On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Shebell, Long and Landau, JJ. The opinion of the court was delivered by Shebell, P.J.A.D.
This is another of the numerous appeals we have received involving the verbal threshold. It does, however, have an additional twist because plaintiff was twice subjected to the same motion for summary judgment before two different Judges.
Plaintiff, Joseph Cineas, was involved in an automobile accident with defendant, Larry Mammone, on November 24, 1989. On December 21, 1990, plaintiff and his wife, Maria, per quod, filed a complaint against defendant and others alleging injuries and damages as a result of defendant's negligence. Defendant, Larry Mammone, filed an answer to plaintiffs' complaint on or about April 30, 1991.
The matter was arbitrated on May 7, 1992, and defendant, Mammone, was determined to be 100% at fault. The arbitrator awarded $5,500 to plaintiff, Joseph Cineas. Pursuant to R. 4:21A-6(b)(1)
and 4:21A-6(c), on May 8, 1992, plaintiff filed a request for a trial de novo.
Defendant filed a motion for summary judgment, dated August 4, 1992, asserting that plaintiff failed to satisfy the verbal threshold. Defendant's motion was denied by the Honorable William H. Walls, J.S.C. The matter was given a trial date of February 10, 1993.
On February 10, 1993, defendant orally renewed his motion for summary judgment without the submission of additional papers or the taking of any testimony. The motion was granted by the trial Judge. He signed an order granting summary judgment on February 24, 1993. Although this order states that a " R. 8 Hearing" was held, defendant notes that no such hearing was actually held, as "[t]he only proceeding that took place prior to the granting of the motion was the oral argument of counsel."
Plaintiff, Joseph Cineas, age 41, was stopped at a stop sign at the intersection of Walnut and Broad Streets in Summit when his vehicle was struck from behind by the Mammone vehicle. A police officer witnessed the accident. Although plaintiff did not complain of any injuries at the scene of the accident, he drove himself to Overlook Hospital immediately following the incident. Plaintiff was not examined by a physician. He says he did not stay for treatment because they made him wait too long.
Four days later, plaintiff went to see his own physician, Dr. Lala, a general practitioner, who advised plaintiff to see another doctor. Plaintiff's lawyer recommended Dr. Roberts, an orthopedist. Plaintiff's first visit was five days after the accident. Plaintiff continued to go to Dr. Roberts twice per week for approximately five to six months. He complained to Dr. Roberts of pain in his chest, neck, head, and lower back. Dr. Roberts' report, dated July 15, 1990, indicated that plaintiff had "acute cervical spine sprain with traumatic myositis, acute lumbosacral spine sprain with traumatic myositis, and post-traumatic headaches." It also indicated that plaintiff had pain radiating to both trapezius muscles and that the cervical spinal muscles were in severe spasm.
Plaintiff's treatment consisted of Motrin for the pain, a cervical collar, motion exercises, and hydrocollator therapy. Plaintiff saw Dr. Roberts approximately fifty-five times between December 5, 1989, and June 8, 1990. An updated report from Dr. Roberts, dated August 31, 1992, stated that plaintiff's "injuries have resulted in permanent disability" and that "[h]is prognosis remains guarded."
X-rays, taken on May 30, 1990, showed normal stature of the vertebral bodies, but indicated a "radiolucent line" that possibly represented "spondylolysis." A CAT scan was recommended by the radiologist, but apparently was not carried out.
Plaintiff sought psychotherapy on December 5, 1989, from Dr. Latimer, a Board certified psychiatrist and neurologist. Plaintiff was treated by Dr. Latimer on seven occasions between December 5, 1989, and February 28, 1990. Dr. Latimer's report, dated March 1, 1990, listed plaintiff's diagnosis as whiplash injury to the neck and back, post-traumatic depression and anxiety reaction, and contusions of the chest and multiple sprains related to the automobile accident of November 24, 1989. In his December 8, 1989 report, Dr. Latimer listed the following objective signs of anxiety and depression: restlessness, tremors of the hands, tremors of the lips, increased muscle tonus, depressed mood, decreased energy level, and fatigue. Dr. Latimer concluded that plaintiff's permanency and degree of disability were severe. On February 28, 1990, plaintiff reached a "maximum therapeutic plateau" and was discharged.
In addition, plaintiff was treated by Dr. Gautam Sehgal, a neurologist, on approximately fourteen occasions between December 5, 1989, and April 5, 1990. Dr. Gautam Sehgal's report indicated evidence of "diffuse paralumbar muscle spasm, moderate hardness of the paralumbar muscles with restricted range of motion." He found that plaintiff's cervical spine showed "suboccipital tenderness and multiple areas of tenderness along the cervical spine with restriction of range of motion in the flexion extension." Plaintiff's lumbosacral spine showed evidence of "diffuse
paralumbar muscle spasm, moderate hardness of the paralumbar muscles with restricted range of motion." Dr. Sehgal's initial diagnosis listed plaintiff's injuries as the following:
(1) Posttraumatic acute cervical flexion extension injury with resulting traumatic fibromyositis, and restricted range of motion.
(2) Posttraumatic acute flexion extension injury of the lumbosacral spine with resulting traumatic fibromyositis, ...