On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Number UNN-L- 3109-01.
Before Judges Kestin, Eichen and Fall
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal concerns one of a number of emerging issues arising from the Legislature's adoption of the Automobile Insurance Cost Reduction Act (AICRA), L. 1998, c. 21, signed into law by Governor Whitman on May 19, 1998, codified in amendments to this State's no fault automobile insurance laws, N.J.S.A. 39:6A-1.1 to -32, and effective for all automobile insurance policies issued on or after March 22, 1999.
We recently outlined the significant changes made to New Jersey's no-fault law as a result of AICRA's enactment, as follows:
Among other things, [AICRA] established new medical protocols, alternative dispute resolution procedures and the Office of Fraud Prosecutor. The new statute also provides for personal injury protection ("PIP") coverage, a "[l]imitation on lawsuit option," N.J.S.A. 39:6A-8(a), and a "[n]o limitation on lawsuit option," N.J.S.A. 39:6A-8(b). As to the former, . . . N.J.S.A. 39:6A-8(a) provides that only those who meet the verbal threshold may sue for non-economic loss, and may do so only when they have "sustained a bodily injury which results in  death;  dismemberment;  significant disfigurement or significant scarring;  displaced fractures;  loss of a fetus; or  a permanent injury within a reasonable degree of medical probability, other than scarring and disfigurement." (emphasis added.) The statute further provides that "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a). In order to overcome the "tort option" or threshold, AICRA also requires that: [T]he plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board- certified licensed physician to whom the plaintiff was referred by the treating physician. [N.J.S.A. 39:6A-8(a).]
The physician certification must "state, under penalty of perjury, that the plaintiff has sustained an injury described" in the statute and must "be based on and refer to objective clinical evidence, which may include medical testing . . . performed in accordance with medical protocols." N.J.S.A. 39:6A-8(a). Finally, with respect to the threshold, AICRA provides that:
A person is guilty of a crime of the fourth degree if that person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any certification filed pursuant to this subsection. [Rios v. Szivos, 354 N.J. Super. 578, 582-83 (App. Div. 2002)(footnote omitted).] See also James v. Torres, 354 N.J. Super. 586, 590-96 (App. Div. 2002).
Additionally, the court may grant not more than one additional period not to exceed sixty days to file the physician certification required by N.J.S.A. 39:6A-8(a), upon a finding of good cause.
Here, on leave granted, defendant Wilfredo Manglapus appeals from an order entered on April 5, 2002, denying his motion for summary judgment that had sought dismissal of the automobile personal injury action filed against him by plaintiff, Jenevieve Casinelli, for failure to file a physician certification within the time prescribed by N.J.S.A. 39:6A-8(a), and for failure to meet the verbal threshold requirements of the statute.
The specific issue before this court is whether a complaint must be dismissed with prejudice where a plaintiff has failed to file the required physician certification within the time prescribed by N.J.S.A. 39:6A-8(a), and the two-year statute-of-limitations period set forth in N.J.S.A. 2A:14-2 has run at the time the defendant's motion seeking dismissal is filed.
We hold that, under such circumstances, if a plaintiff in a verbal threshold case is able to establish the requisite elements to demonstrate substantial compliance with the procedural requirement of AICRA that a physician certification be timely filed, then the harsh consequences of a dismissal with prejudice for failure to timely file the required physician certification, after the applicable statute-of-limitations period has run, can be equitably avoided. We reach this conclusion because failure to strictly comply with the time requirements for filing a physician certification does not go to the heart of the cause of action as defined by the Legislature. See Watts v. Camaligan, 344 N.J. Super. 453, 462-68 (App. Div. 2001). The fact that the applicable statute of limitations may have expired at the time defendant moves for dismissal on the grounds that a timely physician certification has not been filed does not preclude a substantial compliance analysis.
Here, plaintiff filed two untimely physician certifications, ostensibly containing the components required by N.J.S.A. 39:6A- 8(a), after the motion for dismissal was made. Additionally, during the course of discovery and prior to expiration of the sixty-day period prescribed by N.J.S.A. 39:6A-8(a) for filing of a physician certification or expiration of the two-year statute- of-limitations period prescribed by N.J.S.A. 2A:14-2, plaintiff furnished defendant with numerous medical records and reports issued by several physicians documenting plaintiff's injuries, purportedly causally related to the subject automobile accident. These circumstances, and others, require development of a factual record against which can be considered the application of the doctrine of substantial compliance, and we remand the matter to the trial court for that purpose.
The issues presented arise from the following factual and procedural circumstances. On December 27, 1999, plaintiff, then age twenty-six, was a passenger in a pick-up truck that was struck from the rear while stopped at a traffic light by a vehicle driven by defendant. Plaintiff was thrown forward, then backwards, striking her head against the back window of the truck.
On the day of the accident plaintiff was examined and treated by Dr. James Garabo, a chiropractor. Due to the severity of her head and cervical pain, plaintiff was transported from Dr. Garabo's office to the emergency room at Rahway Hospital. Plaintiff was examined at the hospital; x-rays of the skull and cervical spine were taken; she was given a cervical collar; was told to take Tylenol or Advil for her pain; was advised to see a neurologist; and then released. The x-rays of the skull were normal, with no evidence of fractures. The cervical x-ray disclosed "[l]oss of normal lordosis with mild kyphosis [backward curvature of the spine] centered on C4-5. Rule out muscular spasm or sprain. No fracture."
On December 29, 1999, plaintiff was examined by Dr. Nazar H. Haidri, a neurologist, who diagnosed plaintiff as having suffered post-concussion syndrome; post-traumatic headaches; acute cervical, dorsal and lumbar sprain; and from symptoms consistent with bilateral lumbar radiculopathy. In his December 29, 1999 report, Dr. Haidri noted plaintiff had been involved in a prior motor vehicle accident on April 4, 1998, which had caused injuries to plaintiff's neck and back. Dr. Haidri determined that plaintiff's 1998 injuries were "markedly aggravated by the accident of December 27, 1999." During his examination of plaintiff Dr. Haidri found limited range of motion in both the cervical and lumbar areas of her spine, as well as spasms "over both cervical para-vertebral muscles." During plaintiff's course of treatment, Dr. Haidri ordered several MRI studies. An MRI of plaintiff's skull taken on January 10, 2000 disclosed "[n]o evidence of tumor, infarct or subdural hematoma." On February 16, 2000, MRI studies of both plaintiff's lumbosacral and cervical spines were completed. Dr. Howard Kessler, a radiologist, issued two reports dated February 16, 2000. According to Dr. Kessler, the lumbosacral MRI revealed "[n]o evidence of disc herniation, annular bulge or spinal stenosis[;]" the cervical MRI disclosed "[r]eversed cervical lordosis consistent with muscular spasm[,]" and "[d]isc herniation C5-C6, central and left paracentral with sac indentation."
After reviewing the results of the MRI studies, Dr. Haidri referred plaintiff to Dr. Steven L. Nehmer, an orthopedic surgeon, who examined her on May 11, 2000. In his report dated May 16, 2000, Dr. Nehmer recommended that plaintiff undergo either a cervical epidural injection or begin physical therapy. In his report dated September 29, 2000, Dr. Nehmer diagnosed plaintiff as having suffered a cervical disc herniation at C5-C6 and a lumbar strain, both causally related to the December 27, 1999 automobile accident. Dr. Nehmer's prognosis concerning plaintiff's disability from those injuries was "guarded," and he noted that a cervical MRI taken after her 1998 injury had not revealed any disc herniation as a result of the 1998 accident.
On July 17, 2000, plaintiff was examined by Dr. Charles G. Kalko, a neurosurgeon. In his report dated December 8, 2000, Dr. Kalko diagnosed plaintiff as having suffered cervical radiculopathy and cervical deformity at C5-C6. He recommended that plaintiff "start physical therapy and to consider obtaining a cervical CT myelogram and then consider surgical intervention." Dr. Kalko also concluded that plaintiff's injuries were causally related to the December 27, ...