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James v. Torres

November 06, 2002

THEREZ JAMES, PLAINTIFF-APPELLANT,
v.
ONEIDA V. TORRES, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Union County, UNN-L-2209-00.

Before Judges Wefing, Wecker and Fuentes.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 2, 2002

In 1998 the New Jersey Legislature passed the Automobile Insurance Cost Reduction Act ("AICRA"). As part of that legislation, it amended the verbal threshold statute. N.J.S.A. 39:6A-8. In this appeal, we are called upon to consider whether the amended statute incorporates the limitations and approach adopted by case law prior to the statute's amendment. Oswin v. Shaw, 129 N.J. 290, 295 (1992). We agree with the trial court that it does and thus affirm the trial court's order dismissing plaintiff's case.

I.

The question arises in the following factual context. Plaintiff was involved in an automobile accident in the late afternoon of April 12, 2000. She was twenty years old at the time. She was driving eastbound on Rahway Avenue, heading from her home in Roselle toward Elizabeth. Rahway Avenue has four lanes of traffic, two in each direction. Plaintiff was in the right eastbound lane. Defendant was also heading eastbound on Rahway Avenue, but in the left lane. Defendant attempted to make a right-hand turn from Rahway Avenue onto a cross street and collided with plaintiff's vehicle. Plaintiff testified that her body moved sideways and that she hit the back of her head on the seat when she slammed on the brakes. The police responded to the scene.

After the police concluded their investigation, plaintiff drove herself to the hospital. She was examined at the emergency room at Elizabeth General Hospital, where she complained of pain in her neck, back and legs. She was released with instructions to consult her own physician. The following day she began a course of treatment at a facility known as Doctors' Care. She received chiropractic treatment from April 13, 2000 until August 30, 2000 when she was discharged. That treatment consisted primarily of heat packs, ultrasound, and physical therapy.

During the course of her treatment, MRIs of her cervical and lumbar spine revealed bulging discs at C-4-5 and C-5-6 and L-3-4 and L-4-5. A neurologist performed an EMG and a nerve conduction study. The EMG disclosed some irritation of the nerve roots at the L-4-5 level. The nerve conduction study was normal.

At the time of the accident, plaintiff was employed as a bank teller. She missed two days of work and then returned to her job, where she remained for several months. She left that position for reasons unrelated to the accident and got a job in the delicatessen department of a local supermarket. She found that position to be too strenuous for her and quit. At the time of trial, she was working as a driver for Hospicoach Medical Transportation Company, driving a disabled child to and from school.

Plaintiff testified she still had aching pain in her neck and lower back. She said that if she had to stand for a long period of time, she would put more of her weight on her right side because her left leg would become numb. She said she could not walk up or down a lot of stairs and that she found it difficult to do her household chores or to bathe her two-year-old daughter. She testified that she took Tylenol about three times a week.

The trial was brief. There were only two other witnesses in addition to plaintiff--Dr. Pucciarelli, her treating chiropractor, and Dr. DeLuca, the neurologist. According to Dr. Pucciarelli, his final diagnosis was lumbar disk bulge L3-4, L4-5; intermittent lumbar radiculopathy, which is the pain sensation that she experiences in the left leg; chronic lumbar muscle spasm; chronic low back pain; cervical disk bulging C4-5, C5-6; and cervical myofascitis.

At the conclusion of the evidence, defendant moved for a directed verdict, which the trial court ...


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