Opinion
DOCKET NO. A-2176-12T2
06-11-2014
JENNIFER LABARBARA, Plaintiff-Appellant, v. JAMES OELFKE, Defendant-Respondent, and CRAIG PARISH, Defendant.
Nieschmidt Law Office, attorneys for appellant (Michael H. Nieschmidt, on the brief). Camassa & Yuro, P.C., attorneys for respondent (Ronald S. Yuro, of counsel and on the brief; Christopher M. Brady, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6784-10.
Nieschmidt Law Office, attorneys for appellant (Michael H. Nieschmidt, on the brief).
Camassa & Yuro, P.C., attorneys for respondent (Ronald S. Yuro, of counsel and on the brief; Christopher M. Brady, on the brief). PER CURIAM
Plaintiff Jennifer Labarbara filed a complaint in the Law Division on September 9, 2010, against defendants James Oelfke and Craig Parish, seeking damages for personal injuries sustained in an auto accident that occurred on September 12, 2008. Plaintiff's claim for non-economic damages was subject to the "verbal threshold" provision set forth in N.J.S.A. 39:6A-8, of the Automobile Insurance Cost Reparation Reform Act, N.J.S.A. 39:6A-1 to -35 (AICRA). Plaintiff appeals from an order entered on December 7, 2012, which granted Oelfke's motion for summary judgment because plaintiff failed to satisfy the verbal threshold. For the reasons that follow, we affirm.
The trial court has since dismissed the complaint against Craig Parish by way of summary judgment and that is not an issue in this appeal.
I.
Viewed in the light most favorable to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record reveals the following facts and procedural history.
On September 12, 2008, plaintiff was involved in a three-car motor vehicle accident caused when plaintiff's car was rear-ended by defendant Parish, after Parish's vehicle was struck by defendant Oelfke. In September 2009, plaintiff met with an orthopedic surgeon who reported that, following the accident, plaintiff did not go to the hospital or an emergency room. She came under the care of a chiropractor and was treated by him for several months. Plaintiff then moved and was treated by a different chiropractor for six months. The orthopedist reported that plaintiff did not lose any time from work, as a realtor and teacher, after the accident, and that results from the MRI's taken of her cervical spine, brain, and carotid artery were all normal.
In September 2010, plaintiff filed a complaint against defendants for her injuries sustained in the 2008 accident. In December 2011, more than three years after the accident, plaintiff was examined by Dr. David Weiss. The evaluation revealed that plaintiff had two prior accidents in the 1990's resulting in neck injury. Weiss found that an examination of her cervical spine revealed spasms, tenderness, restricted range of motion, and extreme pain during lateral side bending and rotation.
In October 2012, defendant moved for summary judgment based on plaintiff's alleged failure to satisfy the verbal threshold. By order of December 7, 2012, the trial court granted defendant's summary judgment application and dismissed plaintiff's complaint with prejudice. The judge stated that, "the expert reports of the plaintiff don't support the requirement of the statute that there has to be a permanent injury and permanent has to be sustained by or shown by objective medical evidence. And we only have the spasm some years later." It is from that decision that plaintiff appeals.
Plaintiff argues that the order of December 7 should be reversed because she provided sufficient objective medical evidence to show that she sustained a permanent injury as defined in N.J.S.A. 39:6A-8. We have carefully considered the record in light of the arguments advanced by plaintiff and we are convinced that the order of December 7, 2012, should be affirmed.
II.
We recognize that in DiProspero v. Penn, 183 N.J. 477, 506 (2005), the Court held that a plaintiff subject to the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a) is not required to establish that his or her injuries have had a serious impact on his or her life. We also recognize that a plaintiff subject to the threshold need not establish that he or she suffered a "serious injury" in the subject accident. Serrano v. Serrano, 183 N.J. 508, 518 (2005).
Nevertheless, a plaintiff who is subject to the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a) must present "objective clinical evidence" that his or her injury falls within one of the categories of injuries enumerated in the statute. DiProspero, supra, 183 N.J. at 505-06; Serrano, supra, 183 N.J. at 518. We are convinced that plaintiff failed to present sufficient "objective clinical evidence" of a permanent injury as defined in N.J.S.A. 39:6A-8(a) to vault the threshold.
In order to vault the threshold, a physician must certify that, "the automobile accident victim suffered from a statutorily enumerated injury." Davidson v. Slater, 189 N.J. 166, 181 (2007). That opinion must be based on "objective clinical evidence," N.J.S.A. 39:6A-8(a), a standard that is the equivalent of the "credible, objective medical evidence" standard described in Oswin v. Shaw, 129 N.J. 290, 314 (1992). DiProspero, supra, 183 N.J. at 495. Under that standard, which is a critical element of the cost-containment goals of AICRA, the necessary objective evidence must be "derived from accepted diagnostic tests and cannot be 'dependent entirely upon subjective patient response.'" Davidson, supra, 189 N.J. at 181 (quoting N.J.S.A. 39:6A-8(a)).
A physician opining on the permanency of a plaintiff's injury must make such a determination through the use of objective medical evidence. DiProspero, supra 183 N.J. at 489. If the objective evidence depends on diagnostic and medical testing, those tests "may not be experimental in nature or dependent entirely upon subjective patient response." N.J.S.A. 39:6A-8(a). The Legislature intended these rigorous standards to ensure that a plaintiff could use only honest and reliable medical evidence and testing procedures to prove that the injury met the threshold. DiProspero, supra, 183 N.J. at 489.
Contradictory medical evidence that disputes whether or not the plaintiff has met the verbal threshold prevents a court from disposing of the case on a motion for summary judgment. Cineas v. Mammone, 270 N.J. Super. 200, 213 (App. Div. 1994). If such a dispute over medical evidence arises, the court must give the plaintiff the opportunity "at trial to prove [the injury meets the verbal threshold] to the satisfaction of the finder of fact." Brown v. Puente, 257 N.J. Super. 203, 209 (App. Div. 1992).
Courts have found objective evidence of muscle spasm sufficient to satisfy the verbal threshold. In Cavanaugh v. Morris, 273 N.J. Super. 38, 41 (App. Div. 1994), the court found that plaintiff's physician's report of "continuing spasm long after the accident" satisfied the objective medical evidence requirement. The court in Cineas, while acknowledging that subjective evidence of restricted range of motion is insufficient, found that the treating physician's diagnosis of several instances of cervical and lumbar spasm was an objective assessment that satisfied the verbal threshold. Cineas, supra, 270 N.J. Super. at 211. See also Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994) (muscle spasms that are persistent and present twenty-six months after the cessation of active treatment was prima facie evidence of a permanent injury).
The report prepared by Weiss states that plaintiff has spasm in the cervical spine, which is an objective finding. See Oswin, supra, 129 N.J. at 320; Jacques v. Kinsey, 347 N.J. Super. 112, 119 (Law. Div. 2001) ("A muscle spasm is considered objective because it is involuntary, something which the patient cannot control.").
Plaintiff cites this finding to support her assertion that her injuries are permanent. However, this finding alone, without any evidence of consistent spasm from the time of the accident in 2008 until the time of the examination by Weiss in 2011 is not the sort of persistent spasm required to show a permanent injury under N.J.S.A. 39:6A:8-(a). See Owens, supra, 272 N.J. Super. at 232; and Carmichael v. Bryan, 310 N.J. Super. 34, 51 (App. Div. 1998) (spasms found four times over fifteen months were not persistent and therefore insufficient to meet the verbal threshold under prior law).
Here, plaintiff presents no evidence that the spasm mentioned in the report is permanent, long-lasting, or anything more than a fleeting condition. That Weiss found a spasm on one occasion—the only time he examined plaintiff—is not sufficient evidence that such an injury is permanent.
In light of these circumstances, we conclude that plaintiff has not satisfied the required showing of persistent muscle spasm as mandated by Owens, supra, and has thus failed to present objective, credible evidence of an injury sufficient to withstand summary judgment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION