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Carmichael v. Bryan

March 17, 1998


Submitted February 25, 1998

On appeal from Superior Court of New Jersey, Law Division, Camden County.

Before Judges A.a. Rodr¡guez and Coburn.

The opinion of the court was delivered by: Coburn, J.A.D.

This appeal concerns two issues: whether the court, in granting summary judgment to defendant, erred (1) in finding that plaintiff was subject to the New Jersey verbal threshold statute, N.J.S.A. 39:6A-8, for her failure to abide by the compulsory automobile insurance coverage statute, N.J.S.A. 39:6A-3; and (2) in determining that her injuries were not sufficiently severe to satisfy the requirements of the verbal threshold statue.

At about 2:30 p.m. on May 27, 1993, plaintiff was operating a motor vehicle owned by her father-in-law, James E. Carmichael (James) in Lindenwold. While at a complete stop, waiting to make a left hand turn, her vehicle was struck in the rear by a vehicle driven by defendant Bryan. In his insurance policy, James had selected the "Zero Threshold Option."

Plaintiff certified that at the time of the accident, she had two inoperable, uninsured "vehicles register to name," a 1976 Ford Maverick and a 1979 Mercury Capri, which were stored at her father-in- law's farm.

James, a working mechanic/technician for the last eighteen years, certified that the Ford had been towed to his property after an accident in the late 1980's that rendered the vehicle "inoperable due to numerous problems including but not limited to front end damage, damage to suspension and the need for body work." He stated, "At no time was this vehicle either operable or `on the road' at any time from the time of the aforementioned automobile accident until after May 27, 1993." James certified that the Mercury had been "stored" on his property for nearly six years prior to May 27, 1993, due mainly to a problem with the fuel system. He stated further that the vehicle had not been operable during the six years prior to the accident, and that it "was eventually put back on the road shortly after May 27, 1993."

James further explained that as a result of plaintiff's May 27 accident, his vehicle was "totalled" and it "became an immediate priority and somewhat of an emergency to get one of the two aforementioned vehicles operable and on the road," as he was "without a vehicle and son and wife could no longer borrow vehicle to run errands, etc." He stated that prior to the accident, repair of the vehicles was not a priority and that there were no immediate plans to put either vehicle back on the road.

However, according to plaintiff, she had "spoken to an insurance agent the night before the accident," with the intent of insuring both vehicles that night. (Emphasis added). She arrived at the agency "after business hours were over" and was unable to make payment. Although neither of the vehicles were running at the time, she stated that " were hoping they would be soon."

At 8 p.m. on May 27, 1993, about five and a half hours after the car accident, plaintiff and her husband, Gerald Carmichael, signed a contract for insurance in which they selected the verbal threshold option insuring the Ford and the Mercury. Plaintiff testified that her father-in-law thereafter repaired the two cars. The Mercury was being driven "sometime in June" while the Ford was first driveable "about the first week in July."

With respect to her injuries from the collision, plaintiff maintained that she hit her head on the steering wheel during impact. Soon thereafter, she was taken by ambulance to Kennedy Memorial Hospital in Stratford, where she complained of headaches and pain in her left arm. Nurses notes taken at that time indicate that she denied "any neck, back, chest or pain." Emergency room doctors released plaintiff with instructions to follow-up with her family physician.

At her attorney's referral, plaintiff sought treatment from Dr. Dennis Scardigli on June 1, 1993. She complained of headaches, dizziness, low back pain, neck pain radiating into the left arm, right groin pain, and right leg pain. An examination revealed a forty percent range of motion in the neck accompanied by paravertebral muscle spasm. Bilaterally, the trapezius was tender and associated with spasm as well as tenderness along the entire cervical spinous processes. The lumbar spine revealed tenderness, muscle spasm and a loss of range of motion of forty percent. In addition, the plaintiff's right calf was positive for homans sign. Dr. Scardigli's initial diagnosis was concussion, tenderness of the right groin, cervical sprain associated with radicular symptoms, lumbosacral sprain, and possible phlebitis of the right calf. He opined that plaintiff's injuries were directly related to the May 27, 1993, motor vehicle accident and that it would be "inadvisable" for her to return to work. X-rays were not performed because the plaintiff was approximately ten days late for her menses at the time.

On June 7, 1993, plaintiff was evaluated by Jeffrey A. Gold, Ph.D., to determine whether she was experiencing any psychological difficulties as a result of the accident. At the time of this examination, the plaintiff was experiencing anxiety, irritability, phobic responses and headaches on a daily basis, approximately two times a day. Dr. Gold performed psychological testing which revealed a moderate range of depression and significant emotional distress and anxiety. His diagnosis of plaintiff at this time was, "Adjustment Reaction with mixed Emotions" and "Post Traumatic Stress Disorder." He recommended that plaintiff undergo computerized biofeedback and self-regulation training to enable her to gain control over chronically tense muscles.

On June 23, 1993, plaintiff was evaluated by Eby L. Banas, M.D., for a neurological consultation. At this time, the plaintiff offered complaints of headaches, dizziness, neck pain, lower back pain, right calf pain, left forearm pain and pain with numbness in her left hand and fingers. Dr. Banas' physical examination revealed paravertebral muscle spasm and tenderness in both the cervical and lumbar regions. His initial diagnosis was "post traumatic headaches, post traumatic syndrome, cervical strain, lumbosacral strain, right calf contusion, [rule out] right lumbar radiculopathy, left cervical radiculopathy, [rule out] carpal tunnel syndrome." He recommended that plaintiff continue physical therapy with Dr. Scardigli and advised against X-rays, MRI and medication because plaintiff was pregnant.

During her course of treatment, plaintiff regularly sought OB/GYN evaluations at Kennedy Memorial Hospital. On July 29, 1993, due to difficulties with the pregnancy, plaintiff underwent surgery at the hospital. At this time, a successful McDonald Cerclage was performed, and plaintiff was predominately confined to bed rest until mid-December when she delivered. Reports taken prior to the surgery indicate that while plaintiff had right groin pain, she demonstrated normal neurologic and musculoskeletal findings, with "no physical limitations." Progress notes taken by hospital staff further reveal that while plaintiff reported pain in her back on November 12, 1993, she denied headaches or any other physical ailments during a post partem examination on February 3, 1994.

On February 14, 1994, plaintiff returned to Dr. Scardigli for physical therapy. At this time, she was complaining of "horrible" back pain. Dr. Scardigli's physical examination revealed that the range of motion of the neck "approximates 70% associated with symptoms," while the range of motion of the lower back "approximates 60%." Dr. Scardigli placed plaintiff on Ansaid and recommended that she continue with physical therapy twice a week. In August of 1994, plaintiff sought treatment with Robert Cavallaro, D.C. She complained of "headaches, neck pain and stiffness, pain in the mid to lower back extending along the bilateral lumbosacral flanks and pain down the right arm into the right hand and wrist." She also reported feeling "fatigued, depressed, irritable, nervous and tense." Dr. Cavallaro's physical examination of plaintiff revealed decreased range of motion in the cervical and lumbar spine. Specifically, he found the following: Palpation of

the cervical musculature reveals muscle spasm from C3 to C7 bilaterally. The patient is stiff and guarded upon all ranges motion. The bilateral SCM's and trapezii are rigid and spastic. Examination of the bilateral, suboccipital and trapezial ridges reveals trigger point tenderness on both sides. . . . The musculature of the mid and lower back is spastic and rigid from T3 to T7 including the rhomboids, levator scapula and supraspinatus musculature.

X-rays taken on August 4, 1994, revealed "a loss of the normal lordotic cervical curve with aberrant spinal biomechanics in both flexion and extension at the atlanto-occipital junction." A surface EMG performed on September 9, 1994, demonstrated hypertonicity in the area of C2. Range of motion testing performed on September 15, 1994, revealed decreased ranges of motion in the cervical and lumbar spine in flexion and extension.

Dr. Cavallaro's diagnosis was, "acute/chronic post traumatic cervical strain and sprain; chronic post traumatic cervicogenic cephalgia; acute/chronic post traumatic thoracic strain and sprain; acute/chronic post traumatic lumbar strain and sprain; bilateral sciatic neuritis; post traumatic cervical, thoracic and lumbar myofascitis; bilateral suboccipital and trapezial trigger points." His impression was that the injuries sustained by the plaintiff were as a direct result of the motor vehicle accident of May 27, 1993. His recommendation was that plaintiff continue conservative chiropractic care and home rehabilitative exercises.

Plaintiff was thereafter evaluated by Marc L. Kahn, M.D., on September 1, 1994. Dr. Kahn's physical examination of the plaintiff revealed restriction in the range of motion of the cervical spine to seventy-five to eighty percent of normal as well as tenderness with palpation in the midline and adjacent paracervical areas extending laterally into the trapezial musculature. Examination of the lumbosacral spine revealed ranges of motion restricted to approximately seventy-five to eighty percent of normal with pain and guarding at the extremes. Palpation elicited tenderness and protective spasm in the midline and adjacent paravertebral ...

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