On appeal from Superior Court, Law Division, Salem County.
Petrella and Conley. The opinion of the court was delivered by Petrella, P.J.A.D.
Plaintiff Shirley Phillips*fn1 filed suit for damages allegedly sustained due to injuries suffered in a motor vehicle accident involving defendants. On December 4, 1992, the motion Judge granted defendants Marie and Edward Carrigan summary judgment on the ground that the verbal threshold provisions of N.J.S.A. 39:6A-8(a) precluded Phillips' suit.
On appeal,*fn2 Phillips argues that the motion Judge erred in granting summary judgment because he did not comply with
Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992), and also asserts that her medical documentation evinces a type six, seven or eight injury pursuant to N.J.S.A. 39:6A-8(a). Plaintiff additionally contends that she is entitled to a jury trial as to all fact issues and claims that the statute's verbal threshold does not prohibit all softtissue injuries. Alternatively, Phillips argues that the verbal threshold does not apply because the Carrigans are Pennsylvania residents, and that N.J.S.A. 39:6A-8 and 8.1 violate the due process and equal protection clauses of the United States and New Jersey Constitutions.
Phillips alleges that on August 6, 1989,*fn3 she was a passenger in an automobile operated by John Phillips in Salem, New Jersey that collided with an automobile*fn4 operated by Marie Carrigan and owned by Edward Carrigan. At the time of the accident Phillips was fifty-four years old. Phillips alleged that she sustained certain injuries as a result of this accident, for instance, X-rays taken immediately after the accident of the left leg revealed "some mild amount of soft tissue swelling . . . . [and] a small fleck of calcium . . . which could represent a small avulsion injury."
On August 7, 1989, Phillips visited Dr. Urkowitz complaining of pain in her left leg and ankle. Upon examination, Dr. Urkowitz stated that plaintiff's "left lower leg showed multiple contusions and areas of bruising." He also stated that plaintiff had minimal swelling in her leg and significant pain in her ankle, which was bruised, swollen, and had a decreased range of motion. Dr. Urkowitz concluded by stating that Phillips had "a lower left leg contusion with excoriation" and a left ankle sprain. He prescribed
Motrin for the pain and advised Phillips to apply ice, rest the leg in an elevated position, and continue with an ace wrap.
On August 14, 1989, Phillips revisited Dr. Urkowitz. Her leg and ankle were improving and her pain subsided. Dr. Urkowitz reiterated his previous assessment and continued the course of treatment except that he had Phillips apply heat to her leg and ankle instead of ice.
Dr. Urkowitz stated that Phillips' left leg contusion had healed and on August 28, 1989, her left ankle sprain was improving. He advised Phillips to continue applying heat to the ankle, taking Motrin, and to have the ankle X-rayed in a week. What's more, the doctor said she could return to work full time.
Phillips returned to Dr. Urkowitz on September 11, 1989. She complained of neck and jaw numbness over the previous five to six days and some neck pain. Further, her cervical spine was mildly tender and her range of neck motion was limited to 75 degrees. Her ankle, however, was no longer tender and had a full range of motion. The doctor considered her as having a healing left ankle sprain, healed leg contusion and a cervical sprain and strain injury. The doctor advised her to continue the course of treatment and have a cervical spine X-ray.
On September 25, 1989, Phillips complained of a muscle spasm and "some bilateral hand weakness if she holds objects for long periods of time" as well as neck pain. The cervical spine X-ray revealed some degenerative arthritis and some narrowing of the canal through which the nerves travel. Dr. Urkowitz told her to continue with Motrin and heat treatments and prescribed Valium for the muscle spasm. She began a course of physical therapy consisting of hot packs and ultrasound therapy to her neck three times per week for two weeks.
On October 11, 1989, Phillips returned to Dr. Urkowitz with much less neck pain and a fuller range of motion. The doctor assessed her as suffering from "cervical sprain and strain, resolving and degenerative arthritis." Dr. Urkowitz discharged Phillips
from his care and told her she could continue with Motrin and heat as needed.
In a February 25, 1990 letter to plaintiff's attorney, Dr. Urkowitz explained that he discharged Phillips on October 11, 1989, with instructions that "she may return to our office for follow-up at any time. Ms. Phillips has not returned for any follow-up office visits." In a March 26, 1991 report, after "a final follow-up visit" on March 4, he wrote the attorney:
Mrs. Phillips returned to my office for a final follow-up visit on March 4, 1991. Mrs. Phillips states she was still having intermittent bilateral shoulder pain as well as left foot pain and low back pain. She states that this pain has been going on since the accident, occurring intermittently and with varying severity. Her physical exam on that day revealed her cervical spine to be nontender. She did have some mild paravertebral muscle spasm. Her neck had full range of motion, and her neurologic exam was intact. Her thoracic spine was nontender, and her lumbosacral spine was mildly tender. There was additionally paravertebral muscle spasm and full range of motion. Her neurologic exam revealed her deep tendon reflexes to be 2/4 bilaterally and equal.
Her left ankle was tender to lateral palpation, and it did have decreased range of motion and increased pain with inversion of the ankle.
My assessment at this time is that of a chronic cervical, thoracic, and lumbar strain and sprain as well as a chronic left ankle sprain, which I feel is directly related to her motor vehicle accident of August 6, 1989.
I advised Mrs. Phillips to continue to use heat, rest, and Advil as necessary and gave her some neck and low back exercises and asked her to return to the office at any point if her symptoms should increase.
It is my opinion that these injuries are going to be of a chronic, intermittent nature, leaving Mrs. Phillips with a degree of permanent, although intermittent, disability.
On April 25, 1990, Phillips saw Dr. Gleimer, an orthopedist, who found "moderate myospasm and palpatory discomfort in the cervical [and lumbar] spine." He reported her range of motion in the cervicothoracic spine as 75% of normal, 80% of normal in the lumbar spine, and that tendon reflexes, strength, and sensation were normal in the upper extremities. He stated that Phillips suffered from "[c]hronic post-traumatic cervical and thoracic and lumbar strain and sprain with myofascitis. Chronic sprain, left lateral ankle and foot." He further opined that Phillips would continue to have pain with exertional stress and position to her neck, mid and lower back and left ankle "to some degree on a
permanent basis." The physician also noted that Phillips' shoulder symptoms have been due in part "to traumatically induced carpel tunnel syndrome." He made no reference to any prior history relating to this syndrome.
Phillips apparently did not return to Dr. Gleimer for at least one year, as indicated by an August 7, 1991 report, which states that she was returning after "a year's hiatus for re-evaluation" because of neck and low back pain as well as stiffness, hand paresthesia*fn5 and ankle discomfort. Dr. Gleimer also noted chronic tendinitis and left ankle sprain, chronic cervical and lumbar strain and bilateral carpal tunnel syndrome, the latter progressing to where she had muscle atrophy and weakness. She revisited Dr. Gleimer on September 4, 1991. At that time, he indicated that her carpal tunnel syndrome was moderate to severe in both her wrists and recommended decompression. He again described the cervical and low back injuries as "chronic and permanent in nature." In an October 9, 1991 letter to Dr. Urkowitz' group, Dr. Gleimer refers to Phillips' "carpal tunnel symptomatology" and opines it "is a result of her prior motor vehicle accident."
On April 2, 1992, at the request of her P.I.P. carrier, Dr. Jani examined Phillips. In his report, Dr. Jani noted that Phillips suffered from arteriosclerotic cardiovascular disease and had undergone five cardiac bypass surgeries. He further noted she had experienced numbness and pain in both hands for over ten years. In his opinion, she suffered "mild musculotendinous and ligamentous injuries to the neck and cervical spine, thoracolumbar spine and the left ankle in the accident . . . ." There was no stiffness or spasm in the neck or thoracic spine. He also opined that she needed no further treatment and the carpal tunnel syndrome was pre-existent.
Phillips returned to Dr. Gleimer on April 29, 1992, with complaints of continued pain in her left ankle and intermittent problems with her neck and low back. Gleimer indicated in his report that she suffered from "[c]hronic cervical and lumbar strain and sprain with myofascitis" and "chronic tendinitis and neuritis left lower extremity -- left foot and ankle." He tentatively discharged her at ...