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Davidson v. Slater

October 20, 2005


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, docket no. L-2094-03.

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



Argued October 6, 2005

Before Judges Conley, Weissbard*fn1 and Winkelstein.

In this verbal threshold case, defendant was successful in obtaining summary judgment dismissing plaintiff's automobile negligence complaint. The motion judge granted summary judgment because she concluded that plaintiff's proofs did not establish an objective, permanent injury and that her medical expert did not conduct a Polk*fn2 comparative analysis. The judge thought this was necessary as a threshold matter, because plaintiff had sustained injuries in an accident before the one she sought damages on and another accident after. We disagree on both issues.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. The accident that forms the basis for plaintiff's complaint occurred on August 2, 2001. At the time, she was a passenger in the front seat of a vehicle that was stopped at a red light. As it began to proceed through the intersection, it was rear ended. The force of the impact threw plaintiff forward and then backward and caused significant damage to the vehicle. Her neck and low back were injured. She was taken to the hospital and released. She then began treatment with Dr. Scott Dorfner, who is board certified in internal medicine.

In his December 19, 2002, report, Dr. Dorfner described the course of plaintiff's treatment and progress, and offered his opinion as to her injuries and prognosis:

Since the time of the motor vehicle accident, [plaintiff] has experienced significant low back pain and significant neck and back spasms. The patient initially stated that she was achy from head to toe. There was marked ecchymosis to the right forearm with soft tissue swelling. There was marked cervical, dorsal and lumbar paravertebral muscle spasm. There was decreased range of motion in the cervical and lumbar spine to no more than 70 [percent] of normal.

Because of the patient's significant symptomatology, she was given non-steroidal anti-inflammatory medication. She was given physical therapy in the office consisting of hot packs, electrical stimulation and ultrasound as well as gentle osteopathic manipulation. Because of the patient's symptomatology, MRIs were ordered. I have enclosed copies of those reports[,] which did reveal a disc protrusion at L5-S1 with a straightening of the normal lumbar lordosis. Additionally, the patient did have an MRI performed of the cervical spine. I have enclosed copies of that report which reveal mild degenerative changes at C4-C5 and C5-C6.

The patient was referred for orthopedic consultation to Dr. Richard J. Naftulin of Cherry Hill Orthopedic Surgeons. I have enclosed copies of his reports in which he stated the patient was suffering from post-traumatic cervical and lumbar strain and sprain with myofascitis as well as a possible herniated disc with ultimately the discs being well visualized on MRI. Dr. Naftulin recommended a rehabilitative consultation and electrodiagnostic studies. The patient was seen in rehabilitative consultation by Dr. Aurora T. Delarosa, a rehabilitative specialist. It was her impression that the patient was suffering from chronic cervical, thoracic and lumbar myofascial pain dysfunctions along with cephalgia secondary to cervical myofascial pain dysfunction with median neuropathy across the wrist, possible bilateral carpal tunnel syndrome and lumbosacral radiculitis recommending electrodiagnostic studies.

The patient continued with symptoms consistent with a disc injury. The patient continued with discomfort in the low back most pronounced to the lower extremities describing radicular-type symptoms to the lower extremities as well as what she described as intense bone pain in her low back[,] which was much worse with any weather or exertion. The patient had actually changed jobs from a waitress to a bartender and still experienced significant back pain and leg pain along with which she described as charley horses in both legs. The patient has never regained the final ranges of motion in her cervical or lumbar spine.

She still [sixteen months after the accident] experiences 15 [percent] deficits in the cervical and lumbar spine in all planes. Her straight-leg raising sign is positive at 45 degrees bilaterally. The patient still experiences significant cephalgia and significant myofascial pain syndrome. At this time, she has been released from active care. She will, of course, return on a prn basis. She has become very depressed at times over the ongoing disabilities and her ongoing back pain and has been placed on Paxil CR 12.5 mg daily as well as recommendations being made for an epidural injection. However, the patient states that at this time, she would prefer to defer an epidural injection as she has a fear of the procedure going awry and she will, of course, just continue to modify her activities. She has been given a home exercise program. She has been told to stretch on a regular basis, to utilize nonsteroidal anti-inflammatories and, of course, should her disease progress or should her pain become oppressive, that she is to return immediately to the office for further treatment and/or further subspecialty consultations and referrals.

At this time, the injuries she has suffered are permanent. They are the direct result of the motor vehicle accident which occurred on 8/2/01. The patient has been given strict instructions for her follow-up care and it is ...

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