June 28, 2007
HASSAN G. JEFFREY AND SUSAN C. JEFFREY, PLAINTIFFS-APPELLANTS,
IESHA F. BORGES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3769-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 6, 2007
Before Judges Parker, C.S. Fisher and Yannotti.
In this verbal threshold case, plaintiffs Hassan and Susan Jeffrey*fn1 appeal from an order entered on August 18, 2006 granting summary judgment dismissing the complaint with prejudice. We affirm.
Plaintiff was involved in a rear-end collision with defendant on August 8, 2003. After the accident, plaintiff was treated for low back and left shoulder pain. In March 2004, he had an MRI of the shoulder. The report stated:
There is no abnormal signal to suggest a fracture line. There is degenerative disease of the AC joint; there is edema . . . as well. Hypertrophy from this is causing moderate impingement on the supraspinatus tendon. There is thickening of the distal supraspinatus tendon which has the appearance of tendonitis. There is no evidence of a complete tear. The subdeltoid fat planes appear intact. There are no abnormal fluid collections seen in the subacromial/subdeltoid bursa.
The remainder of the MRI report indicated that the joint appeared to be normal except for "edema seen within the region of the humeral head. This could be related to bone contusion."
The report stated that the diagnostic impression was (1) moderate impingement syndrome; (2) tendonitis; and (3) contusion of the humeral head and neck region cannot be excluded. On August 9, 2004, plaintiff had arthroscopic surgery of the left shoulder. Although the surgical report indicated that the injury was related to the August 8, 2003 accident, the report does not indicate that plaintiff suffered any permanent injury. The report stated:
The shoulder was injected with 1/2 % Marcaine 20cc into the portals, which were anterolateral an anteromedial and both into the subacromial space. The patient underwent a diagnostic arthroscopy.
The glenohumeral joint was noted to be without any significant articular cartilage or labral injury. The biceps and subscapularis were intact as well. The rotator cuff was [visually] noted to have some fraying at its insertion. This was tied with a proline suture. We then directed our attention to the subacromial space.
The patient underwent subacromial decompression and a bursectomy. He was noted to have a significant amount of bursa, which required removal. He was noted to have a[n] underhanging spur on the acromion, which was removed using the arthroscopic burr. He also was noted to have good motion of the AC joint, a little bit of bridge underhanging, therefore this was co-planed to be parallel to the acromion. Adequate space was obtained with the co-planing and the subacromial decompression and after the bursectomy had been completed we visualized the rotator cuff at the area of the proline suture. There was no evidence of a tear or loss of integrity of the rotator cuff.
In a report dated March 3, 2006, almost three years after the accident, Samuel J. Snyder, M.D., reported that X-rays taken in June 2004 showed the "joint to be well maintained with no significant arthritic changes." The report further indicated that after his arthroscopic surgery on August 8, 2004, plaintiff was seen by his treating physician on August 30, September 14, October 4, October 19, November 9, November 30 and December 22, 2004. At each visit, plaintiff complained that "he did not feel he had achieved full strength." He continued with physical therapy, however, and was discharged from care on January 21, 2005, with no diagnosis of a permanent injury. Dr. Snyder's March 3, 2006 report stated:
Within a reasonable degree of medical probability, Mr. Hassan Jeffrey injured his right*fn2 shoulder at the accident of August 8, 2003. Within a reasonable degree of medical probability, the impingement pain at the right shoulder is causally related to the accident of August 8, 2003. At Mr. Jeffrey's final visit [on January 21, 2005], he continued to complain of pain at the right shoulder. Within a reasonable degree of medical probability Mr. Jeffrey will continue to experience pain at his right shoulder that is causally related to the accident of 8/8/03.
Nowhere in Dr. Snyder's report does he indicate that plaintiff suffered a permanent injury as a result of the accident. In a certification dated August 8, 2006, Dr. Snyder attested that he had personally treated plaintiff since the automobile accident on August 8, 2003 for his left shoulder impingement syndrome. The certification, which is obviously a form for physicians to complete in verbal threshold cases, indicates that plaintiff had X-rays and an MRI and stated that in the doctor's opinion, "the following objective clinical findings support my diagnoses" of "pain." Nowhere in the certification does Dr. Snyder state that plaintiff sustained a permanent injury.
When defendant moved for summary judgment, the trial judge noted that Dr. Snyder's report "found full range of motion and excellent strength." The judge found that Dr. Snyder's diagnosis was based on pain which "is subjective, not objective." Accordingly, the trial judge granted defendant's motion for summary judgment.
In DiProspero v. Penn, 183 N.J. 477, 505-06 (2005), and Serrano v. Serrano, 183 N.J. 508, 518 (2005), the Supreme Court held that to defeat a summary judgment motion, a plaintiff subject to the verbal threshold must present "objective clinical evidence" of a permanent injury supported by a physician's certification. Serrano, supra, 183 N.J. at 518. We have carefully considered the record and find insufficient evidence to support a claim of a permanent injury to satisfy the verbal threshold. N.J.S.A. 39:6A-8. We, therefore, affirm substantially for the reasons stated by Judge Menelaos Toskos on the record of August 18, 2006.