sufficient impact on her life to overcome the verbal threshold. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel remands the matter to the Law Division for further proceedings. The subsequent decisions in Beltran v. DeLima and Pungitore v. Brown held that DiProspero applied to all cases pending appeal, as this case, or disposition in the trial court. 37. Schissel v. Estate of Lewis, A-1102-04T2 DDS No. 23-2-1048 Judges Parker and Grall July 21, 2005 Result: Summary judgment in favor of defendant, and denial of plaintiff’s motion for reconsideration, both affirmed. Facts/Background: This case arose out of an automobile accident on Jan. 12, 2001, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle, as the 42-year-old plaintiff was stopped at a red traffic light. Medical Testing and Treatment: Emergency room: Plaintiff was taken to the hospital, complaining of lower back pain. Lumbar X-rays were negative for fracture, spondylolysis and spondylolisthesis and showed that his vertebral dimensions were preserved. Some narrowing of the L3-4 disc space was noted and ventral osteophytes were seen at L3-4 and L4-5. The diagnosis was strain of the ligaments and muscles that support the spine. Plaintiff was released with medications to ease his pain and relax his muscles and instructed to get bed rest for the next three days and seek additional care if his condition did not improve within one week. Orthopedic sports medicine specialist: Jan. 25, 200, diagnosed plaintiff’s condition as a “lumbar spine sprain overlying pre-existing abnormality in his back.” Tylenol recommended for discomfort and an MRI requested. Radiology: MRI performed March 8, 2001, degenerative disc changes from L3 through S1; anterior spondylolisthesis secondary to degenerative changes at L3 on L4; shallow disc bulges at L3-4, L4-5, and L5-S1, most prominent at L3-4. No other abnormalities noted. Second MRI performed on April 27, 2002: lumbar vertebral bodies intact with very minimal degenerative anterolisthesis of L3 to L4; degenerative disc desiccation of the L1-2, L3-4 and L4-5 discs; a broad concentric annular bulge at L3-4; mild posterolateral annular bulging of the L4-5 disc; and, at L5-S1, a small to moderate-sized left posterolateral disc protrusion/herniation with an annular tear, moderately compromising the left recess and proximal neural foramen. Dr. Ciprasio: September 2001, reported low back pain secondary to degenerative disc disease of the lumbar spine with mild disc bulges. Dr. Ani: August 2001, diagnosed plaintiff with degenerative disc disease of the lumbar spine with protrusion and leg radiculopathy from L3 to S1. October 2001, after plaintiff had undergone a caudal block, doctor reported degenerative disc disease of the lumbar spine with protrusion and referred pain down the leg and protrusion between L3 to S1. Plaintiff improved about 40 percent after the block. In subsequent reports to plaintiff’s primary physician dated November 2001, January, February, April, July 14 and 29, 2002 and December 2003, Dr. Ani advised that plaintiff’s clinical picture had not changed. Dr. Ani first addressed the causal relationship between the subject accident and plaintiff’s condition in a letter to plaintiff’s counsel dated April 27, 2004. There, he stated that he felt the degenerative disc disease of plaintiff’s lumbar spine was a pre-existing condition; however, the accident had aggravated his problem and precipitated his symptoms. The prognosis was guarded, and would leave plaintiff with a certain degree of permanency. Dr. Ani also submitted a supplemental report when plaintiff moved for reconsideration. He stated that, after reviewing the emergency room records, the MRI reports, the office notes of plaintiff’s primary care physician, the health insurance claim and his own notes, he did not feel that there was any objective indication of prior back pathology. While plaintiff had a diagnosis of lumbosacral sprain, this was resolved without any treatment “way before the accident.” After comparing the medical records before the accident with those after the accident, based on the objective findings in the MRI, the doctor opined that he had no doubt that the accident aggravated the degenerative process of plaintiff’s lumbosacral spine. This was evident by the progression of the degeneration in the two MRIs, which revealed worsening of the degenerative changes, consistent with the trauma that plaintiff sustained secondary to the accident. Prior Injuries: Plaintiff had a history of back pain. He first injured his back playing soccer in the 1970′s. He complained to his doctor of back pain in May of 1988. In December 1997, he complained of numbness in his right leg and thigh, and his doctor concluded that he suffered from sciatica. In January 1999, he slipped on ice and fell, and his doctor diagnosed a lumbar sprain. On July 25, 2000, he returned to his doctor with a complaint of back pain. Less than two months before the accident, on Nov. 21, 2000, he again saw his doctor for back pain. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: Dr. Ani’s supplemental report attempted to make a comparative analysis to address the judge’s concerns about causation; however, he failed in his effort to show that plaintiff’s pre-existing back problems and degenerative condition were aggravated by the subject accident, and not simply the result of continuing degeneration. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not introduced evidence sufficient to permit a jury to conclude that his difficulties were caused by the accident, and not attributable to the degenerative conditions that all of his doctors reported. Nonetheless, the judge advised plaintiff that he would entertain a motion for reconsideration if plaintiff submitted additional medical evidence linking his condition to the subject accident. When plaintiff so moved, and submitted Dr. Ani’s supplemental report, the judge concluded that the opinion on causation was not adequate. Aside from stating his conclusion that the accident had aggravated the degenerative process of plaintiff’s lumbosacral spine, evidenced by the progression of the degeneration in the two MRIs, the judge noted that the doctor had not set forth the “whys and wherefores to support his conclusion.” Finding that the expert had not explained why trauma would cause a worsening of pre-existing degenerative changes, which could occur from just a progression of the condition, the judge concluded that the opinion was a net opinion and inadmissible and insufficient to withstand defendant’s summary judgment motion. Appellate Court Determination(s): Affirmed because plaintiff failed to present competent evidence of a causal connection between the subject car accident and aggravation of his pre-existing degenerative disc condition. Plaintiff did not present competent evidence to show a nexus between the injury and the disability. Plaintiff was required to show by medical opinion that aggravation of the original condition by the new trauma � and not deterioration unrelated to the accident � actually produced the disability he complained of. The panel agreed that Dr. Ani’s supplemental opinion was conclusionary and amounted to no more than a net opinion on the question. He simply ignored evidence that plaintiff had complained of back pain less than two months prior to the subject accident. While he reported that he had reviewed plaintiff’s medical records, he did not address the information contained therein. As a result, his opinion did not provide the comparative analysis that supported the conclusion that the pre-accident condition was aggravated. 38. Bednarski v. Penso, A-3302-03T5 DDS No. 23-2-1062 Judges Rodriguez and Weissbard July 22, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on Sept. 22, 2001, which occurred when plaintiff’s vehicle was struck from behind by a vehicle that had been propelled forward by defendant’s vehicle. Plaintiff filed suit more than two years post-accident, claiming that, although the initial impact and onset of pain occurred at the time of the collision, the injury establishing the statutory elements of the verbal threshold was not discoverable until at least Oct. 22, 2001, by virtue of the objective medical evidence (MRI) and the physical examinations conducted thereafter. Medical Testing and Treatment: Emergency room: Plaintiff was treated and released after the accident with a diagnosis of cervical lumbar strain. X-rays revealed no fractures or other identifiable injuries indicative of permanency. Novacare: Four days post-accident, plaintiff began physical therapy treatments at this facility. Primary physician: Medically authorized plaintiff to return to work Sept. 28, 2001. Referred plaintiff for MRI, after which he diagnosed plaintiff with resolving bilateral cervical pain. By Nov. 15, 2001, plaintiff’s condition was elevated to “severe cervical radiculopathy” and was no longer “resolving.” Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Plaintiff claimed that her complaint was not time-barred because she did not discover that her injury satisfied the verbal threshold until the MRI on Oct. 22, 2001. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that the case was untimely filed. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the trial judge. In 1978, in Cappadona v. Eckelmann, the Appellate Division held that, under similar circumstances, the two year statute of limitations set by N.J.S.A. 2A:14-2 applied to verbal threshold cases. The “discovery rule” was not applicable here. Plaintiff knew that she was injured on the date of the accident. The fact that she did not discover until later that her injury was significant enough to satisfy the verbal threshold did not change the result. 39. Camacho v. Camacho, HUD-L-488-04 DDS No. 23-3-1140 Judge Bariso Jr. July 22, 2005 Result: Court denied plaintiff’s motion to vacate the dismissal of her verbal threshold complaint, because it was not in the “pipeline” at the time of the DiProspero decision, on the basis of which she sought relief. Facts/Background: Summary judgment had previously been granted to the defendant in this Law Division case, dismissing plaintiff’s complaint with prejudice for failure to satisfy the limitation on lawsuit threshold set forth in AICRA. The decision was based on plaintiff’s failure to demonstrate that the injuries she had sustained in the accident had a serious impact on her life, as previously required by James v. Torres. Plaintiff did not appeal the summary judgment, and the time to appeal under R. 2:4-1 passed. After the Supreme Court decided DiProspero, which essentially overturned James, and held that the verbal threshold under AICRA did not require plaintiff to demonstrate that her injuries had a serious impact on her life, plaintiff filed a motion for reconsideration of the dismissal of her complaint. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): In a matter of first impression, the judge held that the Supreme Court’s decision in DiProspero should not be applied retroactively in this case, which was not in the “pipeline” at the time of the decision. The judge noted that plaintiff’s “reconsideration” motion, governed by R. 4:49-2 � which required its filing no later than 20 days after service of the judgment � was time-barred. However, he also noted that plaintiff was not foreclosed from relief under R. 4:50-1, if she could show exceptional or compelling circumstances. Absent such circumstances, failure to obtain relief through the usual channels of appeal was not a reason to justify relief under R. 4:50-1. The judge cited the recent Appellate Division decision in Beltran v. DeLima, decided only 11 days earlier, where the panel dealt with the issue of whether the DiProspero decision should be applied prospectively or retroactively. After carefully reviewing the policy considerations relevant to a retroactivity analysis, the panel in Beltran concluded that the DiProspero and Serrano decisions undeniably marked a departure from James v. Torres. Since James had been widely followed by trial judges and appellate panels, the court in Beltran held that the Supreme Court had established a new rule of law as to which retroactive analysis was appropriate. In determining whether retroactive analysis of DiProspero and Serrano was justified, the court in Beltran described three policy considerations after determining that retrospectivity is the general rule: (1) whether there has been justifiable reliance by the parties and the community as a whole on prior decisions; (2) whether the purpose of the new rule would be advanced by retroactive application; and (3) whether any adverse effect retrospectivity may have on the administration of justice. The court viewed the balance of these policy factors as tipping toward a finding of “pipeline retroactivity” of the verbal threshold. In applying “pipeline retroactivity” to DiProspero and Serrano, the Beltran court held that these recent decisions were applicable to all prejudgment matters pending in the trial courts and to all those on direct appeal. The judge here found that it was not unreasonable to extend the rationale of Beltran to the “non-pipeline” cases through R. 4:50-1(f). As the Beltran court reasoned, it was difficult to fault those who relied upon James as setting forth the proper interpretation of the limitation on lawsuit provisions of AICRA, particularly after certification was denied to that decision. Nonetheless, because an issue of statutory construction remained that the Supreme Court had not addressed, it could not be claimed that the issue was in any respect “settled,” particularly after the parties’ appeal was perfected in DiProspero and certification was granted in Serrano. The Beltran court did not consider whether to give their new ruling complete retroactive effect, applying it to all cases even if final judgments had already been entered and avenues of direct appeal had been exhausted. This, the judge noted, was the very issue before him in this matter. The judge stressed that a R. 4:50 motion could not be used as a substitute for a timely appeal. In Hartford Ins. Co. v. Allstate Ins. Co., the Supreme Court made clear that a change in the law or in the judicial view of an established rule of law is not such an extraordinary circumstance as to justify relief from a final judgment where the time to appeal has expired. That unquestionably was the general rule, and it rested principally upon the important policy that litigation must have an end. The judge indicated his awareness of the circumstantial breadth of R. 4:50-1(f) and the difficulty in articulating and characterizing the situations which would warrant redress thereunder. The very essence of the subsection was its capacity for relief in exceptional situations. In such cases, the subsection’s boundaries were as expansive as the need to achieve equity and justice. Since the plaintiff’s complaint was dismissed on April 29, 2005, plaintiff’s counsel was on notice that the DiProspero matter was pending, since the Supreme Court had already heard oral argument in November 2004, and it was anticipated that the decision would be made prior to the conclusion of the present Court’s term. Additionally, prior to the April 29th decision herein, the Appellate Division had entered an order staying all verbal threshold appeals pending the DiProspero decision. Counsel could have simply filed a notice of appeal so that the matter stayed in the “pipeline.” Numerous challenges to the James decision persisted, as reflected in Appellate Division decisions after it, including the dissent of Judge Weissbard that led to the appeal in DiProspero. Finally, plaintiff could have challenged the court’s determination that she failed to establish that her permanent injuries had a serious impact on her life. In light of all of these considerations, there could be no “justifiable reliance” by the parties and the community as a whole on the prior decisions. Therefore, the three-part retroactivity test enunciated in Beltran did not tip in favor of allowing this “non-pipeline” case to be reopened under R. 4:50-1(f). As a footnote, because the issue was not presented, the judge did not consider whether retroactive effect applied to cases where final judgments were entered after certification was denied in James on Feb. 13, 2003, and prior to the appeal in DiProspero being filed with the Supreme Court on Feb. 26, 2004, and/or certification granted in Serrano on May 21, 2004. Appellate Court Determination(s): None (trial court opinion only). 40. Flannery v. Szuwalski, A-7142-03T3 DDS No. 23-2-1093 Judges Parker and Grall July 27, 2005 Result: Jury verdict of no cause reversed and matter remanded for a new trial. Facts/Background: This case arose out of an intersectional automobile accident on Aug. 8, 2000. Defendant admitted liability, and the issue of damages was tried to the jury. The first of the three questions on the jury verdict sheet asked whether the plaintiff sustained permanent injuries proximately caused by the accident, which injuries had a serious impact on her life. The jurors responded “no,” and the second and third questions, dealing with damages, were not answered. As a result, the complaint was dismissed with prejudice. Plaintiff’s motion for a new trial was denied. Medical Testing and Treatment: Not detailed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Jury verdict sheet question. Trial Court Determination(s): Plaintiff’s complaint dismissed with prejudice when jury answered “no” to the first question on the jury verdict sheet (see above). Plaintiff’s motion for a new trial was denied. Appellate Court Determination(s): Reversed. Plaintiff was not required to demonstrate either a serious impact on her life under DiProspero or an injury of a certain severity under Serrano. The rules announced in those cases were held to be afforded “pipeline retroactivity” in Beltran. Accordingly, since the jury returned a verdict of no cause in response to a question requiring it to consider whether the accident proximately caused permanent injuries, but added “which injuries have had a serious impact on plaintiff’s life,” a new trial is required. Any attempt to determine whether the jurors’ negative response to the question posed was based on its view of the evidence of “proximate cause,” rather than its view of the evidence of “serious impact,” would be an exercise in speculation. 41. Ullery v. Kairey, A-1696-04T5 DDS No. 23-2-1116 Judges Parker and Grall July 29, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: Plaintiff claimed injury as a result of the motor vehicle accident with defendant. Medical Testing and Treatment: Plaintiff asserted that he visited the emergency room after the accident, was treated thereafter at Shore Orthopedics, and received physical therapy as recommended by his doctor. However, plaintiff did not supply any records to support these claims. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. Appellate Court Determination(s): Affirmed. In the absence of any medical records to support plaintiff’s claims of treatment, and with no certification by any doctor, there was no evidence to establish “within a reasonable degree of medical probability” that he sustained an injury as a result of the accident that met the statutory standard. 42. Girlya v. Berrevoets, A-1893-04T1 DDS No. 23-2-1192 Judges Newman and Fall Aug. 8, 2005 Result: Post-verdict order denying plaintiff’s motion for a new trial affirmed. Facts/Background: At the time of the accident in this case, plaintiff was insured by First Trenton Indemnity Company, and chose a policy with the standard verbal threshold tort limitation. When plaintiff sued various defendants for damages, he did not include First Trenton as a party. On the brink of trial, plaintiff sought a determination that he be deemed to have selected the no tort threshold option based on his contention that First Trenton had automatically renewed his verbal threshold policy, originally issued in 1997, without providing him notice that the verbal threshold law had changed in 1998 with the adoption of AICRA, under which he was now required to show a serious life impact. Plaintiff sought reformation of his policy; however, since the insurance carrier was not before the court, the motion was denied. The case was then tried to a jury over nine days, and the jury concluded that plaintiff had not satisfied the verbal threshold tort limitation in that he had not suffered a permanent injury as a result of the accident. Plaintiff unsuccessfully filed a motion for a new trial, on the basis that his policy should have been reformed so that he would not be deemed subject to the verbal threshold. After he appealed, plaintiff also filed a verified complaint against First Trenton seeking retroactive reformation of the insurance policy to include the no threshold option. Plaintiff never appealed from the jury’s determination that he did not sustain a permanent injury. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Plaintiff sought reformation of verbal threshold policy after AICRA based on carrier’s failure to notify him of changes in the law under AICRA; however, insurance carrier not made party to suit. Trial Court Determination(s): Plaintiff’s initial motion to reform his insurance policy and his motion for a new trial were both denied because First Trenton was not a party to the personal injury action, and the policy it issued to plaintiff contained the verbal threshold option, upon which defendants were entitled to rely. Appellate Court Determination(s): Affirmed, rejecting plaintiff’s arguments that he was entitled to reformation because First Trenton was required to provide him with updated Buyer’s Guides at each policy renewal, and that he had justifiably relied on an earlier Guide that First Trenton knew was not correct when he renewed his policy for the period applicable to this accident. As the trial judge recognized, the fundamental flaw in plaintiff’s argument is that an indispensable party was not before the trial court. Even if reformation of the policy were a viable issue, it could not be accomplished without the insurer being a party to the lawsuit. Since this was not done, the issue was not justiciable. 43. Smith v. Marnell, A-6485-03T2 DDS No. 23-2-1246 Judges Fisher and Reisner Aug. 16, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on May 18, 2000. Medical Testing and Treatment: Not detailed, although trial judge found that plaintiff submitted sufficient objective medical evidence of a permanent injury. Prior Injuries: Plaintiff was involved in an earlier accident, although the opinion does not set forth the specifics. Serious Impact on Plaintiff’s Life: Not detailed, although the trial judge found plaintiff’s evidence of serious impact insufficient. Physician’s Certification: No issue Polk Analysis: Not detailed, although trial judge found that plaintiff provided an adequate comparison of the injuries allegedly caused by this accident and those that resulted from his earlier accident. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge following the Appellate Division’s prior rulings under James v. Torres, and applying the two-prong Oswin test in concluding that plaintiff had failed to meet the verbal threshold. Even though he provided sufficient objective evidence of a permanent injury, and an adequate comparison of the injuries allegedly caused by this accident and those that resulted from an earlier accident, as required by Polk, plaintiff failed to demonstrate that his alleged injuries had a serious impact on his life. Appellate Court Determination(s): Reversed. While the appellate panel agrees that plaintiff did not adequately demonstrate that the alleged injuries had a serious impact on his life, in light of the recent decisions by the Supreme Court in DiProspero and Serrano � holding that AICRA does not include a serious impact requirement � the panel remands the matter to the Law Division for further proceedings. 44. Cornier v. U.C.J.F., A-4581-03T1 DDS No. 23-2-1247 Judges Collester, Parrillo and Chambers Aug. 16, 2005 Result: Denial of plaintiff’s motion for counsel fees under AICRA affirmed, but remand required for a determination of plaintiff’s claim for counsel fees under the frivolous litigation statute. Facts/Background: This case arose out of an automobile accident on July 1, 2001, which occurred when plaintiff was a passenger in an uninsured motor vehicle. Upon learning that the vehicle was uninsured, plaintiff � who did not have an automobile and did not have any health insurance � submitted a claim to the defendant Unsatisfied Claim & Judgment Fund on Nov. 12, 2001, for personal injury protection benefits. The Fund returned to plaintiff a checklist noting five deficiencies and indicated that the matter was being placed on the ineligible list. Believing that none of the items on the checklist had any merit, plaintiff’s counsel called the adjuster who had sent the notification. The adjuster advised that the Fund would not consider the claim unless expressly ordered to do so by a court, and stated that, unless a suit were filed against the Fund, the matter would be considered inactive. In December 2002, plaintiff settled her personal injury claims against the tortfeasors in the amounts of $8,500 for pain and suffering, and $1,200 for the statutory PIP co-pay and deductible. Thereafter, she commenced this lawsuit against the Fund to recover her PIP benefits. On the motion for summary judgment, defense counsel could not articulate any reason why the benefits were not paid, other than the unsupported statement that the checklist generated questions of fact. Plaintiff was granted summary judgment for the full amount of her claim, inclusive of interest and taxed costs. However, while sympathetic to plaintiff’s request, the trial court denied her application for attorney’s fees because it believed it lacked the statutory authority to make such an award. Plaintiff appealed. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Plaintiff sought entitlement under AICRA to counsel fees for pursuit of her PIP claim against the Unsatisfied Claim & Judgment Fund. Alternatively, she sought counsel fees under the frivolous litigation statute. Trial Court Determination(s): Plaintiff was granted summary judgment for the full amount of her PIP claim, inclusive of interest and taxed costs. However, while sympathetic to plaintiff’s request, the trial court denied her application for attorney’s fees because it believed it lacked the statutory authority to make such an award. Appellate Court Determination(s): Affirmed. Plaintiff maintained that AICRA implicitly allowed a claimant who successfully asserted a PIP claim against the Fund to recover attorney’s fees from the Fund, noting that AICRA treated the Fund’s PIP claimants and automobile insurers’ PIP claimants similarly. Consequently, since successful PIP claimants may recover attorney’s fees against automobile insurers, successful PIP claimants against the Fund should be able to do so, as well. The appellate panel evaluated plaintiff’s claim against the backdrop of prior law. Before AICRA, a PIP claimant was able to recover attorney’s fees against the automobile insurer under both statutory law and court rule. However, the pre-AICRA law was clear that attorney’s fees could not be awarded against the Fund when the Fund failed to pay PIP benefits, due to the absence of any statute or rule authorizing payment of such fees. Successful PIP claimants were not allowed to be awarded fees against the Fund under R. 4:42-9(a)(6), because the court rule could not be reasonably construed to include the Fund. Further, the Appellate Division noted that no statutory authority existed requiring the Fund to pay attorney’s fees to a successful PIP litigant. Thus, prior to AICRA, a successful PIP claimant was unable to collect attorney’s fees from the Fund under either court rule or statute. The panel found that nothing in AICRA expressly changed that result. Plaintiff could not point to any provision of the statute explicitly authorizing attorney’s fees to be assessed against the Fund. Nonetheless, she argued that the new statutory provisions governing dispute resolution procedures under AICRA modified the prior law. She relied on language in AICRA and accompanying regulations that provided for a new dispute resolution procedure for PIP claimants of automobile insurers and the Fund. AICRA authorized the dispute resolution professional involved to apportion “costs” of the dispute resolution procedures. N.J.S.A. 39:6A-5.2(g). AICRA also authorized the Department of Banking and Insurance to implement rules and regulations regarding the dispute resolution proceedings. In accordance with that authority, the Department adopted regulations that included the power to award attorney’s fees to a successful claimant in the dispute resolution proceedings. N.J.A.C. 11:3-5.6(d)(3). Plaintiff argued that this statutory provision for “costs,” coupled with the cited regulation, allowed attorney’s fees to be awarded against the Fund. The appellate panel held that plaintiff’s arguments failed because the Appellate Division had already determined that the statutory reference to “costs” in the cited statute did not refer to “attorney’s fees.” In N.J. Coalition of Health Care Professionals, Inc., the court considered whether this statute and regulation allowed insurance carriers to collect attorney’s fees from unsuccessful claimants. The appellate court rejected this so-called “loser pays all” interpretation, finding no expression of legislative intent to require claimants to reimburse the insurance companies for attorney’s fees. The court also noted that such a rule would discourage resort to the dispute resolution process. Thus, AICRA, lacking express and clear language of legislative intent, did not provide authority for the imposition of attorney’s fees upon the Fund. In the alternative, plaintiff maintained that she was entitled to attorney’s fees under the frivolous litigation statute. The appellate panel found more potential merit in this argument, and remanded this issue to the trial court, since it had neither been argued there, nor ruled upon, even though it had been included in plaintiff’s brief before the trial court. 45. Spann v. Dale, A-5201-03T3 DDS No. 23-2-1285 Judges Fisher and Reisner Aug. 19, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Nov. 15, 2000. Medical Testing and Treatment: Not detailed, although trial judge found that plaintiff submitted sufficient objective medical evidence of a permanent injury. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although the trial judge found plaintiff’s evidence of serious impact insufficient. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge following the Appellate Division’s prior rulings under James v. Torres, and applying the two-prong Oswin test in concluding that plaintiff had failed to meet the verbal threshold. Even though she provided sufficient objective evidence of a permanent injury, plaintiff failed to demonstrate that her alleged injuries had a serious impact on her life. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano � holding that AICRA does not include a serious impact requirement � the panel remands the matter to the Law Division for further proceedings. 46. Morgan v. Fuchs, A-7049-03T2 DDS No. 23-2-1286 Judges Fisher and Reisner Aug. 19, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of a chain-reaction automobile accident on Jan. 18, 2001, which occurred when plaintiff was seated in a parked vehicle, which was struck by a vehicle driven by one of the defendants, which had, in turn, been struck by the other defendant’s vehicle. Medical Testing and Treatment: Not detailed, although trial judge found that plaintiff submitted sufficient objective medical evidence of a permanent injury. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although the trial judge found plaintiff’s evidence of serious impact insufficient. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge following the Appellate Division’s prior rulings under James v. Torres, and applying the two-prong Oswin test in concluding that plaintiff had failed to meet the verbal threshold. Even though she provided sufficient objective evidence of a permanent injury caused by this accident, plaintiff failed to demonstrate that her alleged injuries had a serious impact on her life. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano � holding that AICRA does not include a serious impact requirement � the panel remands the matter to the Law Division for further proceedings. 47. Ralph v. Amorin, A-1628-04T3 DDS No. 23-2-1310 Judges Fisher and Reisner Aug. 23, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on Aug. 29, 2000, in which plaintiff’s motor vehicle was struck from behind by defendant’s vehicle. Immediately thereafter, plaintiff drove herself to the hospital, where she was x-rayed. Medical Testing and Treatment: Emergency room: plaintiff indicated that, after she learned the results of her X-rays were “okay,” she was released. Treating physician: Referred in a 2003 report to the objective testing (see below) and opined that plaintiff suffered from a persistent post-traumatic “recalcitrant” cervical radiculopathy. He noted plaintiff had undergone past cervical disc surgery on two occasions, but stated that she had made a good recovery from those surgeries before the subject accident. The surgeries did make her prone to further cervical spine injury, however, such as that which she sustained in the accident. In light of the long duration of plaintiff’s symptoms, the doctor opined that her condition was chronic and likely permanent in nature. Objective testing: cervical myelogram and high resolution post-myelogram CT scan in late 2002 revealed no significant occlusion of the spinal canal or neural foramen. Prior Injuries: plaintiff was involved in a prior accident in 1997, and had a history of two prior cervical discectomies, the most recent of which was about four years before the subject accident. Serious Impact on Plaintiff’s Life: Not detailed, other than to state that plaintiff missed no time from work as a result of the accident. However, the motion judge found that plaintiff’s other lifestyle impact evidence was not sufficient to meet the serious impact test. Physician’s Certification: No issue Polk Analysis: An issue existed because of plaintiff’s prior accident and cervical surgeries. The motion judge held that plaintiff’s case failed because of her failure to produce a comparative analysis. The appellate panel agreed. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff met neither prong of the verbal threshold test. Moreover, she had not produced the required comparative analysis differentiating the injuries she sustained in the accident with those she suffered previously, which had required two cervical surgeries. Appellate Court Determination(s): Although concluding that the trial judge was certainly correct in his conclusion that plaintiff failed to demonstrate a serious impact on her life, the panel noted that the legal landscape had changed since the entry of summary judgment, and the presence or absence of a serious impact was no longer relevant. If the judge’s grant of summary judgment to the defense had been based solely on that determination, the panel would have been required to reverse. However, the trial judge also determined that plaintiff failed to present sufficient objective evidence of a permanent injury or to demonstrate that any alleged permanent injury was significantly distinguished from earlier permanent injuries, as required by Polk. The appellate court agreed. Plaintiff’s doctor’s report made no reference to any objective evidence of a permanent injury. The objective tests to which he did refer revealed no permanent change in her physical condition. Instead, the permanency to which the doctor referred � a persistent and “recalcitrant” cervical radiculopathy � was, at best, based on the alleged aggravation of her pre-existing cervical condition. Significantly, the panel noted that plaintiff’s doctor had diagnosed her with cervical radiculopathy after the 1997 accident, on the basis of an EMG test. Following the subject accident, the doctor twice recommended that plaintiff undergo EMG testing to diagnose her subjective complaints of pain but, since his report makes no reference to same, the appellate court concluded that no such test was ever done. Since plaintiff did not follow the doctor’s advice, she had no objective proof to substantiate the diagnosis of “cervical radiculopathy.” Since plaintiff’s expert could point to no objective evidence to support his diagnosis, and since he did not quantify or distinguish between the pre-existing permanent injury and plaintiff’s alleged post-accident condition, as required by Polk, the appellate panel concluded that the trial judge correctly granted summary judgment to the defense. 48. Richter v. Longino, A-6573-03T2 DDS No. 23-2-1311 Judges Fisher and Reisner Aug. 23, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of a rear-end collision on Aug. 7, 2001, in which plaintiff claimed aggravation of a prior lumbar injury. Medical Testing and Treatment: Orthopedic surgeon: plaintiff presented a detailed report from Dr. Maslow, analyzing her pre-accident and post-accident medical records and opining that the subject accident aggravated her pre-existing injury. Prior Injuries: Plaintiff had previously undergone a lumbar micro discectomy in 1996. She claimed aggravation of that injury in the subject accident. Serious Impact on Plaintiff’s Life: Not detailed; however the motion judge found this aspect of plaintiff’s proofs deficient in dismissing her case. Physician’s Certification: No issue Polk Analysis: Although plaintiff’s entire case rested on her proving aggravation of a prior injury, neither the trial court nor the Appellate Division had any issue with the qualification of her orthopedic surgeon’s report in terms of its comparative analysis. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s objective, credible diagnostic medical evidence did not support a new injury attributable to the accident, but rather that plaintiff had a serious condition of the lumbar spine which was aggravated by the accident. However, the judge then concluded that plaintiff’s complaint must be dismissed because the aggravation under the facts provided could not be said to have had a serious impact on her life. Appellate Court Determination(s): Reversed. The appellate panel agreed with the motion judge’s conclusion that the record did not support a new injury. It noted that it was not necessary that plaintiff suffer a new injury to qualify under the verbal threshold, so long as her existing injury was made permanently worse. The panel felt that plaintiff had produced sufficient evidence of permanent injury, in the form of a permanent aggravation of her pre-existing lumbar condition, to survive summary judgment. Since the judge dismissed plaintiff’s complaint based on the now-abolished serious impact prong of the former verbal threshold test, the appellate panel reversed in light of the recent decisions by the Supreme Court in DiProspero and Serrano. Since plaintiff objectively proved permanent injury, whether the injuries had a serious or substantial impact on her life was irrelevant for purposes of a summary judgment motion. 49. Priporina-Gomez v. Hunter, A-4503-03T5 DDS No. 23-2-1312 Judges Fisher and Reisner Aug. 23, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on April 16, 2000, when defendant’s vehicle struck a vehicle in which plaintiff was a passenger. Medical Testing and Treatment: Plaintiff saw two doctors, who produced detailed reports attesting to injuries they opined were caused by the accident. A cervical MRI revealed disc herniations at C4-5, C5-6 and C6-7, and an EMG test revealed nerve root irritation at C5. Both doctors certified that plaintiff had suffered permanent injuries. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, except to note that the motion judge found plaintiff’s evidence insufficient in this regard. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff did not satisfy her burden of demonstrating that her injuries had caused a serious impact on her daily life. As to plaintiff’s objective evidence, the motion judge observed that the doctors’ certifications of permanency should have been more specific. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the panel remanded the matter to the Law Division for further proceedings. As to the objective prong of the verbal threshold test, the panel agreed with the motion judge that the certifications of permanency could have been more specific; however, since the same doctors provided very specific reports, describing in detail the evidence of permanent injuries, as revealed by objective medical tests, the panel concluded that plaintiff satisfied the objective evidence requirement for summary judgment purposes. 50. Tate v. Dritsas, A-2897-03T3 DDS No. 23-2-1352 Judges Rodriguez and Alley Aug. 29, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case, brought under the old version of the verbal threshold, arose out of an automobile accident on Aug. 5, 1999, in which the 21-year-old plaintiff’s vehicle was struck from the rear by defendant’s vehicle. Plaintiff was transported from the scene to the emergency room of a local hospital. Medical Testing and Treatment: Emergency room: plaintiff complained of pain in her neck, back and right hip. She was released later that same day. Orthopedist: three and one-half weeks later, plaintiff sought treatment from Dr. Torpey, who had treated plaintiff for cervical and lumbosacral strains and sciatica she sustained in another automobile accident seven weeks before the subject accident. He had cleared her to return to work prior to the subject accident. After examining plaintiff following the subject accident, the doctor noted: persistent swelling on the left side of the neck; and discomfort on lateral rotation to the right. He started plaintiff on a course of anti-inflammatory medication and physical therapy, including range of motion and strengthening exercises. The doctor opined that, based upon a reasonable degree of medical probability, there was a direct causal effect between the subject motor vehicle accident and her cervical muscle strain, contusion, inflammation of her sternocleidomastoid muscle and lumbosacral strain. He noted that the lumbosacral injury exacerbated a previous lumbosacral strain injury as well as pre-existing lumbar facet arthrosis. The doctor noted that plaintiff had been treated with “an excessive amount of physical therapy and anti-inflammatory medications, as well as facet joint blocks,” yet she failed to obtain significant relief with any of these therapies. The doctor further indicated that plaintiff was referred for radiofrequency ablation of her L5-S1 facet joints. She was at significant risk for developing chronic lumbosacral strain and facet joint pain. Radiology: an MRI performed two months post-accident, revealed degenerative changes involving the L5-S1 bilateral facet joints, and evidence of degenerative disc disease. Prior Injuries: Plaintiff injured her neck and back in another automobile accident seven weeks before the subject accident. She was treated by the same orthopedist, and he had cleared her to return to work prior to the subject accident. Serious Impact on Plaintiff’s Life: Not detailed, except to note the motion judge’s ruling that plaintiff had not established the type of severe impact necessary to surmount the verbal threshold. Physician’s Certification: No issue Polk Analysis: Motion judge ruled that plaintiff failed to differentiate between the injuries she sustained in her two accidents. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not established the type of severe impact necessary under the old Oswin test. He also found that plaintiff had not provided an adequate breakdown of what residuals were attributable to each of her two accidents. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the motion judge. Moreover, the panel noted that there were no disputed MATERIAL issues of fact (emphasis supplied). 51. Ionfrida v. McDermott, A-0957-04T2 DDS No. 23-2-1351 Judges Rodriguez and Alley Aug. 29, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: On Dec. 16, 2000, plaintiff was a front-seat passenger in a motor vehicle which was struck head-on by defendant’s truck. Defendant had been traveling in the opposite direction, but swerved into oncoming traffic and collided with the vehicle in which plaintiff rode. Plaintiff immediately complained of pain in her hip, right knee, ribs, chest, neck and back, and was taken by ambulance to the hospital, where it was discovered that she was pregnant. Medical Testing and Treatment: Primary care physician: on the day after the accident, plaintiff consulted with him, and was referred to a Board Certified orthopedic surgeon. Orthopedic surgeon: Dr. Rubman examined plaintiff and diagnosed trochanteric bursitis. Referred plaintiff to another doctor, Dr. Rubinfeld, for a second opinion. Dr. Rubinfeld: concurred with diagnosis of Dr. Rubman Another physician: plaintiff sought a third opinion from Dr. Lombardi, who also concurred with the diagnosis of trochanteric bursitis. Radiology: Oct. 25, 2002 MRI indicated that there was “no evidence of trochanteric bursitis.” Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff indicated that she was unable to wear high-heeled shoes, which was part of her work attire. She was also unable to sit for long periods of time at the office, and could not keep her legs crossed for long periods of time. Other Lifestyle Impact: Plaintiff unable to: exercise at all, whereas she had previously exercised aggressively; could not walk more than a block and a half Plaintiff claims difficulty with: (a) going up and down stairs; (b) caring for her son, because she was unable to have any reflex reactions, such as jumping and grabbing her son, should it appear that he was falling; and (c) her marital relationship, which had suffered. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to show: (1) by objective medical evidence, that her injuries amounted to a permanent condition; and (2) that the injuries had had a substantial impact on her life. Appellate Court Determination(s): Affirmed. Although DiProspero and Serrano abrogated the former “serious impact” requirement, plaintiff’s case was still deficient because she failed to show that she suffered from anything other than trochanteric bursitis, which does not fall within any of the categories set forth in the verbal threshold statute. 52. Gibson v. DeMartino, A-0150-04T3 DDS No. 23-2-1361 Judges Rodriguez and Alley Aug. 30, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on April 27, 2001, which occurred when defendant’s westbound vehicle made a left turn in front of plaintiff’s eastbound vehicle. Medical Testing and Treatment: Not detailed, other than (1) the motion judge’s statement that plaintiff had been treated for approximately seven weeks, and (2) plaintiff’s statement that she had undergone physical therapy for an additional month after that. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, except to note that the motion judge found plaintiff’s evidence insufficient in this regard. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, under Serrano, plaintiff’s evidence did not establish a permanent injury sufficient to cross the threshold. Appellate Court Determination(s): Reversed. In light of the recent reversal of Serrano by the Supreme Court, the panel remanded the matter to the Law Division so that the trial judge would have an opportunity to determine, in light of the Supreme Court’s recent decision in DiProspero and Serrano, plaintiff’s proofs were sufficient to meet the verbal threshold. 53. Mataga v. Haskins, A-4607-03T2 DDS No. 23-2-1362 Judges Rodriguez and Alley Aug. 30, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Nov. 10, 2001, at about 10:30 in the evening, when plaintiff contended that he was lawfully stopped and waiting to make a left turn, and was struck by defendant’s vehicle. Medical Testing and Treatment: Not discussed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although the motion judge found plaintiff’s proofs lacking. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to establish that he had suffered serious permanent injury in the accident, having a serious impact on his life. Appellate Court Determination(s): The appellate panel noted that this was one of the first cases to come before it following the Supreme Court’s decisions in DiProspero and Serrano. For several years, litigants and the courts had wrestled with the issue of whether AICRA required that an accident victim was, or was not, obligated to show a serious life impact in order to recover noneconomic damages for pain and suffering. DiProspero and Serrano held that AICRA did not include such a requirement. Moreover, the panel cited the recent case of Beltran v. DeLima which held that cases such as this were entitled to “pipeline retroactivity” with respect to the recent Supreme Court decisions. As a result, the panel reversed and remanded the matter to the Law Division for further proceedings. 54. Sweeney v. Bodenheim, A-2971-03T5 DDS No. 23-2-1363 Judges Parrillo and Holston Jr. Aug. 30, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: Plaintiff was involved in a rear-end collision with defendant on April 17, 2000, on the N.J. Turnpike. The degree of impact was in dispute, and no property damage was sustained by either vehicle. Nevertheless, plaintiff filed suit for injuries she allegedly sustained in the accident. Medical Testing and Treatment: Radiology: MRI and EMG testing of unknown date demonstrated a disc bulge at L4-5, which plaintiff’s doctor causally related to the subject accident. Prior Injuries: not detailed, but the judge mentioned that he was satisfied that “this lady . . . had very serious problems before this accident.” Serious Impact on Plaintiff’s Life: Not detailed, although the motion judge found generally that plaintiff continued to have “serious problems” after the subject accident. Physician’s Certification: No issue Polk Analysis: No issue, although the motion judge stated that, “frankly, I think this lady, for all intents and purposes, objectively and from the Polk analysis viewpoints, probably makes it over the [verbal threshold] bar.” Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff was unable to “satisfy the . . . criteria necessary to reach or pierce the threshold, particularly that prong dealing with serious impact on her lifestyle . . . ” He noted that plaintiff had serious problems both before and after the accident, and found that the seriousness of her problems (undefined) “ was not increased to such a degree that it affected her lifestyle in any greater degree than her condition did before th[e subject] accident, but for a very limited period of time.” Appellate Court Determination(s): Reversed. In light of the Supreme Court’s rulings in DiProspero and Serrano, holding that the serious impact prong of the former verbal threshold test no longer applied, the trial judge’s emphasis on the deficiencies of plaintiff’s proofs in that regard were no longer relevant. Because he found that she probably survived the remaining objective prong of the test, the matter was remanded for further proceedings. 55. Plante v. Reed, A-4975-03T5 DDS No. 23-2-1384 Judges Parrillo and Holston Jr. Sept. 1, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on November 17, 2001, in which plaintiff’s vehicle was struck from behind by defendant’s vehicle. The thirty-six-year-old plaintiff complained of stiffness in her neck and back, and went to the emergency room of a local hospital. Medical Testing and Treatment: Emergency room: palpable spasm in the paracervical area was found. A cervical X-ray revealed straightening consistent with muscle spasm. Treating physician: plaintiff treated with Dr. Strobel from Nov. 20, 2001, to May 20, 2002. The initial examination revealed muscle spasm and guarding of the paravertebral muscles of plaintiff’s neck and upper shoulder, with decreased mobility of the cervical spine to about 30 percent of normal. Due to continuing symptoms and the doctor’s diagnosis of cervical radiculopathy, plaintiff underwent an MRI (see below). Muscle spasm in her neck and upper shoulder area persisted at the time of her last visit to Dr. Strobel six months later. In his final report dated March 14, 2003, the doctor concluded that plaintiff had sustained a permanent injury to her cervical spine that was causally related to the subject accident. Radiology: cervical MRI revealed central disc protrusions at C5-6 and C6-7. The MRI also revealed degenerative osteopathic changes at C3-4, which were aggravated by the accident. Dr. Tobias: plaintiff was examined by this physician, who found that plaintiff was still suffering from muscle spasm eight months after the accident. His examination revealed that the cervicodorsal curve was moderately flattened; there was tenderness and spasm throughout the posterior and lateral cervical musculature, extending from the level of the occiput through D3 with extension anteriorly to involve the sternocleidomastoid bilaterally. Tenderness and spasm extended through plaintiff’s trapezoid muscles bilaterally to the apex of the shoulders with extension inferiorly to include the intrascapular and infrascapular musculature. Superior pectoral tenderness was noted. There were marked complaints on both ventral and dorsal shoulder thrust as well as on all cervical motion. The doctor opined that plaintiff has sustained significant permanent and severe injuries to her cervicodorsal spine. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge finding that, although plaintiff had sustained some injury, she presented no objective medical evidence of a qualifying injury. When plaintiff moved for reconsideration, the judge opined that the real problem with the case was, whether there was a disc protrusion, or a disc herniation, there was no central canal narrowing and no contact with, or impingement on, the ventral cord. The judge chose not to address the issue of serious and substantial impact on plaintiff’s life, having found that she failed to present evidence of a qualifying serious injury. Appellate Court Determination(s): Reversed. The appellate panel agreed with the plaintiff that her proofs were sufficient to vault the verbal threshold. The objective medical evidence of persistent spasms in her cervical and upper back areas over eight months after the accident � documented by the cervical X-ray, MRI and physical examinations of her two physicians � was alone sufficient proof to support a jury finding that plaintiff had satisfied the verbal threshold requirements under AICRA. Yet the panel noted that plaintiff provided even more proof of a qualifying injury, where her doctor found that she had a flattened cervicodorsal curve due to spasm, and where the MRI revealed disc protrusions at C5-6 and C6-7, along with degenerative spurring at C3-4, aggravated by the subject accident. Adding plaintiff’s central disc protrusions at two levels and the aggravation of a degenerative condition at another level to the findings of continuous and consistent muscle spasm, the panel felt that plaintiff had clearly established adequate objective evidence to withstand defendant’s summary judgment motion. The panel added that whether or not a disc protrusion equated with a disc herniation was hardly dispositive, since the latter was not the sole measure of a qualifying injury. In this case, both physicians concluded that plaintiff’s injury was permanent. In addition, Dr. Tobias found that plaintiff sustained significant and severe injuries to her cervicodorsal spine; that her prognosis was guarded; that she would continue to develop “flare-ups” of her condition in the future requiring additional medical care; and that she was expected to suffer symptomology arising from her conditions indefinitely. Under the circumstances, the panel was satisfied that plaintiff had produced objective, credible, medical evidence sufficient to support a jury finding in her favor. 56. Imbesi v. Black, A-5797-03T2 DDS No. 23-2-1385 Judges Parrillo and Holston Jr. Sept. 1, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: Plaintiff was involved in two rear-end automobile accidents within an 11-month period. The first was on Dec. 8, 2000, with defendant Black (Black accident). The second, with defendant Ghizzone, occurred on Nov. 1, 2001 (Ghizzone accident). Medical Testing and Treatment: Osteopath: plaintiff’s primary treating doctor diagnosed the following injuries after the Black accident: (a) post-traumatic cervical, thoracic and lumbosacral musculo-ligamentous sprain and strain; (b) bulging lumbar discs at L4-5 and L5-S1, the latter, a previously existing injury, having been aggravated by the accident; (c) bulging cervical disc at C5-6, aggravated by the accident; (d) post-traumatic acute C5, C6 radiculopathy involving the left arm; and (e) post-traumatic acute L5 radiculopathy involving the right leg. After the Ghizzone accident, the doctor diagnosed post-traumatic cervical, thoracic and lumbosacral musculo-ligamentous sprain and strain, a history of herniated lumbar and bulging cervical discs, and post-traumatic acute cervical and lumbar radiculopathy involving the left arm and right leg, all of which were aggravated by the Ghizzone accident. Another treating doctor: ordered MRIs performed after Black accident (see below). On May 18, 2001, doctor performed a right lumbar transforaminal nerve root block procedure at L5 and a right sacral S1 nerve root block transforaminally on the right. Five days later, he reported that plaintiff had relief of back pain, and that her right leg pain had improved more than 50 percent. On June 12, 2001, and again on Aug. 7, 2001, the doctor administered cervical epidural steroid injections to plaintiff. After the Ghizzone accident, the doctor’s impressions were: cervical and lumbar radiculopathy, and cervical and lumbar facet syndrome. He again administered cervical epidural steroid injections to plaintiff for her radiculopathy on Oct. 1, 2002, on Oct. 8, 2002. He also performed a lumbar nucleoplasty and reported on May 7, 2003, that the procedure had had good results. Plaintiff herself stated that all of the pain in her leg and back had resolved. Radiology: Following Black accident on Feb. 26, 2001 � cervical MRI revealed: bulging discs at C5 and C6 unchanged from a study done on April 11, 1997. Lumbar MRI showed overall improvement in findings from the previous study, with bulging discs at L4-5 and L5-S1. Five months after the Ghizzone accident, on March 7, 2002, a lumbar MRI showed disc dessication at L4-5 and L5-S1. End plate degenerative changes were seen at L5-S1, along with early sclerosis. Disc bulges at L4-5 and L5-S1 were unchanged when compared to the prior study. Independent orthopedist: performed an independent medical examination of plaintiff on June 3, 2003. He found degenerative disease at C4, 5, and 6, which he found predated even plaintiff’s prior automobile accident in 1995. He concluded that plaintiff had been a chronic pain patient after the 1995 accident and prior to the first of the two subject accidents. He found that the injuries she had sustained in the 1995 accident were permanent, and that no new permanency was attributable to the later accidents. He noted that the 2001 lumbar MRI showed improvement over the prior study in 1997, and the cervical MRI was unchanged. He opined that no ongoing treatment was needed, and that plaintiff suffered from “symptom magnification syndrome.” Independent neurologist: conclusions were similar to those of the independent orthopedist, after doctor compared 1997 and 2001 MRI records. Dr. Siegal: reviewed plaintiff’s X-ray and MRI films, and found the 1997 cervical MRI to show disc dessication from C2-3 to C6-7. Noted a small central disc herniation at C4-5. At C5-6, noted a posterior bulge of the annulus, as well as chronic degenerative changes of the left uncinate process. The 2001 cervical MRI revealed similar results. As to the lumbar MRI, the doctor found the 2001 film to show disc dessication at L4-5 and L5-S1, along with mild disc space narrowing at L4-5. Mild annular bulging with mild degenerative endplate spur formation was present at both of these levels, along with bilateral chronic degenerative facet changes in both levels. Prior Injuries: Plaintiff suffered serious and permanent neck and lower back injuries in another automobile accident in 1995, and her long history of musculoskeletal symptomology dated back to this accident. Objective testing after this accident revealed: disc bulge at C5-6, central disc herniations at L4-5 and L5-S1, left C6-7 cervical radiculopathy, left L4-5 radiculopathy, and a searing at C6-7. Plaintiff treated with the same osteopath who treated her for the injuries she sustained in the two subject accidents. Her treatment consisted of physical therapy and injections. Her complaints were of pain in her neck, back, and all four extremities and the pain persisted throughout the years, as did radicular symptoms in her legs. Consequently, cervical and lumbar MRIs were performed on April 11, 1997. The cervical MRI revealed bulging discs at C5 and C6, and syrinx at C6-7. The lumbar MRI revealed pseudolisthesis at L4-5, along with bone degeneration and a small central disc herniation at L4-5. Similar findings were noted at L5-S1. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge dismissing the complaint for plaintiff’s failure to present a comparative analysis of her pre-existing injuries with the injuries she claimed to have sustained in the subject accidents. The judge noted that plaintiff’s osteopath did mention her prior injuries, and did state that the subject accidents had aggravated the prior injuries, implying that she had been asymptomatic before; he noted something in the medical records about plaintiff not being on any pain medication after the 1995 accident, but being on Percocet and Oxycontin currently. However, the judge felt that the doctor did not make the kind of analysis of the medical records and treatment that was required under Polk. He stated that, “to just assume that she hurts now and she didn’t yesterday so it must be related to the accident, I don’t think is a fair reading of what Polk requires.” Although plaintiff might have had increased symptomology after the two rear-end collisions, the judge noted that her objective testing was basically the same. Without reference to specific medical records and diagnostic tests, the physicians’ opinions were net opinions. Appellate Court Determination(s): Affirmed. The appellate panel agreed with the motion judge and first noted its opinion that AICRA did not affect the Polk requirement of a comparative analysis of an accident victim’s pre-existing injuries with the injuries forming the basis of the lawsuit. Looking at the record here, the panel, like the motion judge, noted the absence of a detailed analysis comparing plaintiff’s pre-existing injuries with her current condition based on objective medical evidence predating and post-dating the current accidents. Certainly, her present condition was not shown to be exclusively related to either of the subject accidents, since her radicular symptomology and neck, back, and extremity pain had persisted long past her 1995 accident. While the osteopath opined that plaintiff must have suffered an exacerbation of prior injuries, that opinion failed to meet the Polk standards. He simply concluded that plaintiff was asymptomatic before. Absent, however, was any comparison of prior medical records with the objective medical evidence after the two subject accidents, in order to differentiate plaintiff’s residual injuries resulting from the various accidents. In fact, the osteopath did not reference any specific post-December 2000 diagnostic testing or objective medical evidence at all. To the contrary, the panel noted that plaintiff’s 2001 lumbar MRI showed improvement over the 1997 MRI, and her 2001 cervical MRI was unchanged from 1997. Indisputably, the MRIs demonstrated no new injury, much less a permanent one, that resulted from either the Black or the Ghizzone accident. 57. Lucero v. Meza, A-5807-03T5 DDS No. 23-2-1399 Judges Payne and Graves Sept. 6, 2005 Result: Summary judgments in favor of defendants, as well as denial of plaintiff’s motion for reconsideration, affirmed. Facts/Background: This case arose out of an automobile accident on May 8, 2000, which occurred when a car driven by defendant hit the driver’s door of the vehicle in which plaintiff was riding as a front-seat passenger. Following the accident, plaintiff was taken by ambulance to the emergency room of a local hospital, where she complained of neck pain. Medical Testing and Treatment: Emergency room: Physical examination revealed mild posterior tenderness of the cervical spine, and plaintiff was diagnosed with cervical sprain. Chiropractor: Began treatment on May 10, 2000. Chiropractor issued a certification of permanency dated July 13, 2001, which stated, without specifying the location of plaintiff’s injury, that, based upon plaintiff’s continuing complaints and limitations, his positive objective findings on his physical examinations, the findings and conclusions of the other treating specialists, and the positive objective findings revealed in diagnostic testing, to a reasonable degree of medical probability plaintiff had suffered permanent injury which had not healed normally and would not heal to function normally with further medical treatment. The body of the chiropractor’s report focused on plaintiff’s back injuries. However, he noted plaintiff’s subjective complaints of neck pain (greater on the left side), and left arm pain at the outset of treatment. At the time of the report, plaintiff’s neck pain was stated to be “mild to moderate and frequent,” and the left arm pain was noted as “moderate and frequent.” Headaches, reported at the onset of treatment and at the time of the report, were “mild to moderate and occasional.” With respect to the injuries on appeal, the chiropractor diagnosed plaintiff with: (1) cervical sprain and strain with vertebrogenic pain pattern. He noted that, although plaintiff had made “marked gains” with respect to her cervical spine pain, she was not normalized, and still had some radicular symptoms. He also noted that her back pain was so great, that her neck pain was “on the back burner.” Although there was an element of permanency to plaintiff’s neck and arm complaints, the doctor felt that they could be treated conservatively, on an as-needed basis if the pain flared up. (2) upper extremity radiculopathy. Plaintiff’s radicular complaints continued, along with radiation to both the chest wall and the left scapular region. The doctor found this to be a permanent condition, secondary to disc damage in the neck. Plaintiff would almost certainly need continued care for her pain syndrome, as the ramifications in her neck would lead to headaches, stiff necks and occasional dizziness. (3) traumatic cephalgia. A noticeable decline in plaintiff’s headaches was noted. The headaches were the result of continued cervical spine dysfunction. There was a direct correlation between the headaches and provocative cervicogenic dysfunction. All conditions were noted as being induced by the motor vehicle accident. The chiropractor’s concluding comments focused solely on plaintiff’s back problems and the possible need for surgical decompression in that region. Radiology: EMG performed on Nov. 20, 2000, revealed left C7 cervical radiculopathy, whereas a later EMG of both arms on March 22, 2001, was “unrevealing.” While noting this conflict, the chiropractor stated that the clinical findings, as well as the patient’s complaints, pointed to a positive radicular feature to her pain pattern, not only for C7 radiculopathy, but a C5-6 neuropathic problem as well. Open MRI conducted on June 30, 2000, disclosed a posterior disc bulge at C5-6, and cervical paraspinal muscle spasm. Dr. Gribbin: starting Oct. 11, 2000, plaintiff began treating for her back and neck injuries. Electrodiagnostic testing was conducted on Nov. 20, 2000 (see “Radiology” above). The doctor reported plaintiff’s history of motor vehicle accident, cervical spine injury, C5-6, C6-7 disc bulge, and current complaints of neck pain radiating to both shoulders and left upper arm weakness, tingling and numbness. Nerve conduction and needle electromyographic studies were performed, the doctor concluding that plaintiff had left C7 radiculopathy. There was no evidence of brachial plexopathy, entrapment neuropathy, polyneuropathy, or primary muscle disease. Dec.1, 2000, trigger point injections administered as treatment for complaints of persistent neck pain and stiffness. No further treatment noted. Neurosurgeon: at chiropractor’s request, plaintiff consulted with this physician, who reported on Jan. 2, 2001, that plaintiff had “started to develop” neck pain during her treatment with the chiropractor. “Whether or not this was a separate issue of compensation is unclear.” The doctor’s findings revealed palpable discomfort on the left in the cervical trapezius and even the scalene muscles. Posterior was quite tight and there were some triggers around the rhomboid. Evidence of left brachial plexus irritation, as well as bilateral thoracic outlet syndrome, worse on the left, was also exhibited. The neurosurgeon’s impression was “cervical discomforts and some complaints that are [due] to a C5-6 or C6-7 disc herniation” (although there was no objective evidence of a herniation), together with left thoracic outlet syndrome, left brachial plexopathy, left ulnar neuropathy, left carpal tunnel syndrome, right sacroiliac dysfunction, left sacroiliac dysfunction, and also facet dysfunction. He recommended both a cervical MRI and EMG nerve conduction studies of both arms. Plaintiff did not appear for a further appointment scheduled for Sept.5, 2001. Neurologist: at chiropractor’s request, plaintiff consulted with this physician on Feb. 26, 2001, complaining of neck pain and numbness of the left arm. His impression was post-traumatic cervical sprain and strain injury, and he stated that he could not rule out cervical radiculopathy and/or focal nerve entrapment. This doctor saw plaintiff again on March 22, 2001, May 15, 2001, and May 24, 2001. He reported that a needle EMG study of plaintiff’s bilateral cervical paraspinal musculature was normal, and that a similar examination of both arms, spanning the C5-T1 segments, was “unrevealing.” His impression on May 24, 2001, was “cervical reactive myofascitis.” Neurological surgeon: at chiropractor’s request, plaintiff consulted with this physician, who reported on Aug. 21, 2001, that, in addition to her lumbar complaints, plaintiff complained of pain involving the left shoulder and neck, without any significant radiation, that had not apparently improved since the time of the accident. He noted that plaintiff had been treated conservatively, without benefit. His physical examination revealed no notable findings. Nonetheless, he stated that his impression was “neck and low back pain secondary to trauma on the basis of history.” He did not recommend surgery, but did suggest a follow-up MRI to obtain a good quality image. There was no evidence in the record that such an MRI was obtained. Therefore, the doctor was never able to confirm plaintiff’s complaints objectively. Although motions for summary judgment were not filed until 2004, there was no record of any other examination or treatment provided after that of the neurological surgeon in August 2001. Prior Injuries: Plaintiff admitted that she had sustained a prior back injury in a prior fall-down accident on Jan. 15, 1999, but stated that her symptoms had, in large measure, resolved at the time of the subject accident. In any event, she also claimed no neck injury from the prior accident, and therefore asserted that Polk was inapplicable to that aspect of her claim. It was the trial judge’s finding as to the insufficiency of her neck injury that she appealed from. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue, despite prior accident involving back injury, since plaintiff only appealed dismissal of her claim for neck injuries sustained in the subject accident. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to objectively demonstrate a permanent injury causally related to the subject accident, as defined by the verbal threshold statute. Appellate Court Determination(s): Affirmed. Although plaintiff established, through MRI evidence, a mild disc bulge at C5-6 with spasm, the objective evidence did not demonstrate that plaintiff’s neck, or the portions of her body enervated by the cervical nerves, had failed to heal so as to function normally. While the initial nerve conduction study and EMG tests conducted by Dr. Gribbin provided evidence of injury at that point in time, and the neurosurgeon concluded in January 2001 from his physical examination that the injury existed, and sought confirmation by EMG studies, it was noteworthy to the panel that objective evidence was lacking when diagnostic studies were repeated in the year 2001. Indeed, the report of the neurological surgeon of August 2001 offers no objective evidence of injury, but merely notes the existence of neck pain secondary to trauma on the basis of the history provided by plaintiff. The appellate panel recognized that plaintiff’s chiropractor certified that plaintiff had sustained a permanent injury. However, he did not specify what that injury was. Examination of his report reveals only an opinion that plaintiff’s upper extremity radicular complaints were permanent. Since that conclusion was based on objective evidence that was inadequate, and on subjective tests that were not evidential, the certification of permanency did not provide competent proof that was sufficient to meet plaintiff’s burden in this case. 58. Bowles v. Intindola, A-2995-03T1 DDS No. 23-2-1400 Judges Kestin and Lefelt Sept. 6, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of two automobile accidents. First, plaintiff had a collision with defendant Intindola on July 27, 2000, after which she went to the emergency room. She apparently had no other medical treatment before the second accident with defendant Daddagio on Aug. 8, 2000, 12 days later. Following that accident, she also went to the emergency room. Medical Testing and Treatment: Emergency room (following second accident): diagnosed with cervical disc disease. X-rays also showed some degenerative problems, and she also had problems with her right knee. Diagnosis was cervical, lumbar, and right knee sprain. Chiropractor: Following second accident, in August, plaintiff treated with Dr. Lew. Dr. Milazzo: examined plaintiff on Sept. 7, 2000, but no mention made of first accident, although doctor did reference prior surgeries to both knees and indicated that plaintiff had a significant past medical history for such surgery. Dr. Glushakow: In September of 2000, plaintiff revealed to this doctor that she had had some prior accidents where she had injured her neck, back, left knee. She said that she had recovered from the first accident involved in this case, and was “fine” before the second accident. The doctor causally related MRI findings to the second accident. On Jan. 14, 2002, he concluded that any neck injury sustained by plaintiff in the first accident was aggravated by the second accident. On May 29, 2002, he reported that 20 percent of plaintiff’s injuries were attributable to the first accident, and 80 percent to the second accident. On Sept. 7, 2002, the doctor comments, for the first time, that plaintiff also has carpal tunnel syndrome. He also mentioned that plaintiff had issues with her right knee, in terms of its causal relationship to the accident (undefined). Dr. Shafi: also treated plaintiff, but refers only to second accident in his reports, and plaintiff’s arthroscopic knee surgery on June 5, 2001, as a result of the second accident. He claims that the second accident aggravated some underlying osteoarthritis. Dr. Chimenti: July 3, 2001, did some MRI studies; diagnosed herniated discs, myelopathy, spondylosis, and lumbar radiculopathy. Opined on two occasions that, because of the close proximity of the accidents, it was difficult for him to differentiate which accident may have caused plaintiff’s condition, or to what degree each accident may have impacted her condition. However, he did note that her condition was permanent and would not improve with surgery. Dr. Friedlander: Evaluated plaintiff in March 2002, noting that the accidents had exacerbated a pre-existing condition in her neck and back; and accelerated the degenerative processes in her back. Dr. Haidri: Issued report indicating that he felt that plaintiff’s diagnoses and symptoms were related to the second accident. Prior Injuries: Plaintiff had right knee surgery in January of 1972; February of 1972, scoliosis noted; October of 1976, X-rays revealing straightening of lordotic curve in lumbar spine; October 1976, hospitalized for bad back; November 1976, “cancer issues” and compression fracture revealed in spine; June 1979, left knee injury, and right knee problems noted by doctor, including lack of range of motion; November 1979, fall in supermarket, causing a “right hip issue,” and strain of the medial collateral ligament of the right knee; 1989, right knee problem again, as well as disabling right ankle and leg pain in 1989; 1995, doctor reported right calf pain and lower back pain; plaintiff also reported to doctor that she had had some sort of accident or injury to her back in 1991. In 2000, about two months prior to the first accident here, plaintiff was hospitalized, and admitted to histories of sciatica, neck pain and arthritis, which required medication. Serious Impact on Plaintiff’s Life: Because of plaintiff’s significant medical history and the number of problems she had, she was living a sedentary lifestyle at the time of both accidents. Therefore, the subject accidents did not really cause much of a change in her lifestyle. Plaintiff did not submit an affidavit concerning the impact of her injuries on her life, nor was there any deposition testimony about what she had done before, as opposed to what she did after, the accidents. The only evidence was a part of plaintiff’s husband’s deposition transcript, wherein he stated that the couple didn’t have sexual relations frequently, and that his wife wasn’t able to cook, but there were no specifics about either of these items. Moreover, although there was mention of a disabled child, the couple had a housekeeper to help with the child. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not met her duty under Polk v. Daconceicao to give the court a sense of what, in particular, her condition had been prior to these accidents, and how, in essence, these accidents aggravated that condition. Having reviewed plaintiff’s medical reports, the judge was left with significant questions about plaintiff’s condition before the accidents. Her medical history was long and significant. The judge also noted that as little as two months before the first of the subject accidents, plaintiff was hospitalized, complaining of issues related to her neck and back, and significant knee pain. The judge noted that, although plaintiff’s physicians were of the opinion that the subject accidents “put her over the edge,” there was still some need for a more detailed Polk analysis to get to a jury as to how these particular accidents affected plaintiff’s condition. The trial judge also felt that, because of plaintiff’s significant past medical history, she had been living a sedentary lifestyle, and “couldn’t really do a whole lot.” She noted that the subject accidents “didn’t really change things very much,” which was a deficiency in plaintiff’s proofs on the second, “serious impact” prong of the verbal threshold test. The only evidence she had � from the husband’s deposition testimony � did not give her any “picture” of this family, or the plaintiff, or how the accident might have affected her. Plaintiff moved for reconsideration, seeking re-evaluation of her medical records in view of the Polk analysis. The judge re-analyzed the records and still found them deficient. Although there was some mention from at least one of the physicians that plaintiff’s underlying degenerative condition was aggravated by the accident, most of the recitation of past history came from plaintiff’s own statements, and not from a doctor’s analysis of prior and current medical records. While the plaintiff appeared to the judge to be arguing that the totality of the reports and doctors’ conclusions constituted a sufficient comparative analysis, she was not convinced. Quoting extensively from the Polk decision itself, which she found factually similar to this case, the judge noted that the court in Polk had said that a doctor’s general opinion that there was an aggravation was insufficient to sustain a plaintiff’s burden to make a comparative analysis. There simply wasn’t the required specificity in the medical reports in the subject case. Appellate Court Determination(s): Affirmed. Although the trial judge had addressed the serious impact prong of the verbal threshold analysis to some extent, the appellate panel did not feel a need to remand due to DiProspero and Serrano, since her decision was primarily based on the failure of a Polk comparative analysis, a decision with which the panel agreed. Given the special complexities presented by the facts of this case, and the injured plaintiff’s medical history, the appellate panel discerned no error in the trial judge’s evaluation and application of Polk principles. 59. Morales v. Morante, A-5854-03T5 DDS No. 23-2-1401 Judges Rodriguez and Alley Sept. 6, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on March 16, 2002. Medical Testing and Treatment: Emergency room: plaintiff treated and released on the day of the accident. Spinal and orthopedic surgeon: treated plaintiff; performed an epidurogram; and administered a lumbar caudal epidural steroid injection while plaintiff was under anesthesia. Final diagnosis was cervical and lumbosacral sprain and strain; left shoulder impingement; and C5-6 disc protrusion. Radiology: MRIs of cervical and lumbar spine revealed scoliosis of the upper lumbar spine, with convexity to the right. Physical therapy: plaintiff followed program for four to eight months. Medications: anti-inflammatory medications, such as Vioxx and Celebrex. Hand and orthopedic surgeon: injected cortisone into plaintiff’s left shoulder. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed, although judge found that plaintiff did not meet this prong of the verbal threshold test. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff met the objective prong of the verbal threshold test, but not the subjective, “serious impact” prong. Appellate Court Determination(s): Reversed, the panel agreeing with plaintiff that the plain language of the verbal threshold statute requires only a showing of permanent injury and permits compensation for soft tissue injuries which do not heal so completely as to allow the injured plaintiff to regain normal function. Pipeline retroactivity of DiProspero and Serrano is to be accorded to cases such as plaintiff’s. 60. Morgan v. Biggs, A-6134-03T5 DDS No. 23-2-1408 Judges Rodriguez and Alley Sept. 7, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on May 22, 2001, which occurred when plaintiff’s vehicle, while lawfully stopped, was struck from behind by defendant’s vehicle. Medical Testing and Treatment: Not detailed. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s injuries did not substantially affect his life. The complaint was dismissed with prejudice. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel remands the matter to the Law Division for further proceedings. 61. Hansult v. Heinowitz, A-6175-03T3 DDS No. 23-2-1409 Judges Lintner and Yannotti Sept. 7, 2005 Result: Summary judgment in favor of defendant affirmed in part, and reversed in part. Facts/Background: This case arose out of an automobile accident on Aug. 9, 1999. The plaintiff claimed injuries to her left wrist, neck, and back in the accident. Medical Testing and Treatment: Treating physician: Report dated Aug. 25, 2003, noted that plaintiff had injured her neck and back in an accident in 1995. Opined that, in the subject accident, plaintiff had sustained an aggravation of a pre-existing degenerative condition of the lumbosacral and cervical spine. Report dated Nov. 3, 2002 � doctor took note of plaintiff’s description of her condition prior to and after the 1999 accident, and stated that, after the 1995 accident, plaintiff reported that she rarely had pain down the left leg, and the pain never went to the foot. Pain would occur every six to eight months and would only last a few days. Plaintiff was only treated 3-4 months following the 1995 accident. She reported that she felt good, functioned normally, and was able to engage in all of her household chores and regular social activities. The doctor noted that, because he did not have any medical records concerning the prior accidents, he was required to base his decision on the history as recounted by plaintiff. He concluded that there was probably a significant greater degree of injury following the subject accident, as compared to the prior motor vehicle accident. The doctor was later provided with, and reviewed, medical records concerning plaintiff’s prior injuries from the 1995 accident. It appears that no records were available concerning the 1971 accident. Report dated Dec. 29, 2003, doctor stated that the medical records pertaining to the 1995 accident revealed no injuries to plaintiff’s back. Therefore, subject accident aggravated pre-existing asymptomatic condition of plaintiff’s lumbosacral spine. Report dated Jan. 3, 2004, stated that the MRI of plaintiff’s cervical spine showed a “mild disc space loss” at C5-6, and a left paracentral bulge/HNP (herniated nucleus pulposus) that was mild and associated with ventral ridging at C5-6. Also stated that MRI of plaintiff’s lumbar spine showed disc dessication and degeneration at L3-4, as well as a small central HNP at L5-S1 with mild facet arthropathy bilaterally, plus a bulge at L3-4 and L4-5. The doctor reaffirmed his prior opinion that the 1999 accident caused an aggravation of the pre-existing degenerative condition to plaintiff’s spine. Prior Injuries: Two prior automobile accidents, one in 1971 and one in 1995. She sustained injuries to her neck and back in the 1995 accident. Serious Impact on Plaintiff’s Life: Not detailed, although trial judge found that plaintiff’s evidence was insufficient in this regard. Physician’s Certification: No issue Polk Analysis: In dismissing plaintiff’s complaint for failure to prove a serious impact on her life, the trial judge found that plaintiff presented an adequate comparative analysis. Defendant argued unsuccessfully on appeal that the dismissal should be affirmed, even though DiProspero and Serrano mandated reversal on the “serious impact” issue, because the judge had erred in concluding that the plaintiff’s Polk analysis was satisfactory. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff submitted sufficient objective, credible, medical evidence to show that she sustained a permanent injury to her neck and back, but not to her wrist. She also submitted a sufficient comparative analysis of the injuries she sustained in the subject accident and those sustained in the 1995 accident. However, plaintiff’s evidence was insufficient to show a serious impact on her life to satisfy the subjective prong of the verbal threshold test as set forth in James v. Torres. Appellate Court Determination(s): On plaintiff’s appeal, the appellate panel reverses the dismissal of plaintiff’s claims regarding her neck and back, noting the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement. However, the court affirms the judge’s dismissal of plaintiff’s claims with respect to her wrist. Because plaintiff’s wrist fracture was nondisplaced, it was not a qualifying injury under the verbal threshold statute unless she was able to prove that it was a permanent injury. Although plaintiff continued to complain of pain after her wrist fracture had healed, there was no objective medical evidence of permanent injury. Plaintiff even conceded that her doctor, in his report of Aug. 25, 2003, did not offer any opinion as to the permanency of the wrist injury. Therefore, the motion judge properly dismissed the claim for the wrist injury. The panel also rejects defendant’s contention that the dismissal should stand because the trial judge erred in determining that plaintiff’s Polk comparative analysis was sufficient. The trial judge correctly found that the plaintiff’s treating physician’s reports were sufficient to survive the defendant’s motion for summary judgment, and that the issue of whether plaintiff’s alleged injuries were caused by the 1999 accident was a matter to be resolved by the trier of fact. While the reports lacked some clarity, and seemed to contain some inconsistencies, they were adequate for summary judgment purposes. Any lack of clarity or inconsistencies could be addressed on cross-examination and ultimately resolved by the trier of fact. 62. Lombard v. Jones, A-1079-04T5 DDS No. 23-2-1410 Judges Parrillo and Holston Jr. Sept. 7, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on May 8, 2000, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. The 35-year-old plaintiff, who was morbidly obese and previously suffered from back pain and asthma, sought treatment at a local hospital. Medical Testing and Treatment: Emergency room: cervical X-ray revealed straightening of alignment consistent with muscle spasm; no evidence of acute fracture or focal osteolytic lesion. X-ray of left knee � no fracture, misalignment or focal osteolytic/osteoblastic lesion. Plaintiff was discharged that same day, diagnosed with “cervical strain and contusion of the knee.” Orthopedist: Plaintiff underwent treatment, consisting of medication and physical therapy, on 13 occasions. On the date of her last visit on Dec. 2, 2003, she was still complaining of lumbar spine and left knee pain. Doctor concluded that plaintiff’s obesity was a factor in her back and knee pain, but also noted that, “a large amount of ecchymosis that occurred from her motor vehicle accident over the medial femoral condyle . . . could both cause patellofemoral pain, as well as condylar pain.” Other diagnostic studies: Sept. 6, 2000, MRI of left knee revealed small joint effusion and grade II signal changes in the menisci, most likely on a degenerative basis. No definite tears, although very small meniscal tears could not be ruled out. The doctor concluded that the meniscal pathology appeared to be degenerative, additionally noting that it was “much easier to develop a meniscal tear in a degenerative situation than with normal cartilage, but it still could be very much related to the accident.” X-rays of plaintiff’s left knee and lumbar spine were repeated on Dec. 2, 2003. The left knee showed no degenerative change and fairly well maintained joint space. The lumbar X-ray showed mild degenerative changes and grade I spondylolisthesis of both L5-S1. MRI on Feb. 11, 2004, revealed grade I spondylolisthesis at L5-S1 with apparent left L5 spondylolisthesis. There was no evidence of vertebral body fracture or occult bone marrow edema. The MRI report concluded that there was degenerative change and bilateral neural foraminal narrowing at L5-S1. Orthopedic surgeon: expert retained by defendant examined plaintiff on Jan. 16, 2003. Diagnosed cervical and lumbar sprain, contusion to left knee, and morbid obesity. He opined that the soft tissue injuries plaintiff sustained in the accident had completely resolved, but that her morbid obesity was the cause of continuing discomfort to her knee, neck and back. Independent medical examination: On Jan. 2, 2004, another orthopedic surgeon concluded similarly to defense expert. He opined that the lumbar spine spondylolisthesis was a pre-existing condition that was exacerbated by the subject motor vehicle accident, and that it also predisposed plaintiff to further back pain. In addition, plaintiff’s obesity affected her recovery from injuries as it increased the stress to both her back and knees. The doctor diagnosed lumbar spine spondylolisthesis and possible internal derangement of the left knee. Prior Injuries: No injuries, but pre-existing back problems, degenerative conditions and obesity. Serious Impact on Plaintiff’s Life: Not detailed Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that the injuries plaintiff suffered in the motor vehicle accident amounted to exacerbations of pre-existing conditions, which required a comparative analysis under Polk. The judge found that plaintiff’s experts had not sufficiently differentiated the effects of plaintiff’s obesity on her left knee and spine from the effects of the motor vehicle accident trauma on those same body parts. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the trial judge. The appellate panel held that AICRA did not affect the Polk requirement of a comparative analysis of the accident victim’s pre-existing injuries with the injuries forming the basis of the lawsuit. Here, the panel found neither evidence of a qualified injury, nor the required comparative analysis to withstand summary judgment. Simply stated, there was no objective medical evidence establishing that plaintiff suffered any injury in the accident that was permanent. The MRI of her left knee indicated no definite tears, and grade II signal changes in the menisci were most likely degenerative. The MRI of plaintiff’s lumbar spine revealed no vertebral body fracture, no edema, no herniated nucleus pulposus, and no central spinal canal stenosis. There was only degenerative change and disc space narrowing at L5-S1 from the spondylolisthesis. Even if it could be concluded that the injuries plaintiff sustained in the accident were permanent, the panel noted that there was no analysis comparing plaintiff’s pre-existing condition with her current lumbar and left knee pain. Her present condition was not shown to be related exclusively to the motor vehicle accident with defendant, since plaintiff was complaining of back pain before the accident; both her left knee and lumbar MRIs indicated degenerative changes; and her continuing pre-existing morbid obesity, by all accounts, was a factor in her recurring back and knee pain. To the extent that plaintiff’s expert opined that she must have suffered an exacerbation of a prior condition, such opinion failed to meet the Polk test. At most, the expert surmised that some of her medical changes “could have been secondary to trauma from the accident.” Not only did this fall far short of objective proof of causation, but it also failed to provide the requisite comparative analysis of plaintiff’s pre-existing condition with the injuries sustained in the automobile accident, which was the basis of this lawsuit. Lacking any such differentiation, the panel agreed with the motion judge that plaintiff’s proofs did not warrant a jury finding of a permanent injury causally related to the automobile accident. 63. Torres v. Shannon, A-5799-03T2 DDS No. 23-2-1411 Judges Rodriguez and Alley Sept. 7, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on June 4, 2001, which occurred when plaintiff’s vehicle, while lawfully stopped, was struck from behind by defendant’s vehicle. Medical Testing and Treatment: Not detailed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff was required to establish that he had suffered serious life impact from one of the types of injury enumerated in AICRA, but had failed to do so. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel remands the matter to the Law Division for further proceedings. 64. Cox v. Paddack, A-4344-03T5 DDS No. 23-2-1412 Judges Lintner and Yannotti Sept. 7, 2005 Result: Dismissal of plaintiff’s noneconomic claim for pain and suffering reversed. Dismissal of claim for medical expenses arising from PIP copayments and deductibles affirmed. Facts/Background: This case arose out of an automobile accident on Jan. 14, 2002, which occurred when defendant failed to observe a stop sign and yield the right of way to plaintiff’s vehicle. Medical Testing and Treatment: Emergency room: treatment received but not detailed. Chiropractor: placed plaintiff on a seven-month treatment program. Doctor opined that plaintiff had suffered soft tissue injuries to her neck and back. Radiology: March, 2002, chiropractor referred plaintiff for MRI, which revealed: mild disc dessication at L3-4 and, to a lesser degree, at L2-3; mild annular bulging at L3-4 and L4-5, causing mild flattening of the anterior aspect of the thecal sac. Radiologist concluded that plaintiff suffered from mild degenerative disc disease. Specialist: a Fellow of American Academy of Physical Medicine and Rehabilitation, and Diplomate of the American Board of Physical Medicine and Rehabilitation performed an electromyographic study on March 18, 2002, from which he concluded that plaintiff suffered from L4 lumbar radiculitis. This physician issued a certification of permanency, stating that plaintiff had sustained cervical paravertebral myospasms; lumbosacral hypokinesia/kinesalgia; lumbosacral paravertebral myospasms; and left lower extremity radiculopathy, all of which he causally related to the motor vehicle accident and found were permanent within the meaning of AICRA. He opined that the disc bulging revealed in the MRI, causing thecal sac flattening, was caused by the accident. Prior Injuries: Plaintiff had for many years been afflicted with sickle cell anemia, which caused her to suffer joint pain in her back. Serious Impact on Plaintiff’s Life: In her deposition, plaintiff testified that she experienced prior joint pain in her back from her sickle cell anemia, but she described it as a totally different pain. She explained that the back pain she felt after the accident manifested itself as a stiffness and tightness of the muscles, whereas the prior joint pain was like a toothache, or a throbbing pain in her joints. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge found that plaintiff had produced objective evidence of a permanent injury under AICRA, but he also found that she had failed to show a serious impact on her life under the second prong of the Oswin test. Further, the judge found that plaintiff failed to provide a comparative analysis under Polk, comparing the residual pain attributable to her sickle cell anemia with that suffered from the injuries caused by the accident. Finally, the judge dismissed plaintiff’s claim that she was entitled to uncompensated medical expenses in the form of PIP copayments and deductibles under AICRA. Appellate Court Determination(s): The appellate panel reversed and remanded the order dismissing plaintiff’s noneconomic claim for pain and suffering, finding merit in plaintiff’s argument that a Polk analysis was not necessary because she had established an objective permanent injury causally related to the accident � namely the disc bulging at two levels � rather than as a result of her pre-existing sickle cell anemia. Plaintiff did not allege an aggravation of a previous condition, nor did her prior condition result from any trauma. Accordingly, a Polk analysis was not necessary. Of course, the defendant was free to establish at trial, through expert testimony, that plaintiff’s current pain was the result of her sickle cell anemia, and not the traumatic event of the motor vehicle accident. The motion judge’s alternate finding � that plaintiff did not surmount the verbal threshold because she failed to prove a serious impact on her life � was no longer viable in light of the Supreme Court’s recent decisions in DiProspero and Serrano, which were decided while this matter was pending on appeal. Finally, the panel affirmed that portion of the order dismissing plaintiff’s claim for uncompensated medical expenses in the form of PIP copayments and deductibles. Also while this matter was pending on appeal, the Appellate Division had held that AICRA does not permit recovery of uncompensated medical expenses in the form of PIP copayments and deductibles. 65. Elliott v. Esposito, III, A-6387-03T2 DDS No. 23-2-1422 Judges Parrillo and Holston Jr. Sept. 8, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on Dec. 5, 2000. Plaintiff claimed injuries to her neck and back, a sprained left ankle and an aggravation of a pre-existing left leg and left knee injury. Medical Testing and Treatment: Treating doctor: plaintiff came under the care of her treating doctor in December 2000 for significant trauma to her left knee, left foot, and her lower back. She treated with him for six months, during which time she received physical therapy; however, when this did not alleviate the pain, the doctor recommended that plaintiff see a chiropractor. Second doctor: plaintiff was examined by a Dr. Alber on Dec. 13, 2000, for left ankle sprain and an exacerbation of left knee osteoarthritis secondary to the automobile accident. Her left knee was injected with Depro-Medrol and Lidocaine. By March 2002, and despite orthopedic treatments (see next category), the knee was beginning to give out quite often, so Dr. Alber gave plaintiff another injection in her knee, and told her to continue with her medications. Orthopedic group: plaintiff sought treatment on Feb. 5, 2001, and in March 2001. In July 2001, doctor at the group reported there was no change in the left knee. Plaintiff’s lower back pain and knee continued to get worse, and following an additonal injection in the knee by Dr. Alber, she returned to the orthopedic group in December 2003, where she was examined by a different physician, who noted back pain with radiation into both legs. He suggested that plaintiff should see another physician, a Dr. Delasotta. Plaintiff returned to the orthopedic group one week later with complaints of worsening pain in her left knee. A total knee replacement was discussed with plaintiff; however, the doctor felt that the outcome would be poor. Accordingly, plaintiff received another injection in her knee and was instructed to have an MRI of her lumbar spine. Radiology: lumbar MRI showed small right disc protrusion at L1-2; mild bilateral neural foramina narrowing, greater on the right; mild bilateral neural foramina narrowing at L3-4; a disc bulge and mild left foramina narrowing at L4-5 and a disc bulge at L5-S1. Plaintiff underwent a lumbar myelogram and post-myelogram CT scan on Feb. 25, 2004, which revealed mild ventral impression on the thecal sac at L1-2, L2-3, L3-4 and L4-5. An EMG of the lower extremities performed on April 7, 2004, revealed acute, bilateral radiculopathy at L5-S1. Dr. Delasotta: Jan. 19, 2004, doctor examined plaintiff and reviewed the results of the lumbar MRI. Plaintiff returned on April 12, 2004, for a follow-up visit in which the doctor opined that she would require a decompression laminectomy in the future, that her prognosis was guarded, and that her injuries were permanent in nature. Prior Injuries: plaintiff suffered similar injuries to her neck, back and left knee prior to the motor vehicle accident, although how they were sustained is not explained. A review of her medical records showed that she had received treatment for many years at the same orthopedic group she saw for injuries sustained in this accident. Her conditions were left leg discrepancy, osteoarthritis of the left knee and lower back injuries. Prior to the subject accident, plaintiff experienced difficulty walking, and admitted that she would occasionally use a walker in order to move about. She had been on Social Security Disability since 1991 due to problems she suffered with a prior left leg injury, as well as lower back problems. Additionally, prior to the subject accident, she admitted to having problems with her left knee and would get yearly cortisone injections. She also was treated by an orthopedist for problems with her left hip and left foot prior to this accident. Serious Impact on Plaintiff’s Life: Not detailed Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. The judge disagreed with defendant’s contention that plaintiff had not provided objective, credible, medical evidence of a permanent injury, concluding that the numerous objective tests revealed evidence of injuries that plaintiff’s physicians had opined were permanent. However, the judge found that plaintiff had (1) failed to show that the injuries she sustained in the subject accident had a serious impact on her life; and (2) failed to provide a comparative analysis of her pre- and post-accident residuals as required by Polk v. Daconceicao. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the motion judge with respect to plaintiff’s failure to provide a comparative analysis as required by Polk. As the requirement for plaintiff to show a serious impact on her life was now abolished, the court did not address this aspect of the judge’s decision. The panel noted that recently, in the case of Ostasz v. Howard, the Appellate Division had held that a comparative analysis was still required in AICRA cases when a plaintiff had suffered identical injuries from prior and/or subsequent accidents. The appellate panel’s review of the medical reports of plaintiff’s physicians supported the motion judge’s determination that plaintiff failed to provide the appropriate comparative analysis differentiating her pre-existing injuries from those alleged to have occurred in the subject accident. 66. Krauss-Conner v. Minerva, A-0615-04T1 DDS No. 23-2-1437 Judges Lintner and Yannotti Sept. 9, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Aug.30, 2000. Plaintiff had a second motor vehicle accident on Nov. 20, 2000. She sued both defendants, and the cases were consolidated; however, she settled with the defendant in the second accident case, and this case deals only with the injuries sustained in the first accident. Medical Testing and Treatment: Emergency room: main complaint was of cervical spasm. Lumbar X-rays showed no evidence of bone injury. There was no evidence of disc space narrowing of any significance. Orthopedist: Dr. Gleimer examined plaintiff and found cervical spasm and 80 perecnt range of motion; severe spasm and tenderness in the lumbar spine with 70 percent range of motion; straight leg raising test positive for sciatic pain to the right and to a lesser degree on the left. His assessment was cervical and lumbar sprain and strain, and clinical lumbar radiculopathy, right greater than left. Plaintiff returned to Dr. Gleimer after her second motor vehicle accident. She told the doctor that she had been hit on the driver’s side, and struck the steering wheel, being thrown backwards and forwards in the collision. She told the doctor that she felt her back twist with the sudden onset of pain. The doctor found spasm and tenderness in the plaintiff’s cervical spine on examination; moderate spasm and tenderness in the lumbar spine and range of motion of about 60-70 percent of normal. Straight leg raising test was positive for back pain with radiation into the buttocks. Assessment was: post-traumatic cervical sprain and strain, which he called “pre-existent,” acute lumbar sprain and strain, superimposed on the prior back injury, and clinical right lumbar radiculopathy. He recommended an MRI to rule out disc injury or herniation (see 5 below). On July 12, 2002, the orthopedist provided a narrative report, stating that the MRI study undertaken after the first accident showed a hematoma in the soft tissues adjacent to the lumbar spine. There was no finding of disc herniation. Plaintiff told the doctor that she was improving prior to the second accident but asserted that, after the second accident, she had a regression with increased pain in her back to the point where it was more severe than at any previous point. The second accident also reduced plaintiff’s range of motion in the lumbar spine. The doctor summarized his findings by indicating that plaintiff had sustained nerve root and facet injury with accompanying pain. Although she did have some symptomology before her second accident, this increased both objectively and subjectively following the more recent accident. It was his opinion that the plaintiff would continue to experience some degree of ongoing pain and symptomatology secondary to her lumbar nerve root injury and facet syndrome on a permanent basis. The injuries underwent a progression as a result of her second motor vehicle accident. Radiology: Oct. 11, 2000, lumbar MRI: negative for disc herniation; however, apparent hematoma in the soft tissues adjacent to the posterior elements of the inferior lumbar spine; degenerative changes noted; disc alignment normal. Dr. Ashby: plaintiff was referred for electrodiagnostic studies. In a report dated Nov. 1, 2000, doctor noted that physical examination of plaintiff revealed moderate tenderness to deep palpation over the lumbar paraspinal muscles on right as well as over the posterior superior iliac spine on the right. Straight leg raising test was positive for low back pain at about 70 percent on the left and 50 percent on the right. EMG study of lumbar paraspinal muscles showed occasional positive sharp waves. Lumbar paraspinal muscles showed increased insertional activity but no spontaneous signs of denervation. The doctor found occasional positive sharp waves in the L5 muscles and one in the S1 muscles on the right, as well as increased polyphasia of units in the L5 muscles. Dr. Ashby diagnosed L5 radiculitis bilaterally, worse on the right than left. Dr. Ressler: following the second accident, plaintiff was referred to this physician for evaluation. In a report dated March 15, 2001, the doctor described an MRI performed on Nov. 27, 2000, which revealed: normal discs and mild degenerative marrow fat at L4; synovial cyst at L5, but not noted to be a contributing factor to plaintiff’s complaints. Doctor noted that plaintiff had an antalgic gait favoring her right leg. Tenderness on palpation was noted of the bilateral paravertebral muscles in the lower lumbosacral spine. Flexion and extension in the lumbar spine were limited secondary to pain in the right leg. Decreased sensation in the right leg also noted. Diagnosis: lumbosacral sprain and strain and bilateral L5 radiculopathy, based on the EMG studies. Dr. O’Shea: plaintiff was referred to this physician at the Spine Institute of Southern N.J. In report dated Dec. 30, 2003, she stated that plaintiff reported to her that she had never had lower back pain or neck pain prior to the (first) motor vehicle accident. (This report does not mention the second accident at all.) The doctor said that plaintiff recounted that she had lower back pain and pain in her right leg immediately after the (first) accident. Dr. O’Shea noted that an EMG showed a L5 radiculitis to the right greater than to the left. She also noted that an MRI from Nov. 1, 2002, showed no degenerative disc disease, but showed a lateral left L3-4 herniated disc, and a far lateral L4-5 herniated disc and possible hematoma. Another MRI study was performed in August 2003. The doctor asserted that this study showed a left herniated disc at L3-4 and mild stenosis to the right at L4-5 without disc herniation. Dr. O’Shea’s conclusion was that, to a reasonable degree of medical probability, the stenosis was present prior to the (first) motor vehicle accident; however, due to the trauma of the accident, plaintiff became symptomatic for right leg radiculopathy evidenced by the EMG. She failed to respond to conservative treatment and, because this was a permanent injury, most likely would need to pursue surgical intervention. Even if the surgery were successful, plaintiff would have permanent alterations of her back, including the chance of arthritis that would be increased after the surgery, scarring around the nerve root, inability for this to heal, and the risks of the surgery itself. Prior/Subsequent Injuries: Plaintiff was involved in another motor vehicle accident after the subject accident on Nov. 20, 2000. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: Discussed. Motion judge found plaintiff had not satisfied her burden in this regard, but Appellate Division disagreed. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not presented sufficient evidence to show that she sustained a permanent injury in the subject accident. He also found that she had not presented an appropriate comparison between the injuries sustained in the first accident with those sustained in the second accident, as required by Polk v. Daconceicao. Appellate Court Determination(s): Reversed. The appellate panel first noted that plaintiff was not making a claim that the injuries sustained in the first accident aggravated any condition existing at the time of that accident. In any event, the panel was satisfied that the orthopedist’s July 12, 2002, report was sufficient to meet the requirements of Polk. In that report, the doctor provided a comparison between the injuries sustained in the first accident and those sustained in the second accident. He based his comparison upon his physical examination of plaintiff, her complaints, and the objective medical tests performed after each accident. The orthopedist noted that the MRI performed after the first accident did not reveal any disc herniations, but the nerve conduction studies performed then revealed radiculitis bilaterally, at the L5 level of the spine, with the right side worse than the left. The doctor then compared these objective findings with plaintiff’s reported complaints, the results of his physical exam and the medical testing performed after the second accident. He concluded that plaintiff sustained a nerve root and facet injury in the first accident. He opined that plaintiff’s symptomatology after the first accident was mild, but increased objectively and subjectively after the second accident. The doctor stated that the injuries were permanent. In the appellate panel’s view, this analysis satisfied Polk. The motion judge also concluded that plaintiff had not presented sufficient evidence of a permanent injury under the verbal threshold statute. It was clear to the panel, however, that the judge had applied the law as it existed at the time of his decision, which did not reflect the subsequent interpretation of the verbal threshold statute set forth in the Supreme Court’s decision in Serrano. Since that decision held that the limitation on lawsuit threshold did not contain a serious injury standard, and that a plaintiff need only prove that she suffered an injury set forth in the statute, and since pipeline retroactivity must be applied to cases such as this one on appeal at the time of the decision, the panel remands to the Law Division for reconsideration of its determination that plaintiff failed to present sufficient evidence of a permanent injury as defined in the verbal threshold statute. 67. Oliver v. Melvin, A-3936-03T1 DDS No. 23-2-1438 Judges Lintner and Yannotti Sept. 9, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on March 21, 2000, which occurred when plaintiff was a passenger in a vehicle driven by one defendant, her mother, which collided with another vehicle driven by the codefendant. Medical Testing and Treatment: Orthopedists: shortly after the accident, plaintiff began treating with two physicians at the Orthopedic Institute of Central Jersey, Drs. Holtzberg and Goldstein. She complained of back and neck pain from the motor vehicle accident. In his initial report dated March 30, 2000, Holtzberg diagnosed plaintiff as having exacerbations of pre-existing neck and cervical radicular symptoms, and a new onset of lower back pain and radicular symptoms following the subject accident. He described these symptoms as consistent with a lumbar sprain and strain with superimposed lumbar radiculopathy, and ordered an MRI. After reviewing the MRI films of plaintiff’s lower back (details below), Dr. Goldstein stated in a report dated Sept. 25, 2000, that plaintiff had mild degenerative disc disease at L5-S1. He noted central disc bulging without significant compression on the neural elements within the vertebral canal and neural foramen. Mild congenital stenosis was reported from L2-3 to L4-5. The doctor felt there was no significant compression of the neural elements. There was a suggestion of right-sided lateral disc bulge/herniation at L4-5, which the doctor found did not appear to significantly impinge on the existing nerve root on the right side. In his final report, dated Jan. 27, 2002, Dr. Holtzberg stated that plaintiff sustained an exacerbation of a pre-existing cervical condition, which had resolved itself to her baseline following physical therapy. Respecting her lumbar injury, his impression was that plaintiff continued to exhibit symptoms of lumbar radiculopathy, “most likely” related to the congenital stenosis, and superimposed lumbar disc bulging and annular tears, which were exacerbated or caused, “most likely,” by the motor vehicle accident; however, in another paragraph of this report, the doctor noted that plaintiff’s continued symptoms of lumbar radiculopathy and flare-up of symptoms were of “unknown etiology.” In a report dated Feb. 21, 2002, Dr. Holtzberg responded to plaintiff’s counsel’s request for a certification of permanency. He characterized himself as a pain management physician, and detailed plaintiff’s medical history, including the MRI and EMG results and his own impressions and diagnosis. He noted that his diagnosis was based on objective clinical evidence, rather than plaintiff’s subjective response, and concluded by opining that plaintiff had sustained a mild permanent injury within a reasonable degree of medical probability other than scarring or disfigurement, and defined permanent within the meaning of AICRA. Radiology: April 18, 2000, cervical MRI: loss of cervical lordosis, but no evidence of spinal canal or neural foraminal stenosis; vertebral bodies were normal in height and disc herniations were not evident. Conclusion: generalized findings of mild disc degeneration with a loss of normal cervical lordosis. June 15, 2000, lumbar MRI: vertebral bodies were normal in height with normal marrow signal; spinal canal from L2-3 to the L4-5 levels was mildly stenotic, a condition noted as congenital in origin. Impression: mild posteriorly bulging L5-S1 annulus with findings of annular tears; mild congenital spinal canal and lateral recess stenosis from L2-3 to L4-5. Sept. 19, 2000, EMG of the lower extremity interpreted as normal. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed, although found insufficient by motion judge. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to present objective evidence of injury causally related to the accident sufficient to overcome the standard set by Oswin v. Shaw. He noted that plaintiff’s doctor used words like “may” and “could,” depending on where one looked in his report. He also found that plaintiff failed to establish that her injuries had a significant impact on her life. Appellate Court Determination(s): While the appellate panel could not agree with the judge’s determination regarding the serious impact prong of Oswin, in light of the Supreme Court’s recent decisions in DiProspero and Serrano, the panel nevertheless affirmed because it agreed with the motion judge’s finding that plaintiff failed to establish permanent injury from the accident by objective, credible, medical evidence. While plaintiff’s expert parroted the AICRA standard of proof respecting permanent injury in both his certification of permanency and his final report, his actual findings failed to relate sufficiently plaintiff’s “mildly permanent” lumbar symptoms to the subject accident by the objective, credible, medical evidence standard. At best, his report indicated that plaintiff’s symptomatology resulting from the bulging disc and annular tear at L5-S1 revealed by the MRI “may” have been caused by the accident, or may have been degenerative in nature and aggravated by the accident or the result of unknown etiology. Simply stated, the myriad of opinions respecting causal relationship enunciated by the doctors in their reports failed to establish a causal connection between plaintiff’s lumbar symptoms and the subject accident. 68. Ortiz v. Nolan Jr., A-5080-03T1 DDS No. 23-2-1458 Judges Lintner and Yannotti Sept. 13, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on April 27, 2000. Medical Testing and Treatment: Dr. Scardigli: plaintiff’s treating physician, opined that plaintiff suffered soft tissue injuries to her lumbar region, specifically the left first and right first, as well as the left and right fifth paraspinal muscles. He reported that he would anticipate that plaintiff would experience a significant limitation of the use of her lower back in the future. Dr. Rothman: reviewed June 30, 2000, MRI which revealed Schmorl’s node defects at L2, L3 and L4. Although there was no evidence of disc herniation or bulging annulus, he believed that the Schmorl’s node defects represented “spinal disc herniations through the cartilaginous and osseous endplates of the vertebra” and opined that there was a reasonable degree of medical probability that the related pain was a result of the subject accident. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although motion judge found plaintiff had failed to show a serious impact. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that there was sufficient evidence to establish a reasonable probability that plaintiff’s pain was related to the Schmorl’s node defects resulting from the subject accident; however, she had failed to meet the second prong of the Oswin test regarding the serious impact of the accident on her life. He also stated that he could not determine whether plaintiff’s injuries represented a serious, significant injury as required by Serrano. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel remands the matter to the Law Division for further proceedings. 69. Straub v. Feldman, A-2094-04T5 DDS No. 23-2-1459 Judges Payne and Graves Sept. 13, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on May 21, 2001, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. The plaintiff claimed injuries to his neck and back in the accident. Medical Testing and Treatment: Radiology: MRIs performed on Nov. 15, 1999 (pre-accident), and Sept. 10, 2001 (post-accident), showed a disc herniation at L5-S1. Treating doctor: Dr. Farnelli provided a certificate of permanency as well as a subsequent report with a comparative analysis of plaintiff’s pre-accident disc condition and his current complaints and present condition attributable to the subject automobile accident. Prior Injuries: pre-existing disc herniation at L5-S1. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: Judge found plaintiff’s evidence sufficiently showed that the injuries he sustained in the motor vehicle accident had aggravated his pre-existing disc herniation condition. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, even though he found that plaintiff had produced a sufficient Polk comparative analysis to survive summary judgment, this was still basically a soft tissue injury case which did not meet the “serious” verbal threshold requirements as set forth in Serrano. In other words, although the injuries were permanent, they did not meet the AICRA requirement for seriousness, and therefore did not vault the verbal threshold. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, and the subsequent decision in Beltran that afforded cases such as this one “pipeline” retroactivity, the panel remanded the matter to the Law Division for further proceedings. Plaintiff demonstrated on the motion record a sufficient prima facie showing to require the matter to go to trial. 70. Garrett v. Amiscosa, A-1746-04T1 DDS No. 23-2-1492 Judges Parrillo and Holston Jr. Sept. 16, 2005 Result: Summary judgment in favor of defendant, and denial of plaintiff’s motion for reconsideration affirmed. Facts/Background: This case arose out of an automobile accident on March 25, 2001, which occurred when plaintiff’s vehicle was hit from behind so as to propel it into another vehicle. Plaintiff, who was a junior in high school at the time, claimed injury to his neck and back in the accident. Medical Testing and Treatment: Chiropractor: plaintiff treated from April 3, 2001, to Aug.14, 2001, and was diagnosed with cervical and lumbar sprain and strain. No diagnostic tests were administered. Plaintiff returned to the chiropractor after his flare-up injury in the summer of 2003 (see below). After this second injury, the chiropractor referred plaintiff for an MRI. Radiology: cervical and thoracic MRI performed on Aug. 6, 2003, showed: disc dessication at C2-3, C3-4 and C5; disc herniation at C3-4 and C4-5; minimal annular bulging noted at C5-6, C6-7 and C7-TY1; disc dessication at multiple levels of the thoracic spine with a small syrinx cavity of thoracic cord extending over several segments of the midthoracic region. Dr. Goldstein: prepared physician’s certification of permanency for plaintiff after physical examination and review of MRI report. Certified that his injury was permanent, had not healed to function normally, and would not heal to function normally with further medical treatment. Certification was silent as to causation; made no mention of the syrinx finding in the August 2003 MRI; and made no mention of plaintiff’s work-related accident. Prior/Subsequent Injuries: In the summer of 2003, plaintiff misjudged the weight of a box and tried to lift it while working as a teacher’s assistant tutoring seventh and eighth grade students. This incident caused plaintiff to experience increased pain in the exact same area of his body that he had injured in the subject motor vehicle accident. Serious Impact on Plaintiff’s Life: During the fall of 2000, before the accident, plaintiff played soccer and ran cross country at high school. In the spring of 2001, just before the accident, he participated in track and field. Following the accident, he ceased participating in track and field. He continued to work the remainder of the school year and through the summer. In the fall of 2001, when plaintiff returned to school for his senior year, he again participated in running cross-country. At the time of the accident, plaintiff was employed part-time at a Blockbuster Video store. His job duties involved cleaning floors and windows, restocking shelves and working behind the register. He testified that he missed a few days from work, but missed no other time from this job. At the end of the summer of 2001, plaintiff left this job to do a painting job at school. He missed no time from this job. He did not work during the fall semester of 2001, although he had a drafting job that was part of his school program. He testified that he did not get a job for the fall 2001 semester because he had school and the job through the school. He continued to work at the drafting job until May 2003. Following the subject accident, and before the flare-up, work-related accident in the summer of 2003, plaintiff testified that he could not bend over (having to bend at his knees); had trouble lifting heavy boxes; and could not shovel snow. He testified further that, during the same period, he could not sit for long periods of time and while he could still run, he just could not run as long. In May 2003, plaintiff began working for a private school as a teacher’s aide, where he sustained a flare-up, work-related injury attempting to lift a box. He stated at his deposition that his chiropractor had told him that his back was getting better before this incident, and therefore he did not judge the weight of the box he was lifting and hurt himself. Thereafter, his back got worse. He claimed that his injuries were sustained in the first accident and aggravated by the work-related injury, despite the fact that there was no objective testing to confirm the existence of injuries prior to the second incident. He stated that the pain never had completely gone away, but got severe after the second incident. Physician’s Certification: Made no mention of subsequent accident. Polk Analysis: Main issue. Court rejects plaintiff’s argument that a comparative analysis was not necessary because his second injury was merely a “flare-up” of prior symptoms caused by first accident. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that (1) plaintiff had failed to provide a comparative analysis of residual injuries sustained in the subject accident in 2001 with the flare-up injury sustained by plaintiff in the summer of 2003; and (2) plaintiff did not meet the second prong of Oswin because he failed to demonstrate that the injuries sustained in the subject automobile accident seriously impacted his life. Appellate Court Determination(s): Affirmed. Although the panel was satisfied that the Supreme Court’s decision in DiProspero made clear that AICRA did not require that an accident victim prove a serious life impact, the panel was likewise convinced that AICRA did not affect the Polk requirement of a comparative analysis when a victim suffers a subsequent injury to a body part that was previously injured in an automobile accident, whether aggravation of the prior injury was alleged, or not. Accordingly, the panel affirmed the motion judge’s grant of summary judgment for plaintiff’s failure to provide the required Polk comparative analysis. Neither of plaintiff’s doctors linked the syrinx MRI finding to the motor vehicle accident. While the physician’s certification prepared by Dr. Goldstein made mention of permanent injury to plaintiff’s neck, it failed to distinguish his findings between the two accidents. Plaintiff claimed that the motion judge erred in finding that he was required to present a Polk analysis where he merely experienced a flare-up of symptoms, caused by the first accident, which had never completely resolved. Citing Bennett v. Lugo, Ostasz v. Howard, and Sherry v. Buonansonti, the appellate panel disagreed. The panel was convinced that the motion judge properly granted defendant’s summary judgment motion as a result of plaintiff’s failure to provide the appropriate comparative analysis differentiating the injuries sustained in the subject accident with the flare-up injuries sustained in plaintiff’s work-related lifting incident in the summer of 2003. 71. Mosiello v. Wallace, A-1803-04T3 DDS No. 23-2-1521 Judges Winkelstein and Sapp-Peterson Sept. 20, 2005 Result: Grant of defendant’s motion to dismiss plaintiff’s complaint reversed. Facts/Background: This case arose out of an accident on March 4, 2002, which occurred when the almost-19-year-old plaintiff’s motorcycle was struck by defendant’s vehicle. Plaintiff submitted a timely physician’s certification from his treating physician. Several months later, defendant successfully moved to dismiss the complaint on the grounds that the certification was no longer sufficient in light of the apparent resolution of many of plaintiff’s symptoms. Medical Testing and Treatment: Emergency room: plaintiff was taken by the first aid squad to the hospital, where X-rays of his cervical spine, abdomen and pelvis were negative. He complained of neck pain, and was found to have muscle spasms in his neck. Orthopedist: plaintiff first sought treatment on April 30, 2002, with complaints of persistent pain and discomfort in his neck, back and knee. The doctor found marked muscle spasm in plaintiff’s cervical spine, which extended down into the scapular musculature bilaterally. He had limited lateral rotation of his neck, secondary to the muscle spasm, which was also noted in his lumbosacral spine. While plaintiff had a history of instability of the left knee (see below), the doctor found that the motor vehicle accident appeared to have aggravated plaintiff’s left knee problems. Subsequently, on Dec. 23, 2002, plaintiff underwent an operation for a left knee anterior cruciate ligament tear and a left knee medial meniscal tear. April 13, 2004, plaintiff went to doctor for a follow up visit, complaining of neck and back pain with referred discomfort in his arms, right neck pain, and discomfort related to exertion. The doctor noted that an MRI from August 2003 revealed C5-6 and C6-7 disc pathology. Pain specialist: June 15, 2002, plaintiff began treatment with the director of a center for headaches and facial pain, primarily for head, neck and face pain. According to the doctor’s report, plaintiff’s pain resulted from the injuries he sustained in the subject accident. This physician timely issued the certificate of permanency required by AICRA. He referred to his initial report, and another dated Nov. 5, 2002, noting that the plaintiff sustained permanent injuries as a result of the subject automobile accident. His reports related solely to plaintiff’s head, neck and facial pain, but not to his knee pain. Prior Injuries: Plaintiff had suffered an anterior cruciate ligament injury and medial meniscal tear. A physical examination of his left knee revealed an effusion. He limped, favored his left knee, and had medial joint-line tenderness. After this accident, the orthopedist noted that, “a new finding on [plaintiff's] left knee examination was that of focal anterior lateral joint pain and some subtle crepitus in the anterior and lateral aspect of his knee.” While plaintiff had a history of instability of the left knee, the doctor found that the motor vehicle accident appeared to have aggravated plaintiff’s left knee injuries. Subsequently, on Dec. 23, 2002, plaintiff underwent an operation for a left knee anterior cruciate ligament tear and a left knee medial meniscal tear. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: Main issue. To his motion to dismiss, defendant attached a form from plaintiff’s pain specialist, which was captioned “Change in Symptoms Report” and was part of the doctor’s Nov. 5, 2002, report. Plaintiff had written on that form that the symptoms he previously complained of were “gone” by that date. The court relied on this form in granting defendant’s motion and dismissing plaintiff’s complaint. Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The court granted defendant’s motion to dismiss, not specifically because of any insufficiency in plaintiff’s physician’s certification of permanency, but because plaintiff himself had rebutted what the physician said in the certification. Basically, the judge relied on plaintiff’s statement in the “Change in Symptoms” form, where he indicated that his symptoms � headaches, eye pain, dizziness, tinnitus, ear pain, facial pain, TMJ joint pain, and chest pain � all were gone eight months post-accident. Appellate Court Determination(s): Reversed. The appellate panel noted the holding in Casinelli v. Manglapus that the physician’s certification was not a fundamental element of a plaintiff’s AICRA cause of action, and was not to be equated with a pleading. It had two purposes: (1) to supply evidence that a plaintiff had, in fact, sustained an injury that qualified for recovery of noneconomic damages under the new verbal threshold; and (2) to provide a legal foundation for a charge of perjury, should false swearing later be shown. While the Casinelli court did not address the issue raised here, it did conclude that, when such a certification was filed late, discovery-type sanctions would be appropriate, rather than dismissal of a plaintiff’s complaint. Given the court’s holding in Casinelli, which was decided after the trial judge’s decision in this case, the appellate panel could not sanction the dismissal of plaintiff’s complaint here. He had complied with the AICRA requirements by timely filing the physician’s certification which, at the time it was filed, met the statutory criteria. As the certification was not a fundamental element of his cause of action, once it had been properly filed, it had no subsequent bearing on the sufficiency of plaintiff’s cause of action. The panel found no authority to negate the filing simply because plaintiff’s symptoms may have subsequently resolved. The appellate panel stressed that defendant was not precluded from filing a summary judgment motion on the grounds that, because plaintiff’s symptoms had resolved, he had not suffered a permanent injury as required to vault the threshold to recover for pain and suffering. However, this is not what happened in this case. The trial judge did not analyze the defendant’s motion on the summary judgment model, dismissing plaintiff’s complaint solely because, in his opinion, the resolution of plaintiff’s symptoms negated the physician’s certification. Noting portions of the medical record such as: (1) plaintiff’s physician’s opinion that plaintiff’s injuries would make him susceptible to relapse and to future re-injury; (2) the Aug. 26, 2003, MRI that found tiny central disc herniations at C5-6 and C6-7; or (3) the orthopedist’s opinion that, based on the new findings in the lateral aspect of plaintiff’s knee, the accident had aggravated his pre-existing left knee injury, the panel concluded that such evidence would necessarily have had a bearing on whether plaintiff made a prima facie showing sufficient to vault the AICRA verbal threshold. Therefore, the dismissal of plaintiff’s complaint was reversed, and the matter remanded for further proceedings. 72. Mercedes v. Chrysler Financial Co., A-2114-04T2 DDS No. 23-2-1545 Judges Conley and Sapp-Peterson Sept. 21, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: The accident in this case occurred when defendant made a left turn at an intersection, and struck the vehicle plaintiff was operating. Plaintiff did not own this vehicle; in fact, he did not own any vehicle, and had no automobile insurance of his own. He lived with his wife and his mother-in-law in the latter’s home. The mother-in-law owned a vehicle, for which she had insurance, and she had selected the verbal threshold option. Defendants argued that plaintiff was bound by the mother-in-law’s choice; plaintiff argued that he was not, and that the requirements of the verbal threshold statute did not apply to him. There was no dispute that, if the verbal threshold requirements applied to plaintiff, he was unable to meet them. Medical Testing and Treatment: Not detailed. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Whether verbal threshold applied to plaintiff, resident son-in-law of insured. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff was bound by the verbal threshold. He concluded that plaintiff’s wife was an insured under the mother-in-law’s policy, and that plaintiff, as her spouse, and the insured’s son-in-law, was certainly a member of the immediate family. Appellate Court Determination(s): Reversed. The governing statutory provisions are contrary to the motion judge’s determination. N.J.S.A. 39:6A-8.1(a) provides that the tort option elected shall apply to the named insured and any immediate family member residing in the household. “Immediate family member” is defined as the spouse of the named insured, and any child of either the named insured or the spouse of the named insured. Since plaintiff is not the insured’s child, or her spouse’s child, he is not bound by his mother-in-law’s election. Relatives-in-law are not included in the statutory definition of “immediate family member.” The defendant’s reliance on the definition of resident relative for PIP purposes is distinct from the verbal threshold definition of immediate family member. The panel briefly distinguished its recent decision in Stricklen v. Ferruggia, where the plaintiff driver, who was neither a named insured, nor an immediate family member thereof, and who had no automobile insurance of her own, nonetheless was bound by the named insured’s tort option. The Appellate Division so concluded because, although not a named insured on the policy for the automobile, plaintiff was a co-owner of the vehicle. Thus, while clearly excluded from the statutory definition of “immediate family member,” the court rejected plaintiff’s strict nominalistic approach based on a strict reading of the express language of the verbal threshold statute under those particular circumstances. In the case at bar, however, there was no issue of co-ownership or agency. Neither was there any other circumstance that would warrant a deviation from the plain language of the statute. 73. DeMaio v. DeGross, A-6852-03T5 DDS No. 23-2-1556 Judges Lintner and Gilroy Sept. 22, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Feb. 5, 2001. Medical Testing and Treatment: Radiology: Two MRIs of the lumbar spine and one MRI of the cervical spine, which revealed that plaintiff suffered from broad-based bulging of the annulus fibrosis at L5-S1 with impression upon the L5 nerve roots, and bulging annuli at C3-4, C4-5 and C5-6 with straightening of the cervical lordosis. Treating physician: Issued medical report and a certification of permanency that asserted that the disc bulging found on the MRIs resulted from the subject accident, and that plaintiff’s soft tissue injuries were permanent in nature and would not heal to function normally with further medical treatment. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, but motion judge found plaintiff’s proofs insufficient in this regard. Physician’s Certification: Defendant argued that plaintiff’s physician’s certification was inadequate, but neither motion judge nor appellate panel agreed. Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to present any evidence that his injuries had had a significant impact on his life to overcome the second, subjective prong of the Oswin test. The judge did note, however, that plaintiff’s MRI showed that he suffered from disc bulges, which his medical expert found were causally related to the subject motor vehicle accident, thus satisfying the first, objective prong of Oswin. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel remands the matter to the Law Division for further proceedings. Since the motion judge correctly observed that plaintiff’s medical proofs established objective evidence of a permanent injury related to the accident, he presented sufficient evidence to survive the defendant’s motion for summary judgment. 74. Helminski v. Burak, A-1691-04T2 DDS No. 23-2-1557 Judges Stern and Fall Sept. 22, 2005 Result: Summary judgment in favor of defendant reversed and matter remanded. Facts/Background: This case arose out of an automobile accident on Oct.14, 2002. Medical Testing and Treatment: Radiology: Cervical MRI on Feb. 19, 2003, revealed bulging annulus at C3-4 with slight indentation of ventral surface of thecal sac and a straightening of the cervical spine with muscle spasm. Thoracic MRI taken on Feb. 22, 2003, showed no evidence of disc herniation or spinal stenosis, and a normal thoracic cord. Treating doctor: reported in March 2003 that the thoracic MRI was completely within normal limits. While cervical MRI did reveal a bulging disc at C3-4, doctor opined it was not significant. Doctor’s certification of permanency issued in September 2003 referred to the cervical MRI findings. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, even if she accepted the evidence presented as being objective, credible, medical evidence to satisfy the first prong of Oswin, plaintiff had not proved a substantial impact on his life affecting a significant part of his activities prior to the accident. Plaintiff was still able to perform his activities, albeit with some degree of pain and restriction. Appellate Court Determination(s): Reversed and remanded. Since the motion judge’s dismissal of plaintiff’s complaint relied solely on the now-abolished second prong of the Oswin test, and did not make any findings as to plaintiff’s objective evidence except an assumption, the matter must be remanded for reconsideration of plaintiff’s proofs with respect to the first prong. Rios v. Szivos remains viable to the extent that a doctor’s certification of permanency is not dispositive on a motion for summary judgment. 75. Sargentelli v. Singh, A-0752-04T1 DDS No. 23-2-1558 Judges Rodriguez and Yannotti Sept. 22, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on July 13, 2001. The 35-year-old plaintiff sustained injuries including a cervical herniation, cervical and lumbar disc bulges, and back and head injuries. Medical Testing and Treatment: Chiropractor: First report dated March 19, 2002, indicated that plaintiff suffered from: severe lumbar and cervical sprain and strain; permanent restriction of lumbar and cervical motion; permanent post-traumatic lumbar and cervical spasms; post-traumatic disc bulges at C5-6, L3-4, L4-5 and L5-S1; post-traumatic disc herniation at C6-7; and thoracic sprain and strain. The report mentioned both of plaintiff’s prior accidents, but made no causal allocation or apportionment of plaintiff’s current injuries among the three traumas. Second report dated July 30, 2004, included an opinion that the plaintiff’s condition was attributable 0 percent to the 1993 bicycle accident, 50 percent to the 1999 accident and 0 percent (sic) to the current accident. Third report was identical to the second, except that it corrected the typographical error to reflect that 50 percent of the plaintiff’s injuries were attributable to the current accident. Other than this conclusory statement, the report did not contain any reason for this allocation. Prior Injuries: Two prior accidents. In 1993, plaintiff injured his cervical and lumbar spine and left knee in a bicycle accident. In 1999, he was injured in another automobile accident, when he sustained disc herniations at C5-6, C6-7, C7-8, L3-4, L4-5 and L5-S1. Plaintiff asserted, however, that despite these prior accidents, he was asymptomatic before the subject accident. Serious Impact on Plaintiff’s Life: Except to mention that plaintiff was employed at the time of the accident as a carpenter, no other detail provided. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant based on the absence of a proper Polk analysis. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the trial judge. The Polk analysis provided by plaintiff’s treating physician was inadequate to meet the requisite burden. The passage of AICRA, involving substantive modification of the verbal threshold, did not affect the Polk requirement of providing a comparative analysis regarding pre-existing injuries. Judged against this standard, the three reports of plaintiff’s chiropractor � which provided no analysis for his his allocation of percentages among plaintiff’s accidents � did not carry plaintiff’s burden. In short, the doctor’s opinion was an inadmissible net opinion on the Polk issue. 76. Petrillo v. Drake, A-7011-03T1 DDS No. 23-2-1576 Judges Alley and Fisher Sept. 23, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on Dec. 23, 2000, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. Medical Testing and Treatment: Treating physician: Dr. Strauchler’s report, dated Oct. 28, 2003, indicated that range of motion in plaintiff’s neck was severely limited due to pre-existing osteoarthritis, which was aggravated by the subject accident. There was no discussion of the medical records prior to the accident. Report also indicated that plaintiff had right carpal tunnel syndrome, as well as osteoarthritis of both hands. Report dated June 25, 2004, stated that plaintiff had required significantly more and more frequent doctor visits and required referrals to multiple medical specialists (unspecified). Doctor opined that there was sufficient evidence to show that plaintiff’s worsening condition was causally related to his motor vehicle accident. Radiology: some reference to a January 2001 MRI which revealed degenerative arthritis with minimal anterolisthesis of C3 and C4 and stated that the odontoid was intact. Prior Injuries: Unspecified injuries sustained in 1989, 1995, 1996 and 1998. Plaintiff asserted that the existing residuals from these injuries were aggravated by the subject accident. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to provide a sufficient comparative analysis of his pre-accident injuries with his post-accident complaints, as required by Polk v. Daconceicao. The judge noted various generalized references to aggravation of pre-existing injuries in plaintiff’s medical reports, but stressed that they were brief and conclusory, and failed to satisfy the specificity required by Polk. Appellate Court Determination(s): Affirmed, substantially for the reasons expressed by the trial judge. The appellate panel rejected plaintiff’s assertion that the Supreme Court’s recent decisions in DiProspero and Serrano mandated that the summary judgment in favor of defendant be reversed and the matter remanded for re-examination by the trial court. The Supreme Court did not examine Polk in DiProspero or Serrano, but instead only determined that AICRA did not retain Oswin’s subjective prong. These decisions did not alter the fact that a plaintiff must prove causation and must present a Polk analysis when a prior accident has caused injury to the same affected area of the body. In this case, to the extent that plaintiff’s medical reports drew comparisons between plaintiff’s physical condition prior to and since the accident, they did so only in a conclusory way. The absence of a proper Polk analysis warranted the entry of summary judgment in favor of defendant. 77. Summerton v. Braun, OCN-L-2360-02 DDS No. 23-2-9793 Judge O’Brien Sept. 23, 2005 Result: Plaintiff’s case reinstated after DiProspero, even though it was not “in the pipeline” at the time. Facts/Background: Plaintiff’s case was dismissed on defendant’s motion for summary judgment, the motion judge concluding that plaintiff had not met either prong of the Oswin test. On plaintiff’s appeal to the Appellate Division, the panel indicated that it might have disagreed with the trial judge as to his conclusion that plaintiff had not met the first, objective medical evidence prong. Nevertheless, it stated that it did not have to rule definitively on this issue, since it agreed with the judge’s conclusion as to the second, serious impact prong. Accordingly, the judge’s dismissal of plaintiff’s complaint was affirmed. Plaintiff did not appeal to the Supreme Court. After the passage of the Supreme Court decisions in DiProspero and Serrano, plaintiff’s counsel made application to the trial judge to restore her case. Medical Testing and Treatment: Chiropractor: plaintiff apparently had some chiropractic treatment, and her chiropractor issued a computerized printout of the various aspects of plaintiff’s life activities that were impaired. Neither the trial judge nor the Appellate Division found this to provide sufficient evidence of the impact of the accident on plaintiff’s life. Radiology: plaintiff underwent an MRI which revealed straightening of the cervical curve, but the motion judge noted this was secondary to patient positioning, not muscle spasm. Plaintiff also had an EMG that was abnormal due to a proximal nerve lesion on the left side at the C5-6 level; however, the nerve conduction study was normal. Treating physician(s): for a number of months after the accident, at least two physicians continued to observe cervical muscle spasm and limited range of cervical motion. Prior Injuries: There was an indication that plaintiff had sustained a similar hand injury in a prior fall, and also some sort of injuries subsequent to the subject accident. No other details were provided. Serious Impact on Plaintiff’s Life: Not detailed, except to mention that plaintiff had some pain and limitation of motion in her neck, with some weakness and numbness in her left hand. The chiropractor apparently issued a computerized statement of the life activities which were impacted by these conditions. Physician’s Certification: No issue Polk Analysis: There was some indication that plaintiff had had a prior fall, after which she also experienced numbness in her hands. She may have also had a subsequent accident and/or injuries. While the trial judge found that plaintiff had not produced the requisite Polk comparative analysis, he did not find it necessary to detail his findings on this issue, having already determined that the case must be dismissed for failure of plaintiff to show a serious impact on her life. Miscellaneous Issue(s): Retroactivity of DiProspero and Serrano to cases not in the appellate pipeline. Trial Court Determination(s): Summary judgment was originally granted to defendant, the motion judge concluding that plaintiff met neither prong of the verbal threshold test. When plaintiff � who had unsuccessfully appealed to the Appellate Division, but not pursued the matter further to the Supreme Court � returned to the trial court after the passage of DiProspero and Serrano, and sought reinstatement of her complaint, the judge granted the application on equitable grounds. The judge felt that plaintiff had pursued relief diligently, and could not be punished for not filing an application for certiorari to the Supreme Court after the Appellate Division had affirmed his dismissal of the case. The real issue was retroactivity of the DiProspero and Serrano opinions, and he felt it was the only reasonable thing to do to allow plaintiff her day in court. Noting the Appellate Division’s discussion, albeit in dictum, of what it found compelling about plaintiff’s objective medical evidence, the judge determined to give plaintiff the benefit of the doubt and concluded that the Appellate Division, had it ruled definitively on the issue, would have found plaintiff’s objective medical evidence sufficient to survive summary judgment. Citing Beltran, which had held that pipeline retroactivity would be applied to cases after DiProspero and Serrano, the judge found it only fair that, in a case such as this, where plaintiff went through the entire appellate process, she should be “brought back” since the Supreme Court changed the law. As far as the Polk issue was concerned, the judge noted that it had not been discussed fully the first time the case had been before him. Since the matter was being restored, however, he wanted to make clear to plaintiff that he was not going to allow any new reports which might try to provide such an analysis at that late date. Any Polk determination was to be made on the already-existing record. Appellate Court Determination(s): On plaintiff’s appeal of the dismissal of her case on summary judgment, it was the Appellate Division’s suggestion, in dictum, that it might have had a different opinion than the trial judge as to the sufficiency of plaintiff’s objective medical evidence, which caused plaintiff to attempt to resurrect her case after the passage of DiProspero and Serrano. The panel found compelling plaintiff’s doctors’ finding of muscle spasm long after the accident. Although it noted that the EMG test demonstrated “mixed results,” a positive finding was included which was consistent with clinical observations of decreased strength and numbness in the left arm. While one doctor’s comment � that plaintiff “may very well have” suffered a permanent injury � was insufficient as a medical opinion of permanency, the panel found the chiropractor’s statement to be more definitive. Ultimately, however, the Appellate Division found no need to resolve the objective medical evidence and proof of permanent injury issue, as it agreed with the trial judge’s determination that plaintiff had failed to show a serious impact on her life. The panel failed to see how some pain, limitation in the motion of the neck, and weakness and numbness in the hand could result in all of the limitations subjectively asserted by the plaintiff. Accordingly, the appellate panel affirmed the dismissal of plaintiff’s complaint on the lack of serious impact grounds, without ruling on the first prong of the verbal threshold test. The Appellate Division did not discuss the Polk issue at all. 78. Opizzi v. Harris, A-7005-03T1 DDS No. 23-2-1587 Judges Payne and Graves Sept. 26, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Jan. 20, 2001. Plaintiff was taken by ambulance to the emergency room of a local hospital. Medical Testing and Treatment: Emergency room: plaintiff treated and released with a diagnosis of muscle strain. Treating physician � Plaintiff commenced treatment with Dr. Ashby on Jan. 26, 2001. Initial diagnostic impression was: (1) cervical radiculitis at C8 on the left; (2) lumbar radiculitis with positive straight leg raising on the right and pain inhibition and weakness of right hip muscles; (3) thoracic muscular strain; and (4) cervical and lumbar muscular strain. Additional visits in 2001 on Feb. 9, March 8, March 23, April 12, and Aug. 16, and in 2002 on Jan. 18. Doctor’s diagnostic impression in last two reports was: degenerative disc disease, degenerative arthritis, spondylolisthesis and broad based disc bulge at L5-S1; lumbar radiculopathy at L5-S1; and post-traumatic cervical, thoracic and lumbar muscular strain. The doctor’s final report in January 2002, added pelvic muscular imbalance and functional scoliosis, convex to the right. Dr. Ashby also gave an uncertified opinion dated May 1, 2002, in which he opined that plaintiff had sustained multiple musculoskeletal injuries as a result of the motor vehicle accident. He noted that plaintiff could function in his job as a firefighter, but had persistent pain and stiffness in his lower back, mid-back, and neck, worse on the right side. The doctor opined that these injuries were permanent, to a reasonable degree of medical certainty, and that they had not healed to function normally, and would not heal to function normally with further medical treatment. The patient had “plateaued” in medical care and remained with persistent pain and stiffness. Radiology: March 18, 2001, cervical and lumbar MRIs indicated normal cervical spine, however, with respect to lumbar spine: (1) axial images at L3-4, L4-5 and L5-S1 were obtained, demonstrating degenerative arthritis at L5-S1, typified by a grade I degenerative spondylolisthesis, and degenerative disc disease at L5-S1, typified by disc dessication and disc space height loss. No spondylolysis was evident on this examination. (2) diffuse broad-based bulging at the L5-S1 disc with no focal protrusions. (3) no central or foraminal stenosis was seen at any level. (4) no other bulges or protrusions were evident. (5) the vertebral bodies showed a normal marrow pattern. (6) the filium terminale and conus medullaris were unremarkable. Electrodiagnostic testing was conducted by Dr. Ashby on April 12, 2001, which the doctor interpreted as demonstrating L5 radiculopathy on the left and S1 radiculitis bilaterally. Chiropractor: In April 2001, Dr. Ashby referred plaintiff to a chiropractor. In a report dated Nov. 7, 2001, the doctor reported that, after “almost nine” months of treatment, plaintiff had sustained injury to the lumbar nerve root; lumbosacral (joint) sprain and strain; neck sprain and strain (whiplash injury); thoracic sprain and strain; cervical facet joint fixation; and spondylolisthesis in the lumbosacral region. The chiropractor noted that plaintiff’s history contributed slightly to his present condition, noting the degenerative component of injury shown on the March 19, 2001, MRI. However, plaintiff advised that he had never experienced any symptoms associated with this condition and was pain free before the accident occurred. Chiropractic treatment continued on an intermittent basis until April 9, 2002, for a total of 51 treatments. A Nov. 7, 2001, examination disclosed mild to severe muscle spasms in the cervical, thoracic and lumbar regions. Such spasms were documented in the medical records throughout much of the chiropractor’s treatment, and for a period exceeding one year. Prior Injuries: None, except that the medical records indicated that plaintiff had pre-existing degenerative problems. Serious Impact on Plaintiff’s Life: Not detailed, except one physician’s notation that plaintiff was a fireman, and was able to function in his job after the accident. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to present evidence to satisfy either prong of the verbal threshold test. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the panel reversed that aspect of the motion judge’s determination. The panel was also satisfied, based on the record, that the portion of the motion judge’s decision holding that plaintiff had failed to meet the objective prong of the verbal threshold test was also in error. The objective clinical evidence recounted above was sufficient to establish a permanent injury in plaintiff’s lumbar spine. The MRI demonstrated significant findings of a permanent nature at L5-S1, and their effects were confirmed by electrodiagnostic tests. However, the panel noted that neither of the parties, nor the motion judge, addressed the issue that the appellate panel deemed crucial to this case � namely, whether the evidence permitted the conclusion that plaintiff’s permanent injuries and their sequelae, including pain and muscle spasm, were causally related to the 2001 motor vehicle accident, or whether they had their origin in plaintiff’s degenerative condition. For that reason, although the panel reverses the grant of summary judgment to the defendant as a result of what it perceives to be a material issue of fact, and remands the matter to the Law Division for further proceedings, it does not preclude a renewal of defendant’s motion, at which time issues of causation can be explored. 79. Dladla v. Vollmer, A-7104-03T5 DDS No. 23-2-1588 Judges Axelrad and Kimmelman Sept. 26, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on March 18, 2001, which occurred when plaintiff’s vehicle was struck on the driver’s side by an SUV owned and operated by defendant. She experienced neck and lower back pain following the accident. Medical Testing and Treatment: Emergency room Family physician Chiropractor Neurologist: May 15, 2001, report referenced plaintiff’s pre-existing arthritis and concluded that the problem in her cervical spine represented an exacerbation of a previous condition in that area. However, her lumbar radiculopathy was causally related only to the subject accident. Pain management specialist Physical therapist Orthopedic surgeon Radiology: Two MRIs of plaintiff’s lumbar spine performed in May and June of 2001 revealed diffuse bulging discs at L2-3 through L5-S1, and marked hypertrophy with evidence of synovial cyst formation and active inflammatory changes of the right facet joint at L5-S1. EMG performed in May 2001, of plaintiff’s right leg and associated paraspinal muscles was consistent with right-sided L5-S1 radiculopathies. Electrodiagnosis: March 25, 2004, report summarized plaintiff’s subjective complaints and treatment pertaining to both the subject and subsequent accidents, and the MRIs performed for each accident. This report contained diagnostic impressions relative to both accidents. Prior/Subsequent Injuries: Plaintiff suffered from pre-existing osteoarthritis since 1993. She also injured her back and aggravated her lower back pain in a subsequent June 22, 2002, motor vehicle accident, during which the car she was operating was rear-ended. Serious Impact on Plaintiff’s Life: Not detailed, although trial judge found plaintiff’s evidence in this regard insufficient. Physician’s Certification: No issue Polk Analysis: One of the main issues. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to establish that she suffered a serious injury from the subject accident and that the injury had a significant or severe impact on her life. He also found that plaintiff submitted no comparative analysis of her pre- and post-accident injuries. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact or serious injury requirement, the panel remands the matter to the Law Division for further proceedings. 80. Roach v. Deets, L-794-02 DDS No. 23-2-1946 Judge Visalli Sept. 26, 2005 Result: Court denies plaintiff’s R. 4:50-1 motion, seeking reconsideration of the dismissal of plaintiff’s complaint, dismissed for failure to show serious impact, in light of DiProspero and Serrano. Facts/Background: In this automobile negligence case, the trial court granted defendant’s motion for summary judgment on July 12, 2004, on the ground that plaintiff had not satisfied the substantial impact or subjective prong of the verbal threshold test. Plaintiff neither appealed, nor filed a timely motion for reconsideration under R. 4:49. After the Supreme Court decisions in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, plaintiff moved, pursuant to R. 4:50-1, for reconsideration of the dismissal of the complaint. Medical Testing and Treatment: Not detailed. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, but case was dismissed for plaintiff’s failure to meet this aspect of the former verbal threshold test, and plaintiff sought to reinstate the complaint after DiProspero and Serrano, despite the fact that no appeal had been filed and this case was not in the “pipeline.” Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Retroactivity of DiProspero and Serrano to nonpipeline cases. Trial Court Determination(s): Motion denied, the trial judge citing another similar recent Law Division case, Camacho v. Camacho, and concluding that R. 4:50-1 may be used in a motion for reconsideration only if there are exceptional and compelling circumstances justifying extraordinary relief. Absent such circumstances, failure to obtain relief through the usual channels of appeal is not a reason to justify relief under R. 4:50-1. The court noted the recent Appellate Division case of Beltran v. Delia, which held that “pipeline retroactivity” would be accorded to the recent decisions in DiProspero and Serrano. In other words, the Supreme Court decisions would be applied retroactively to all pre-judgment matters pending in the trial courts and those matters that were on direct appeal at the time those decisions were rendered. The Beltran court had cited three policy considerations relevant to a retroactivity analysis. They were: (1) justifiable reliance by the parties and the community as a whole on prior decisions; (2) whether the purpose of the new rule would be advanced by retroactive application; and (3) any adverse effect retroactivity would have on the administration of justice. The trial judge noted that the Beltran court did not rule either way on the retroactive application of DiProspero and Serrano to cases outside the pipeline, the issue which he was asked to decide. As in Camacho, the judge found it inappropriate to permit retroactive application in this case, because the three-part test articulated in Beltran did not tip in favor of allowing a previously dismissed, nonpipeline case to be reopened pursuant to R. 4:50-1. The judge cited Hartford Ins. Co. v. Allstate Ins. Co., wherein the Supreme Court stated that a change in the law was not such an extraordinary circumstance so as to justify relief from a final judgment where the time to appeal had already expired. The judge noted that this was unquestionably the general rule, and rested principally upon the important policy that there must be finality to litigation. In Camacho, the plaintiff was on notice that DiProspero and Serrano were to be decided; the appeal from a divided Appellate Division in DiProspero was perfected on Feb. 26, 2004, while certification was granted by the Supreme Court in Serrano on May 21, 2004. The order of dismissal in Camacho was on April 20, 2005. In this case, the summary judgment order was entered on July 12, 2004, a considerable time after the Supreme Court had agreed to decide the fate of the serious impact test, and later in time in comparison to the April 20, 2005 order in Camacho. Plaintiff here had more time than the plaintiff in Camacho to have an opportunity to be aware of the possible changes occurring from DiProspero and Serrano. Plaintiff could have been covered under pipeline retroactivity if an appropriate appeal or reconsideration motion under R. 4:49 had been filed. Further, the judge noted that a motion for reconsideration under R. 4:50-1 was addressed to the sound discretion of the court, and should be guided by equitable principles. Plaintiff’s counsel pointed to the overriding policy objective of AICRA to lower insurance costs for consumers, and for the Legislature to balance that objective with important values such as allowing accident victims, subject to the verbal threshold, access to the courts. While the judge appreciated counsel’s concern, he noted that equitable principles weighed in favor of the defense. In addition to the finality of litigation principle already mentioned, the Beltran court had also articulated a potential “tsunami effect that retroactive application of DiProspero and Serrano might have on the administration of justice.” Therefore, the judge felt that the three-part Beltran analysis did not tip in favor of allowing this nonpipeline case to be reopened. Plaintiff also claimed that the summary judgment order was not final because it did not address the economic damages claim. Plaintiff claimed that an appeal was not filed in reliance on this fact. However, the judge noted that neither the motion for summary judgment, nor the opposition papers, mentioned the economic damages claim, and, as such, the case was dismissed with prejudice prior to the scheduled trial date in August 2004. Under such circumstances, it was incumbent upon plaintiff to file a motion for reconsideration and/or clarification regarding the finality of the July 12, 2004, order. If economic damages were claimed, the case would have been tried within 90 days and prior to the June 2005 Supreme Court decisions. All circumstances considered, the judge was not convinced that exceptional circumstances were shown by the plaintiff’s failure to address what was now claimed to have been a mistaken final order. Appellate Court Determination(s): None. 81. Gorzynski v. Humiec Jr., A-7081-03T3 DDS No. 23-2-1602 Judges Fisher and Yannotti Sept. 27, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on Oct. 2, 2000. Defendant filed for summary judgment, arguing that plaintiff failed to satisfy the verbal threshold. Plaintiff obtained defendant’s consent to adjourn the return date of the motion, scheduled for May 23, 2003, and called the judge’s chambers on May 2, 2003, to request the adjournment. He left a message on the judge’s answering machine, but did not thereafter take any action respecting the motion until May 22, when he contacted the judge’s chambers against, only to learn that the judge had not granted the adjournment. Because plaintiff had not filed any opposition to the motion, the judge had treated it as unopposed and, by order filed June 6th, granted summary judgment in favor of defendant. The order was served on plaintiff on June 19. Plaintiff neither filed for reconsideration nor appealed from the final judgment. On May 28, 2004, plaintiff filed a motion seeking to vacate the June 6, 2003, order granting defendant summary judgment. He relied on R. 4:43-3 and R. 4:50-1. Plaintiff’s counsel asserted in a supporting certification that he did not anticipate that his request for an adjournment would be denied. He further asserted that plaintiff had meritorious claims, and that the judge’s refusal to adjourn the motion was drastic and unwarranted. Medical Testing and Treatment: Radiology: Cervical MRI performed on Oct.13, 2003, revealed that cervical spine and cord were normal. CT scan performed on Oct. 21, 2003, showed a lateral disc herniation at C6-7, producing radicular findings on the right. Orthopedic surgeon: medical record dated Oct. 29, 2003, indicated that plaintiff elected to undergo an anterior cervical discectomy and fusion at C6-7 with allograft, plate and screw fixation. The surgery was performed on Dec. 3, 2003. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Procedural issue involving relief from judgment under R. 4:50-1. Trial Court Determination(s): Because the original judge had retired, the motion to vacate was heard by another judge. In a memorandum dated July 9, 2004, she noted that R. 4:50-2 required that a motion under R. 4:50-1 must be made within a reasonable time after entry of the judgment or order. In this case, the judge found that plaintiff’s counsel had not acted with sufficient diligence to satisfy the rule. Despite the fact that he had not received any response from the original judge’s chambers confirming that the request for an adjournment had been granted, counsel did not file any opposition papers, a lapse that his current application did not address. He did not call the judge’s chambers again until 20 days later, on the eve of the return date, when he learned the request had been denied. There was no indication whether plaintiff’s counsel appeared for oral argument. In any event, the motion was granted as unopposed, and counsel did not take any further action for a year. There was nothing in the current application to explain this extraordinary delay, nor was it addressed by counsel at oral argument. The judge found this inexcusable, and denied the motion to vacate, as well as plaintiff’s subsequent motion for reconsideration. Appellate Court Determination(s): Affirmed. The motion judge did not abuse her discretion in denying plaintiff’s motion, where plaintiff’s counsel waited a full year to seek relief from the order for summary judgment. Such application was not made within a reasonable time as required by R. 4:50-2. In a certification dated Aug. 4, 2004, counsel stated that the motion to vacate was not filed until May 28, 2004, because plaintiff’s PIP benefits had benefits terminated, and “time elapsed” before an orthopedist agreed to perform surgery. Counsel asserted that the motion to vacate could not be made until after surgery had been performed, and the surgeon’s reports were received. Counsel also stated that the decision to wait for the medical reports was made for the purpose of “nailing down” the facts to make certain that the record would justify the denial of the defendant’s summary judgment motion. In the panel’s view, these reasons were not an adequate explanation for counsel’s delay in seeking relief under R. 4:50-1. The medical records established that plaintiff had sufficient information in October 2003, when the surgery was scheduled, to seek relief under R. 4:50-1. Under these circumstances, the delay in bringing the motion was unreasonable. 82. Berdugo v. Modrzynski, A-1345-03T1 DDS No. 23-2-1603 Judges Weissbard and Sapp-Peterson Sept. 27, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Sept. 28, 2000, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. Medical Testing and Treatment: Plaintiff opposed defendant’s motion for summary judgment, alleging that there was objective clinical evidence through MRI testing of a lumbosacral disc buge and muscle spasm, and that these injuries had a serious impact on his life. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge issued a tentative written decision in which she found that plaintiff’s muscle spasm was intermittent and thus insufficient to meet the permanency requirements under the verbal threshold statute. She did not, however, address plaintiff’s additional claim that the MRI testing, which confirmed a lumbosacral disc bulge, was further evidence of a permanent injury, because she had tentatively determined that plaintiff failed to meet the subjective components for recovery. Following oral argument, the motion judge found that the totality of circumstances did not demonstrate that plaintiff’s injuries had a serious impact to a significant and important component of his life. The judge granted the motion without specifically addressing whether plaintiff had sustained a permanent injury. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel reverses the motion judge’s grant of summary judgment to the defendant. The matter is remanded to the Law Division for further proceedings to address whether plaintiff has presented objective clinical evidence of a permanent injury, since this issue was not addressed by the motion judge. 83. Berrios v. Stremlo, A-1548-04T2 DDS No. 23-2-1613 Judges Stern and Levy Sept. 28, 2005 Result: Summary judgment in favor of defendant reversed and case remanded. Facts/Background: This case arose out of an automobile accident on April 23, 2001. Medical Testing and Treatment: Treating physician � Dr. Fass: Issued report dated Jan. 2, 2002, indicating that plaintiff’s cervical spine was severely injured as a result of the subject motor vehicle accident. MRI revealed disc bulge at C5-6. Doctor opined that sprain and strain of the supportive musculature and ligamentous tissue, along with disc bulging, permanently impaired plaintiff’s cervical spine region, and that it would remain compromised with respect to her ability to perform physically exertive tasks or maintain prolonged postural positions. The plaintiff’s cervical spinal mobility remained compromised as well. Plaintiff’s right arm symptoms were explained by positive neurological electrodiagnostic findings, consistent with right carpal tunnel syndrome and a right C6 radiculopathy. These neurological injuries would continue to cause residual symptoms of pain, numbness, and weakness, radiating down the patient’s right arm and into her hand and wrist. The doctor opined that plaintiff might ultimately require surgical intervention to correct the carpal tunnel syndrome problem. The use and function of her right arm, wrist and hand remained compromised by the injuries. The doctor opined that these were significant findings in a right hand dominant individual who was employed in a manually dependent occupation (unspecified). He stated that these symptoms would continue to curtail her ability to perform her occupational tasks as well as routine daily tasks around the household. Plaintiff’s prognosis was that she would continue to experience physical limitations with respect to her cervical spine and right arm. Her threshold for future injury was lowered by the motor vehicle accident. She was subject to progressive arthritic degeneration, muscular fibrosis and progressive disc disease, which were expected sequelae. The doctor opined that she would never return to her premorbid state. Plaintiff’s treating physician also issued a physician’s certification of permanency indicating that, based upon plaintiff’s reported history, the doctor’s professional expertise, and the findings in his report (related above and attached to the certification), including reference to clinical findings and/or objective medical tests, it was his opinion that, within a reasonable degree of medical probability, plaintiff sustained a permanent injury that had not healed to function normally, and would not heal to function normally with further medical treatment. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s injuries did not meet the threshold of seriousness and permanency required by Serrano. Appellate Court Determination(s): Reversed. In light of the Supreme Court’s reversal of Serrano, holding that AICRA does not include a serious injury requirement, the panel remanded the matter to the Law Division for further proceedings. The parties were to be given the opportunity to develop the record and make further arguments in light of the recent Supreme Court decisions. This was particularly necessary here because the motion judge appeared to have blended what were at the time perceived as the two distinct prongs of the verbal threshold test, including the outdated substantial impact prong, in reaching her conclusion about seriousness. 84. Pitaresi v. Clark, A-0953-04T5 DDS No. 23-2-1614 Judges Fuentes and Graves Sept. 28, 2005 Result: Jury verdict in favor of plaintiff, but awarding him no damages, is reversed. Facts/Background: Plaintiff alleged that he injured his hip in the automobile accident with defendant, and that it was necessary for him to undergo a complete hip replacement approximately one month later. This case was tried to a jury, which determined that the defendant was 51% negligent and that his negligence was a proximate cause of plaintiff’s injuries. However, plaintiff was not awarded any damages because the jury found that plaintiff did not sustain an injury that seriously affected one or more activities that were a significant and important part of his life. Medical Testing and Treatment: Plaintiff’s expert � Dr. Colizza: found a direct connection or causal relation between the injuries that plaintiff had sustained in the accident and the necessity of the hip replacement surgery. Defendant’s expert � Dr. Goldstone: indicated that hip replacement was not related to the accident. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although the jury found that plaintiff had not proved this prong of the verbal threshold test, and awarded him no damages as a result. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Trial judge determined that the hip replacement which plaintiff underwent constituted a permanent injury. He instructed the jury that it must decide whether or not the hip replacement was required because of the accident with defendant, or, as the defendant’s expert said, because it came from some other source. In addition, the trial judge instructed the jury that plaintiff must prove that his injury had a serious impact on his lifestyle and affected one or more activities that were a significant and important component of his way of life. Plaintiff was required to prove that the injury was such that he could no longer attend to his regular routine activities, whatever they might be. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel remands the matter to the Law Division for further proceedings. Where the jury found a causal connection between defendant’s negligence and plaintiff’s injuries, which the trial judge found to be permanent, plaintiff met the verbal threshold and established liability. He is entitled to a new trial on damages. 85. Ragoonanan v. Conley, A-6572-03T3 DDS No. 23-2-1630 Judges Fisher and Yannotti Sept. 29, 2005 Result: Summary judgment in favor of defendant, and denial of plaintiff’s motion to amend interrogatories, both affirmed. Facts/Background: This case arose out of an automobile accident on July 25, 2001, which occurred when plaintiff’s vehicle was stopped in traffic, and was struck from behind by an automobile that was being test-driven by the defendant Conley, and was owned by Route 22 Honda. The case was arbitrated and later set for trial on May 3. Defendants moved for summary judgment, and the motion was initially returnable April 2, 2004. It was adjourned to April 16, and then to April 30. On April 28, plaintiff moved, on short notice, for leave to amend his answers to interrogatories to include a report from Dr. Haidri, a neurologist, which set forth his findings based on certain electrodiagnostic testing performed on April 15, 2004. The judge denied plaintiff’s motion to amend, and granted defendant’s motion for summary judgment. Medical Testing and Treatment: Treating physician � Dr. Wolkstein: in a report dated Aug. 6, 2001, doctor noted that plaintiff presented on July 31, 2001, complaining of neck pain radiating to both arms, pain in his left shoulder, back pain, and pain and weakness in his left knee. The doctor observed: muscle spasm in the cervical region of the spine, and limited range of motion; tenderness in the left shoulder on light palpation, with limited range of motion; and muscle spasm of the dorsal and lumbar regions of the spine. The doctor also recorded plaintiff’s subjective complaints about his left knee, but made no findings in that regard. He prescribed physical therapy and medication. Report dated Dec.12, 2001, detailed physical examinations of plaintiff on: Sept. 10, 2001, doctor prescribed continued physical therapy; Oct.15, 2001, doctor observed some loss in the range of motion in plaintiff’s neck.; Nov. 2, 2001, doctor observed some limits in range of motion in the neck and back; spasm in the cervical and paravertebral muscles, as well as in the upper trapezius muscles. On Nov. 27, 2001, plaintiff complained of left shoulder pain. Doctor’s final diagnosis was: cervical sprain and strain with spasm; left cervical radiculitis; contusion/sprain of the left shoulder; left impingement syndrome; dorsal/lumbar sprain and strain with spasm; and contusion/sprain left knee. The doctor opined, to a reasonable degree of medical certainty, that plaintiff’s injuries were permanent. Neurologist: Dr. Haidri: plaintiff did not present to this physician until April 15, 2004, after the case had already been arbitrated. No details of his findings. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Plaintiff unsuccessfully sought late amendment to his answers to interrogatories to include an additional, late medical report. Trial Court Determination(s): The trial judge denied plaintiff’s motion to amend his answers to interrogatories, noting that plaintiff’s treating physician had identified his injuries in 2001, and noted that they were subject to confirmation by objective testing, yet plaintiff did not present to the neurologist for such testing until after the case had been arbitrated, the trial date had been fixed, and defendants had moved for summary judgment in 2004. The judge noted that, in the exercise of due diligence, plaintiff could have had the diagnostic tests performed, and a report submitted prior to the discovery end date. The trial judge also granted summary judgment granted to defendant, concluding that plaintiff had failed to surmount the verbal threshold. The doctor noted that plaintiff’s treating physician failed to provide the required objective, credible, medical evidence that would support a jury finding in his favor. Appellate Court Determination(s): Both decisions of the trial judge are affirmed. With respect to the denial of plaintiff’s motion seeking to amend his answers to interrogatories, the panel cited R. 4:17-7, which provides that amendments to previously furnished answers to interrogatories shall be served no later than 20 days prior to the discovery end date. The rule also provides that amendments may be allowed thereafter only if the applicant shows that the information underlying the request was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of such a showing, the late amendment shall be disregarded by the court and adverse parties. Here, the trial judge correctly found that the amendment was untimely. The motion to amend was not made prior to the discovery end date � indeed, it was not made until the eve of trial. Moreover, plaintiff failed to certify that the information was not reasonably available prior to the discovery end date as required by the rule. Thus, the trial judge did not abuse her discretion in denying plaintiff’s motion. The panel distinguished Tucci v. Tropicana Casino and Resort, Inc., cited by the plaintiff as authority for the contention that the trial judge erred in denying the motion for additional discovery. In that case, the trial judge found exigent circumstances, including counsel’s having difficulty obtaining maintenance records for the elevator in question; an inspection of the elevator taking place � with defense counsel’s cooperation � after the deadline date for service of an expert’s report; and plaintiff’s counsel’s mother’s terminal illness and death one month prior to that deadline date. The court in that case found that plaintiff’s failure to timely serve discovery was not willful, and that plaintiff’s counsel’s personal situation warranted a reasonable modicum of judicial indulgence. Suffice it to say, the panel did not find that this case presented any of the unique factual circumstances that were present in Tucci. The panel also distinguished Ponden v. Ponden, where the court concluded that the trial judge had erred in refusing to extend the discovery end date so as to permit plaintiff to file a new expert report, where the request for the extension was made before the matter had been scheduled for either arbitration or trial. Here, the facts were distinctly different, as the case had already been arbitrated and was scheduled for trial. Plaintiff’s motion was made on short notice, and on the eve of trial. Defendants were undoubtedly prejudiced by the production of a new expert report a few weeks prior to trial. Additional discovery would have been required and the extension would have jeopardized the fixed trial date. As to the judge’s determination on the verbal threshold issue, the appellate panel was in agreement with her conclusion that plaintiff’s treating physician did not provide the required objective, credible, medical evidence of permanent injury. His diagnosis was based, in part, on range of motion tests that reflected plaintiff’s subjective pain responses. Moreover, although the doctor stated that he observed spasm in the cervical, dorsal and lumbar regions of plaintiff’s spine, there was no evidence of any spasm after the last visit to this doctor on Nov. 27, 2001. Therefore, plaintiff did not present evidence of the sort of persistent, long-standing spasm that was indicative of a permanent injury. 86. Wooten v. Martilla, A-4470-03T3 DDS No. 23-2-1649 Judges Payne and Kimmelman Oct. 3, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on April 22, 2001. Medical Testing and Treatment: Radiology: MRI revealed slight posterior disc bulge at C5-6 and a partial thickness tear of the supraspinatus tendon of the right shoulder. Electrodiagnostic evidence of right C6 radiculopathy. Treating physician � Dr. Tartacoff: attested to the permanence of plaintiff’s injuries in a report dated Jan. 29, 2003, and to their causal relationship to the motor vehicle accident. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although the motion judge found plaintiff’s proofs inadequate in granting summary judgment to the defense. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Plaintiff also unsuccessfully sought recovery of money she expended for insurance copayments and deductibles in connection with medical treatments allegedly related to the accident. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, although plaintiff had presented adequate medical proofs of permanency to defeat the summary judgment motion, she failed to meet the “substantial impact” prong of Oswin, mandating dismissal of her complaint. Relying on Roig v. Kelsey, the motion judge also dismissed plaintiff’s claim seeking reimbursement of monies she expended for insurance co-payments and deductibles in connection with medical treatments allegedly related to the accident. Appellate Court Determination(s): Reversed. As to the verbal threshold, in light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the grant of summary judgment to the defendant must be reversed. All that was statutorily required to satisfy the verbal threshold was that plaintiff show that she sustained injury in the accident to a body part or organ, or both, which was was permanent, had not healed to function normally, and would not heal to function normally with further medical treatment. Since the panel concurred with the motion judge’s conclusion that plaintiff’s medical proofs were sufficient in this regard, the matter was remanded to the Law Division for further proceedings. As to the issue of plaintiff’s PIP copayments and deductibles, the appellate panel also affirmed. Roig v. Kelsey held that such recovery was unavailable under section 12 of the prior Automobile Reparation Reform Act. On appeal, plaintiff argued that the provisions of AICRA permitted such recovery, and that the statutory language upon which Roig had been premised had been substantially modified. The panel disagreed. The panel noted that N.J.S.A. 39:6A-2k defines “economic loss” as including uncompensated medical expenses. However, section 12 of the AICRA statute, applicable to all insureds, regardless of what tort option they selected, continues to state, as it did when Roig was decided, that the amounts of any insurance deductibles or copayments are inadmissible in evidence in a civil action for recovery of damages for bodily injury. If they cannot be introduced into evidence, no foundation for their consideration by a jury exists. In Roig, the court invited the Legislature to amend the auto insurance law if it disagreed with the court’s interpretation of its intent. The panel agreed with the decision of another appellate panel in D’Aloia v. Georges, that a legislative disagreement with the court’s interpretation of section 12 had not been manifested in AICRA. As a consequence, the trial judge’s dismissal of plaintiff’s claims for economic loss consisting of insurance deductibles and co-payments was affirmed. 87. Valentine v. Bruno, A-2563-03T5 DDS No. 23-2-1650 Judges Collester and Reisner Oct. 3, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on July 19, 2001. Plaintiff was taken to the hospital immediately after the accident, complaining of pain in his hip and lower back. Medical Testing and Treatment: Emergency room: plaintiff treated and released. Treating chiropractor: plaintiff first presented himself on Aug. 29, 2001. Doctor had previously treated plaintiff for lower back injuries due to an earlier slip and fall accident in 1999. Report dated Aug.31, 2001: plaintiff diagnosed with traumatic sprain and strain injuries from the automobile accident. Doctor recommended a series of 12 chiropractic treatments to address his injuries. Noted that plaintiff was not disabled from work or activity and characterized his prognosis as fair but favorable. After a series of treatments, doctor issued final report on April 8, 2002, in which he noted the following residual symptoms after treatment: low back pain, spasms and restrictions � improved but persistent; and left leg pain � persistent. Doctor mentioned objective testing performed (see next section) and diagnosed plaintiff with lumbosacral hypokinesia/kinesalgia; lumbosacral paravertebral myospasms; disc bulging at L4-5 and L5-S1; and lower extremity radiculopathy; all secondary to traumatic sprain and strain injuries. In his final report, chiropractor noted plaintiff’s prior slip and fall in 1999, in which he injured his lower back and right arm. He apparently had treated plaintiff after that fall until August of 2000, and concluded, based only on the fact that plaintiff had not had treatment for the slip and fall accident since August of 2000, that there was a direct causal relationship between the subject automobile accident and his current symptoms. Apparently without re-examining plaintiff, the chiropractor signed a certification of permanency on Sept. 20, 2002, asserting that plaintiff had suffered permanent injuries in the 2001 automobile accident. The alleged permanent injuries were the same as those recited in his April 8, 2002, report as being “secondary to traumatic sprain and strain injuries” incurred in the automobile accident. On June 25, 2003, the chiropractor signed a questionnaire in which he gave positive answers to a series of yes or no questions concerning whether plaintiff’s injuries had been caused by the subject car accident. The questionnaire did not include any analysis or explanation as to how the doctor reached those conclusions. Radiology: MRI performed on Nov. 26, 2001, revealed: disc bulges at L4-5 and L5-S1; EMG on Jan. 24, 2002, revealed: left L5-S1 radiculopathy and right lumbar radiculitis. Prior Injuries: 1999 slip and fall accident, for which plaintiff also sought treatment with same chiropractor. Doctor diagnosed plaintiff with virtually the same injuries from the fall as he did following the automobile accident. In a report dated July 6, 2000, the chiropractor indicated that he had treated plaintiff for a fall at a supermarket on Jan. 19, 2000. He diagnosed plaintiff with “anatomical and physiological derangement of the lumbosacral spine . . . lumbar hypokinesia/kinesalgia with intractable paravertebral myospasms secondary to spinal derangement . . . and probable lower extremity radiculopathy” all “secondary to traumatic sprain and strain injuries.” He also opined that these injuries were permanent and that plaintiff’s symptoms were going to recur and progress as time went on. Significantly, he recommended that plaintiff undergo an MRI and an EMG of his lower back at that time, but apparently plaintiff did not have those tests until after the subject automobile accident. Serious Impact on Plaintiff’s Life: Not detailed, although motion judge found plaintiff’s proofs insufficient in this regard. Physician’s Certification: No issue Polk Analysis: Main issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to prove that his injury was serious and failed to present medical evidence distinguishing the injuries he suffered in an earlier slip and fall accident from those that he allegedly sustained in the subject accident. Appellate Court Determination(s): Affirmed, because the appellate panel agreed with the motion judge that plaintiff’s medical evidence was manifestly insufficient to satisfy the Polk standard. Because plaintiff suffered an injury to his lower back in the earlier slip and fall accident, and claimed that he injured the same body part in the subject automobile accident, he had the burden of presenting medical evidence differentiating between the injuries suffered in the first accident and those suffered in the subject accident. Polk continues to be viable in cases filed under AICRA, as well as to pre-AICRA cases. The panel agreed with the motion judge that plaintiff’s proofs fell far short of meeting the Polk requirement. His chiropractor’s reports did not indicate that he had reviewed any of plaintiff’s medical records from the prior accident. Nor did he explain the reasons for his conclusion that the injuries were due to the automobile accident, as opposed to the slip and fall. Since plaintiff did not follow the chiropractor’s earlier advice to obtain MRI and EMG tests following the slip and fall, there was no objective basis in the record on which to conclude that the tests he underwent after the second accident revealed “new” injuries, as opposed to residual problems from the fall. The panel also agreed with the motion judge’s conclusion that the questionnaire was a “net opinion.” The panel affirmed without reaching the issues of whether plaintiff’s injuries were “serious” or whether “seriousness” continued to be an element of the lawsuit threshold under AICRA. Finally, the panel noted that plaintiff attempted to raise, for the first time on appeal, a claim concerning his right to recover PIP copayments. That claim was not considered, as it was not properly before the panel, not having been raised in the trial court. 88. Kelly v. Liu, A-2123-04T3 DDS No. 23-2-1734 Judges Alley and Yannotti Oct. 12, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on June 12, 2002, which occurred when plaintiff’s vehicle, stopped at a stop sign, was struck from behind by defendant’s vehicle. Medical Testing and Treatment: Chiropractor: on the day of the accident, plaintiff presented to Dr. Delli Santi, who rendered a report dated Oct. 28, 2003, describing the initial visit. He examined plaintiff and observed spasm in the cervical, thoracic and lumbar regions of the spine and markedly reduced and painful range of motion. He performed certain orthopedic tests, which he said elicited positive pain responses; these included: foraminal compression tests, straight leg raising, heel walking and a spinous percussion test. The doctor made the following initial diagnosis: acute traumatic cervical, thoracic and lumbosacral sprain and strain injury; acute cervical bilateral brachial radiculitis; acute thoracic inter-segmental dysarthria with associated neuropathy; acute brachial radiculopathy; acute cervical migraine headaches; and acute lumbosacral dysarthria myositis with acute sciatic radiolopathy. Plaintiff returned for a follow up visit on June 26, 2003, complaining of intermittent episodes of painful joint stiffness in the neck and upper back. She also complained of lower back joint pain and stiffness along with attacks of sudden muscle spasms in the lower back. The doctor performed another physical examination and observed muscle spasm on palpation at various levels of plaintiff’s cervical, thoracic and lumbar spine. The doctor also performed orthopedic tests, which showed “painfully reduced” range of motion in the cervical spine and “slightly decreased” range of motion in the lumbosacral spine. Based upon his physical examinations and the objective testing results (detailed below), the chiropractor’s final diagnosis was: disc pathology with myelopathy; traumatic cervical, thoracic and lumbosacral neuritis; and acute lumbosacral sprain and strain with intervertebral disc involvement. The doctor opined that plaintiff had sustained a “severe injury” to the cervical intervertebral discs, with accompanying nerve root radiculopathy and myelopathy that, at times, could be severely symptomatic, resulting in chronic joint pain and episodes of severe painful muscle spasms. He stated that plaintiff’s condition was consistent with symptoms resulting from disc injury in the cervical spine. He also noted that the MRI had revealed a disc herniation at L4-5. He opined that plaintiff would suffer intermittent episodes of nerve root pain and muscle spasm. He indicated that the injuries were causally related to the motor vehicle accident; that plaintiff’s condition was “highly guarded”; and that surgical intervention might be likely due to the nature of the injuries. Radiology: Sept. 10, 2002, cervical MRI revealed: evidence of a significant disc bulge at C2-3 and C3-6; a diffuse disc bulge with osteophytic ridge formation at C4-5; a mild diffuse disc bulge at C5-6, which “mildly” indented the thecal sac and did not touch the spinal cord; and no evidence of significant disc bulge or herniation at C6-7 and C7-T1. In the radiologist’s impression, he noted only the spondylitic changes at C4-5 and C5-6. Jan. 9, 2003, lumbar MRI revealed: mild degenerative disc disease at L3-4 and L4-5; a mild disc bulge at L3-4 without significant canal or recess impingement; and a small central and left paracentral disc extrusion with disc material just reaching the thecal sac, resulting in mild canal stenosis. The radiologist stated that the MRI also revealed a probable incidental sacral root sleeve cyst. Orthopedist: Plaintiff also saw this doctor, who reported on May 24, 2004, that plaintiff presented to him with complaints of pain in the neck and back. She also complained of headaches and numbness radiating into her upper and lower extremities. The orthopedist performed a physical examination, which revealed limitations in the range of motion of plaintiff’s cervical and lumbar spine. The doctor also noted palpable muscle spasm in both the cervical and lumbar spine. The orthopedist offered the following diagnosis: cervical, dorsal, and lumbosacral sprain and strain with chronic secondary fibromyositis and myofascitis; post-traumatic muscle tension headaches; acute C4-5, C5-6 bulging annuli; acute L4-5 herniated nucleus pulposus with thecal sac compression; and cervical and lumbosacral radiculopathy. The doctor opined that plaintiff had suffered significant injuries that had resulted in some degree of permanent disability, as evidenced by, among other symptoms, plaintiff’s continued episodes of pain, spasm and reduced range of motion. He added that plaintiff’s prognosis was poor, and that, within a reasonable degree of medical probability, plaintiff would continue to require further medical and/or surgical care, including a possible L4-5 discectomy with fusion. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, other than the motion judge’s mention, in determining that plaintiff’s evidence was insufficient on this prong of the Oswin test, that plaintiff had not missed any work as a result of the accident, and was able to perform the same tasks that she performed before the accident, even if there was some pain involved in these activities. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to meet the subjective prong of the verbal threshold test because she had not missed any work as a result of the accident, and was able to perform the same tasks that she performed before the accident, even if there was some pain involved in these activities. The judge added that there were “other issues,” such as “the lack of electrode nerve treatment or diagnosis which is also a factor in objective permanency.” He did not elaborate, but merely dismissed the case. Counsel questioned the judge as to whether he was also finding that plaintiff had failed to meet the objective prong of the verbal threshold test, or whether he was merely concluding that plaintiff had not met the second, subjective prong. The judge then responded that he found, as a matter of law, that plaintiff had not satisfied either prong of the verbal threshold test. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the judge’s determination that dismissal was warranted because plaintiff had not proved such an impact could not stand. While the appellate panel recognized that this was not the sole basis for the judge’s decision, it noted that the judge provided only a cursory explanation for his conclusion that she also failed to produce sufficient objective, credible, medical evidence to raise a genuine issue of material fact as to whether she sustained a permanent injury under the verbal threshold. In the absence of a more detailed statement of reasons, the appellate panel could not say whether the judge’s decision was informed by the serious injury standard rejected by the Supreme Court in Serrano. Moreover, the judge did not specifically address the objective evidence supporting plaintiff’s claims, such as the MRI reports, upon which the orthopedist relied as support for his opinion that plaintiff had sustained a disc herniation that might require surgical intervention. In addition, the orthopedist observed muscle spasm in both the cervical and lumbar regions of plaintiff’s spine almost two years post-accident, and persistent muscle spasm may be objective evidence of a permanent injury. The panel was convinced that a remand was warranted so that the trial judge could review all of the plaintiff’s objective evidence under the standard articulated by the Supreme Court in Serrano. 89. Williams v. Illge, A-1950-04T3 DDS No. 23-2-1743 Judges Coburn and Lisa Oct. 13, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on Aug. 16, 2000. Medical Testing and Treatment: Radiology: Dec. 17, 2001, hip X-ray showed marked osteoarthritis of the right hip joint with narrowing of the C4 and medial hip joint spaces, with associated subchondral sclerosis and osteophytosis. Surgery: Jan. 23, 2003, plaintiff underwent a total right hip replacement performed by Dr. Rieber. Dr. Rieber submitted a certification dated Aug. 5, 2004, when plaintiff attempted to obtain relief from the summary judgment the court had already entered in favor of defendant. The certification stated that he first saw plaintiff in December 2002. He indicated that he had referred plaintiff for X-rays of the hip, which he said showed “rather severe and complete destructive osteoarthritic changes” (date of X-ray precedes the date doctor said plaintiff first came to see him; this discrepancy not addressed or explained in opinion � editor). The doctor opined that, within a reasonable degree of medical probability the osteoarthritic changes that resulted in plaintiff’s total hip replacement were causally related to the motor vehicle accident. He based this opinion on his physical examinations and treatment of plaintiff, and the fact that a motor vehicle accident, where there is trauma, can cause degenerative osteoarthritic changes requiring a hip replacement. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: Panel found belated certification deficient in three respects (see “Appellate Court Determinations” section below.) Polk Analysis: Not mentioned by motion judge; however, because the record contained evidence of a pre-existing degenerative condition in plaintiff’s right hip, the appellate panel felt that a comparative analysis was required. Miscellaneous Issue(s): Procedural issue of use of R. 4:50-1 as substitute for appeal. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, although the hip replacement surgery had occurred, plaintiff failed to surmount the verbal threshold because she did not have an expert report causally relating the surgery to the accident. Plaintiff filed a pro se appeal without a brief, as a result of which the Appellate Division dismissed her appeal. At some point thereafter, she retained new counsel. However, rather than attempting to cure the dismissed appeal by seeking reinstatement, plaintiff’s new counsel filed a motion pursuant to R. 4:50-1 seeking relief from the summary judgment order dismissing the complaint. Plaintiff’s motion was accompanied by a certification dated Aug. 5, 2004, from Dr. Rieber (see medical treatment section above for details). Plaintiff argued that relief from the summary judgment order should be granted based on “newly discovered evidence” or in the interest of justice. The motion judge rejected the notion that the physician’s belated certification constituted “newly discovered evidence,” or that the interest of justice warranted relief under the circumstances of this case. Appellate Court Determination(s): Affirmed, substantially for the reasons given by the motion judge. Plaintiff failed to show that the “newly discovered evidence” could not have earlier been discovered by due diligence. She also failed to show that the “new” evidence was of a nature that would have changed the result. Obviously, the hip replacement procedure was known to plaintiff and her attorney long before the summary judgment proceedings, and there was more than ample opportunity to attempt to obtain from the surgeon, or any other medical expert, a proper report causally relating it to the accident. Further, the panel found the certification substantively deficient, as it merely stated an unsupported conclusion of causation that was lacking in three respects. First, there was no narrative discussion explaining how the accident was the cause of the injury requiring a total hip replacement and relating that causation to objective, credible, medical evidence. Second, because the record contained evidence of a pre-existing degenerative condition in the right hip, if exacerbation was asserted, an analysis comparing the condition prior to the accident and after the accident, with specific reference to objective medical evidence, was required, but was not included in the doctor’s certification. Finally, the certification did not speak in terms of medical probability, but merely stated that the trauma “can cause” degenerative osteoarthritic changes. For all these reasons, the panel found no error in the denial of plaintiff’s R. 4:50-1 motion to vacate the summary judgment dismissing her complaint. 90. Timko v. DiFalco, A-6775-03T5 DDS No. 23-2-1744 Judges Lefelt and Hoens Oct. 13, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Dec. 12, 2000, which occurred when the vehicle in which plaintiff was a passenger was struck from behind by defendant’s vehicle. Medical Testing and Treatment: Plaintiff asserted the following injuries from the accident: multiple herniated discs/disc bulges, relentless pain, restricted range of motion of her head and neck, pain across the back radiating into her left arm, numbness in the fingers, weakness and fatigue in the left arm, frequent headaches and “easy general fatigability.” Radiology: Feb. 28, 2001, MRI revealed: multiple cervical disc herniations and a reversal of the normal cervical lordosis. Orthopedist: issued report describing her injuries and her course of treatment. Osteopathic physician: issued report describing her injuries and her course of treatment Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although motion judge determined that plaintiff failed to surmount this prong of the verbal threshold test. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding first that the evidence concerning plaintiff’s injuries was sufficient to demonstrate by objective, credible, medical evidence that she had sustained a permanent injury as that term was defined in the statute, thus satisfying the objective prong of the verbal threshold test. With respect to the second, subjective prong, the motion judge recognized that there was a divergence of relevant appellate court opinions on the continued viability of this aspect of the verbal threshold test post-AICRA; however, he concluded that the two-part Oswin formulation had survived the amendments to AICRA and was therefore still binding. In considering plaintiff’s evidence as to the serious impact prong, the judge determined that plaintiff’s injuries, although objectively demonstrated, were not sufficiently serious, when viewed in terms of their subjective impact on the plaintiff’s daily life, to support relief within the meaning of the verbal threshold statute. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA does not include a serious impact requirement, the panel reverses and remands the matter to the Law Division for further proceedings. The parties did not appeal the motion judge’s determination that plaintiff met the first, objective prong of the verbal threshold test. Further, based on the appellate panel’s own review of the record, it found sufficient support to sustain that finding of fact and conclusion of law. Thus, plaintiff presented sufficient evidence to survive defendant’s summary judgment motion. 91. Norris v. Altamar, A-1693-04T2 DDS No. 23-2-1756 Judges Lisa and Reisner Oct. 14, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Dec. 4, 2001, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. The 17-year-old plaintiff claimed injuries to her lumbar spine in the accident. Medical Testing and Treatment: Orthopedic surgeon: plaintiff initially sought treatment from Dr. Cubelli, who referred her for an MRI (see below). Doctor prescribed physical therapy for plaintiff’s continuing back pain and other symptoms. Radiology: Jan. 30, 2002, lumbar MRI showed normal results. April 10, 2002, lumbar MRI revealed: small left paramedial disc herniation at L4-5. July 31, 2003, MRI revealed that the disc herniation at L4-5 was still present and was larger than it had been on previous MRI. Chiropractor: March 27, 2002, plaintiff saw Dr. Curtis, who also sent her for an MRI (see above). He opined, based on the MRI report and his physical examination of plaintiff, that she had suffered a disc herniation as a result of the accident, and that the injury to her spine was permanent. Dr. Vosough: because she continued to experience back pain with occasional numbness of the right leg, she sought treatment from this physician. He sent her for a lumbar epidural injection and an evaluation by a neurosurgeon, and ordered another MRI (see above). In report dated July 16, 2004, doctor noted that he had been treating plaintiff for injuries sustained to the neck and lower back; causally related these injuries to the motor vehicle accident; and opined that the injuries were permanent. He based his opinion in part on the objective clinical evidence, including medical testing and imaging studies. He then indicated that the MRI of the lumbar spine had revealed “disc protrusion at L4-5 resulting in thecal sac deformity.” Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although judge found plaintiff’s evidence insufficient in this regard. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s injuries did not have a serious impact on her life, and that, objectively, Dr. Vosough’s report of July 16, 2004, was insufficient because, although it indicated permanency, it did not state that the MRI objective findings were causally related to the accident. Appellate Court Determination(s): On plaintiff’s appeal, defendant conceded that, in light of the recent decisions by the Supreme Court in DiProspero and Serrano, plaintiff was not obligated to demonstrate that her injuries caused a serious impact on her life. However, defendant continued to assert that the judge correctly found plaintiff’s objective medical evidence lacking. The appellate panel disagreed and reversed, citing the evidence of two MRIs revealing the presence of a herniated disc in plaintiff’s lumbar spine, diagnosed as such by two physicians, both of whom opined that the injury was caused by the accident and permanent. Contrary to the judge’s conclusion and defendant’s contention, Dr. Vosough’s July 2003 report can be fairly construed as citing the MRIs in support of his conclusion that plaintiff suffered a disc herniation as a result of the motor vehicle accident. The panel also found no merit in defendant’s alternate argument, that plaintiff’s experts were required under Polk to explain away the first MRI report, which was normal. Polk is inapplicable here, because there was no evidence that plaintiff was involved in any other accidents between the time that the first MRI was performed and the dates of the second and third MRIs. Hence, there was no reason to require her to produce evidence differentiating between the injuries caused by multiple accidents. At trial, of course, the defendant would be free to argue that the second and third MRIs were inaccurate, or that the first normal MRI was evidence that the herniation was not caused by the accident. The contradictory results might cast doubt on the credibility of the opinions offered by plaintiff’s experts, particularly since their reports did not indicate whether they reviewed the first MRI report before making their diagnoses. On the other hand, those experts, might offer cogent explanations as to why the first MRI report was inaccurate. All of these possible scenarios went to the weight the jury might give to the expert’s opinions, and not to the admissibility of those opinions. 92. Patterson v. Penamon, A-0725-04T2 DDS No. 23-2-1770 Judges Skillman and Francis Oct. 17, 2005 Result: Denial of defendant’s motion for a new trial affirmed. Facts/Background: This case, arising out of an automobile accident on March 4, 2001, was tried to a jury, resulting in a plaintiff’s verdict and a damages award of $58,307.18. Defendant moved for a new trial, contending that the trial court erred in: (1) failing to instruct the jury on mitigation of damages; and (2) denying her motion for a directed verdict based on plaintiff’s failure to meet the verbal threshold. Medical Testing and Treatment: Plaintiff claimed injuries including disc herniation at C5-6 and a bulging disc at C3-4. He also alleged bulging discs at L2-3 and L3-4. Chiropractor: plaintiff began treating with Dr. Gordon following the accident. Treatments consisted of spinal manipulation for a six-month period, three times per week, with the exception of a two-to-four week-period when plaintiff did not experience any pain. Based upon plaintiff’s complaints of radiating pain from the neck and lower back, the chiropractor referred him to a neurologist to determine if there was any peripheral nerve damage. Plaintiff did not follow through, however, because he did not want to undergo the pain of another back surgery, having already undergone such surgery on two prior occasions. The chiropractor diagnosed plaintiff with cervical and lumbar segmental dysfunction, cervical and lumbar sprain and strain, brachial radiculitis, cervical and lumbar myofascitis, cervical and lumbar motion restrictions, and later included a cervical disc herniation. He opined in his report and at trial that plaintiff’s injuries were permanent and related his cervical injuries to the subject accident; however, he could not definitively relate the lumbar injuries to the accident. As a result, the trial judge limited plaintiff’s claim exclusively to the cervical injuries. Radiology: chiropractor referred plaintiff for MRI tests, which confirmed the presence of a disc herniation at C5-6 and a disc bulge at C3-4, as well as herniation at L4-5 and disc bulges at L2-3 and L3-4. Prior Injuries: Two prior back surgeries. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff employed as contractor in painting, sheetrocking and tiling at time of accident and able to resume full-time schedule, albeit with pain. No indication of time lost as a result of the accident. Testified that he could not carry ladders as before; felt pain when he had to reach in sheet rocking or painting; and had pain when tiling because of the bending and kneeling. As a result, he stated that he had to take daily medications, and needed to be massaged every night with ointments to alleviate the pain. Other Lifestyle Impact: Plaintiff claimed difficulty with: � playing sports like he used to, regularly, every Sunday; � sitting or standing for any length of time; � driving a car for more than a half hour � yard work, such as cutting the lawn and planting things; � cooking; shoveling snow; � playing cards or dominoes with his regular Friday night group, because of the difficulty in sitting for long periods of time; and � walking and jogging with his wife. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Mitigation of damages/failure to follow-up with physician’s recommended referral. Trial Court Determination(s): Following plaintiff’s chiropractor’s testimony at trial, plaintiff rested and the court denied defense counsel’s motion for a directed verdict based on plaintiff’s failure to meet the verbal threshold. Objectively, while he found that there was certainly room for argument with respect to what the chiropractor’s testimony meant in terms of proving plaintiff’s case, the judge felt that, with all reasonable inferences and credibility determinations being given to the plaintiff, the jury could rationally find that plaintiff sustained cervical injuries as a result of the automobile accident, that such injuries were not pre-existing, and were not degenerative conditions. The judge noted the objective evidence from the MRI testing, and the chiropractor’s opinion of permanency. Subjectively, the judge concluded that plaintiff’s proofs of serious impact also could cause the jury to conclude that the injuries had had a serious impact on the life of this man in his mid-fifties, who had worked in the light construction industry for the last 25-30 years. The defense then rested without calling any witnesses. Defense counsel requested that the court instruct the jury on the duty to mitigate damages, Model Jury Charge 6.11c, based on the contention that plaintiff acted unreasonably by failing to follow-through with his chiropractor’s neurological referral. The judge denied the request, but permitted defense counsel to argue to the jury that they could consider plaintiff’s decision not to seek further medical advice as it related to “serious impact,” permanency and, ultimately, the quantum of damages. Declining to give the requested charge, the court relied on the testimony of plaintiff and her chiropractor, reasoning that the evidence was insufficient for the jury to be asked to assign percentages of comparative negligence, in effect, or comparative responsibility for the plaintiff’s injuries. There was nothing in the chiropractor’s testimony to quantify in any way the likelihood of improvement or success such referral and/or further treatment would have produced for plaintiff. All there was in the record was plaintiff’s testimony that he was advised to see a neurologist, and his explanation why he did not go. As such, the judge found no rational basis in the evidence “for the jury to do a comparative responsibility type of determination.” It was therefore improper for him to give the model jury charge requested by defendant, which sought a determination that plaintiff’s level of damages could be reduced by the amount of negligence or responsibility that was attributable to plaintiff. The jury found for the plaintiff and defendant appealed. Appellate Court Determination(s): Affirmed. The panel first found that there was sufficient evidence to sustain the trial court’s denial of defendant’s motion for a directed verdict, even considering the Supreme Court’s elimination of the necessity of proving a serious impact on lifestyle. The panel also found no error in the trial court’s denial of defendant’s request for a jury instruction on the plaintiff’s failure to mitigate damages. Although a person injured by another’s wrong is legally obligated to exercise ordinary care to seek medical or surgical treatment so as to effect a cure and minimize damages, and the failure or refusal to do so bars recovery for consequences which could have been averted by the exercise of such care, an injured person is also regarded in this state as having the right to avoid undue risks to health and anguish that goes beyond the bounds of reason. A mitigation instruction is appropriate if evidence is presented that surgery offers a reasonable prospect of restoration or relief from the disability. Here, defense counsel did not offer any testimony regarding the unreasonableness of plaintiff’s action, and instead relied solely on the testimony of plaintiff’s treating doctor. Although the latter had recommended that plaintiff see a neurologist to rule out nerve damage, he did not testify that a neurologist could have provided treatment that would have alleviated the plaintiff’s symptoms. The trial court correctly concluded, therefore, that there was an inadequate basis for an instruction on the failure to mitigate damages. 93. Brice v. Renga, A-6064-03T1 DDS No. 23-2-1782 Judges Weissbard and Sapp-Peterson Oct. 18, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on July 15, 2000, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. Medical Testing and Treatment: Emergency room: several hours after the accident, plaintiff went to the emergency room complaining of dizziness and neck pain. An X-rays revealed mild degenerative changes. Neurologist: Aug. 11, 2000, plaintiff was evaluated by Dr. Frank, complaining of dizziness, neck and back pain, and radiating pain down her left leg. The doctor found palpable spasm of the paravertebral muscles in the mid- and lower back areas. After MRIs came back negative, he diagnosed plaintiff with cervical and lumbosacral sprain and strain and aggravation of a pre-existing arthritic condition of the cervical vertebrae. He prescribed Aleve and advised plaintiff to start physical therapy three times per week. Plaintiff improved with physical therapy such that, by the time of a Dec. 1, 2000, examination, her complaints to Dr. Frank were limited to intermittent neck and back pain. Radiology: cervical and lumbar MRIs ordered by neurologist were essentially negative. A repeat MRI was performed over nine months later, again with unremarkable results. Physical therapy: on Aug. 14, 2000, plaintiff began treatment, consisting of therapeutic exercise, mechanical massage, segmental traction, heat application, electric muscle stimulation and an ultrasound to the neck and back areas. Plaintiff continued for four months, and improved to the point that, by October, her sessions were reduced in frequency to two visits per week. Second neurologist: Dr. Frank referred plaintiff to another physician in his association, Dr. Pellmar. On July 19, 2001, the doctor’s initial impression was that plaintiff sustained post-traumatic vestibulopathy as a result of the accident. Cervical vertigo was another consideration. He recommended a number of laboratory studies to exclude other etiologies. His report, dated five days later, indicated that therapy, including vestibular therapy, was also discussed, if the diagnostic studies were negative. In fact, the lab work was negative, and did not reveal any other etiology for plaintiff’s complaints. Dr. Pellmar saw plaintiff for a follow-up visit two months later. She reported continued pressure in her head, as well as dizziness on a daily basis. Her condition was aggravated by stress, but not precipitated by it. She was taking Ativan on an as-needed basis. A repeat MRI and additional lab tests were again unremarkable. Dr. Pellmar re-examined plaintiff a year later on Sept. 17, 2002, and noted that her condition remained essentially unchanged. His examination of the cervical spine revealed paraspinal muscle tenderness and spasm with mild restricted mobility on lateral rotation. He recommended that plaintiff undergo neck therapy, and vestibular therapy was again recommended. Eight months later, plaintiff revisited Dr. Pellmar on May 22, 2003. The doctor found muscle spasm in the trapezius. Plaintiff advised him that she found Ativan was effective most of the time. In his final report dated July 17, 2003, the doctor noted that plaintiff had not gone for vestibular therapy and concluded that, since plaintiff’s symptoms had, by that time, continued for three years, they were permanent within a reasonable degree of medical probability. After the dismissal of plaintiff’s complaint on summary judgment, Dr. Pellmar issued an additional certification regarding his diagnosis of vestibular dysfunction (see Trial Court Determinations section below). Dr. Kramer, N.J. Neuroscience Institute: plaintiff was referred because of her persistent complaints of dizziness. Jan. 29, 2002, examination included testing plaintiff’s vestibular slow phases with both rapid and slow head movements and suppression of vestibular nystagmus; but these tests revealed no abnormalities. The doctor reported that this was “a difficult case,” although he said he saw such cases frequently. He characterized plaintiff’s problem as a constant sense of imbalance without vertigo in an otherwise normal person. There was some suggestion of migraine and premenstrual headaches, and the doctor indicated that he had found that people who had migraines tended to have symptoms like plaintiff’s. He also found that treating people as if they had migraines improved their symptoms. Therefore, the doctor placed plaintiff on Paxil, in increasing dosage over three weeks, if needed. He also changed her from Ativan to Klonopin because it was longer acting. After three weeks, plaintiff was to stop the Klonopin to see if the Paxil was working. She was to see Dr. Kramer for follow up in six weeks. Once he stabilized her on medication, he would return her to Dr. Pellmar. Despite this statement, there was no record of plaintiff returning to Dr. Kramer. Behavioral Health physician: at her initial visit on Feb. 27, 2002, plaintiff told Dr. Del Castillo that she could not live without Ativan, because it alleviated her dizziness, the cause of which had not yet been determined. She told the doctor that she had been suffering from the dizziness about one year at that point. She also reported that she had been suffering from fibromyalgia for approximately seven years. She told the doctor that she cried often and felt depressed all the time, but no longer suffered from panic attacks. The doctor’s initial impression was that plaintiff was chronically depressed with many unresolved mental conflicts and with somatization of symptoms. His provisional diagnosis included: major depression, recurrent (Axis I); fibromyalgia, vertigo (Axis III); adoptive child, family troubles at home (Axis IV). A May 8, 2002, entry indicated that plaintiff expressed fear about taking Paxil, so he gave her informational material about the drug. Dr. Del Castillo last saw plaintiff on Nov. 1, 2002, at which time plaintiff reported that she was doing just fine, and continued to gain much benefit from the Ativan, which she took “judiciously once a day.” She also told the doctor that she had never taken the Paxil; she never even bought it. Defense neurologist: Sept. 18, 2003, plaintiff saw Dr. Mark, who examined her and found that her dizziness was a non-specific complaint associated with her anxiety disorder. He further found that the dizziness difficulties were purely subjective and recommended aggressive psychiatric care. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Defendant moved for summary judgment, contending that plaintiff’s back and neck pain were unsupported by any diagnostic evidence, and that there was no evidence of medical treatment for these complaints. With respect to plaintiff’s vestibular dysfunction, defendant maintained that plaintiff presented no objective evidence of any neurological injury. Plaintiff opposed the motion by pointing out that her doctors, who had been treating her for the last four years, confirmed that she suffered from vestibular dysfunction. Further, she emphasized Dr. Pellmar’s certification that her dysfunction was permanent and not the type of condition that could be verified through diagnostic testing, such as an MRI or EMG. She also noted that the defense expert had not disputed that she experienced dizziness. Finally, plaintiff argued that her doctor had confirmed that her muscle spasms were permanent because they persisted more than three years post-accident. The motion judge granted summary judgment to defendant, concluding that plaintiff failed to provide objective evidence to suppport her subjective complaints of dizziness and pain. While the judge acknowledged that persistent and serious muscle spasm over the course of time, related to the accident, could overcome the verbal threshold, he concluded that the mere evidence of spasm at some point in time was insufficient to overcome the verbal threshold. Following the dismissal of the complaint, and based upon the judge’s comments in oral argument, plaintiff’s counsel inquired of Dr. Pellmar whether there was any objective test to confirm vestibular dysfunction. The doctor prepared a certification in which he stated that the diagnosis of post-traumatic vestibular dysfunction had been based on his clinical evaluations of plaintiff over the last two and one-half years. It was based on his interpretation of her complaints, as well as her neurological examination. He stated that it was important for the court to realize that there were no definitive tests such as MRIs or EMGs that would specifically prove the existence of post-traumatic vestibular dysfunction. The diagnosis was a clinical one made by the doctor based on his many years of medical experience and training. Based upon this certification, plaintiff filed for reconsideration. The trial court denied the motion, concluding once again that the subjective complaints of pain, not verifiable through objective clinical evidence, were insufficient to vault the verbal threshold statute. Appellate Court Determination(s): Affirmed. On appeal, plaintiff contended that the motion judge erred in not giving due consideration to the doctors’ opinions related to her post-traumatic vestibular dysfunction. She analogized her condition to a psychological injury, which also was not verifiable through diagnostic testing, but which the courts, nonetheless, had recognized could be as painful and debilitating as a physical injury. She cited Granowitz v. Vanvickle as support for this contention. Defendant urged the court to reject plaintiff’s argument, noting that, while the court in Granowitz recognized that a psychological injury might be sufficiently severe to vault the verbal threshold, the trial court in that case ultimately held that such injuries must be substantial, and capable of verification through objective evidence. In viewing the evidence in a light most favorable to plaintiff, the appellate panel noted that its focus must be upon the objective clinical evidence Dr. Pellmar considered in reaching his conclusion, rather than upon whether there was any definitive test to confirm the existence of the condition. The panel cited Dr. Pellmar’s certification wherein he stated that his opinion was based upon his interpretation of plaintiff’s complaints as well as her neurological examination. The results of his first clinical neurological examination of plaintiff were negative, and revealed no focal neurological deficits. The second neurological examination reached the same conclusion. Finally, on May 23, 2003, nearly three years post-accident, he still found no focal neurological deficits. Plaintiff was also examined by three other neurologists, none of whom found any focal neurological deficits. Thus, Dr. Pellmar’s certification that his opinion, in part, was based upon plaintiff’s neurological examinations was simply not reflected in any of the medical records. Without any positive neurological findings, the certification was essentially based upon plaintiff’s subjective complaints, a basis for vaulting the verbal threshold expressly prohibited by the statute. The appellate panel held that plaintiff’s claim failed for another reason. The amended verbal threshold statute not only required that plaintiff sustain a permanent injury, but also that the injury had not healed to function normally, and would not heal to function normally with further medical treatment. Here, it was undisputed that Dr. Pellmar recommended vestibular therapy on several occasions, yet plaintiff did not follow his recommendations. Neither Dr. Pellmar nor any other doctor who treated plaintiff opined that plaintiff’s condition could not have healed if she had had vestibular therapy. Finally, the panel found no merit in plaintiff’s contention that the trial court erred in concluding that the evidence of her muscle spasm was insufficient. Dr. Frank found palpable spasm on his examination of plaintiff on Aug. 11, 2000. She was next examined by Dr. Pellmar a year later. In neither his July 24, 2001, examination nor his Sept. 20, 2001, examination did he find any evidence of spasm. The first indication by Dr. Pellmar of any spasm was in his Sept. 17, 2002, examination and report. At that time, he found cervical paraspinal muscle tenderness and spasm. In his last examination of plaintiff on May 23, 2003, he noted muscle spasm in the trapezius. The motion judge was therefore correct in concluding that intermittent spasm over a three-year period was insufficient to raise a factual dispute sufficient to defeat defendant’s motion for summary judgment. 94. Sottile v. Flemming, A-4244-03T1 DDS No. 23-2-1805 Judges Wefing and Graves Oct. 20, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on May 31, 2000, which occurred when defendant tried to negotiate a U-turn, and struck plaintiff’s vehicle. Plaintiff was wearing his seatbelt and, upon impact, was thrown forward. His air bag deployed, striking him in the face and knocking him backward. His nose was cut and bleeding, and there were bruises on the left side of his face, including his cheekbone and his jaw. Within minutes, he indicated that his back was “achy” and his jaw hurt. Plaintiff claimed serious and permanent injuries to both his jaw and lumbar spine from the accident. Medical Testing and Treatment: Treating dentist: Dr. Suarez first saw plaintiff on July 5, 2000, and treated him thereafter. Reported that plaintiff had suffered a direct trauma to the face, and indicated that the signs and symptoms were consistent with a temporomandibular joint injury. The dentist obtained X-rays as simple baseline images that he needed for the evaluation of his patient. Clinical symptoms present during this initial examination included bilateral clicking of the temporomandibular joint. On July 12, 2000, the dentist reported that plaintiff complained of difficulty chewing, pain on yawning and the sensation that his jaws tired easily. He also noted that, on more than one occasion, plaintiff experienced a locking sensation in his jaw in the closed position, and had difficulty opening his mouth. The doctor recommended the fabrication and use of a mandibular orthotic appliance. On Jan. 17, 2004, the dentist noted his disagreement with the findings of the defense expert (see below). He noted that the defense doctor examined plaintiff three and one-half years after the accident, and that his report was misleading and constituted a misrepresentation of the facts. He also pointed out an apparently contradictory statement in the defense expert’s report, indicating that, on the one hand, plaintiff had normal TMJ function, yet, on the other hand, indicating that he had a somewhat diminished range of motion in his jaw opening. Finally, he questioned the expert’s finding of no jaw clicking. In response to defendant’s motion for summary judgment, plaintiff had Dr. Suarez submit a certification, in which he confirmed that the clinical symptoms present during plaintiff’s initial examination � including the jaw clicking � were still present. The dentist also concluded, to a reasonable degree of medical certainty, that plaintiff’s TMJ injury was causally related to the accident and was permanent. Defense doctor: Dr. Meiselman examined plaintiff on Nov.7, 2003. The doctor questioned the clinical findings of the plaintiff’s expert and the history of the occurrence obtained six weeks post-accident. He also questioned the type of X-rays taken by plaintiff’s dentist, and indicated that he would require a panoramic X-rays in order to properly evaluate the patient. The doctor found normal temporomandibular joint function and a somewhat diminished range of motion at the mandibular opening. He listened with a stethoscope, but heard no jaw clicking. Radiology: July 23, 2000, MRI; October 2000 EMG and nerve conduction velocity study (no results specified). Dr. Nagendra: after reviewing objective tests (see above) and based on his own physical examination of plaintiff, the doctor opined that plaintiff had suffered permanent back injuries, including lumbar intervertebral disc disorder with myelopathy, and lumbosacral radicular syndrome, causally related to the motor vehicle accident. Prior/Subsequent Injuries: Plaintiff had sustained severe neck injuries in a prior accident in July 1999. He testified at his deposition, however, that he never had any lower back problems or problems with his jaw prior to the subject accident. Plaintiff was also involved in a subsequent automobile accident in November 2000, when his vehicle was rear-ended. That accident apparently aggravated his lower back condition, but did not affect his jaw. Serious Impact on Plaintiff’s Life: Not detailed, although defendant tried to obtain summary judgment on plaintiff’s failure to prove a serious impact on his life. Physician’s Certification: No issue Polk Analysis: Motion judge found that plaintiff failed to produce a comparative analysis as required by Polk because he had sustained injuries in a prior and subsequent accident. Miscellaneous Issue(s): None Trial Court Determination(s): Defense counsel sought summary judgment, arguing that plaintiff had failed to satisfy the verbal threshold’s serious impact test. The motion judge asked defense counsel if he was relying on Polk, yet counsel seemed to concede that the injuries plaintiff sustained in the subject accident were new, and different from the neck injury plaintiff had previously sustained in 1999. He stressed that his argument was on the plaintiff’s failure to show a “significant impact” on his life. Nevertheless, the motion judge granted summary judgment to defendant, concluding that plaintiff had not met his burden of showing a permanent condition from the accident that had a serious impact, and that the serious impact was because of this accident, as opposed to his prior accident. He felt that plaintiff’s dentist should have differentiated the problems, symptoms, conditions and the disability medically that plaintiff sustained in the subject accident from the prior accident. Appellate Court Determination(s): Reversed. In the appellate panel’s view, plaintiff presented sufficient evidence of permanency to create a jury question. Polk was not applicable here because plaintiff did not allege that the subject accident aggravated a pre-existing injury or condition, and defendant did not present any evidence suggesting that plaintiff had ever suffered any prior injuries to his jaw or lower back. Thus, the motion judge erred in dismissing plaintiff’s complaint for lack of a Polk comparative analysis. Because the trial court did not specifically refer to any of plaintiff’s medical reports, it was not clear to the panel whether he had considered the information provided by the treating dentist, Dr. Suarez, or by Dr. Nagendra. In the panel’s view, if the jury determined that plaintiff and his expert witnesses were credible, it could reasonably have found that plaintiff met the verbal threshold. Summary judgment dismissing plaintiff’s complaint was reversed, and the matter remanded for further proceedings consistent with DiProspero and Serrano. 95. Jones v. Trunk, A-3133-04T2 DDS No. 23-2-1806 Judges Rodriguez and Alley Oct. 20, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on April 28, 2003, which occurred when plaintiff’s vehicle was stopped at a red traffic light, and was struck from behind by defendant’s vehicle. The impact caused the plaintiff’s vehicle to be propelled forward, and it struck another car that was stopped in line ahead of it at the light. On impact, plaintiff’s chest struck the steering wheel, her eye glasses flew off, and her right shoulder pulled against the seat belt strap. This caused injuries to her right shoulder and her lower back. Paramedics responded to the scene and plaintiff was transported by ambulance to the hospital. Medical Testing and Treatment: Emergency room: plaintiff underwent X-rays of her lower back and legs, and a CT scan. She was discharged with instructions to follow up with her personal doctor. Personal physician: Dr. Cavoto prescribed physical therapy for plaintiff’s back and shoulder. In a report dated June 3, 2003, regarding plaintiff’s prior history, he indicated that he knew only of the 1998 motor vehicle accident, and stated that any medical issues arising from that accident had fully resolved. He concluded that the following injuries were causally related to the subject accident: acute post-traumatic cervical, thoracic and lumbosacral strain and sprain; acute post-traumatic myofascitis of the right and left trapezii; acute post-traumatic cephalgia with concussion syndrome; acute post-traumatic contusion of the sternum with costochondritis. Physical therapy: plaintiff attended until discharged until August 2003, yet continued to complain of pain. Although her physician suggested she continue with physical therapy, plaintiff’s insurance would not cover any further physical therapy and therefore she did not pursue it. Radiology: report dated May 9, 2003, revealed that the lumbosacral spine was normal. Lumbar MRI also normal. June 23, 2003, study of the sternum showed no evidence of fracture or other significant abnormality. MRI also confirmed injury to right shoulder. Rehabilitation specialist: Dr. Goodman diagnosed bilateral L5 radiculopathy, and opined that it was a direct result of the subject accident. Orthopedic surgeon: Dr. Davne board-certified. Diagnosed right shoulder impingement syndrome with tendonosis of the supraspinatus tendon, and a joint effusion. He also diagnosed a chronic lumbosacral spine radiculopathy and sprain. Dr. Davne referred plaintiff for a surgical consultation for an evaluation of a subacromial decompression of the right shoulder. He opined that plaintiff suffered from lumbar sprain and lumbar radiculopathy, directly resulting from the subject motor vehicle accident. Current Complaints: plaintiff asserted that she suffered from excruciating shoulder and back pain. She could not raise her arm above her head. When she sat and then stood up, she felt a “clicking” in her back. The pain traveled down her right leg, and the pain from her shoulder traveled down her back and side. Prior Injuries: Four prior accidents: (1) as a young girl, plaintiff was struck by a car and the collision broke her leg. She did not remember details of the accident. (2) early in the 1990s, plaintiff was injured when another motorist ran a red light and struck the side of her car. She suffered an injury to her back, and underwent diagnostic testing that did not reveal any bulging or herniated discs. She followed up with therapy and was discharged when she was “completely healed.” (3) in 1998, plaintiff was injured while a passenger on a bus that collided with another bus. She suffered injuries to her head and back. She was examined at a hospital and discharged with instructions to attend physical therapy. She treated with Dr. Cavoto and a leg specialist after this accident. The leg specialist informed her that her leg was “fine.” She attended physical therapy and was discharged with no further complaints of pain. (4) plaintiff was involved in a small “fender bender” in 2003, but was not injured in that accident. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: Main issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. Based largely on the lack of a Polk analysis, the motion judge concluded that plaintiff’s lower back injury did not surmount the verbal threshold. With respect to her shoulder injury, he found no indication in the medical reports that this injury was serious, just a mention in Dr. Cavoto’s report that plaintiff would have considerable discomfort in her shoulder before resolution. Appellate Court Determination(s): Affirmed. Plaintiff contended on appeal that she had completely and fully recovered from any and all injuries suffered in prior accidents, was asymptomatic at the time of the subject accident, and had not alleged aggravation of any prior medical condition as a result of the subject accident. As a result, she asserted that a Polk comparative analysis was unnecessary. The appellate panel disagreed. Citing Ostasz v. Howard for the proposition that AICRA, involving substantive modification of the verbal threshold, did not affect the Polk requirement of providing a comparative analysis of pre- and post-accident residuals when the same part of the body was injured, the panel found that the plaintiff’s medical reports did not carry her burden of proof in that regard. 96. Pollner v. Perry, A-2125-04T3 DDS No. 23-2-1831 Judges Parker and Grall Oct. 24, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on July 20, 2000. Plaintiff claimed injuries from the accident; however, she did not seek medical attention until four days later, at which time she reported to the emergency room. Medical Testing and Treatment: Emergency room: plaintiff complained of pain in left shoulder, neck, and left hand, with numbness. Diagnosis was left shoulder sprain and left hand radiculopathy. Radiology: August 2000 lumbosacral MRI revealed: bulging disc at L4-5, mild straightening of the lordotic curve of the lumbar spine, and hemangioma in the L4 vertebral body. Orthopedist: plaintiff referred in November 2000 to Dr. Lerner for an orthopedic evaluation. Dr. diagnosed lumbar spine sprain with degenerative active disc disease at L4-5 and spondylolisthesis at the same level. Chiropractor: plaintiff examined in August 2001 by Dr. D’Agostino. After evaluating plaintiff’s previous MRI and medical records and performing a series of tests, he opined that plaintiff’s residuals were a direct result of the injuries she sustained in the subject accident, and that there was a high degree of medical probability of permanency which would cause plaintiff continued pain and functional impairment. Pain management center: plaintiff referred to this facility where she was diagnosed with a lumbar disc bulge at L4-5, cervicalgia with myofascial pain, possible sacroiliitis, and lumbago with myofascial pain. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that there was no objective evidence of a permanent injury. The judge drew a distinction between a disc bulge with no impingement and a disc herniation, concluding that the former did not qualify as objective evidence of permanent injury, while the latter did. Appellate Court Determination(s): Reversed. In the appellate panel’s view, plaintiff presented sufficient objective medical evidence of a permanent injury by the showing of a disc bulge at L4-5, even without impingement, to create a jury question under AICRA. AICRA required plaintiff merely to present objective clinical evidence of an injury that satisfied one of the statute’s six threshold categories; there was no requirement that the injury be serious after the Supreme Court decisions in DiProspero and Serrano. In disposing of the serious impact prong of the Oswin test, the Supreme Court had remanded the DiProspero matter to the trial court for proceedings on plaintiff’s evidence of permanent injury on facts similar to this case. Here, the plaintiff’s injury � the disc bulge at L4-5 � was similar to, but less extensive than, the plaintiff’s injury in DiProspero. Plaintiff’s treating physicians, as the physicians in DiProspero, opined that the injury was permanent. While the appellate panel indicated its awareness of differing opinions in the courts as to whether a disc bulge, as opposed to a disc herniation, constituted a permanent injury, in construing the evidence most favorably to plaintiff, as a trial court must do on a summary judgment motion, the panel noted that the trial court had to accept as true the opinion of plaintiff’s physicians that her injury was permanent. Accordingly, the grant of summary judgment to the defendant was reversed. 97. Giannetti v. Taylor-Willner, A-0332-04T1 DDS No. 23-2-1852 Judges Collester and Lisa Oct. 25, 2005 Result: Summary judgment in favor of defendant on verbal threshold issue reversed; judge’s denial of defendant’s motion to dismiss for plaintiff’s failure to provide physician’s certification affirmed. Facts/Background: This case arose out of an automobile accident on Dec. 1, 1999. Sometime in 1998, plaintiff and her husband were divorced, and ceased living together. The insurance policy covering the vehicle plaintiff was driving at the time of the accident was issued to her husband, who was designated as the named insured, even though the vehicle was owned and operated by plaintiff. She was listed on the policy as an additional driver. This policy contained a limitation on lawsuit provision. From the outset of this litigation, plaintiff contended that she was not bound by her former husband’s selection of the verbal threshold option. The complaint, filed Dec. 11, 2001, was twice dismissed, once for lack of prosecution, and once for plaintiff’s failure to comply with her discovery obligations. Each time it was restored; however, there were thus significant periods of time that the litigation remained in an inactive posture. It was not until March 30, 2004, that defense counsel first requested that plaintiff provide a physician’s certification. Plaintiff’s counsel immediately replied that no certification was required because it was his contention that plaintiff was not subject to the limitation on lawsuit option chosen by her ex-husband. An exchange of correspondence and documents on this subject ensued. Defendant’s summary judgment motion was filed less than four months after she had first requested a physician’s certification from plaintiff, and years after her answer to plaintiff’s complaint was filed, which triggered the time requirement for submission of the certification. Medical Testing and Treatment: Plaintiff’s injuries, according to her medical experts, included several disc herniations, as confirmed by MRI studies and other objective indicia; were caused by the accident; and were permanent. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although plaintiff’s failure to prove this prong of the verbal threshold test was the basis on which the defendant moved for summary judgment and the motion judge ruled that plaintiff’s complaint should be dismissed. Physician’s Certification: Major issue. Defendant alternatively moved to dismiss on the grounds that plaintiff had not filed the physician’s certification required by AICRA. Plaintiff asserted that she was not obligated to do so because she was not bound by the verbal threshold option selected by her ex-husband. Trial judge declined to dismiss complaint on this ground, finding that, under the facts of this case, plaintiff was entitled to more time and defendant had not been prejudiced. Polk Analysis: No issue Miscellaneous Issue(s): Whether plaintiff was bound by the verbal threshold option in the insurance policy issued to her former husband. Trial Court Determination(s): Defendant did not contend, either on appeal or at trial, that plaintiff’s objective medical evidence was insufficient to satisfy the verbal threshold. Rather, she argued successfully that plaintiff had not surmounted the subjective serious impact prong of the test. Alternatively, defendant argued that plaintiff’s complaint should be dismissed for failure to file the physician’s certification required by AICRA. The trial judge rejected plaintiff’s contention that she was not bound by the verbal threshold option. Summary judgment was then granted to defendant based on plaintiff’s inability to meet the subjective standard of the Oswin test, to show that the injuries she suffered in the accident resulted in a serious impact on her life. Plaintiff appealed this determination. The judge declined to dismiss the complaint on the basis of the physician’s certification issue, concluding that the proper remedy under the facts and circumstances of this case would be to afford plaintiff “some time” to provide the certification because plaintiff had furnished defendant with “enough information” and because defendant had not been prejudiced. Defendant cross-appealed from this determination. Because summary judgment dismissing her case was granted, plaintiff never did supply a physician’s certification. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the panel remanded the matter to the Law Division for further proceedings. Since the sole basis for the motion judge’s order was the serious life impact aspect of the case, the order had to be vacated. Since remand was required, the panel then addressed the physician’s certification issue. It noted that, one month after the grant of summary judgment in this case, the Supreme Court had held, in Casinelli v. Manglapus, that the physician’s certification was neither a fundamental element of the AICRA cause of action, nor analogous to a pleading, and therefore neither dismissal with prejudice, nor dismissal without prejudice, was compelled. The Court equated the late filing of a physician’s certification to a discovery violation, with respect to which the court might resort to any of the full panoply of remedies, ranging from an order to compel production, through dismissal, depending on the facts. The Court made clear that selection of the appropriate remedy was within the discretion of the trial judge, and that the remedy chosen should save meritorious claims of injured victims for trial, while allowing dismissal of those cases where a plaintiff could not, or would not, supply a certification, or where the late filing had irremediably prejudiced the defendant. The panel noted that selection of the appropriate remedy was fact-sensitive, and should include consideration of factors such as the willfulness of the violation, the ability of the plaintiff to produce the certification, the proximity of the trial date, and the prejudice to the defendant. Applying those factors, the panel found no mistaken exercise of discretion in the motion judge’s decision here. The failure of plaintiff to have previously furnished the physician’s certification was not willful, but a consequence of a good faith, albeit erroneous, belief that she was not subject to the verbal threshold. The trial court properly found that there was no prejudice to the defendant, who had been furnished all of plaintiff’s medical reports describing her injuries, the objective medical evidence upon which the injuries were based, and the permanency opinions. Because those reports had been furnished, it was also reasonable to anticipate that plaintiff would be able to obtain the required physician’s certification. Plaintiff, in fact, had expressed a willingness to do so immediately if the matter was remanded. Although a trial date had been imminent at the time the summary judgment motion was made, that factor alone did not outweigh the combined qualitative weight of the other factors leaning toward a remedy short of dismissal. The motion judge’s remedy � the “order to compel” � was noted by the panel as one of the discovery-type sanctions suggested by the Supreme Court in Casinelli. That choice was well within the judge’s broad discretionary authority under the circumstances of this case. 98. Sagui v. Devine, A-6710-02T1 DDS No. 23-2-1853 Judges Alley and Fisher Oct. 25, 2005 Result: Jury verdict in favor of defendant affirmed. Facts/Background: The accident in this case occurred on Feb. 5, 1999, when plaintiff was driving home from school in a car owned by her father. Plaintiff stopped behind a vehicle that, in turn, had stopped directly behind a stalled car. About a minute later, plaintiff’s vehicle was struck in the rear by defendant, who was driving a vehicle owned by his father. Plaintiff claimed that the impact caused her to hit her chest and face on the steering wheel, causing her glasses to break. She felt pain in her face, neck, shoulders, and back. Later, she also complained of jaw pain. Plaintiff went to the emergency room with complaints of neck discomfort, chest pain, and slight facial discomfort. At trial, defendant admitted negligence and his fault was, thus, not at issue. At the close of all the evidence, plaintiff moved for a directed verdict on the issues of proximate causation and the verbal threshold. The judge denied the motion, and the jury returned a verdict in favor of defendant. Plaintiff then moved for � and was denied � judgment notwithstanding the verdict, a directed verdict with respect to the tort threshold issues, and a new trial on the issue of the quantum of damages. She was also denied a new trial as to proximate cause, the verbal threshold, and the quantum of damages. Medical Testing and Treatment: Emergency room: plaintiff reported after the accident, with complaints of neck, chest and face pain. Radiology: apparently X-rays were taken in the emergency room, which were negative. Undefined objective testing revealed disc herniations at L4-5 and L5-S1, and disc bulges at C4-5 and C5-6, resulting in radiculopathy. Medical treatment: discussed only broadly, the court noted that it ranged from massage therapy to epidural block procedures. Surgeries: the record suggests plaintiff underwent surgeries for her lumbar disc herniations. Plaintiff’s complaints: included numbness, dizziness, headaches, disc herniation and disc bulge, migraine headaches, spasms, and deterioration of her temporomandibular joints. Prior and Subsequent Injuries: No prior injuries, but plaintiff was involved in a subsequent accident in 2002 in Florida, and had her neck and back X-rayed. No other medical records available. Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was employed at time of accident and was apparently able to resume work. There was no indication of any time lost as a result of the accident. She did state that her migraine headaches affected her production level at work, “more than anything.” Other Lifestyle Impact: Plaintiff unable to: sleep on her stomach; run; cross her legs; chew gum or eat bagels, because her jaw got stuck; carry a pocketbook over her shoulder; or play sports or rollerblade. Plaintiff claims difficulty with: � walking too long, for example, taking a trip to the mall would exacerbate her back pain; � sleeping, due to muscle spasms; � getting up in the morning, due to migraine headaches and back pain developing overnight; � sitting or standing for any length of time; and � sitting in the car and driving for any length of time. Physician’s Certification: No issue Polk Analysis: Appellate panel felt that plaintiff should have presented a comparative analysis of her residuals from the subject accident with those from the subsequent accident in Florida in 2002. Miscellaneous Issue(s): Proximate cause; jury interrogatories; admission of photographs of vehicle into evidence. Trial Court Determination(s): At the close of all the evidence, plaintiff moved for a directed verdict on the issues of proximate causation and the verbal threshold. The judge denied the motion, and the jury returned a verdict in favor of defendant. Plaintiff then moved for � and was denied � judgment notwithstanding the verdict, a directed verdict with respect to the tort threshold issues, and a new trial on the issue of the quantum of damages. She was also denied a new trial as to proximate cause, the verbal threshold, and the quantum of damages. In denying plaintiff’s motion for a judgment NOV, the judge found that, while plaintiff asserted that there could be no doubt in the minds of the jurors that she sustained injuries, it was within the province of the jury to determine credibility when reviewing the testimony of both plaintiff’s and defendant’s expert witnesses, as well as the evidence submitted by both parties. Appellate Court Determination(s): Affirmed. The panel construed plaintiff’s argument on appeal as to the denial of her directed verdict motion, as well as the argument concerning the denial of her motion for a JNOV, to contend that she had proved defendant’s negligence was the proximate cause of her injuries because defendant admitted negligence; and that her emergency room records illustrated that she sustained injuries to her neck and back in the accident. Further, she contended that defendant did not refute the manner in which her injuries were caused. She argued, in addition, that the jury misread and misunderstood the verdict sheet with respect to proximate cause, so that it did not reach the verbal threshold issues. The panel noted that the first interrogatory on the jury verdict sheet asked, “Was the negligence of the defendant . . . a proximate cause of the injuries to plaintiff?” The jury answered in the negative and ceased deliberations. Plaintiff argued that the only way the jury could have read this question to reach the verdict that it did was to interpret the question as to whether ALL of plaintiff’s injuries were proximately caused by the defendant’s negligence. Thus, she felt that the jury misunderstood the interrogatory to mean that she could not recover unless the jury found defendant’s negligence to be the proximate cause of ALL of her injuries. Defendant argued that plaintiff’s evidence of injury was very subjective, and the record contained no objective findings to support her complaints, especially since X-rays of her neck and chest were negative. The panel stressed that the jury’s first determination had to be whether defendant had proximately caused any of plaintiff’s injuries. If so, only then did it address whether her injuries met the threshold. With respect to the proximate cause issue, the panel noted plaintiff’s subsequent accident in 2002, after which she had her neck and back X-rayed. She did not even inform her treating physician back in N.J. of this accident. Thus, there was no physician’s comparative analysis to evaluate her injuries with respect to each accident. The panel was satisfied that the trial judge did not err in denying either plaintiff’s directed verdict motion regarding the insufficiency of her proofs to vault the verbal threshold, or her motion for a judgment NOV on the issue of defendant’s negligence because the verdict was against the weight of the evidence. While defendant admitted liability for the accident, there was a sharp dispute as to whether a causal connection existed between defendant’s negligence and plaintiff’s injuries, and the extent of plaintiff’s injuries. The panel highlighted a number of instances where the jury had occasion to question plaintiff’s credibility. First, while she told her doctor that her car had been “totaled,” properly admitted photographs of the vehicle taken after the accident showed only a dent above the rear wheel. Second, plaintiff moved to Florida for approximately two years, where she did not treat with any physician for her injuries, although she stated she still had the same complaints of neck, shoulder, back and headache pain. Third, plaintiff testified that she traveled back and forth to New Jersey from Florida to see her treating physician every few months, yet his records indicated that he did not see her for a year. Finally, plaintiff complained of migraines, yet, when she went to the emergency room, she said she only had slight facial discomfort. In sum, the panel felt that reasonable minds could have differed in resolving the conflicting and disputed proofs, and the trial judge properly applied the Dolson standard in denying the JNOV motion. Many of the same credibility arguments informed the panel’s discussion of plaintiff’s contention that she was entitled to a new trial because the verdict was against the weight of the evidence. The panel disagreed with plaintiff’s assertion that the trial judge speculated about what the jury considered, and ignored evidence of her injuries. Additional credibility issues involved the subjectiveness of plaintiff’s injuries, the force of her impact with the steering wheel, the status of her vehicle after the accident, the existence of a possible second disc herniation after her move home from Florida, and the subsequent accident, which she neglected to mention to her treating doctor. As the trial judge clearly found, credibility was the key in this case. The cited inconsistencies in the record contradicted plaintiff’s claims of a “clear and convincing” miscarriage of justice, especially when the appellate court accorded deference to the trial judge on the matters involving credibility. Distinguishing Suanez v. Egeland, the appellate court also rejected plaintiff’s argument that the admission of the photographs of her vehicle into evidence was improper. Although negligence was admitted, the severity of plaintiff’s injuries was at issue. Where, as here, evidence of impact was relevant to the seriousness of the alleged injuries, it was within the sound discretion of the trial judge to admit the evidence. Plaintiff had the opportunity to submit expert testimony to explain the causal connection between the impact and her injuries, and chose not to pursue this. The admission of the photographs was not an abuse of discretion. 99. Lee v. Cinquina, A-2616-04T1 DDS No. 23-2-1899 Judges Collester and Lisa Oct. 28, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on July 28, 2001. Plaintiff was transported by ambulance to the hospital, where she was treated and released. Medical Testing and Treatment: Emergency room: plaintiff treated and released on date of accident. Treating physician: plaintiff first presented to Dr. Qureshi on Aug. 15, 2001, and continued treating with him until Feb. 21, 2002. Over time, and even on the occasion of the final examination, the doctor noted muscle spasms in both the cervical and lumbar areas, and observed limited range of motion in both areas. In his July 12, 2002, narrative report, the doctor issued a final diagnosis including: traumatically displaced cervical disc at C5-6, and traumatically displaced lumbar disc at L5-S1. He concluded that plaintiff’s injuries were caused by the accident, and were permanent. Radiology: Oct. 26, 2001, cervical and lumbar MRIs revealed: bulging discs at C5-6 and L5-S1. Dec. 19, 2001, EMG: negative for either right or left cervical radiculopathy and revealed no evidence of carpal tunnel syndrome bilaterally. Orthopedist: May 11, 2004, plaintiff evaluated by Dr. Kulkarni, who performed a clinical examination and reviewed all of her prior medical reports and records pertaining to the injuries suffered in this accident. With respect to the MRI studies, he reviewed both the films and the reports, and expressed his agreement with the findings of the radiologist. In his physical examination, the doctor observed muscle spasm in the cervical and lumbar regions and limitation of range of motion in both areas. In the cervical area, he also observed that the posterior musculature was harder than normal. Dr. Kulkarni diagnosed: (1) status post sprain and strain injury involving the cervical spine with disc bulge at C5-6 with residual myositis and fibromyositis with loss of range of motion; and (2) status post sprain and strain injury involving the lumbar spine with disc bulge at L5-S1 with residual myositis and fibromyositis with loss of range of motion. He opined that these injuries were permanent and caused by the motor vehicle accident. Oral and maxillofacial surgeon: Dr. Katz evaluated plaintiff on Aug. 28, 2001, and diagnosed TMJ dysfunction, which he opined was caused by the accident and was permanent in nature. His diagnosis was based, in part, on objective findings, described in a Sept. 30, 2002, narrative report as follows: “TMJ: Upon opening there was a left TMJ clicking, as evidenced by palpable reduction of the TMJ meniscus. Intraoral: The patient has a class I occlusion, with minor wear facets.” Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although the judge found plaintiff’s proofs inadequate on this issue. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to present sufficient evidence to withstand summary judgment with respect to both the objective and subjective prongs of the Oswin test. Elaborating as to the objective prong, he analyzed the medical reports and the underlying MRI reports and EMG studies, and noted plaintiff’s complaints of TMJ injury, pain in the cervical spine radiating down into both shoulders, arms and hands, and lower back pain, radiating down her leg. He noted the findings of muscle spasm and limitations in plaintiff’s range of motion, and the doctors’ statements that plaintiff’s condition was guarded and her prognosis poor. However, the judge felt that these complaints and findings were not verified on the objective testing, pointing out that the objective tests did not suggest either right or left cervical radiculopathy, and that there was no evidence of carpal tunnel syndrome bilaterally; no evidence of focal atrophy of the cord and no abnormal signal intensity in the cervical MRI, and no evidence of disc protrusion, extrusion or herniation in the lumbar MRI. Appellate Court Determination(s): Reversed. With respect to the parties’ arguments regarding the subjective prong of Oswin, in light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact or serious injury requirement, this aspect of the motion judge’s determination was vacated. With respect to plaintiff’s objective proofs, the appellate panel disagreed with the motion judge’s finding that such proofs were insufficient to survive summary judgment. Viewing the evidence most favorably to plaintiff, she provided ample objective, credible, medical evidence of permanent injuries causally related to the subject motor vehicle accident. The MRI studies revealed two bulging discs, and two physicians explained why, in their opinions, these injuries were traumatically caused by the accident. These same physicians observed persistent spasm and limitation in plaintiff’s range of motion in the affected areas. The TMJ dysfunction diagnosis was also supported by ample credible objective medical evidence. The panel concluded that the motion judge had engaged in impermissible factfinding in his effort to analyze the details of the MRI and EMG studies in a manner that, in his view, would discredit the opinions rendered by plaintiff’s medical experts. This usurped the jury’s function and was improper. 100. Hacking v. Himmelberger, A-2451-03T3 DDS No. 23-2-1927 Judges Stern and Grall Nov. 1, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on July 22, 2000. The impact was relatively minor, and although plaintiff sought medical treatment for his injuries, he treated only through Nov. 20, 2000. He then had a second accident about three weeks later, on Dec. 13, 2000, in which he apparently sustained more substantial injuries. Medical Testing and Treatment: Chiropractor: in an evaluation on July 24, 2000, Dr. Zweibaum found nerve root compression, but noted that X-rays reported no apparent fractures or gross osseous pathology. Second chiropractor: in an examination on Oct. 13, 2000, Dr. Liebman found continuing muscle spasms and tenderness. Orthopedist: plaintiff referred for orthopedic evaluation on Nov. 20, 2000, which represented her final medical visit in connection with the first accident. Doctor reviewed MRIs and issued physician’s certification of permanency. Radiology: Sept. 27, 2000, lumbar MRI revealed: disc herniations at L5-S1 and L4-5; degenerative disc signal was noted at L4-5. Prior/Subsequent Injuries: Second, subsequent accident occurred on Dec. 13, 2000. Serious Impact on Plaintiff’s Life: The only impact described was the diminishment of plaintiff’s ability to pursue his “passion” � playing hockey. Although plaintiff stated that playing hockey after the accident caused him pain, he continued to play regularly, and even played in a league. Physician’s Certification: No issue Polk Analysis: Trial judge found that such an analysis was required in light of plaintiff’s subsequent accident, and that plaintiff had failed to provide one. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge noting that this accident was a relatively minor one, resulting only in three months of medical treatment. The judge noted that plaintiff’s objective medical evidence was “questionable.” His injury was basically a soft tissue injury, but whether it was a disc bulge or disc herniation, there was no proof of impingement on the thecal sac. Plaintiff had ceased treating before his subsequent accident in December 2000. The second accident apparently involved more substantial injuries, and the judge noted that there was no Polk analysis to guide the court or a jury in determining which of plaintiff’s injuries came from the first accident and were aggravated by the second, or whether plaintiff even continued to suffer from injuries sustained in the first accident, independent of the effects of the second accident. The judge felt that such an analysis was required. Primarily, however, the judge dismissed plaintiff’s complaint because he found that plaintiff had not proved a serious impact on his life from the subject accident. The only major impact described was a diminishment in plaintiff’s ability to play hockey. The judge noted that plaintiff was still able to play, and continued to play on a regular basis after the accident, even playing in a league, albeit with pain. Therefore, the accident did not have a substantial impact on his life. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, that aspect of the motion judge’s determination had to be vacated. Since that was the primary basis on which the judge granted summary judgment to the defendant, and since it was not clear whether the judge definitively ruled on the sufficiency of plaintiff’s objective medical evidence, the matter needed to be remanded to the Law Division for further proceedings. On remand, the panel stressed that the parties should focus on whether the herniated disc, found in the objective medical evidence presented in this case, constituted a permanent injury within the meaning of AICRA. However, the appellate panel held that no Polk analysis was necessary in cases such as this, where the cause of action related to a permanent injury which occurred before the time of the second accident, and the objective medical evidence was already developed as to permanency before the second event. If plaintiff claimed permanent injury from the first accident, it was his obligation to prove at trial the extent to which his injuries were attributable to the accident in question. 101. Marotta v. Abrahamsen, A-1726-04T1 DDS No. 23-2-1978 Judges Lefelt and Coleman Nov. 4, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on June 23, 2001, which occurred when plaintiff’s vehicle was struck from behind by defendant’s vehicle. The plaintiff claimed injuries to her neck and back in the accident. Medical Testing and Treatment: Among other medical evidence, MRIs revealed: small disc bulging at L5-S1; grade I spondylolisthesis; and hyperlordotic lumbosacral curvature. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although motion judge found plaintiff’s evidence insufficient in this regard. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to surmount either prong of the verbal threshold test. Appellate Court Determination(s): Affirmed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the panel stated that that aspect of the motion judge’s decision no longer pertained. With respect to plaintiff’s objective proofs, the panel acknowledged that plaintiff had produced objective evidence of injury through MRIs. However, the panel noted that none of plaintiff’s experts explained the conditions noted on the MRIs or opined that they were permanent. Moreover, none of her physicians opined that her disc bulge, spondylolisthesis, or lumbosacral curvature had not healed to function normally, and would not heal to function normally with further medical treatment, as required by AICRA. In addition, none of plaintiff’s expert reports linked any of her conditions to the accident. Instead, the only references to causation were notations that plaintiff herself had related “the onset of her current symptoms to a motor vehicle accident” and that plaintiff advised that she had had no back pain before the accident. Even after DiProspero and Serrano, a plaintiff must at least raise a factual dispute sufficient to demonstrate (1) that she suffered a permanent injury that had not healed to function normally, and would not heal to function normally with further medical treatment; and (2) that the injury was caused by the automobile accident. Although plaintiff here claimed that she was young and had never had any neck or back pain before the accident, the panel found this showing insufficient to raise a genuine issue of material fact sufficient to withstand summary judgment. Without a medical opinion it could not be inferred simply from plaintiff’s age, the absence of a history of prior complaints, and the course of treatment that a disc bulge, spondylolisthesis, and lumbosacral curvature were permanent injuries or related to the automobile accident. Without such a showing, plaintiff could not surmount the verbal threshold. 102. Youssef v. Procopio, A-0204-04T1 DDS No. 23-2-1999 Judges Cuff and Holston Jr. Nov. 7, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on May 10, 2002. Medical Testing and Treatment: Radiology: plaintiff submitted the results of two MRI studies. The lumbar MRI showed mild central disc bulging at L5-S1, but no disc herniation or thecal sac effacement. The cervical MRI disclosed small central disc herniations at C3-4 and C7-T1 with effacement of the anterior thecal sac. It also displayed disc bulging at C4-5 through C6-7, but no central canal or neural foraminal stenosis. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, except that the motion judge mentioned, in finding plaintiff’s evidence insufficient on this prong of the verbal threshold test, that plaintiff was “doing the work that she had trained for,” and was working a second job, or another job, in the summer, and that she still “did things at home,” although she had help from her husband doing laundry and cleaning the bathtub. Plaintiff also mentioned that plaintiff had difficulty sitting and reading for long periods of time, and that she was not doing the illustrating that she liked to do in the past, but still performed all of her activities, albeit with some pain. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had shown sufficient objective evidence of injury to satisfy the first prong of the two-prong verbal threshold test, but had failed to satisfy the second, subjective prong by her failure to show that her injuries had a serious impact on her life. Plaintiff moved unsuccessfully for reconsideration. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the panel remanded the matter to the Law Division for further proceedings. The cervical MRI clearly provided objective, credible, medical evidence of injury consistent with plaintiff’s subjective complaints of neck and back pain and restricted range of motion. 103. DeNigris v. DeNigris, A-6371-03T2 DDS No. 23-2-2072 Judges Wefing, Fuentes and Graves Nov. 15, 2005 Result: Summary judgment in favor of one defendant affirmed; summary judgment in favor of the other defendant reversed. Facts/Background: This case arose out of an automobile accident on July 21, 2000, which occurred while plaintiff was a passenger in a vehicle driven by her husband. Their vehicle collided with a police car driven by the police officer defendant (defendant). Plaintiff sued both drivers, and was required to surmount the verbal threshold in her case against her husband, and meet the requirements of the Tort Claims Act with respect to her claim against the police officer defendant. Plaintiff did not receive any medical treatment at the scene of the accident. After arriving home, however, she experienced pain in her right shoulder. Later that day, she presented herself to the emergency room. Medical Testing and Treatment: Emergency room: later on the day of the accident, plaintiff went to the emergency room on her own, where she was diagnosed with mild right-sided tenderness and moderate spasm in her neck. She was released the same day. Orthopedic surgeon: approximately on week after the accident, plaintiff consulted with Dr. Bauer, a physician who treated her previously. With respect to her shoulder injury, he ordered an MRI and diagnosed plaintiff with a torn rotator cuff, recommending surgery to repair the injury. With respect to her cervical complaints, he ordered an MRI and diagnosed plaintiff as having cervical degenerative disc disease. He noted that it was “most likely” the accident caused her symptoms to be exacerbated and “most likely” that the condition was made worse by the traumatic episode. The doctor noted that he had seen plaintiff previously for degenerative disc disease of the lumbar spine, confirmed by MRI. After the subject accident and surgery, plaintiff complained of pain in the lower back that had increased in severity from the time before the operation. After rehearsing plaintiff’s current complaints (see below), the doctor noted that she had plateaued with physical therapy, and “was able to participate in a quality of life that was somewhat functional.” However, he felt that she would require further surgery in the future and would need “to be re-evaluated at a further date.” The doctor directly related the problems that plaintiff had, especially her right shoulder condition, to the subject accident. He also related that plaintiff’s cervical and lumbar degenerative disc disease had been made worse by the accident. Radiology: Oct. 30, 2000 � MRI of right shoulder revealed advanced degenerative signal changes of the supraspinatus tendon, associated with a full thickness rotator cuff of the anterior distal tendon. Associated subacromium/subdeltoid joint effusion. Associated degenerative changes of the acromioclavicular joint, encroaching upon the muscle/tendon junction. Associated changes of tendonitis of the infraspinatus and subscapularis tendons. Degenerative changes of the anterior cartilaginous labrum. Poor visualization of the anterior biceps tendon, which was said to possibly correlate with an associated tear. Cervical MRI: showed “diffuse spondylitic spur encroachment on the anterior thecal sac and anterior cervical spinal cord. The findings likely in association with degenerative discogenic changes are causing encroachment with mild central canal stenosis, prominent at C3-4, C4-5 and C5-6. Degenerative changes within the facet joints and uncovertebral joints are associated with bilateral foraminal stenosis, prominent at C4-5, and C5-6.” Plaintiff had had another cervical MRI 42 days before the subject accident, which had also revealed degenerative disc disease. The analysis of the post-accident cervical MRI performed on Oct. 30, 2000 stated that the “findings . . . [were] minimally changed from the prior exam . . . “ Surgery: On Nov. 16, 2000, plaintiff had surgical repair of the right rotator cuff tear. Following surgery, she developed spontaneous serious drainage from the wound. This complication required that her shoulder be immobilized for a longer period of time than otherwise would have been necessary. The procedure was a success despite this complication. The operation left a thin white surgical scar on her right shoulder, measuring approximately three inches in length. Physical therapy: following the surgery, plaintiff received physical therapy three times a week, for a period of six weeks. Despite her doctor’s advice, however, she decided to discontinue physical therapy and thereafter had no further medical treatment for her shoulder. Defense doctor: examined plaintiff and concluded that, although possible, it was not probable that the subject accident caused her rotator cuff injury. He also opined that plaintiff had made a satisfactory recovery from her surgery. As to her back and neck injuries, he concluded that any injuries she sustained in this area were superimposed on pre-existing, degenerative changes in both areas, as well as being superimposed on prior treatment for associated lumbosacral symptomatology. Current Complaints: as reported by plaintiff’s physician, she continued to have persistent pain and discomfort in her right shoulder two years post-accident. She was unable to move her shoulder at the extremes of internal and external range of motion, and had decreased strength and an inability to use the shoulder for any functional activity. She also had persistent parasthesias in her right arm and both hands, and “noteworthy” complaints of low back pain and radicular symptoms radiating into her right leg. Prior Injuries: Plaintiff had a prior lower back condition and pre-existing cervical degenerative disc disease, confirmed by MRI tests. Serious Impact on Plaintiff’s Life: Not detailed; however, the trial judge found that plaintiff had failed to meet this aspect of the verbal threshold test. Physician’s Certification: No issue Polk Analysis: Because of her prior lumbosacral and cervical conditions, both the motion judge and Appellate Division found such an analysis was necessary � although for somewhat different reasons � and that plaintiff had failed to provide it. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not met either prong of the verbal threshold test with respect to her claim against her husband, and, further, had failed to show a causal nexus between the aggravation of her pre-existing back and neck injuries and the accident, as required by Polk. Additionally, the judge found that plaintiff had not met the requirements of the Tort Claims Act with respect to her claim against the defendant police officer. Appellate Court Determination(s): Reversed as to plaintiff’s claim against her husband for her shoulder injury. The panel felt that plaintiff had produced sufficient objective medical evidence that she suffered a torn rotator cuff injury as a result of the subject accident. And, although the injury was surgically repaired, she continued to experience residual pain, and her shoulder movements were significantly limited. Her treating physician opined that these problems were proximately related to the accident, and were permanent in nature. In the panel’s view, this was sufficient for plaintiff to survive the defendant’s summary judgment motion as to her shoulder injury. The same could not be said of plaintiff’s back injuries, however, and the panel affirmed the dismissal of those claims against the husband. It was not disputed that plaintiff had degenerative problems with her back well before the accident. However, the panel noted that her treating physician’s statement that her degenerative cervical and lumbar disc disease had been made worse by the accident was devoid of the type of comparative medical analysis required by Polk v. Daconceicao. The panel recognized the unsettled atmosphere of division among the courts on the issue of the continuing viability of the Polk requirement after AICRA, and discussed the differing conclusions reached by various appellate panels. In this court’s view, however, Polk, at its essence, stood for the straightforward proposition that, as part of her burden of proof, plaintiff was required to establish a causal link between the accident giving rise to the cause of action, and any resulting injury, including, obviously, the aggravation of a pre-existing condition. This requirement was not limited to an apportionment-of-damages analysis, but related directly to plaintiff’s burden to overcome the statutory limitations of the verbal threshold. As Judge Lefelt noted in Hardison v. King, “a comparative analysis depended on whether the facts, as presented, called into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident.” Thus, the panel concurred with the motion judge’s ruling that plaintiff failed to meet her burden of proof under Polk. The one-sentence statement made by her treating physician � that her degenerative cervical and lumbar disc disease were made worse by the accident � was no sort of comparative medical analysis, but a mere conclusion, akin to a net opinion. The solitary statement lacked the type of analysis envisioned by Polk, and still legally required under AICRA � to wit, an evaluation of plaintiff’s medical history, juxtaposed against her post-accident physical condition. As to plaintiff’s claims against the police officer, the court agreed with the motion judge’s grant of summary judgment to that defendant. Plaintiff had not presented sufficient objective medical evidence that her surgically repaired rotator cuff constituted “a permanent loss of a bodily function,” as required by the Tort Claims Act. Although, based on the medical evidence regarding plaintiff’s shoulder, a rational jury could find that plaintiff’s limitations of motion, and the pain associated therewith, were permanent and significant sufficient to cross the no-fault verbal threshold, that same evidence was insufficient, as a matter of law, to establish a loss of a bodily function under the Tort Claims Act. 104. Immordino Jr. v. Romano, A-0016-04T5 DDS No. 23-2-2088 Judges Lintner, Parrillo and Holston Jr. Nov. 16, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Oct. 18, 2000, in which plaintiff’s vehicle was struck in the rear by defendant’s vehicle, and propelled forward into the vehicle in front of her. The 41-year-old plaintiff injured her right shoulder when it banged against her car door. Medical Testing and Treatment: Emergency room: muscle spasm in plaintiff’s neck was noted. Treated and released the same day, with discharge diagnosis of musculoskeletal back pain. Treating physician: Oct. 24, 2000, (six days post-accident) plaintiff began treatment with Dr. Scott, which continued through Nov. 19, 2001. Treatment included medication and a series of manipulative therapies. Because of persistent right shoulder pain, however, she was referred to an orthopedic surgeon. Dr. Scott opined that the conditions found in the lumbar MRI of November 2001 caused irritation of the nerve roots (radiculopathy) to the lower extremities which continued to plague plaintiff at the time of her discharge. His final diagnosis was: (1) partial thickness tear of supraspinatus tendon, right shoulder; (2) effusion right shoulder; (3) cervical sprain and strain with resultant muscle spasm and spondylosis; (4) lumbar sprain and strain with resultant muscle spasm and spondylosis; (5) lower extremity radiculitis; (6) chronic pain syndrome; and (7) fibromyalgia. He causally related these conditions to the automobile accident and certified that they represented permanent injuries which were unlikely to resolve with additional time. Orthopedic surgeon: Dr. Sporn examined plaintiff on Jan. 30, 2001, plaintiff complaining of “cracking, grinding and clicking” and pain with extremes of motion. Doctor noted a mildly positive impingement sign and moderate to marked crepitus and cracking from her gleno-humeral (shoulder) joint. His prognosis was that the crepitus and grinding was probably going to remain. Diagnosis: right shoulder subacromial bursitis and impingement; and bilateral gleno-humeral crepitus, symptomatic and more prominent on the right. Because the MRI finding (see below) was compatible with either a partial thickness tear or tendonitis, clinical correlation was suggested. Consequently, Dr. Sporn performed further examinations of plaintiff on Feb. 12, 2001, and May 7, 2001, which revealed continuing positive impingement and tenderness over the subacromial bursa. On plaintiff’s last visit on May 7th, the doctor injected her shoulder joint in an effort to ease her pain. Radiology: Feb. 9, 2001, right shoulder MRI revealed: slight effusion at the gleno-humeral joint and increased signal and increased thickness of the supraspinatus tendon. Nov. 7, 2001, lumbar MRI revealed: annular disc bulge at L1-2 and pre-existing facet hypertrophy with encroachment upon the neural foramina at L4-5 and L5-S1. Prior Injuries: Apparently, plaintiff may have injured one of her shoulders in a previous motor vehicle accident some 13 years earlier, and again in a lawnmower accident at her home one year prior to the subject accident. However, she underwent only minimal treatment for the former injury, and there had been a complete resolution of symptoms long before the subject accident, with no real sequelae over the years. Serious Impact on Plaintiff’s Life: Not detailed, except a notation in the motion judge’s decision that the injuries had caused plaintiff to have difficulty with her normal activities. Physician’s Certification: No issue Polk Analysis: Motion judge ruled that plaintiff’s failure to provide a comparative analysis of her current injuries with those sustained in her two prior accidents was fatal; however, the appellate panel disagreed. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to establish an objective permanent injury or provide a sufficient Polk comparative analysis, deemed necessary because of the injuries she sustained in the two prior accidents. The judge found no question that plaintiff had submitted objective evidence of injury, but found that the injury had not prevented the affected body part from functioning normally. She concluded that plaintiff’s subjective complaints were simply not supported by the objective, credible, medical evidence. The absence of treatment, the absence of any follow-through with her physical therapy � which she had agreed to continue, but apparently did not � and the absence of any medications convinced the judge that this was not the serious type of injury which the AICRA statute was intended to compensate, notwithstanding that plaintiff asserted difficulty in her life activities. With respect to the Polk analysis, the judge felt that, even though plaintiff stated that her prior injuries had completely resolved, and that she was completely asymptomatic at the time of the subject accident, it was still incumbent upon her to provide some records from the prior injuries to differentiate her injuries between the various accidents. In the absence of such records, it was impossible for the judge to determine whether the current injuries represented aggravation of prior injuries. Appellate Court Determination(s): Reversed, the appellate panel disagreeing with both of the motion judge’s determinations. In light of the recent decision by the Supreme Court in Serrano, holding that AICRA did not include a serious injury requirement, the judge’s determination that plaintiff’s injuries did not surmount the verbal threshold was flawed. The panel was satisfied that plaintiff’s objective medical evidence, including the reports of Drs. Scott and Sporn, the MRI tests that were performed, and the physicians’ physical examinations and resulting findings, established that the subject motor vehicle accident caused injuries to plaintiff’s right shoulder and back which had not healed to function normally, and would not heal to function normally with further medical treatment. As for the distinctness of her recent shoulder injury, even assuming the continuing viability of the Polk comparative analysis requirement, the panel was satisfied that no such analysis was required in this case. Significantly, plaintiff did not allege an aggravation of a pre-existing shoulder condition. According to the undisputed medical evidence, whatever the nature and extent of her prior shoulder injuries, plaintiff’s physical condition had been functionally quiescent until this accident. She had no episodes of pain or other problems until the subject accident. Under these circumstances, the appellate panel felt that no comparative analysis was necessary, and that plaintiff’s proofs, without more, met the “desideratum of an objectively-based medical opinion that [her] disability [was] fairly attributable to the injury suffered in the accident.” Plaintiff’s proofs were sufficient to at least survive summary judgment. In reversing and remanding for trial, the panel noted that causation then became a question of fact for the jury to decide. 105. Davis v. Gaspari, A-4102-04T5 DDS No. 23-2-2107 Judges Fall and Grall Nov. 17, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Nov. 21, 2001. Medical Testing and Treatment: Family doctor: six days after the accident, plaintiff went to his family physician, who prescribed medication and physical therapy. Physical therapy: plaintiff underwent a course of physical therapy during February and March 2002; however, his symptoms did not resolve. Chiropractor: in March 2002 he saw Dr. Russell, whose initial examination revealed: gross muscle spasm along the posterior cervical paraspinal musculature, bilaterally; positive results on foraminal compression, shoulder depressor and Soto Hall tests; and range of motion in the cervical spine at 85 percent of normal. The chiropractor also found gross muscle spasm through the midthoracic and lumbar paraspinal musculature. “Fabere-Patrick’s, Ely’s and Hibb’s tests” were positive and range of motion for the thoracolumbar spine were noted as 80 percent of normal. In January 2003, Dr. Russell detected changes: range of motion in plaintiff’s cervical spine had decreased by approximately 10 percent and deep muscle spasms were still present at the upper thoracic paraspinal musculature. Although all tests of the lumbar spine, other than Ely’s test, were negative, range of lumbar motion had decreased approximately 20 percent. The doctor’s report of January 2003 explained the connection between plaintiff’s degenerative condition and the accident as follows: The trauma to the spine in the accident had caused an avulsive insult to the longitudinal ligaments and accessory spinal ligaments, resulting in possible spondylosis and hypertrophic arthritic change at the facet surfaces. A subluxation syndrome was caused by the trauma to the spine, which caused the vertebrae to twist from their normal position. The articulating surfaces were wrenched apart and there was subsequent stretching of the ligaments and connective tissue. Cervical nerve root compression resulted in neck pain and radicular symptoms. Lumbosacral facet and nerve root compression produced lower back pain and radicular complaints. The subsequent irritation caused the muscles supporting the injured area to spasm, and to splint in an effort to immobilize the area as a protective mechanism for further aggravation and re-injury. Adhesions might develop at the site of the ligament and tendon attachments. These ligaments were torn and stretched, and scar tissue replaced the injured connective tissue as it healed. These new adhesions would lack the necessary elasticity found in healthy connective tissue, which would decrease the range of motion. Loss of range of motion would give rise to calcification in the form of arthritic deposits, that would further limit the range of motion. There was also the possibility of microtraumatic spondylitis formation at the injury site. Due to the mechanism of the traumatically induced sprain and strain injury, there was general weakening of the supportive soft tissue structure. The doctor concluded that plaintiff’s prognosis was poor, due to the evidence of objective signs and subjective symptoms over one year post-accident. It was the doctor’s professional opinion that the injuries suffered by plaintiff in the accident were chronic and permanent. Areas of pre-existing degeneration were also aggravated by the accident, and had not healed to function normally, and would not heal to function normally with further medical treatment, primarily due to plaintiff’s age. He issued a physician’s certification of permanency with these same findings and conclusions. Radiology: April 5, 2002, cervical MRI revealed: reversal of the normal cervical lordotic curve; diffuse degenerative arthritis; and degenerative disc disease throughout the cervical spine, causing minimal bilateral foraminal stenosis at C3-4 and C5-6, and right foraminal stenosis at C6-7; no herniations or bulges. May 1, 2002, lumbar MRI revealed: diffuse degenerative arthritis and degenerative disc disease, bilateral foraminal stenosis at L3-4, L4-5 and L5-S1, and diffuse bulging of the L2-3 through L5-S1 discs. Dr. Brody: July 2002 physical examination revealed range of motion in plaintiff’s lumbosacral spine was limited to 70 percent of normal, and palpable trigger points at his left trapezius muscle area were noted. He also considered the earlier MRI results. His impression was degenerative disc disease at C3-4, C5-6 and L4-5; right foraminal stenosis at C6-7; diffuse broad based bulging of L2-3 to L5-S1 and probable cervical/lumbosacral radiculopathy. The doctor also found sub-acute cervical and lumbosacral sprain and strain with injury to myoligamentous structures, and sub-acute left trapezius myofascitis with trigger points. The doctor recommended continued physical therapy and chiropractic care, therapeutic massage, myofascial release, range of motion exercise, use of a cervical pillow and a lumbosacral support brace and trigger point injections for pain control as needed. Dr. Maslow: reached conclusions similar to those of Dr. Russell, recognizing that plaintiff’s restricted range of motion might be related to underlying degenerative disc disease. Nonetheless, he concluded that, in the absence of prior neck and back complaints, it was his opinion, within reasonable medical certainty, that the majority of the restricted motion and the pain were causally related to the motor vehicle accident, and represented significant disability and impairment. Prior Injuries: Although plaintiff had seen a chiropractor about stiffness in his back in 1999, he was not receiving any treatment at the time of the subject accident. Serious Impact on Plaintiff’s Life: Not discussed, except to note that the 69-year-old plaintiff was retired at the time of the accident. Physician’s Certification: No issue Polk Analysis: Appellate Division felt that the plaintiff’s chiropractor’s and Dr. Maslow’s reports sufficiently differentiated his current residuals from those relating to his degenerative disease to satisfy Polk. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s proofs failed to establish that his permanent injuries were “serious.” Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact or serious injury requirement, the panel remanded the matter to the Law Division for further proceedings. The panel found that plaintiff’s objective evidence was sufficient to meet the verbal threshold requirements, as clarified in DiProspero and Serrano. He asserted a permanent injury to his neck and back that, within a reasonable degree of medical probability, had not healed to function normally, and would not heal to function normally with further medical treatment. Despite his degenerative disease, he was not having problems at the time of the accident. His chiropractor’s report explained the connection between the accident and the aggravation of the condition caused by the injuries. In addition, the chiropractor’s and Dr. Maslow’s reports included a comparative analysis and reference to MRI studies, muscle spasm and reduced range of motion. The matter was remanded for trial. 106. Anderson v. U.C.J.F., A-3971-04T5 DDS No. 23-2-2108 Judges Fall and Grall Nov. 17, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: On April 26, 2001, the 36-year-old plaintiff was crossing a street when she was struck by a car driven by an uninsured motorist. She sustained injuries to both knees and her right ankle. Medical Testing and Treatment: Hospital: X-ray of left knee revealed a small avulsion fracture at the lateral corner of the lateral tibial plateau, and a fracture to the base of the intercondyloid aminence. She was released with crutches and a referral for follow up care. Treating physician: Dr. Boiardo first saw plaintiff on May 14, 2001. She complained of persistent and severe pain in her knees, and the range of motion of both knees was restricted. She also had pain and range of motion restriction in her right ankle. The doctor prescribed anti-inflammatory medication and ice treatment, gave plaintiff immobilizers for her knees, and ordered MRI studies (see below). Plaintiff also apparently attended physical therapy sessions. Plaintiff wore the knee immobilizer until mid-September 2001. July 19, 2002, doctor noted “marked improvement,” but that plaintiff still complained of left knee pain. He indicated that her physical examination was essentially unchanged. Sept. 3, 2003, doctor noted that, as a result of the automobile accident, plaintiff sustained a nondisplaced left tibial plateau fracture, stress fracture of her right fibula, and a soft tissue injury to her right ankle. He reported that, as a result, both knees were immobilized for a period of time, followed by aggressive physical therapy. In all medical probability, the doctor opined that plaintiff would unfortunately realize a partial permanent disability and, especially with respect to her left knee, might realize surgical approach in the future. The doctor submitted a permanency certification that parroted the statutory language. Radiology: May 23, 2001, MRI on left knee indicated: (1) separation of the medial collateral ligament from the periphery of the medial meniscus and from the femoral cortex, seen with meniscocapsular separation; (2) signal hyperintensity in the posterior horn of the medial meniscus, more compatible in appearance with degeneration than a tear; (3) evidence of a focal intrasubstance injury (intrasubstance tear versus tendinitis) involving the distal aspect of the patellar tendon; (4) large zone of marrow edema in the proximal tibia, compatible with a non-displaced fracture and/or bone contusion. Correlation with plain radiographs was recommended; (5) bone contusion versus nondisplaced fracture involving the fibular head; (6) large joint effusion. MRI of the right knee, taken the same day, indicated: marrow hyperintensity, as seen on the inversion recovery images, in the visualized proximal fibular shaft without evidence of associated soft tissue edema. This was noted as nonspecific. If it was post-traumatic in etiology, the possibility of a stress injury versus bone contusion was to be considered. The possibility of osteomyelitis was deemed less likely and bone tumor was not excluded. A year after her initial MRIs, on May 6, 2002, MRIs of plaintiff’s right and left knee showed improvement; the fractures had healed, but areas of bone edema, consistent with trauma, to the left knee remained. The report on her left knee was as follows: No joint effusion or popliteal cyst was present. Transaxial images demonstrated no chondromalacia of the patella. The joint space was intact. No fractures were identified. There were some focal areas of decreased signal intensity in the tibial plateau medially and laterally on the T1 sequences, which showed increased signal intensity on T2 sequences consistent with patchy bone edema. The anterior and posterior cruciate ligaments were normal without tear or disruption. The medial and lateral collateral ligaments were normal. The patella and quadriceps tendons were intact. The signal intensity configuration of the anterior and posterior of the medial and lateral meniscus were normal. No meniscal tear was identified. Impression: There were some focal areas of bone edema in the medial tibial plateau which might be post-traumatic. The study was otherwise normal. Dr. Eleman: evaluated plaintiff on July 5, 2002, and found slight swelling of the left knee and a 20-degree differential between the range of motion of the left and right knees. His clinical impression was left knee internal derangement. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the Unsatisfied Claim and Judgment Fund, the motion judge concluding that plaintiff’s medical evidence was inadequate to establish an injury that met one of the six standards established by the verbal threshold statute. Appellate Court Determination(s): Reversed. The injury plaintiff claimed to her left knee was confirmed on MRI studies and by clinical evaluation that revealed objective evidence of the injury � bone edema and swelling of the left knee, accompanied by pain and limited range of motion � more than one year after the accident. Plaintiff’s treating physician opined that this injury was permanent and causally related it to the accident. In the appellate panel’s view, plaintiff presented sufficient evidence to meet the statutory standard. 107. DeTorres v. Martin, HNT-L-604-01 DDS No. 23-3-2201 Judge Buchsbaum Nov. 18, 2005 Result: Judge denies plaintiff’s motion seeking to vacate the final judgment in favor of defendant and obtain a new trial on damages pursuant to R. 4:50-1, based on retroactive application of DiProspero. Facts/Background: This case arose out of an automobile accident on Jan. 2, 2001, which occurred when defendant drove through a stop sign at an unreasonable rate of speed, crossing over into plaintiff’s lane of traffic, and striking her car. Plaintiff filed suit and the matter was tried to a jury, which voted unanimously that defendant was negligent, and that his negligence was a proximate cause of plaintiff’s injuries. However, the jury determined that plaintiff had not sustained a permanent injury that had a serious impact on her life as a result of the accident, and therefore final judgment was entered in favor of defendant. Plaintiff did not appeal. After the Supreme Court decisions in DiProspero and Serrano, however, plaintiff moved, pursuant to R. 4:50-1, to vacate the final judgment and schedule a new trial on damages. She pointed out that the jury’s verdict was based upon the prior case of James v. Torres, which held that a plaintiff in a verbal threshold case under AICRA must prove both a permanent injury and a serious impact upon his or her life. Plaintiff’s counsel explained that he had not appealed the final judgment after the trial because, at the time, the James decision had become well-established precedent in the law. Plaintiff claimed that the new standard articulated in DiProspero and Serrano, overturning James, should be applied retroactively to her case under R. 4:50-1. Medical Testing and Treatment: Not detailed. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed, except to note that the jury determined that plaintiff had not proved this aspect of the verbal threshold test. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Retroactive application of DiProspero and Serrano to a nonpipeline case. Trial Court Determination(s): The judge noted the recent Appellate Division case of Beltran v. DeLima, which set forth a standard for determining whether the new rule of DiProspero and Serrano should be applied retroactively to verbal threshold cases decided before it was established. The Beltran court set forth the policy considerations relevant to the retroactivity analysis, including: (1) whether there had been justifiable reliance by the parties and the community as a whole on prior decisions; (2) whether the purpose of the new rule would be advanced by retroactive application; and (3) whether there would be any adverse effect on the administration of justice in granting retroactivity. The Beltran court further found that it could not fault those who had relied on James as setting forth the proper interpretation of the verbal threshold under AICRA, as certification of that decision had been denied by the Supreme Court. However, the court also held that, because an issue of statutory construction remained that the Supreme Court had not addressed, it could not be claimed that the issue was in any respect “settled,” particularly after the parties’ appeal was perfected in DiProspero, and certification was granted in Serrano. The Beltran court accordingly held that retroactivity of the rule announced in DiProspero and Serrano was warranted in cases that were in the pipeline on appeal at the time the rulings came down. The court noted that it would be unfair not to apply the rule to those cases “simply because they did not constitute the vehicle for the Supreme Court’s decision.” The motion judge applied the same three-step retroactivity analysis set forth in Beltran to the subject case, which was not in the pipeline, but was already final when DiProspero and Serrano were decided. First, the judge considered whether plaintiff justifiably relied upon the James rule in her decision not to appeal the jury verdict. While she argued that “the legal community as a whole had accepted the James interpretation” of AICRA, the judge found her argument unconvincing. The issue was not settled when the parties’ appeal was perfected in DiProspero on May 21, 2004, and where there was disagreement on the issue within the Appellate Division. Moreover, certification had been granted in Serrano on that same date. Final judgment in plaintiff’s case was entered on June 8, 2004; therefore plaintiff’s time to appeal did not expire until two months after the DiProspero and Serrano appeals to the Supreme Court were in progress, clearly indicating the “unsettled” nature of the issue. Further, the judge pointed out legal articles in publications at that time, highlighting the disagreement over the issue in the courts and the legislature, and the pending Supreme Court decision. The cited articles were published well before plaintiff’s time to appeal had expired; thus, she was on notice that the law was unsettled and could not have justifiably relied upon the law of James as an excuse not to appeal. Next, the judge considered whether the purpose of the new rule would be advanced by giving it retroactive application in the present case. He noted that the goal of AICRA was to contain costs, root out fraud, and ensure a fair rate of return for insurers. He felt that the goals of containing costs and lowering auto insurance premiums would almost certainly be thwarted if the court were to allow retroactivity to cases such as the one at hand, in which there had been no appeal of the trial court’s judgment. Such a decision could potentially open up thousands of closed cases to perhaps uncertain results. Premium rates, which presumably took the resolution of these cases into account, would not have considered that they might be reopened. Thus, the purpose of the new rule would not be advanced by allowing retroactivity here. Finally, the judge considered the effect that retroactivity would have on the administration of justice. He quoted the Beltran court, which had been mindful of the tsunami effect that retroactive application of DiProspero and Serrano to pipeline cases might have on the administration of justice. Such effects would include the calendars of the trial courts being overwhelmed, substantial backlog in matters to be tried, and a potential need to reassign judicial personnel to handle the wave of verbal threshold cases. The judge opined here that, to allow full retroactivity, as plaintiff suggests, would most likely have the effect of “a tsunami, plus a volcano and two earthquakes.” The number of closed cases that would be reopened by allowing full retroactivity would dwarf the number affected by Beltran’s rule of pipeline retroactivity. Expanding retroactivity would also create uncertainty as to how far back the courts should go in allowing it, which would also interfere with the administration of justice. Plaintiff argued that the Beltran court did, in fact, leave open the possibility of extending the retroactivity of DiProspero and Serrano to nonpipeline cases. The judge noted that the issue had recently been considered by Judge Bariso in Hudson County in Camacho v. Camacho, a case later approved for publication. Judge Barison had noted that it was well established that a R. 4:50-1 motion might not be used as a substitute for a timely appeal. He further invoked the Supreme Court holding in Hartford Ins. Co. v. Allstate Ins. Co., which made clear that a “change in the law or in the judicial view of an established rule of law is not such an extraordinary circumstance as to justify relief from a final judgment where the time to appeal has expired. This is unquestionably the general rule and rests principally upon the important policy that litigation must have an end.” In Camacho, Judge Bariso held that retroactivity did not apply to a verbal threshold case in which judgment was entered and plaintiff’s counsel did not appeal, even though he was on notice that the law was in a state of flux in the Appellate Division at the time, and that DiProspero was being appealed. The judge concluded that “the anticipated [Supreme Court] decision in DiProspero, coupled with the clear signal from the Appellate Division, negates any justifiable reliance by the parties and the community as a whole on prior decisions.” Plaintiff’s counsel attempted to distinguish Camacho, arguing that it had established Nov. 29, 2004 � the argument date of DiProspero and Serrano � as the “notice” date after which appeals should have been filed in verbal threshold cases, and, thus, indicating that James was settled law before that date. The judge in the subject case found that this ignored the fact that several indications existed before this point that James might be overturned, such as certification being granted in Serrano on May 21, 2004, the legal articles published from May through July of 2004, as well as the DiProspero dissent and other barometers discussed in this opinion. It further ignored the court’s conclusion in Beltran that the law was, in fact, unsettled on May 21, 2004. Even assuming, arguendo, that the state of the law was less certain in July, 2004 than on November 29, 2004, when Serrano and DiProspero were argued, and April 29, 2005, when judgment was entered in Camacho, that fact alone would not justify full retroactivity in light of the Beltran analysis discussed above, which counseled against it. Summarizing, the judge found that: (1) plaintiff could not have justifiably relied upon the James rule in her decision not to appeal the final judgment in July of 2004; (2) the purposes of AICRA would not be advanced by retroactivity in this case; and (3) retroactivity would have a negative effect on the administration of justice. Thus, under the Beltran framework, it would be inappropriate to vacate final judgment in this case under R. 4:50-1 by retroactively applying the DiProspero and Serrano rule. Accordingly, the plaintiff’s motion was denied. Appellate Court Determination(s): None (Law Division opinion). 108. Walker v. Mitchell-Davis, A-6005-03T5 DDS No. 23-2-2132 Judges Payne and Graves Nov. 21, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on March 18, 2002, after which the 39-year-old plaintiff was driven home by a friend. Her husband then drove her to the emergency room. Medical Testing and Treatment: Emergency room: plaintiff presented with complaints of head and neck pain. She was evaluated and discharged with instructions to see her own physician. Family physician: on the following day, plaintiff saw Dr. Mallick, who had been treating her for hypertension. She advised the doctor that she was having headaches and experiencing pain in her left shoulder and back. The doctor referred plaintiff for X-rays. Radiology: March 19, 2002, X-rays were taken of plaintiff’s skull, cervical spine, and lumbosacral spine. There was no evidence of fracture in any of the studies, but degenerative disc disease at L4-5 and minimal degenerative changes at L5-L6 were noted. Lumbar MRI on April 11, 2002, revealed: (1) mild degenerative changes L4-5 with osteoarthritis; (2) L4-5 bulge without focal disc herniation; and (3) left L3-4 neural foraminal encroachment secondary to prominent asymmetric bulge along the left posterolateral disc margin. L4 nerve root normal, but some compression of exiting L3 nerve within foramen. Clinical correlation was recommended in terms of possible L3 radiculopathy. June 25, 2002, EMG testing on plaintiff’s lumbosacral spinal muscles revealed “increased insertional irritability in the left L3 paraspinals and a few positive waves were noted in this muscle group at rest.” Dr. Matzal: performed a physical examination, and opined that, as a result of the accident, plaintiff had developed: post-traumatic cephalgia; cervical sprain and strain with myofascial pain syndrome, trigger points in the muscles and reduced range of motion; upper level thoracalgia; a left L3 radiculitis; and lumbosacral sprain and strain with myofascial pain syndrome, trigger points in the muscles and reduced range of motion. In a subsequent report on Sept. 17, 2002, Dr. Matzal diagnosed plaintiff with: post-traumatic cephalgia; post-concussive syndrome; cervical sprain and strain; left shoulder myofascitis; contusion of the wrists; lumbosacral sprain and strain with radiculitis; disc bulge at L4-5; and L3-4 neural foraminal encroachment. He opined that these injuries were sustained in the motor vehicle accident and that, within a reasonable degree of medical probability, the injuries were permanent, had not healed to function normally, and would not heal to function normally with further medical treatment. Physical therapy: between March 28, 2002, and Aug. 20, 2002, plaintiff received physical therapy. Dr. Ahmad: examined plaintiff on Sept. 4, 2003. Based on the examination and his review of the MRI and EMG studies, Dr. Ahmad noted that plaintiff’s cervical spine was spastic, her lumbosacral spine was under spasm, and her movements were moderately restricted. Dr. Ahmad also found that plaintiff suffered from permanent injuries from the accident, including: cephalgia; left shoulder sprain; spinal sprain, arthritis and radiculitis; and bulging discs. Prior Injuries: Plaintiff was involved in a motor vehicle accident 10 or 20 years ago, injuring her “whole back,” both knees, and left shoulder. She recalled seeing a chiropractor, whose name she could not recall. She also could not recall the name of her attorney, but stated that her lawsuit was settled for seventy-eight hundred dollars. She attributed all of her present complaints and disabilities to the current accident. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: Trial judge felt that plaintiff should have produced a Polk analysis but Appellate Division disagreed. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s objective evidence was insufficient and that she had also failed to establish a causal connection to the subject accident because none of her doctors engaged in a comparative analysis of her current residuals with those from her prior motor vehicle accident. Appellate Court Determination(s): Reversed. In the appellate panel’s view, plaintiff made a prima facie showing of a permanent injury as defined in the verbal threshold statute. Based on the findings by both Dr. Matzal and Dr. Ahmad, as well as the objective tests they relied on, plaintiff met her burden of providing sufficient objective, credible, medical evidence of permanent injury related to the motor vehicle accident. Bulging discs, limitations of motion, and persistent muscle spasm were sufficient to raise a question of fact under the no-fault law. The panel felt that the record also supported plaintiff’s position that, although she suffered prior injuries to the same body parts as those injured in this automobile accident, the minor injuries she sustained many years ago had completely resolved and were asymptomatic at the time of the subject accident. Moreover, unless medical documentation pertaining to the prior accident was available, it was unrealistic to either expect or require plaintiff to present a comparative analysis of her residuals prior to the accident with the injuries suffered in the automobile accident at issue. 109. Rodriguez v. Hopewell, A-1727-04T2 DDS No. 23-2-2155 Judges Lisa and Reisner Nov. 23, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Dec. 19, 2000, which occurred when defendant ran a stop sign and struck plaintiffs’ vehicle. Both plaintiffs claimed injuries in the accident. Medical Testing and Treatment: Mr. Rodriguez: (a) Radiology, March 22, 2001, MRI revealed disc herniations at L4-5, L5-S1, with nerve root compression, T1-2, T3-4 and C5-7, with compression on the thecal sac. (b) Chiropractor, treating physician provided a certification of permanency, stating that the injuries were caused by the accident. (c) Neurological surgeon, defense expert opined that plaintiff’s symptoms were due to the accident. Mrs. Rodriguez: also underwent an MRI which showed a disc herniation and filed a certificate of permanency. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that neither plaintiff had shown that level of objective, permanent injury sufficient to overcome the first prong of the Oswin test. Further, even if they had, the judge found that neither had shown a serious impact on their lives. Appellate Court Determination(s): Reversed. In the appellate panel’s view, the evidence, viewed in the light most favorable to the plaintiffs, readily permitted an inference that they each suffered a permanent injury caused by the accident. Since the serious impact prong of the Oswin test is no longer applicable, following the Supreme Court’s holding in DiProspero and Serrano, the panel reverses and remands the matter for trial. 110. Karamisakis v. Blumberg, A-6904-03T3 DDS No. 23-2-2171 Judges Skillman and Payne Nov. 28, 2005 Result: Summary judgment in favor of defendant reversed, insofar as it resulted from the application of the limited tort option of the verbal threshold to plaintiff through the operation of the “deemer statute.” Facts/Background: This case arose out of an automobile accident in which plaintiff � a Pennsylvania resident who had obtained auto insurance in that state with a limited tort option � sustained a lumbar injury while a passenger in a car driven by an unrelated Pennsylvania driver. The defendant, the alleged tortfeasor, was a New Jersey resident. Medical Testing and Treatment: Not detailed, except to note that an MRI apparently revealed a lumbar disc herniation at L4-5. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Application of verbal threshold to Pennsylvania resident through “deemer statute”; choice of law; statutory construction. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that the verbal threshold was applicable to plaintiff as a result of New Jersey’s “deemer statute,” N.J.S.A. 17:28-1.4, because plaintiff’s Pennsylvania insurance carrier was affiliated with an insurer authorized to do business in New Jersey. The judge was not persuaded by plaintiff’s argument that the deemer statute required the actual use or operation of the insured vehicle in New Jersey as a precondition to the applicability of the deemer statute. The motion judge also held that New Jersey law applied to the case, and that plaintiff was subject to the verbal threshold as set forth in AICRA, not to Pennsylvania automobile insurance law. Under the verbal threshold, in this case decided before DiProspero and Serrano, the judge held that, even if she assumed that plaintiff had established the existence of a permanent injury by objective medical evidence, he did not meet the serious life impact prong of Oswin. Appellate Court Determination(s): On appeal, plaintiff argued that the deemer statute was inapplicable to him because he was a passenger, not the operator of a vehicle involved in the accident. He further argued that, even if the verbal threshold applied to him, he demonstrated both a permanent injury and a substantial life impact. The Appellate Division panel first noted that the serious impact requirement had been eliminated by the Supreme Court decisions in DiProspero and Serrano. It also noted that its resolution of this case � finding the verbal threshold did not apply to plaintiff through the application of the deemer statute � made it unnecessary for it to determine whether plaintiff had offered sufficient proof that he sustained a permanent injury causally related to the accident. In their joint brief on appeal, the defendants, urging affirmance of the trial judge’s determination, argued that plaintiff misconstrued the language of the deemer statute, and that the requirement of operation by an out-of-state insured of a vehicle in New Jersey. applied only to the provision of the liability, uninsured motorist (UM) and personal injury protection (PIP) benefits enumerated in the statute. They contended that, in order to avoid finding superfluous or meaningless those portions of the deemer statute in which the limitation on lawsuit provisions appeared, the phrase “any liability insurance policy” had to be construed as meaning any automobile liability insurance policy issued to an out-of-state insured by an insurer authorized to write insurance business in New Jersey. or its affiliate. Otherwise, defendants argued, the phrase “shall be construed as providing the coverage required herein” was surplusage. The appellate panel did not construe the deemer statute as did defendants. The judges noted, in that regard, the final paragraph of the statute, which required each insurer subject to its provisions to “file and maintain with the Department of Banking and Insurance written certification of compliance with the provisions of this section.” Viewed in light of this provision, the language upon which defendants focused “deemed” compliance with the statute’s provisions to exist, regardless of whether the requirement for a filed written certification was met. The appellate court noted that it had specifically adopted this construction previously in Lusby By and Through Nichols v. Hitchner, where the court stated, in describing the deemer statute, that the statute, in essence, provided that every automobile policy issued to an out-of-state insured by an insurer authorized to transact business in this state should include the PIP coverage required by the law of this state whenever the automobile or motor vehicle insured under that policy was used or operated in this state. Moreover, the statute provided that every automobile policy subject to its terms should be construed as providing the coverage required herein, that is, the statute eponymously “deemed” that the policy includes the required coverage. Thus construed, the appellate panel found that no surplusage existed, and mandated New Jersey liability, PIP and UM coverage was ensured whenever an out-of-state vehicle covered by a company authorized to transact automobile insurance business in New Jersey or its affiliate was involved in a motor vehicle accident in this state, regardless of whether the insurer had acknowledged its obligation by filing the required certification. In support of their position that plaintiff’s status as a passenger in a vehicle owned and insured by a Pennsylvania resident had no bearing on the application of the verbal threshold provisions of the deemer statute to him, defendants pointed to dictum in Weiss v. Thomas, an Appellate Division decision discussing the applicability of the then-verbal threshold to a North Carolina passenger in a car owned and insured by a New Jersey resident, that was involved in an accident in New York. In that case, the appellate court held that New Jersey’s deemer statute was inapplicable to the North Carolina plaintiff, observing that the policy would be subject to that statute only in the event that the insured became entitled to indemnification or other benefits from her insurer under that policy as the result of an event which, unlike plaintiff’s New York accident, occurred in New Jersey Defendants suggested that the appellate panel’s focus on the locale of the accident demonstrated the irrelevance of the plaintiff’s status as a passenger. The panel in this case, however, noted that it did not draw that inference from the dictum in an opinion that had focused on other aspects of the deemer statute. In arguing that the deemer statute applied to persons, not vehicles, defendants also relied on the utilization by various courts of the term “residents” or “insureds” when discussing the application of the verbal threshold under the deemer statute. The appellate panel, however, did not find the cited authority to support defendants’ position, since none of the cases upon which reliance was placed had considered the issue that was before the court presently. The panel found it more logical to conclude that the references to “insureds” and “residents” arose because they were the ones who had filed the lawsuits. The panel noted as well, as defendants acknowledged, that the Supreme Court’s opinion in Whitaker commenced with a description of the verbal threshold provisions of the deemer statute that was consistent with the appellate court’s interpretation of its language here. The deemer statute applied to out-of-state vehicles which were used or operated in New Jersey, and only while they were being so used or operated. As a final matter, defendants argued that the construction that the panel was adopting was inconsistent with the legislature’s purpose to prevent an increase in New Jersey automobile insurance premiums. The verbal threshold on tort recovery � in exchange for the enhanced PIP and other benefits provided by the deemer statute � was recognized in Whitaker and other cases as the mechanism chosen by the legislature to contain costs arising from accidents involving out-of-state vehicles that otherwise would be borne by the New Jersey insurance market. Although the panel here acknowledged that defendants were correct in their assertion that its determination here � that New Jersey’s verbal threshold provisions were inapplicable in this case � did not further the legislature’s cost containment goals, the court could not, for that reason, rewrite the legislation, which it found to be clear on its face. The panel noted in this regard that suits seeking damages for pain and suffering by out-of-state drivers insured by companies that are not authorized to write auto insurance in New Jersey or affiliated with such companies likewise are not governed by the verbal threshold provisions. The legislature’s cost-containment remedy thus could be considered imperfect in other respects. The panel, therefore, reversed the order of summary judgment insofar as it resulted from the application of the limited tort option of the verbal threshold to plaintiff through the operation of the deemer statute. It did not address whether any other law served to limit plaintiff’s recovery, or the construction of potentially applicable statutory provisions. 111. Mattia v. Capone, A-3961-04T1 DDS No. 23-2-2186 Judges Fisher and Yannotti Nov. 29, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on June 18, 2001, in which plaintiff claimed injuries to his lower back, wrist and left shoulder. He also raised an issue as to his surgical scar. Medical Testing and Treatment: Chiropractor: treated with Dr. Petracco for several months after the accident. The doctor diagnosed plaintiff on Feb. 20, 2002, as having diffuse bulging of the L4-5 disc, tendonitis and a tear of the supraspinatus tendon. He opined that plaintiff had permanent pathologies secondary to trauma. Radiology: MRIs were performed on Aug. 1, 2001, and Oct. 25, 2001. The lumbar MRI revealed a disc bulge at L4-5. The MRI of the left shoulder revealed tendonitis and/or partial thickness tear of the supraspinatus tendon. Surgery: October 2001, plaintiff underwent surgery to repair the rotator cuff tear in his left shoulder. Physical therapy: following shoulder surgery, plaintiff followed a course of physical therapy until February 2002. D.O.: April 29, 2002, plaintiff presented to Dr. Porter for an evaluation, complaining of pain, stiffness, and soreness in his back and left shoulder, as well as limited range of motion in the shoulder, which made performing certain tasks difficult. The physical examination revealed a 4-5 cm. scar in the AC joint area, with keloid formation; moderate erythema along the scar noted; tenderness in rotator cuff area; internal and external rotation within normal limits; abduction 110-120 degrees and painful; and flexion within normal limits. The lumbosacral spine revealed normal lordotic curve, with no tenderness noted. Forward flexion 90 degrees; straight leg raising was negative bilaterally; and tightness in the hamstrings was noted bilaterally. Respecting permanency, the doctor opined that, as a result of the motor vehicle accident, plaintiff was left with a significant and permanent loss of function in the use of the areas noted in the physical examination. His prognosis was limited since injuries of this nature were known precursors to progressive arthritic changes in the joints adjacent to and involving the areas injured. In all medical likelihood, the doctor opined that plaintiff might suffer flareups which, in the future, would require additional medical evaluation and treatment. Defense examination: Dr. Greifinger reported on Nov. 4, 2003, that plaintiff’s shoulder had a well-healed surgical incision and there was no evidence of infection. Plaintiff had full and symmetric range of motion in abduction, flexion, internal and external rotation. No evidence of instability in either shoulder. Lumbar spine showed well-preserved lordosis, and motion was in a complete “arc” in forward and lateral flexion, rotation and extension, with no pain associated with any of these movements. However, straight leg raising test was negative bilaterally. Doctor noted that plaintiff had been released from care and had resumed work. He opined that he had found some degree of permanency in the left shoulder, but no permanent injury to the spine. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Whether plaintiff’s surgical scar qualified as a significant disfigurement or significant scarring under the verbal threshold. Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not produced sufficient objective, credible, medical evidence to establish that he sustained a permanent injury in the accident. In particular, she found that there was insufficient evidence to show that plaintiff’s shoulder injury post-surgery was serious and substantial. The judge also found that plaintiff had not shown a serious impact on his life. Plaintiff moved for reconsideration, but the judge found no reason to alter her prior decision. She also considered, but rejected, plaintiff’s claim that his surgical scar was a “significant disfigurement” or “significant scarring” under the verbal threshold. The judge reviewed photos of the scar and found as a matter of law that they did not show a scar that met the statutory threshold. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the panel remanded the matter to the Law Division for further proceedings. First, the appellate panel was satisfied that plaintiff produced sufficient objective medical evidence to raise a genuine issue of material fact as to whether his injuries were permanent under AICRA. The MRI report showed a bulging disc at L4-5, and two doctors opined that this injury was permanent. Moreover, it was undisputed that plaintiff’s shoulder injury was sustained in the accident, and he required surgery to repair the tear in the rotator cuff. Thereafter, his doctor found significant residuals. This was sufficient to raise a fact issue for a jury. In addition, plaintiff asserted that the surgical scar on his shoulder met the verbal threshold requirements. The panel cited case law on the scar requirement, noting that a scar must be more than minor, and that a plaintiff must show that the scar impaired or injured his appearance and rendered it unsightly, misshapen, imperfect or deforming in some way. In the panel’s view, the photos of the scar that were submitted to the motion judge raised a genuine issue of material fact as to whether plaintiff’s scar was significant under these cases, and that issue was also remanded for a determination by the trier of fact. 112. Fithen v. Johnson, A-0934-04T3 DDS No. 23-2-2267 Judges Cuff and Holston Jr. Dec.7, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Jan. 22, 2002, which occurred when plaintiff’s vehicle was struck by defendant’s vehicle, which went into a slide as the defendant tried to make a right turn. Medical Testing and Treatment: Emergency room: on the day of the accident, plaintiff was seen and released. Chiropractor: two days later, plaintiff was evaluated by Dr. Grossman and began treatment, which continued for 10 months thereafter. Treatment notes revealed objective findings on physical examination of spasm on palpation, and restricted range of motion to plaintiff’s cervical and lumbosacral spine, on six occasions. On discharge on Sept. 10, 2002, plaintiff was noted as having achieved “maximum improvement.” Radiology: lumbar MRI on Aug. 13, 2002, revealed: disc bulge at L2-3; facet hypertrophy and hypertrophic encroachment on the neural foramina at L3-4, L4-5 and L5-S1. Treating physician: Dr. Fass and Dr. Grossman issued a joint final report opining that plaintiff sustained permanent and traumatic injury to his lumbosacral spine as a direct consequence of the accident, and his course of medical care continually revealed lumbosacral spine impairment. Dr. Fass also certified to a reasonable degree of medical probability that plaintiff sustained a permanent injury in the disc bulge at L2-3 that had not healed to function normally, and would not heal to function normally with further medical treatment. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, although plaintiff documented his injury by objective, credible, medical evidence, the injury was not the “permanent, serious” kind that was sufficient to raise a genuine issue of material fact as to the first prong of the verbal threshold test under AICRA. Appellate Court Determination(s): Reversed. In the appellate panel’s view, plaintiff presented sufficient evidence of permanency to satisfy the statute and to create a jury question. 113. Wright v. Mudrick, A-3983-04T2 DDS No. 23-2-2284 Judges Coburn and Lisa Dec. 8, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on April 18, 2002, in which defendant drove her vehicle into the rear of plaintiff’s vehicle. Medical Testing and Treatment: Emergency room: X-rays taken on the day of the accident revealed normal cervical spine curvature; intact vertebral bodies and posterior elements; no evidence of fracture or dislocation; an ununited apophysis of the C6 spinous process; mild to moderate narrowing of the C5-6 disc space; and prevertebral soft tissues within normal limits. The impression was “no evidence of fracture.” Chiropractor: from April 20, 2002, through April 29, 2002, plaintiff received five chiropractic treatments from Dr. Altman for muscle spasms, pain, stiffness and tenderness in her neck and back. Radiology: April 26, 2002, MRI revealed evidence of disc herniation at C5-6; no cervical cord compression or neural foraminal narrowing; reversal of the cervical lordosis centered at C5-6; remaining disc spaces preserved; remaining foramina patent; cervical cord showed no atrophy, widening or syringomyelia; no abnormal cervical cord signal; cervicomedullary junction was normal; vertebral bodies had normal marrow signal; paraspinal soft tissues were unremarkable; and conus medullarus and intrathecal structures were normal. Impression: herniated disc at C5-6 with reversal of cervical lordosis centered at this level. Dr. Adair: examined plaintiff on April 26, 2002, and found spasm, stiffness and limitations of motion. Directed that she undergo physical therapy. Also referred plaintiff to orthopedist and neurologist for evaluation. On Sept. 20, 2002, doctor prepared a written report taking note of the MRI and describing the results of his examinations of April 26 and Aug. 26, 2002. He also reported on the other information developed by the date of the report. He opined that, as a result of the accident, plaintiff suffered injuries of a permanent nature to her musculoskeletal system, that her condition was fair, and that her prognosis was guarded. His final diagnosis was: cervical HNP C5-6 with reversal of the cervical lordosis, centered at this level by MRI; lumbosacral derangement; bilateral shoulder contusions; right lumbar radiculopathy; and post-traumatic radiculopathy. Physical therapy: from May 1, 2002, through August 2002. Orthopedist: Dr. Meese saw plaintiff on May 13, 2002, and reviewed her MRI, noting the disc herniation with “some impingement.” On physical examination he noted spasm in plaintiff’s neck, and his diagnosis was cervical strain. His subsequent office notes reflected continued findings of spasm on March 28, May 9 and Aug. 23, 2004. Diagnosis was cervical strain. He also found lumbar strain and sprains of plaintiff’s shoulders. Neurologist: Dr. Gupta examined plaintiff on May 15, 2002, and found spasm in his neck muscles, but otherwise complete neurological normality. He concluded that plaintiff was suffering from cervical and lumbosacral sprain. Neurological surgeon: at the request of Dr. Meese, plaintiff saw Dr. Peterson, who rendered a report dated Dec. 3, 2004. Based on the MRI, he concluded that plaintiff had degenerative disc disease and kyphosis at C5-6 and, to a lesser degree, at C4-5. He found that the canal, lateral recesses, and foramina were open at all levels. His impression was that the 58-year-old plaintiff had cervical and lumbar discogenic disease and radiculopathy causally related to the motor vehicle accident. He noted documented pre-existing asymptomatic discogenic disease, which was aggravated by the accident. He felt that plaintiff probably would need an anterior diskectomy and fusion at C4-5 and at C5-6, and probably an L4-5 posterior interbody lumbar fusion with instrumentation. However, he noted that, at the moment, plaintiff did not want surgery. Prior Injuries: Two years prior to the subject accident, plaintiff went for physical therapy on three occasions after a nineteen-day period. The only reports are those of the physical therapist. There was no evidence of X-rays, MRIs or other diagnostic studies, and there was no medical diagnosis. Apparently, the treatment was for a sore shoulder and neck. The therapy helped, and plaintiff was asymptomatic until the present accident. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: The motion judge, in granting summary judgment to the defendant, reasoned that the references to plaintiff’s prior physical therapy and medical treatment for her shoulder and neck soreness required a comparative analysis under Polk. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s objective evidence was insufficient because, although it showed that plaintiff sustained a disc herniation, there was no indication of impingement. She also found that plaintiff had not produced the comparative analysis required by Polk, given the reference to her prior medical treatment. Appellate Court Determination(s): Reversed, the panel noting the references to persistent muscle spasm and citing Owens v. Kessler for the holding that the persistence of muscle spasm over a long period of time created a genuine issue of material fact with respect to whether there was sufficient objective medical evidence of a permanent injury. The panel noted that the motion judge here said nothing about plaintiff’s spasms, instead focusing on the herniated disc, and noting that there was no impingement. Even assuming that impingement was necessary, the panel could not ignore the fact that Dr. Meese had looked at the MRI and was satisfied from his inspection that there was “some impingement.” The judge’s ruling in that regard was, therefore, erroneous. The judge also faulted plaintiff’s evidence because of the absence of any comparative analysis as required by Polk. The appellate panel noted that another panel had recently decided, in Davidson v. Slater, that the Polk analysis was no longer required in light of the Supreme Court’s decision in DiProspero. The panel here determined that it did not need to decide whether it agreed with the Davidson decision, because in this case, no medical records were presented for comparison other than forms signed by a physical therapist. Therefore, there was no competent medical evidence of prior residuals to compare with plaintiff’s current discomforts, and a Polk analysis would have been impossible. 114. Conte v. Koslowski, A-4346-04T1 DDS No. 23-2-2299 Judges Lefelt and Seltzer Dec. 9, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on Jan. 4, 2001, in which plaintiff claimed injuries to her face, left wrist and knee, neck, and lower back. Plaintiff filed her complaint against defendant on Dec. 30, 2002, but was unable to serve him until June 20, 2003. Defendant defaulted and plaintiff’s complaint was administratively dismissed several times for failure to prosecute. Finally, on April 19, 2004, a judge signed an order vacating the dismissal, vacating the default, permitting defendant to file an answer, and restoring the matter to the active trial calendar. Defendant’s answer was filed and the parties engaged in discovery through the summer of 2004. The case was arbitrated on July 29, 2004. Defense counsel rejected the arbitration award and filed and served a notice of trial de novo on Aug. 24, 2004. A trial date was assigned for Nov. 3, 2004; however, with the consent of both parties, it was adjourned until Jan. 3, 2005. Defendant moved for summary judgment, arguing that plaintiff failed to surmount the verbal threshold. The motion was originally returnable Dec. 3, 2004, but was twice adjourned, first to Dec. 17, and then again until Jan. 7, 2005. On Dec. 22, 2004, plaintiff received a medical report from her treating physician, detailing her visits and treatment. Notably, the report did not detail permanency, nor causally relate any of plaintiff’s injuries to her 2001 motor vehicle accident. Even though plaintiff had this report, she did not file opposition to defendant’s motion for summary judgment. Not until counsel appeared in court at the trial call on Jan. 3, 2005, did plaintiff attempt to file and serve the report. Further, plaintiff requested an adjournment because the report did not state with specificity that the accident was the cause of her injuries, and did not contain a Polk analysis. Defense counsel did not oppose the adjournment, provided that his summary judgment motion was heard before trial. Nevertheless, the trial judge denied the adjournment, granted defendant’s summary judgment motion, and dismissed plaintiff’s complaint with prejudice for failure to surmount the verbal threshold. Less than a month later, plaintiff moved for reconsideration, attempting to repair the deficiencies in her medical evidence. It was at this time that plaintiff submitted a March 7, 1995, MRI of her lumbar spine, a July 9, 1994, MRI of her left knee, and a July 23, 1994, MRI of her cervical spine. She also submitted medical expert reports dated Feb. 1, 2005, and Feb. 3, 2005. The former opined that the injuries plaintiff suffered were significant and permanent and 100% attributable to her motor vehicle accident with defendant. Nevertheless, the trial judge denied reconsideration and plaintiff appealed. Medical Testing and Treatment: Treating physician: plaintiff first presented on April 16, 2001, complaining of pain in her neck, and mid and lower back as a result of the motor vehicle accident over three months earlier. Doctor referred plaintiff for MRI testing and opined that the tests showed “degenerative disc disease” with several herniations. He rendered unspecified treatment over an unspecified period of time, and did not issue a report until Dec. 22, 2004. Notably, the report did not detail permanency, nor causally relate any of plaintiff’s injuries to her 2001 motor vehicle accident. Radiology: MRIs revealed: herniated discs at C4-5; C5-6, with impression upon the spinal canal; and L5-S1, with impression on the left S1 nerve root. Surgery: June 2001, plaintiff underwent arthroscopic surgery of her left knee, with a post-operative diagnosis of chondral fracture of the patella and synovitis of the left knee. Additional medical reports: reports by plaintiff’s expert (although it is unclear if the expert was the same as her treating physician) dated Feb. 1, 2005, and Feb. 3, 2005, were produced on plaintiff’s motion for reconsideration. The former opined that the injuries plaintiff suffered were significant and permanent and 100 percent attributable to her motor vehicle accident with defendant. Prior Injuries: On June 28, 1994, plaintiff was involved in a prior motor vehicle accident, suffering injuries to her jaw, left knee, lower back, and neck, including a disc herniation at C4-5. At that time, to repair the injury to her left knee, plaintiff had surgery, consisting of an arthroscopic scraping. She also had objective testing which consisted of a March 7, 1995, MRI of her lumbar spine, a July 9, 1994, MRI of her left knee, and a July 23, 1994, MRI of her cervical spine. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: Trial judge found plaintiff’s failure to provide such an analysis fatal to her case. Miscellaneous Issue(s): Procedural delays. Trial Court Determination(s): On the day of trial, plaintiff unsuccessfully requested an adjournment to obtain sufficient medical evidence to demonstrate compliance with the verbal threshold. The judge, after denying plaintiff’s motion, granted defendant’s pending motion for summary judgment, ruling that plaintiff had failed (1) to present medical proofs of a permanent, causally related injury; and (2) to present a Polk analysis differentiating her alleged current injuries from her previous injuries from a 1994 accident. Plaintiff moved unsuccessfully for reconsideration, submitting additional proofs (see above), and then appealed. Appellate Court Determination(s): On appeal, plaintiff contended that the judge abused his discretion in denying her adjournment request. Even though the case was technically over two years old, defendant’s answer was not filed until April 2004, after the discovery period had ended. The parties consented to engage in some discovery, however plaintiff contended that the late filing of defendant’s answer resulted in her having significantly less discovery time than the 300 days normally accorded cases assigned to Track 1. The appellate panel affirmed, noting that its problem with plaintiff’s argument was that discovery was not necessary for plaintiff to obtain whatever evidence she needed to oppose the defendant’s summary judgment motion. After all, her physical condition was the issue, and it was uniquely within her own knowledge and that of her doctors. She had ample opportunity to acquire whatever reports she felt were necessary from her own physicians. Moreover, her adjournment request on the trial date violated the rules of civil procedure. Accordingly, the trial judge did not abuse his discretion in denying plaintiff’s oral and untimely adjournment request. The panel also found no excuse for plaintiff’s failure to timely oppose defendant’s twice-adjourned motion for summary judgment. Based upon what he had before him, the judge’s decision to grant summary judgment to the defendant was unassailable. Finally, plaintiff could not use the reconsideration process to do what she should have done in opposing summary judgment. Reconsideration was only for pointing out matters or controlling decisions which counsel believed that the court had overlooked, or as to which the court had erred. It could not be used to expand the record and reargue a lost motion. 115. Bethea v. Pino-Bethea, A-1145-04T3 DDS No. 23-2-2325 Judges Hoens and Coleman Dec. 13, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arises out of an automobile accident on Nov. 17, 2001, when plaintiff was a passenger in a car driven by his wife. As they proceeded into an intersection controlled by a green traffic light, they were struck by a car driven by defendant, who failed to heed a red light. Plaintiff lost consciousness at the accident scene, and was transported to the hospital. Once he regained consciousness, he complained of severe pain in his back and neck. Medical Testing and Treatment: Family physician: after his release from the hospital, plaintiff sought treatment from his physician for chronic neck and lower back pain. Doctor opined that injuries were permanent. Physical therapy Radiology: MRI revealed two herniated discs which, in the doctor’s opinion, resulted from the accident. Prior Injuries: One previous accident in 1988: plaintiff was riding a bus, standing, and it stopped abruptly. He was pushed by other standing passengers through the windshield. He was diagnosed with, and treated for, a seizure disorder, and also sustained a detached retina in both eyes. There were no reports of any injury to plaintiff’s back or neck in this accident. Although the head and eye injuries may have worsened due to the subject accident, plaintiff asserted that he was suing to recover damages only for the back and neck injuries sustained in the subject accident. There was no claim for exacerbation of the prior injuries to his eyes and head. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: Main issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that, while plaintiff had met the objective and subjective prongs of the Oswin test, he had failed to satisfy the comparative analysis requirement of Polk. The judge felt that plaintiff should have provided a comparative analysis of the frequency of his seizures and post-concussion complaints prior to and after the subject accident. The judge also noted that there was no objective medical evidence relating to the greater frequency of seizures plaintiff endured post-accident, and that plaintiff failed to provide neurological records from his first accident. Plaintiff apparently would not consent to a new MRI of his brain. Appellate Court Determination(s): Reversed, the appellate panel agreeing with plaintiff that Polk is inapplicable because he only seeks to recover for new injuries caused by the present accident, instead of damages for aggravation or the exacerbation of pre-existing injuries. Although the panel acknowledged recent cases which had questioned the continued viability of the Polk comparative analysis requirement, it noted that the need for a plaintiff to oppose summary judgment with comparative evidence when the plaintiff has had any prior injury or condition, but is not claiming aggravation, should not depend on any automatic application of Polk. Instead, the necessity for comparative evidence should depend upon whether the factual construct presented by the moving papers calls into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident. Although plaintiff did suffer from an increased frequency of seizures and further damage to his eyes, he was not seeking damages for these complaints. He only sought to recover for his neck and back injuries, which his doctor attributed to the subject accident. Under these circumstances, Polk was not applicable. Since the trial court had already found that plaintiff otherwise met the statutory verbal threshold requirements for proceeding, the matter was remanded for trial on the merits. 116. Chen v. Castro, A-1854-04T2 DDS No. 23-2-2326 Judges Skillman and Axelrad Dec. 13, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arises out of an automobile accident on Oct. 11, 2001, wherein plaintiff’s vehicle was rear-ended by defendant’s vehicle. Medical Testing and Treatment: Board-certified internist: Four days post-accident, plaintiff sought treatment, complaining of head, neck and back pain. Doctor reported May 5, 2002, that, based on objective tests (see below) and other test she performed, plaintiff had limited range of motion in both cervical and lumbar spine. Clinical impression was post-traumatic cervical and lumbosacral radiculopathy, caused by accident, and resulting in restricted motility and permanent pain. Radiology: Oct. 20, 2001, MRI showed no significant abnormalities in lumbar spine; however, protruded disc herniation in cervical spine at C5-6 with extrinsic pressure on the anterior spinal cord. Dec. 7, 2001, nerve conduction study and EMG suggested left cervical radiculopathy in area of C5-6 and left L5-S1 radiculopathy. Board-certified general surgeon: Examined plaintiff and reviewed the objective testing records and reports of the internist. Reported March 5, 2003, that plaintiff sustained sprain and strain, hyperflexion/extension injury involving the cervical spine with disc herniation at C5-6 with residual myositis and fibromyositis with radiculopathy. Although there was no disc herniation in the lumbar spine, the rest of the diagnosis was the same, with left sciatic radiculopathy noted as well. Doctor opined that the injured areas of plaintiff’s body had not healed and would not heal to normal function, constituting a significant and permanent loss of function. He also indicated that the injuries were causally related to the accident, based on the proximity of treatment to the date of the accident, the absence of treatment to the injured parts of the body prior to the accident, the mechanism of injury and his physical findings. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff failed to prove by objective, credible, medical evidence that the injuries she sustained were both permanent and serious; and (2) subjectively, that she failed to show that the injuries had a significant or severe impact on her life. Appellate Court Determination(s): Reversed. In light of the Supreme Court’s decisions in DiProspero and Serrano, a plaintiff only has to prove only an injury defined in the statute, and does not have to clear the additional hurdle of proving a “serious injury.” With respect to the requirement that plaintiff prove a qualifying injury by objective, credible, medical evidence, the court agrees with plaintiff that the MRI studies revealing a disc herniation, and the nerve conduction study and EMG suggesting radiculopathy of the lumbar and cervical spine, all combined to make a sufficient showing to withstand summary judgment. Moreover, two board-certified physicians opined causality. The motion judge impermissibly engaged in fact-finding in her effort to analyze the details of the MRI and EMG studies in a manner that, in her view, would discredit the opinions rendered by plaintiff’s medical experts. This usurped the jury’s function, requiring reversal and remand for trial. 117. Amengual v. Reinoso-Bautista, A-3813-04T5 DDS No. 23-2-2327 Judges Skillman and Miniman Dec. 13, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arises out of an automobile accident on May 3, 2002. Medical Testing and Treatment: May 7, 2002, doctor observed muscle spasm. June 15, 2002, MRI showed straightening of the normal cervical curve consistent with muscular spasm. Prior Injuries: None Serious Impact on Plaintiff’s Life: No issue Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. Appellate Court Determination(s): Affirmed. The only objective evidence of injury was the observance of muscle spasm four days post-accident and the MRI results only six weeks post-accident, which did not qualify as objective medical evidence of permanent injury. 118. Alonso v. Mahabir, A-1332-04T2 DDS No. 23-2-2337 Judges Kestin and Hoens Dec. 14, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arises out of an automobile accident on Aug. 7, 2001, which occurred when the 16-year-old plaintiff was a passenger in a vehicle operated by one of the defendants. She asserted injuries to her head, right knee, left arm and elbow, back and neck as a result of the accident. Medical Testing and Treatment: Plaintiff supplied the court with a variety of medical records, reports and expert opinions concerning her injuries, her course of treatment, and her prognosis in terms of permanency. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendants, the motion judge concluding that, while plaintiff had demonstrated, by objective, credible, medical evidence, that the injury to her knee was permanent, in satisfaction of the first prong of the verbal threshold test, the proffered evidence in terms of the serious impact on plaintiff’s life was lacking. He therefore based the grant of summary judgment to the defendants solely on the application of the second part of the Oswin test. Appellate Court Determination(s): Reversed in light of the Supreme Court’s holding that the serious impact requirement did not survive AICRA. Remanded for further proceedings. 119. Hudson v. Elliott, A-1469-04T1 DDS No. 23-2-2348 Judges Winkelstein and Sabatino Dec. 15, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This pre-AICRA case arises out of an intersectional automobile accident on March 3, 1999, which occurred when the then-15-year-old plaintiff was a passenger in one of the vehicles involved. On impact, plaintiff’s knee struck the dashboard. She was taken by ambulance to the local hospital. Medical Testing and Treatment: Emergency room: plaintiff was evaluated, x-rayed and released. X-rays were negative. D.O.: two weeks post-accident, plaintiff sought treatment because she continued to experience knee pain on sitting, standing and climbing stairs. The doctor’s evaluation was negative for heat, redness, or swelling; nevertheless, McMurray’s sign produced pain and clicking with full knee extension. Clinical impression: “possibility of a patellofemoral articular surface injury, particularly with a clicking sensation out toward full extension.” Physical therapy was prescribed. At re-evaluation on May 5, 1999: complaints of pain continued. “Mildly positive grind” noted. Tenderness noted along medial aspect of knee, as well as some joint pain and tenderness. Clicking observed between 15 degrees and full extension, suggestive of patellofemoral dysfunction. Dr. noted that plaintiff had not improved with therapy. September 1999, plaintiff was still complaining of anterior knee pain. Despite a negative MRI, she manifested with clinical symptoms suggestive of patellofemoral pain and tenderness with crepitus. Doctor observed that, six months post-injury, plaintiff was unable to run, jump or attend gym class. December 1999: continued complaints of burning, pain, clicking and popping in the knee, and patellofemoral grinding on extension. Doctor determined arthroscopic surgery required. Surgery and follow up: Jan. 21, 2000, post-operative report noted that entire superomedial portion of the patellofemoral articulation and anterior knee joint were filled with fat pad and a large median parapatellar plica. During the procedure, the doctor removed the fat pad and plical band. Plaintiff slowly improved thereafter, but still continued to have persistent anterior knee pain by Dec. 17, 2001. On physical examination doctor found a tight lateral retinaculum with a positive grind. Plaintiff returned to physical therapy. April 2002, doctor noted signs and symptoms of patellar tendonitis with patellofemoral pain. Six months later: plaintiff described her knee pain as “unbearable.” Doctor sent plaintiff to another physician for a second opinion. Second physician: plaintiff told physician of continued pain and that knee occasionally snapped and popped on her, feeling like it was giving way. A “fairly resounding pop” was heard on the doctor’s physical examination emanating from the lateral puncture site. During the examination the “popping” of the knee brought tears to plaintiff’s eyes. The doctor opined that plaintiff was not “malingering at all.” He recommended a repeat arthroscopy. Second surgery and follow up: Feb. 19, 2003, doctor debrided a grade two defect of the lateral femoral condyle. By July 21, 2003, plaintiff had progressed well, but continued to complain of mild swelling in the knee, accompanied by pain. Mild weakness in quadriceps noted. Otherwise, symptoms had essentially resolved. Dr. noted that injury had been caused by motor vehicle accident. Long-term prognosis was good; however doctor indicated that plaintiff could have occasional discomfort in the patellofemoral articulation, and might require ice and anti-inflammatory medication. Current Complaints: Five and one-half years post-accident, plaintiff’s knee often goes out on her, popping out of place approximately once a month. While it usually snaps back in by itself, she stated that, on at least one occasion, she had to go to the emergency room to have it put back in place. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff was a sophomore in high school at the time of the accident. Knee problems caused her pain in walking, running, jumping and gym class. She attended college by the time of the appeal, and had difficulty walking across campus. Other Lifestyle Impact: Five and one-half years post-accident, plaintiff was unable to: � play softball � walk in high heels Still claims difficulty with: � walking more than 20 minutes � sitting more than 20 minutes without knee cramping � climbing stairs without knee pain � walking across campus at college without pain � concentrating in class Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. Appellate Court Determination(s): Reversed. Plaintiff’s knee injury satisfies the criteria needed to demonstrate a Type 8 injury under the former verbal threshold statute. The use of her knee has been significantly limited as a result of the accident. She had two surgeries before her twenty-first birthday, and yet continues to experience pain and her knee popping out of place, sometimes causing her to fall. As to the impact on her life, the knee pain has affected her ability to walk, bend and sit for extended periods. She cannot walk in heels, is distracted in the classroom, and has, in fact, lost financial aid at college as a result of missing time from class because of her knee problems. She also can no longer play softball, which had been an important part of her life. The panel felt that all of these facts created a jury issue to survive defendants’ summary judgment motion. 120. Silver v. Ferretti, A-5107-04T1 DDS No. 23-2-2357 Judges Fuentes and Graves Dec. 16, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on April 29, 2002. Medical Testing and Treatment: Plaintiff saw two physicians, Dr. Berger and Dr. Rothman, who both certified that plaintiff had sustained a permanent injury, incorporating into their certifications their narrative reports, which made specific reference to MRI findings and electrodiagnostic studies. Dr. Berger found: disc bulges at C4-5 and C5-6; evidence of cervical nerve root injury; cervical segmental dysfunction; post-traumatic cervical sprain and strain; lumbar disc bulge at L4-5; lumbar segmental dysfunction; post-traumatic lumbosacral sprain and strain; and lumbar nerve root injury. Dr. Rothman concluded that plaintiff’s injuries from the accident included: bilateral C4-5 radiculopathies due to disc bulges at C4-5 and C5-6; and bilateral L4-S1 radiculopathies, worse on the right, due to a disc bulge at L4-5. Prior Injuries: None Serious Impact on Plaintiff’s Life: Details not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. Judge concluded that plaintiff’s injuries essentially consisted of disc bulges in the cervical area, alleged evidence of cervical and lumbar nerve root injury, a lumbar disc bulge, cervical and lumbar segmental dysfunction, and post-traumatic cervical and lumbar sprain and strain. No herniation or fractures were shown. The judge felt that these were essentially the type of relatively minor injuries which were not sufficiently serious to meet the tightened standards under AICRA. The judge felt that he need not reach the requirement of a serious impact on plaintiff’s life. Appellate Court Determination(s): Reversed, the panel concluding that, when the evidence was viewed in the light most favorable to plaintiff, she had made a prima facie showing of permanent injury as defined in the verbal threshold statute. Supreme Court in Serrano held that an accident victim has only to prove an injury defined in the verbal threshold statute to recover noneconomic damages, and did not have to clear the additional hurdle of proving a serious injury. Subsequent cases determined that the Serrano (and DiProspero) decisions should be afforded pipeline retroactivity. Thus plaintiff only had to make out a prima facie case of permanent injury. Here, the panel concluded that if a jury were to find plaintiff’s two physicians credible, it could reasonably find that she sustained permanent injuries as a result of the automobile accident. 121. Montes v. Warhurst, A-1667-04T3 DDS No. 23-2-2370 Judges Parrillo and Holston Jr. Dec. 19, 2005 Result: Summary judgment in favor of defendant affirmed, as to both plaintiffs. Facts/Background: This case, involving two plaintiffs � husband and wife � arose out of an automobile accident on March 31, 2001. The husband was driving and the wife was a passenger, when they were struck by defendant’s vehicle at an exit on the N.J. Turnpike. Both plaintiffs were taken immediately by ambulance to the emergency room of a local hospital. As to the 58-year-old husband: Medical Testing and Treatment: Radiology: April 1, 2001, diagnostic X-rays taken at the emergency room revealed: narrowing of disc space at L5-S1 in the lumbosacral spine; hypertrophic changes seen anteriorally off all the lumbar vertebrae. The impression was “degenerative changes.” The cervical X-ray, with obliques, revealed: narrowing of disc space at C5-6 and C6-7; encroachment upon the neural foramina at C5-6 and C6-7 bilaterally; and hypertrophic changes seen anteriorly off C6 and C7. The impression was “degenerative changes at C5-6 and C6-7.” April 24, 2001, cervical and lumbosacral MRIs revealed: spinal stenosis between C3 and C7, and superimposed degenerative disease in the cervical spine, and multiple degenerative disc disease, including L1-2 moderate posteriolateral disc herniation on the left side, in the lumbosacral spine. An undated MRI of plaintiff’s knee revealed: degenerative patellofemoral and tibiafemoral arthritic changes, a partial tear of the anterior cruciate ligament, and a tear of the posterior horn of the medial meniscus, as well as fluid in the knee joint. Treating physician: plaintiff first saw Dr. Arnouk on April 3, 2001, with complaints of neck pain, pain in the right side of the chest wall, and headaches. The doctor observed restrictions in plaintiff’s cervical spine and tenderness on palpation to the right side of the chest wall area, and minimal discomfort to the low back and left knee areas. Based on the continued deterioration of plaintiff’s symptoms, Dr. Arnouk referred plaintiff for MRI studies (see above) and recommended that he undergo physical therapy. Plaintiff was seen for multiple follow up visits until his discharge on Dec. 4, 2001. At some point, he received injections in his knee for pain. He showed slow but progressive improvement in his symptoms, as well has his capability to carry on his normal daily activities. The doctor issued a final report dated Feb. 2, 2003, stating, in summary, that plaintiff sustained multiple soft tissue and musculoskeletal injuries as a result of the motor vehicle accident, including: cervical spine myalgia; tension headache; right chest wall contusion; lumbosacral spine strain, with evidence of exacerbation of underlying degenerative spine disease; and mild to moderate injury to the left knee. The doctor noted that plaintiff’s symptoms had improved slowly with therapy, and that he had minimal symptoms at the time of his discharge. Overall, he had reasonably restored his functional capacity. His overall prognosis was good, although the doctor could not rule out occasional exacerbation of plaintiff’s neck and back complaints in the future. There was no mention of whether the tears in plaintiff’s knee were repaired, or were able to be repaired, or whether the knee injections that were provided gave him any palliative and functional relief of his symptoms. Physical therapy: on April 30, 2001, plaintiff began physical therapy for myofascial pain, and continued for nineteen sessions, being discharged with functional gains. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not surmounted the verbal threshold. The judge found that the MRIs and medical reports showed that the injuries alleged by plaintiff were degenerative in the nature, as opposed to being caused by the trauma of the subject motor vehicle accident. Appellate Court Determination(s): Affirmed. The appellate panel was satisfied that plaintiff’s medical proofs did not demonstrate a permanent injury proximately caused by the accident. As the trial judge noted, most of the conditions objectively manifested were linked to degenerative conditions. Those not objectively manifested were largely subjective complaints of pain and limitation. Additionally, the treating doctor’s report did not support a finding that the diagnosed injuries either had not healed, or would not heal to function normally with medical treatment. Therefore, the motion judge did not err in granting summary judgment as to the husband. As to the 59-year-old wife: Medical Testing and Treatment: Treating physician: the wife plaintiff also saw Dr. Arnouk on April 3, 2001, with complaints of neck pain, numbness in her upper arm, headache, bilateral shoulder pain and lower back pain, which restricted her ability to walk. On physical examination, the doctor observed severe restrictions and pain with motion, tenderness on palpation, and sensory deficit in both shoulders. Plaintiff’s lower back was tender to flexion and extension, with tenderness in the lumbosacral spine area. At a follow up visit on April 16, 2001, plaintiff showed persistent moderate to severe cervical myalgia; evidence of cervical radiculopathy syndrome; persistent lower back discomfort; and restriction in movement. In his final report, the doctor opined that plaintiff had sustained multiple soft tissue and musculoskeletal injuries, moderate to severe cervical myalgia, and exacerbation of her degenerative cervical spine disease with transient radiculopathy. She also evidenced lumbosacral pain and restrictions of motion due to the exacerbation of underlying degenerative disease. Her tension headaches improved earlier in the course of treatment, and her anxiety reaction probably had an impact, to a certain degree, on her other medical conditions, including diabetes and morbid obesity. Although the plaintiff had improved with “months and months of treatment,” the doctor noted that she had persistent residual complaints at the time of her discharge. He opined that she would continue to have occasional flare-ups “in the near future.” He noted that he had explained to plaintiff the extent of her problems, and “the need to take certain precautionary measures to avoid such unfavorable difficulties that might occur.” Radiology: CT scan of the cervical spine revealed: posterior ridging with indentation of the thecal sac from C3-4 to C6-7, with degenerative central spinal stenosis and bilateral foraminal encroachment at C4-5 and C5-6. CT scan of the lumbosacral spine revealed: degenerative disc disease at L3-4 and bulging annulus indentation of the thecal sac and facet joint hypertrophy at L3-4, L4-5 and L5-S1. Physical therapy: plaintiff underwent a course of treatment during which, with prescribed medications, she made slow but progressive improvement during the next six to 12 months. Spine specialist: as a result of plaintiff’s continuing complaints of neck and back symptoms, she was referred for evaluation by Dr. Implicito. His Aug. 9, 2001, report, based on her history, a physical examination, and the doctor’s review of the reports of her objective testing, concluded that plaintiff “had a right-sided lumbar radiculopathy,” mentioned her cervical spine and shoulder findings, and stated that she appeared to be recovering with physical therapy. Another physician: a further evaluation was performed by Dr. Wertenheil on Aug. 28, 2001, who reported that plaintiff had sustained injuries to her neck, thoracic spine, and lumbar spine. These injuries resulted in sciatica, headaches, swelling of her feet and limitation of motion in the neck � laterally and forward � although range of motion in her upper extremities was within normal limits. The report noted plaintiff’s obesity and her history of diabetes. The doctor related plaintiff’s injuries to the motor vehicle accident, and concluded that the injuries had aggravated her diabetes. He stated that she had improved with medication and physiotherapy, and that she had achieved maximum medical intervention. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had not surmounted the verbal threshold. The judge found that the objective testing and medical reports showed that the injuries alleged by plaintiff were in the nature of degenerative disease, as opposed to traumatic injuries received in the subject motor vehicle accident. Appellate Court Determination(s): Affirmed. Although the appellate panel was satisfied that plaintiff’s medical proofs did demonstrate aggravation of a previously quiescent degenerative condition in both her lumbar and cervical spine, the panel also noted that plaintiff’s medical documentation failed to demonstrate a permanent injury proximately caused by the motor vehicle accident to a reasonable degree of medical probability. Most of plaintiff’s cervical and lumbar injuries were attributable to an aggravation of degenerative spinal disease of long standing. The panel noted the medical conclusions that plaintiff had improved, or was recovering with medication and physical therapy. Her treating physician projected only a possibility, not probability, of occasional flare-ups of her symptomology in the near future. Accordingly, plaintiff’s medical proofs did not support the verbal threshold requirement that the injuries claimed to be permanent had not healed to function normally, and would not heal to function normally with further medical treatment. Therefore, the motion judge did not err in granting summary judgment as to the wife. 122. Tran v. Warriner, A-1702-04T3 DDS No. 2371 Judges Stern and Fall Dec. 19, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on Jan. 13, 2003. Plaintiff sustained cervical and lumbar injuries in the accident. Medical Testing and Treatment: Radiology: Jan. 23, 2003 � MRI disclosed: moderate central disc protrusion at C3-4; a small central disc protrusion at C4-5; a moderate broad based annular disc bulge at L4-5, which resulted in a mild degree of secondary canal stenosis, which was not appreciably changed when compared to the plaintiff’s previous study; and post-operative changes on the left at L4-5 with some scarring in the epidural space anterior and laterally, which was also not appreciably changed. Lumbar and cervical myelogram and post-myelographic CT scan studies were performed on March 17, 2003. The cervical myelogram showed a small ventral defect at C4-5, and the cervical CT scan demonstrated no disc herniations, and no nerve root or spinal cord compression. The lumbar myelogram showed a ventral defect at L4-5 secondary to a diffuse bulge, and the lumbar CT scan demonstrated some mild stenosis secondary to that bulge. Treating physician: Dr. Brunson began treating plaintiff on Jan. 15, 2003, issued a report dated Nov. 10, 2003, and diagnosed plaintiff with the following injuries caused by the accident: broad base central disc herniation at C3-4 with impression upon the thecal sac; central disc protrusion at C4-5; broad base disc bulge at L4-5, possibly pre-existing; radiculopathy at left C5 nerve root; radiculopathy at left C7-8; radiculopathy at left S-1 nerve root; chronic shoulder sprain and strain; and myofascitis. Dr. Brunson stated that plaintiff had sustained permanent injury that would have permanent residuals and that the residuals could not be completely resolved by way of further medical treatment. Prior Injuries: Plaintiff had a pre-existing injury to the lumbar region of his back, resulting in a disc herniation at L4-5. On July 31, 1995, a Dr. Greenwood had performed surgery on plaintiff’s lower back, consistent of a left lumbar hemilaminectomy, to excise the herniated disc. Although the prior surgery alleviated plaintiff’s pain, he again experienced lower back pain and left sciatic pain after slipping on some steps on April 8, 2002, while moving furniture into a new home. An MRI of his lower back at that time disclosed scarring at L4-5 in the region of the prior surgery, but no apparent recurrence of the prior injury. From his examination of plaintiff on May 16, 2002, Dr. Greenwood opined that there was recurrent lumbar radiculopathy, most likely secondary to disturbance of the scar when he fell. Occasionally, a small recurrent disc fragment that was imbedded in the scar could not be seen. For the time being, however, the doctor stated that he would treat plaintiff as though he purely had scarring. Dr. Greenwood suggested that plaintiff return to Dr. Singh, who had seen plaintiff in the past for a series of epidural injections. If he did not obtain relief, then he would need myelography and possibly repeat laminectomy. Hopefully, with the epidural injections, “it would not come to that.” Thereafter, plaintiff was treated by Dr. Singh with medication and therapy. Serious Impact on Plaintiff’s Life: Not detailed, except for the motion judge’s determination that the limitations on plaintiff’s activities were caused by a combination of his back and neck injuries. Physician’s Certification: No issue Polk Analysis: Motion judge found that plaintiff was required to, but did not, provide a comparative analysis of his current lumbar residuals with his residuals from prior back injuries. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge noting that there were two basic body parts involved in this case � the neck and the lower back. The judge was also willing to concede that plaintiff had objectively proven his lower back injury, but then noted plaintiff’s substantial prior history of injury with respect to that body part. While plaintiff indicated that he did not have any active symptoms from the prior injuries at the time of the subject accident, the judge felt that a comparative analysis was necessary in light of the prior history, whether or not an aggravation had been claimed. Thus, he felt the back claim could not survive summary judgment. With respect to plaintiff’s neck injury, the judge noted that plaintiff had no prior problems with his neck, and the judge found that he had objectively shown this injury. However, it was the “serious impact” requirement that gave the judge pause. He wondered how plaintiff could satisfy the verbal threshold if the reason that he could not participate in his usual activities was because of a combination of the neck and back injuries, one of which satisfied the verbal threshold, but the other of which did not. It was his belief that, although the issue was a close and “sophisticated” one, plaintiff could not surmount the verbal threshold on these proofs. Appellate Court Determination(s): On appeal, plaintiff challenged the dismissal of her neck injury claim, and the Appellate Division reversed. The panel examined the various components of the motion judge’s decision: First, he had determined that plaintiff had provided sufficient objective, credible, medical evidence to establish a causally related neck injury from the accident. Second, he had dismissed the neck injury claim because plaintiff could not show a serious impact on his life related to that injury, as opposed to the back injury which did not surmount the verbal threshold. Third, the judge found that the lack of a comparative analysis as required by Polk and Ostasz defeated plaintiff’s claim for non-economic damages for any causally related injuries to his lumbar spine. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the neck injury claim was revived, since the judge had found the objective evidence sufficient to survive summary judgment. Since plaintiff only appealed as to the neck claim, the panel vacated the summary judgment in favor of defendant on the cervical injuries, and remanded for trial. 123. Feith v. Johnson, A-2828-04T2 DDS No. 23-2-2372 Judges Axelrad and Payne Dec. 19, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident. No details were provided. Medical Testing and Treatment: Not detailed, except to note that plaintiff produced evidence of an L4-5 disc herniation with muscle spasms continuing more than two years after the accident. Prior Injuries: None Serious Impact on Plaintiff’s Life: Not detailed, although the motion judge found plaintiff’s evidence insufficient as to this prong of the verbal threshold test. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge accepting defense counsel’s concession for purposes of the motion that evidence of a permanent injury sufficient to meet the verbal threshold under AICRA had been produced. However, the judge determined that plaintiff had failed to demonstrate that the injury had a serious impact on him and his life as required by Oswin. Appellate Court Determination(s): Reversed. In light of the recent decisions by the Supreme Court in DiProspero and Serrano, holding that AICRA did not include a serious impact requirement, the panel remanded the matter to the Law Division for further proceedings. As the motion judge found, plaintiff produced prima facie evidence of permanency consisting of an L4-5 disc herniation with muscle spasms continuing more than two years after the accident. Since this was now the only evidence required under the verbal threshold to present a jury issue, reversal was required. 124. Moolchan v. Etienne, A-2905-04T3 DDS No. 23-2-2380 Judges Parrillo and Holston Jr. Dec. 20, 2005 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on May 11, 2001, which occurred when plaintiff’s vehicle was struck from the rear by defendant’s vehicle. Medical Testing and Treatment: Chiropractor: Five days post-accident, plaintiff presented to Dr. Tangorra, and subjectively complained of nervousness, numbness and tingling in his left hand, low back pain and headaches. A physical examination revealed taught and tender fibers on palpation in plaintiff’s thoracic spine, with discomfort in the right upper back and lower right shoulder. The doctor also found paraspinal muscle spasm of the lumbosacral spine, as well as taut and tender fibers of the midlower lumbar region of the spine. Plaintiff was treated for approximately eight months with spinal manipulations to the cervical, thoracic and lumbar spine; moist heat; traction; and soft tissue massage. The chiropractor opined thereafter that, based on plaintiff’s history and his findings on physical examination, plaintiff’s injuries were sustained in the subject accident. Because of what the doctor assumed to be an avulsive insult to the supportive structures of the neuromusculoskeletal system located in the cervical and lumbar spines, he opined that the injuries were subject to exacerbations and to becoming chronic in nature. In all probability, he noted that the injuries would continue to cause pain when plaintiff performed ordinary functions. Upon discharge, the chiropractor noted that plaintiff was still experiencing low back pain, occasional numbness in the left hand, C1-2 subluxation and sensitivity to touch on the left cervical and lumbosacral spines. Radiology: MRI testing was conducted on July 7, 2001. The cervical MRI revealed reversal of the normal cervical lordosis, a disc bulge at C3-4 effacing the anterior thecal sac and abutting the cervical cord, and a moderate central disc herniation at C5-6 causing spinal stenosis, as well as cord compression. The lumbar MRI confirmed a disc bulge at L4-5 and dessication changes within the L5-S1 disc. Current Complaints: plaintiff still experienced low back pain, occasional numbness in the left hand, and sensitivity to touch in his neck and back. Prior and Subsequent Injuries: plaintiff was involved in a subsequent motor vehicle accident about nine months after the subject accident. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s Certification: The motion judge cited plaintiff’s failure to produce a physician’s certification as one of the grounds for dismissal. The Appellate Division disagreed that dismissal was the appropriate sanction, even without prejudice. Polk Analysis: Because plaintiff was involved in a subsequent motor vehicle accident, the motion judge found plaintiff’s proofs of causation deficient since they were lacking a Polk comparative analysis. The Appellate Division disagreed. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff had failed to establish (1) a qualifying injury through objective clinical evidence; and (2) that his injuries were caused by the subject accident through a Polk comparative analysis. This was necessary, the judge found, because plaintiff had been involved in a subsequent accident about nine months after the subject accident. The judge also dismissed plaintiff’s complaint without prejudice for plaintiff’s failure to provide defendant with a licensed physician’s certification, as required by AICRA. She found the lack of a certification absolutely fatal in plaintiff’s case, particularly where his attorney certified that she not only did not obtain one prior to defendant’s summary judgment motion, but had been unable to. Given the age of the case, and counsel’s inability to obtain a physician’s certification, the judge dismissed the case. Of course, she noted that such a dismissal was without prejudice. Plaintiff did submit a physician’s certification from his chiropractor eight days after the defendant’s motion for summary judgment had been granted, and included it in his appendix when he appealed. Appellate Court Determination(s): Reversed. The appellate panel disagreed with the motion judge’s conclusion that plaintiff had not presented sufficient objective medical evidence of a qualifying injury. The panel found that the chiropractor’s report � based upon clinical findings on physical examination and the objective MRI findings � established a prima facie case that the subject accident caused injuries to plaintiff’s cervical and lumbar spine which had not healed to function normally, and would not heal to function normally with future medical treatment. Thus, plaintiff’s injuries qualified as permanent pursuant to the verbal threshold statute. The panel also disagreed with the motion judge’s conclusion that plaintiff’s objective medical evidence did not establish that his injuries were caused by the subject automobile accident because his medical proofs failed to contain a Polk analysis. Plaintiff testified that he was not injured in the second accident, and sought no medical treatment thereafter. All of the medical records submitted to establish that plaintiff’s injuries met the verbal threshold were based on medical examinations and MRI testing prior to the occurrence of the subsequent accident. Even the defense medical expert’s examination of the plaintiff after the date of the subsequent accident did not reflect any complaint of any injury not present in plaintiff’s treating chiropractor’s report of December 2001, or in his belated physician’s certification, both of which were entirely based on examinations and treatment records for the timeframe prior to the subsequent accident. Even assuming the continued viability of Polk after AICRA, the panel was satisfied that no such analysis was required in this case. Plaintiff alleged no new injury and no aggravation of his injuries from the subject accident in the subsequent accident. The residual injuries to his cervical and lumbar spine, as discussed in plaintiff’s chiropractor’s reports, all related to the subject accident. With respect to the judge’s dismissal of plaintiff’s case for failure to supply a physician’s certification, the panel also reversed. Citing Casinelli v. Manglapus, the panel noted that the Supreme Court had determined that the failure to file the physician’s certification required by AICRA was not a statutory bar to the continuation of the lawsuit. Because a belatedly produced physician’s certification supported the otherwise cognizable claim advanced in the complaint, the Court had viewed the late presentation as falling broadly under the umbrella of failure to make discovery. Such a deficiency was, therefore, subject to discovery-type sanctions along with dismissal for the procedural error. In deciding the sanction, the Court instructed the motion judge to assess the facts, including the willfulness of the violation, the ability of the plaintiff to produce the certification, the proximity of the trial, and prejudice to the adversary. Under the Supreme Court’s rationale, the appellate panel here was convinced that the motion judge mistakenly exercised her discretion in imposing the harsh remedy of dismissal for plaintiff’s failure to file the physician’s certification on the facts of this case. This was especially true since even a dismissal without prejudice would be fatal to plaintiff’s case, as the statute of limitations had run, precluding plaintiff from refiling his complaint. The judge should have considered the belatedly filed physician’s certification plaintiff submitted eight days after the motion was granted. Of course, the attorney’s delay in procuring and filing the certification should not go unsanctioned. Accordingly, the panel reversed the dismissal of plaintiff’s complaint, satisfied that plaintiff had met the minimum requirements established by case law and put forth a prima facie cause of action based on permanent injury as defined in the verbal threshold. On remand, the trial court was to conduct an assessment of the factors required by Casinelli, and impose whatever discovery sanctions it felt were appropriate, if any, for the late filing of the physician’s certification, short of dismissal. The panel stressed that it expressed no opinion as to what those sanctions, if any, should be, and did not retain jurisdiction. 125. Forrest v. Forrest, A-2167-04T1 DDS No. 23-2-2393 Judges Hoens and Seltzer Dec. 21, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on May 13, 2001, which occurred when plaintiff was a passenger in a vehicle operated by her husband, which was struck by defendant’s vehicle. She sustained a bruise on her right knee, and a fracture of the surgical neck of the left humerus. She alleged that her injury fell into the fourth verbal threshold category for displaced fractures. Plaintiff’s case was tried to a jury, resulting in a verdict in her favor of $3,000, to which was added a stipulated wage loss of $7,500. Unsatisfied, she sought a new trial or, alternatively, additur, both of which were denied. Medical Testing and Treatment: At trial, plaintiff’s expert testified that her fracture was displaced, and defendant produced an expert who said it was not. The medical evidence showed that plaintiff’s left arm was immobilized in a sling, but without any casting; that she received pain medication for no more than six weeks post-accident; and that, by the time of trial, she was able to attend to her own daily activities and to assist her husband as she had before, although with some discomfort. She received medical treatment for only four months post-accident. Prior Injuries: None Serious Impact on Plaintiff’s Life: Detailed only to the extent that it was noted that plaintiff was “comfortably back to work,” discharged from her doctor’s care, and able to return to her normal activities four months after the accident. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): Whether plaintiff’s fracture qualified under the verbal threshold. Trial Court Determination(s): The trial judge submitted the contested issue of the nature of the fracture to the jury, and, in the event they determined the fracture was displaced, the issue of non-economic damages. The stipulated lost wage amount of $7,500 was withheld from the jury. The jury returned a verdict finding that the fracture was, in fact, displaced, and awarded $3,000 in damages to plaintiff for her pain and suffering. The judge molded the verdict by adding the stipulated lost wage amount. Plaintiff moved unsuccessfully for a new trial or, alternatively, additur arguing that the damages award was insufficient. She appealed the denial of those motions, and also claimed that the trial judge erred in (1) not directing a verdict on the fracture issue; and (2) excluding evidence of her undisputed wage loss claim. Appellate Court Determination(s): The panel upheld the judge’s determinations, finding first that, when confronted with conflicting expert opinions and no statutory definition of the term “displaced,” the trial judge properly submitted the issue to the jury. In any event, any alleged error was rendered moot when the jury found that plaintiff had, in fact, crossed the verbal threshold and proved her fracture was displaced. Similarly, the panel found that no prejudice was sustained by plaintiff in the judge’s withholding of the amount of her lost wage claim from the jury, so long as the verdict was molded, as it was, to include that amount, and as long as she was permitted, as she was, to produce evidence (1) that she had been incapable of working for a period of time; and (2) describing the discomforts that kept her from attending to her job. Plaintiff’s argument regarding the adequacy of the damages award was found to be a somewhat closer issue by the appellate panel. However, the panel could not say that the verdict, although somewhat low, was shockingly so. A rational jury could have found that plaintiff’s evidence demonstrated minimal interference with her daily activities and medical treatment, which last no more than four months. Under these circumstances, the award of $3,000 for pain and suffering was within permissible bounds and the panel declined to disturb it. Plaintiff’s inability to obtain a new damages trial also defeated her claim for additur. 126. Buissereth v. Ford Motor Credit Co., A-1227-04T2 DDS No. 23-2-2394 Judges Coburn and Collester Dec. 21, 2005 Result: Summary judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident on July 16, 2002, after which plaintiff went to the hospital, complaining of pain in his head, neck, and spine. Medical Testing and Treatment: Emergency room: diagnosis was acute cervical sprain and headache. Plaintiff was discharged. There was no indication that he injured his left shoulder. Treating physician: on July 19, plaintiff went to Dr. Stoller, complaining of pain in his head, left shoulder, lower back, and “right radicular pain.” On re-examination a week later, the doctor’s impression was: lumbar right-sided radiculopathy; cervical sprain and strain; and left shoulder sprain and strain, possibly an AC joint strain. Re-examinations took place on July 31 and Aug. 16. With respect to the latter, the doctor reported that plaintiff continued to complain of right-sided lower back pain, radiating down into the right anterior thigh region. He also continued to complain of significant left shoulder pain, which had significantly affected his ability to work and drive. He reported difficulty turning the wheel and doing most of his regular activities involving his left shoulder. Plaintiff also reported that he had recently been bitten by a bee in the right lower leg, and that the bite had gotten infected. For this, he took antibiotics � Ceclor, he thought � and was to see his family physician later that same day. The doctor noted plaintiff limped on his right side, which the doctor felt was secondary to his thigh and lower back symptoms, as well as the bee sting. On physical examination of the cervical spine, plaintiff had full range of motion, with mild palpable tenderness. Spurling’s maneuver was positive for pain. However, there were no radicular symptoms locally. Palpatory examination of the left shoulder again revealed significant tenderness. There was some mild tenderness on the AC joint. Impingement testing, as well as Hawkins maneuvers, produced pain. The right side was totally normal. Codman’s maneuver was negative, however there was pain when the maneuver was performed on the left side. Physical examination of the lumbar spine revealed multiple palpable tender points, particularly on the right side. Straight leg raising was negative on the left, but did produce right buttock symptoms on the right. However, there were no symptoms present past the knee on the right side. SI joint testing was negative for pain or dysfunction. Motor was generally 5/5 in the lower extremity. The doctor’s impression was that plaintiff had sustained a left shoulder injury; he wanted to rule out an AC injury versus a rotator cuff tear, and recommended and MRI for that purpose. Plaintiff also suffered from lumbosacral sprain and right radicular symptoms; an EMG was recommended of his right lower extremity and his lumbar spine. The doctor noted that the plaintiff was not taking any medications secondary to the interaction with the antibiotics. During the Aug. 16, 2002, physical examination, plaintiff advised the doctor that light duty at his job was not available, and, at that point, his job required a lot of driving and lifting of heavy objects. He was unable to perform these duties for an eight-hour shift; therefore, the doctor gave him a note to keep him out of work until further notice. Another re-examination occurred on Sept. 25, 2002. Plaintiff was recommended and scheduled for an arthroscopic subacromial decompression. Following that surgery, plaintiff was again examined on Nov. 6, 2002, the doctor finding plaintiff’s wounds clean and dry, and removing his sutures. He kept plaintiff in a sling for three weeks, after which he was to begin physical therapy. On re-examination on Dec. 24, 2002, the doctor noted that plaintiff had not been compliant with wearing his sling. He stated that he had some clicking in his shoulder. On physical examination, there was full passive range of motion. Therefore, the doctor told plaintiff to continue with physical therapy. On re-examination on Jan. 6, 2003, plaintiff had full range of motion. He was experiencing pain on flexion and abduction greater than 120 degrees. He stated that he felt better than he had before, and was desirous of returning to work. Therefore, the doctor permitted him to do so with a 20-pound weight restriction. He was also placed on Celebrex 400 mg. On re-examination on Feb. 21, 2003, plaintiff noted that he had returned to work without complaints, but still felt that he had some weakness. On physical examination, the doctor found full painless range of motion of plaintiff’s shoulder. Motor was 5/5. He was to continue with physical therapy for strengthening exercises, and was to incorporate a home program. In the doctor’s medical opinion, he felt that plaintiff’s injuries were causally related to his motor vehicle accident, and that his prognosis was fair. He opined that, to a reasonable degree of medical probability, plaintiff had sustained permanent injuries that would have permanent residual sequelae. Although future treatment might alleviate some of his symptomatology, the residuals could not be completely resolved by way of further medical treatment or intervention, and there would always be some aspect of residual permanent injury experienced for the balance of plaintiff’s lifetime. Physical therapy: plaintiff pursued a course of this treatment Surgery: on Nov. 1, 2002, plaintiff underwent an arthroscopic Bankhart repair, a repair of a SLAP lesion and capsular shrinkage of the left shoulder. He left the operating room in satisfactory condition. Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff was apparently some sort of driver, perhaps a truck driver. He stated that he had difficulty driving following the accident, and was also unable to do the heavy lifting his job required. During the Aug. 16, 2002, physical examination, plaintiff advised the doctor that light duty at his job was not available, and, at that point, his job required a lot of driving and lifting of heavy objects. He was unable to perform these duties for an eight-hour shift; therefore, the doctor gave him a note to keep him out of work until further notice. On re-examination on Jan. 6, 2003, plaintiff had full range of motion. He was experiencing pain on flexion and abduction greater than 120 degrees. He stated that he felt better than he had before, and was desirous of returning to work. Therefore, the doctor permitted him to do so with a 20-pound weight restriction. Physician’s Certification: No issue Polk Analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant on several grounds, the major one being the lack of evidence of a permanent injury. Appellate Court Determination(s): Affirmed. The only evidence of permanency cited by plaintiff was in his treating physician’s certification of Jan. 31, 2003, submitted in satisfaction of AICRA. Therein, he opined that, to a reasonable degree of medical probability, plaintiff had sustained permanent injuries that would have permanent residual sequelae. Although future treatment might alleviate some of his symptomatology, the residuals could not be completely resolved by way of further medical treatment or intervention, and there would always be some aspect of residual permanent injury experienced for the balance of plaintiff’s lifetime. The appellate panel noted that production of a physician’s certification of permanency did not itself establish a cause of action or preclude the grant of summary judgment. In this case, the medical reports failed to identify any permanent injury. Therefore, summary judgment was affirmed substantially for the reasons expressed by the motion judge.

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