On appeal from the Superior Court of New Jersey, Law Division, Union County.
Before Judges Pressler, Dreier and Kleiner.
The opinion of the court was delivered by DREIER, J.A.D.
Plaintiff appeals from a summary judgment dismissing her claim for non-economic losses suffered in an automobile accident. The trial Judge held that she failed to satisfy the verbal threshold requirements of N.J.S.A. 39:6A-8a, as interpreted in Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992). The Judge specifically found that plaintiff failed to present evidence causally linking the continuing muscle spasms in her neck and upper back and the L5-S1 herniated disc, confirmed in an MRI report, with the accident. He found that plaintiff failed to establish the causal connection of the injury to the disability. Plaintiff also appeals from the trial Judge's refusal to permit the filing of supplemental medical proofs, which plaintiff contended would satisfy any deficiencies the court found in the medical proof linking the injuries to the accident.
Plaintiff, Elva Moreno, then twenty-two years old, was involved in an automobile accident on August 11, 1991, when the car she was operating was struck from behind by the vehicle owned by defendant Blane Greenfield and operated by defendant Hillary Greenfield. At the time, plaintiff worked as a receptionist for a chiropractor, Dr. Jay P. Jacobson. After missing approximately six work days, plaintiff returned to work, but because of headaches, neck pain, and pain in her lower back radiating to her right leg, her employer commenced to treat her on August 29, 1991. Plaintiff had no similar pain prior to the accident. She had been involved in another automobile accident approximately four years before the one that is the subject of this suit, but sustained no injuries and received no treatment following the earlier accident.
Dr. Jacobson initially treated plaintiff from August 29, 1991 through February 13, 1992. In a report dated May 7, 1992, he described his initial examination. X-rays of both the cervical and lumbosacral spine were negative. He noted, however, "digital palpation of the cervical spine elicited pain and joint tenderness across the cervical spine bilaterally. Physical examination of the cervical spine revealed spasms of the cervical musculature. Range of motion testing of the cervical spine revealed a deficiency upon flexion and extension." Concerning the lower back, the report stated:
Digital palpation of the thoraco/lumbosacral spine elicited pain and joint tenderness across the lumbar spine, bilaterally. Physical examination of the thoraco/lumbosacral spine revealed spasms of the lumbar musculature, bilaterally. Range of motion testing of the thoraco/lumbosacral spine revealed a deficiency upon flexion & extension and right & left lateral flexion.
There also were significant range of motion deficiencies related to the thoraco/lumbosacral spine.
As a result of his diagnosis of acute traumatic cervical sprain with accompanying frontal headaches and muscle spasms of the cervical region, as well as acute traumatic lumbosacral sprain with resultant sciatic neuritis of the right lower extremity, muscle spasms of the lumbosacral region, and decreased range of motion of the cervical and lumbosacral region, Dr. Jacobson treated plaintiff with adjustments and other modalities.
Upon discharge in February 1992, plaintiff still suffered from range of motion deficits, and the doctor's prognosis was for permanent significant limitation of plaintiff's cervical and lumbosacral spine. In the cervical area she lost thirty degrees of flexion (fifty percent) and twenty-five degrees of extension (thirty-three and one-third percent). In the lumbosacral spine she lost twenty degrees of flexion (thirty-three and one-third percent); fifteen degrees of extension (sixty percent); fifteen degrees of right lateral flexion (sixty percent), and fifteen degrees of left lateral flexion (sixty percent). The final diagnosis included "post traumatic cervical & lumbosacral sprain. Intermittent headaches. Episodes of muscle spasms of the cervical & lumbosacral region. Sciatic neuritis of the right lower extremity. Decreased range of motion of the cervical and thoraco/lumbosacral regions." At the end of his report he wrote "It is also my opinion that these injuries are causally related to the accident of August 11, 1991."
Plaintiff left her employment with Dr. Jacobson and returned to school full time. She does not contend that her leaving this job was due to the accident or the resultant injuries. The pain continued, however, and in 1993 plaintiff returned to Dr. Jacobson, who determined that further testing was necessary. He therefore referred plaintiff to Brook Med Imaging for an MRI examination. The radiologist reported that the MRI of the lumbosacral spine showed
posterior disc herniation at the L5-S1 level. This is central to the left of the midline. Noted is a 2-3 mm. portion of herniated disc extending beyond the posterior superior margin of the S1 vertebral body. There is pressure on the adjacent epidural fat of the spinal canal. The herniation is contained.
Plaintiff then returned to Dr. Jacobson for reexamination, still complaining of neck pain, low back pain and intermittent pain in her right leg. Three weeks later, Dr. Jacobson reported that a reexamination of plaintiff's cervical spine revealed "muscle spasms of the trapezius musculature bilaterally. Digital palpation of the cervical area elicited joint tenderness and pain across the cervical region bilaterally." Range of motion tests were only slightly better than those performed fifteen months earlier. The cervical spine showed a twenty-five-degree deficiency on flexion and a twenty-degree deficiency on extension. There were no improvements on the testing of the lumbosacral spine, and Dr. Jacobson's diagnosis of the problem in both the cervical and lumbosacral regions remained the same as it had in 1992. He noted in his report that after two years and his recent reexamination, plaintiff "suffered a permanent significant limitation of use in her cervical and thoraco/lumbosacral spine and that these injuries are causally related to the accident of August 11, 1991." He also stated that the MRI report from the radiologist supported his findings of an L5-S1 discopathy and was consistent with the plaintiff's complaints and the treatments she had received.
Faced with these findings, the trial Judge determined that while there was some objective medical evidence of injury, it was not legally sufficient to support plaintiff's claim, nor was there any objective evidence to support ...