On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-1040-01.
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Octavio Serrano, appeals from an order for summary judgment dismissing his complaint for personal injury based on a Law Division judge's finding that his injuries did not satisfy the verbal threshold set forth in the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Having carefully examined the record in the light most favorable to plaintiff, we affirm the order for summary judgment for different reasons than those expressed by the motion judge.
In opposition to the motion for summary judgment, plaintiff presented the following proofs. On October 22, 1999, plaintiff was a front-seat passenger in a vehicle driven by his wife, which was proceeding in a westerly direction on Chestnut Avenue in Vineland. As plaintiff's wife was executing a left turn onto State Street, she collided with a vehicle proceeding in the opposite direction operated by co-defendant Jessica Viruet. Plaintiff brought suit against his wife and both the owner and operator of the other vehicle.
Plaintiff was taken to the emergency room at Newcomb Medical Center. X-rays of the cervical spine revealed that the lordotic curve, the intervertebral disc spaces, and neural foramina were normal. There were no fractures or dislocations and the vertebral bodies were intact. Plaintiff was discharged from the emergency room with a cervical collar and told to use Tylenol.
On October 27, 1999, plaintiff saw Marshall Pressman, D.O., of the Delaware Valley Primary Care & Occupational Medicine Associates, who reported on November 1, 1999, that plaintiff complained of discomfort in the neck and low back. At the time of the accident, plaintiff was twenty-one years of age and an unemployed forklift operator. Dr. Pressman diagnosed plaintiff with acute post-traumatic cervical strain and sprain, acute post-traumatic dorsal strain and sprain, acute post-traumatic lumbosacral strain and sprain, closed head injury to the right side of the face and head with no loss of consciousness, bilateral trapezius myofascitis, left-sided chest wall contusion, and right temporomandibular joint dysfunction with audible click. He also sought to rule out right carpal tunnel syndrome noting a prior history of dysesthesia in the right wrist. He recommended conservative treatment with outpatient therapy and the use of a TENS unit to diminish pain and increase range of motion.
In a report dated August 30, 2000, Dr. Pressman and his associate, Dr. Martin Kessler, M.D., indicated that on November 15, 1999, they re-evaluated plaintiff and found spasm and tenderness present in the cervical paraspinal muscles. They measured rotation and extension of the cervical spine and recommended moist heat, use of a TENS unit, and prescribed Naprosyn. They reported that at re-evaluations on December 1 and 27, 1999, plaintiff complained of low back, neck, and right-hand discomfort and they found spasm and tenderness in both the cervical and lumbosacral paraspinal muscles. According to Pressman and Kessler in subsequent re-evaluations performed on February 28, April 28, and May 24, 2000, plaintiff continued to complain of low back, neck, and right-hand discomfort. X-rays of the lumbar and thoracic spine taken on October 29, 1999, were negative. An MRI scan performed on January 5, 2000, revealed a scoliosis of the cervical spine but no disc herniations in either the cervical or lumbosacral areas. Pressman and Kessler reported that they referred plaintiff to Dr. Carabelli, who performed an EMG study on January 11, 2000, and diagnosed right carpal tunnel syndrome new onset. No spasm was noted in the February 28 and April 28 examinations. However, Pressman and Kessler indicated in their August 30 report that"spasm and tenderness [were] present about the cervical and thoracolumbar spines" at the May 24 re-evaluation.
The August 30 report delineated plaintiff's complaints, relating the following disability:
[H]e continued to experience interference with prolonged posture maintenance, prolonged standing, prolonged sitting, prolonged walking, and stair climbing.... Stooping, bending, lying prone or kneeling aggravated pain levels. Squatting and climbing continued to remain a problem.... Prolonged walking, running, riding a bicycle or swimming also aggravated his injuries. Child care remained problematic for the patient.
[He] complained of sleep disturbances... [and] stated that household chores such as carrying grocery bags or emptying wet laundry out of a washing machine or doing the wash aggravated pain levels. Standing on a ladder to replace a light bulb and engaging in minor household repairs were problematic. Dusting and vacuuming venetian blinds, mopping or sweeping and cleaning the tub on his hands and knees aggravated pain levels.
Except for finding"right carpal tunnel syndrome confirmed by EMG (with prior history of dysesthesia in the right wrist)," Pressman and Kessler's diagnosis in the August 30 report mirrored that set forth by Pressman in his initial report of November 1, 1999. Moreover, they concluded:
Approximately seven months have passed since the patient's initial trauma. [He] certainly appears to be suffering with significant complaints, approximately seven months following the initial trauma, and following a period of appropriate treatment stressing a rehabilitation program initially ...