On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-2152-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Yannotti.
Plaintiffs John Gorman*fn1 and Charlene Gorman appeal from two orders: one entered on January 6, 2006 granting summary judgment dismissing the complaint for plaintiff's failure to meet the verbal threshold; and a second order, entered on March 7, 2006, denying plaintiff's motion for reconsideration.
On September 9, 2002, plaintiff was involved in a rear-end collision with defendant. Shortly after the accident, plaintiff was examined by his family physician, Herbert Greenbaum, D.O., and treated for neck pain, tenderness and decreased range of motion in the cervical spine. Dr. Greenbaum diagnosed an acute cervical strain and prescribed medication and hot packs. Plaintiff saw Dr. Greenbaum on September 23, 2002, and reported "continuing neck pain, tenderness and decreased range of motion, as well as frontal headaches." Dr. Greenbaum "ordered X-rays of the cervical spine and physical therapy." In his answers to interrogatories, plaintiff reported that the X-rays taken on September 23, 2002 showed "[m]oderate degenerative changes of the mid and lower cervical spine."
Plaintiff attended physical therapy from September 25, 2002 to November 13, 2002. He saw Dr. Greenbaum for follow-up visits on October 1, October 8, October 18 and November 15, 2002, during which time he had continued physical therapy and medications, but reported no improvement.
Dr. Greenbaum referred plaintiff for a pain management consultation with Michael E. Rudman, M.D. Dr. Rudman examined plaintiff on November 20, 2002, after which Dr. Rudman reported that his examination indicated a "significant" decrease in range of motion, tenderness and pain in the C2 to C6 area, and that "X-ray examination of [plaintiff's] cervical spine on 9/23/02 shows only mild degenerative changes in the mid and lower spine with evidence of interspace narrowing at C4-5 and C6-7[,] as well as narrowing of the facet joints at the C4-5, C5-6 and C6-7 levels bilaterally."
The difficulty with plaintiff's post-accident medical reports is that he had been treated for virtually the same cervical spine injury more than two-and-a-half years before the September 2002 accident. In January 2000, Dr. Greenbaum referred plaintiff for radiographs of the cervical spine. Dr. Mark Cosentino, M.D., reported that the radiographs of the cervical spine taken in 2000 showed extensive degenerative changes of the spine with multi-level degenerative disc space narrowing and anterior and posterior degenerative osteophytes at multiple levels. This is associated with some degenerative changes of the oncovertebral joints. There is narrowing of the left C4-5, C5-6 and C6-7 neural foramina with some narrowing of the right as well. There are no compression deformities or subluxations. The prevertebral soft tissues are normal. There is some cervical spine straightening.
After Dr. Cosentino made these observations in his report dated January 10, 2000, he diagnosed "extensive degenerative changes as described. Encroachment of the neural foramina bilaterally."
On January 19, 2000, plaintiff was examined by Steven Dorsky, M.D., of the New Jersey Spine Center, who stated in his report that plaintiff presented with a history of neck pain dating back approximately one month. The problem began spontaneously. Complaints include the neck radiating bilaterally to the shoulders. This was initially worse on the right but is presently worse along the left side.
Dr. Dorsky's impression was that plaintiff presented "with a history of neck pain as well as intermittent radiculopathy secondary to advanced degenerative disease."
On March 1, 2000, Dr. Dorsky saw plaintiff again, at which time plaintiff had "persistent complaints of neck pain as well as radiculopathy along the right side. Pain is mostly situated on the left side of the neck extending to the head and eyes . . . . Range of motion remains very limited and painful.
There is pain with axial compression." Dr. Dorsky recommended a cervical MRI and instructed plaintiff to continue taking Vicodin and Celebrex. On March 14, 2000, Dr. Dorsky reported that "[a]n MRI of the cervical spine reveals cervical spondylosis at multiple levels with ridging most notably at the C5-C6 and C6-C7. This is causing mild to moderate spinal stenosis. [Plaintiff] has cervical spondylosis resulting in neck and arm pain." Dr. ...