November 20, 2007
ANTHONY C. GENCARELLI AND ALISHA GENCARELLI, PLAINTIFFS-APPELLANTS,
CHRISTOPHER CUSTIN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2522-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2007
Before Judges Grall and Chambers.
This verbal threshold case arises out of a motor vehicle accident that took place on May 12, 2003. Plaintiff Anthony C. Gencarelli maintains that he sustained injuries to his head, knees, neck and back in the accident. He has brought this personal injury action against defendant Christopher Custin, the driver of the other vehicle involved in the accident.
At the time of this accident, plaintiff was still in treatment for an earlier motor vehicle accident that had taken place on September 21, 2002. In that earlier accident, he also had sustained injuries to his neck and back. As a result, in this case, he claims aggravation of these pre-existing injuries. He had also sustained a head injury in a motor vehicle accident in 1985.
At the close of discovery, defendant moved for summary judgment contending that plaintiff's claim failed to meet the verbal threshold. Plaintiff appeals from the order granting that motion.
The record is undisputed that plaintiff's claim for the injuries sustained in this accident is governed by the limitation-on-lawsuit or so-called "verbal threshold" set forth in the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Under AICRA, in order to pursue claims for non-economic loss, the plaintiff must establish that he sustained an injury that falls within one of the statutory categories.
N.J.S.A. 39:6A-8(a). Plaintiff maintains that the injuries he suffered fall within the statutory category permitting recovery where the plaintiff has sustained a "permanent injury." Ibid.
An injury is regarded as permanent under the statute "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." Ibid.
The statute also requires a plaintiff to provide a physician's certification stating that plaintiff has sustained such an injury, and the certification must be based on and refer to "objective clinical evidence." Ibid.; see also Oswin v. Shaw, 129 N.J. 290, 318-19 (1992) (holding that in order to pass the verbal threshold, plaintiff's claim of an injury must be supported by "objective credible evidence"). Further, where a plaintiff claims an aggravation of a pre-existing injury, plaintiff must provide a comparative medical analysis between the injuries sustained in the prior accident and the subject accident in order to establish that the injuries in the subject accident meet the verbal threshold. Davidson v. Slater, 189 N.J. 166, 170, 185 (2007); Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993).
In this case, plaintiff provided a statement on permanency dated January 18, 2005, from Dr. Steve Lamzow, a neurologist, one of his treating physicians. Plaintiff was also treated by Dr. Charles Granatir, an orthopedic surgeon, and Dr. Ronald Dellanno, a chiropractor, whose reports are also part of the record.
Plaintiff argues that the findings in the x-ray of his neck taken the day after the accident, that include the loss of cervical curvature, and the persistent muscle spasms referred to in Dr. Lamzow's report, are objective medical evidence that support a finding of a permanent injury. Plaintiff also contends that Dr. Lamzow's report provides the required comparative analysis. That report states that plaintiff experienced "increased headaches, neck pain, and low back pain" after this accident and that, as of January 18, 2005, the date of the report, plaintiff "had not returned to his baseline status prior to the accident of May 12, 2003."
In reviewing an appeal from a decision on a summary judgment motion, this court employs the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Such a motion must be granted where "no genuine issue as to any of material fact challenged" and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). The motion will be granted where, after viewing the evidence in the light most favorable to the nonmoving party, no rational fact finder could resolve the dispute in that party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). After a careful review of the record, we affirm for substantially the reasons set forth by the trial judge in the complete and sound oral decision she placed on the record on January 24, 2007. That decision provides a detailed analysis of the medical evidence in this case and explains why the verbal threshold has not been met here. We note that since entry of that decision, our Supreme Court has decided Davidson v. Slater, 189 N.J. 166 (2007). That case clarified the law governing the obligation of a plaintiff to produce comparative evidence under the verbal threshold when the parts of the body injured in the accident at hand had been injured in an earlier accident. Id. at 186-87. Since the Davidson case continues to impose upon a plaintiff claiming aggravation of a pre-existing injury the obligation to produce a comparative analysis as required by prior law, ibid., the Davidson case does not change the outcome here.
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