On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-109-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein, and Yannotti.
Plaintiff Dorethea Matthews was injured in an automobile accident. After settling with the tortfeasor, she filed an underinsured motorist (UIM) claim against her automobile insurance carrier, defendant New Jersey Manufacturers Insurance Company (NJM). Her claim was subject to the verbal threshold.
Following NJM's rejection of an arbitrator's award, a jury unanimously found that plaintiff did not suffer a permanent injury as a result of the accident. The court entered judgment in favor of defendant.
On appeal, plaintiff raises four issues. First, she challenges the trial court's failure to allow in evidence the Social Security Administration's determination that she was totally disabled as a result of the accident. Second, she claims that defense counsel's closing argument introduced facts that were not in evidence. Third, plaintiff claims that the court improperly admitted into evidence the findings from a supplemental report of defendant's expert, Dr. Roy Friedenthal. Finally, plaintiff challenges the court's charge to the jury, which instructed the jury that it must find that plaintiff sustained a permanent injury as a prerequisite to awarding her damages.
Having carefully considered the arguments in light of the law and the record, we reject plaintiff's arguments and affirm.
On December 24, 1999, plaintiff was making a right turn in her motor vehicle when she was struck from behind by a vehicle driven by Diana Figura. Plaintiff settled her claim against Figura for $99,000 of Figura's $100,000 coverage limit.
Plaintiff's automobile insurance policy had UIM coverage with a $300,000 limit. In her complaint against NJM, she alleged that she sustained multiple injuries from the accident, including a right carpal tunnel injury, lumbar disc herniations, and other spinal injuries. At trial, plaintiff testified that as a result of the accident, she experienced pain in her neck, back, legs, arms, and hands, as well as numbness in her right hand and legs. Her pain restricted her daily activities, and she could not return to her job as a cook. She claimed a total wage loss in excess of $300,000.
Plaintiff was treated by several doctors, including general practitioner Dr. Robert Labaczewski; orthopedic surgeon Dr. Gregory Maslow; and Dr. Vannette Perkins, a pain management physician.
Dr. Labaczewski testified that in his opinion, plaintiff suffered permanent injuries as a result of the car accident, and he restricted her from returning to work. Dr. Maslow performed carpal tunnel surgery on her in November 2000. He testified that plaintiff's neck injury, low back injuries, and carpal tunnel injury were causally related to the accident and were permanent.
Defendant presented evidence that plaintiff suffered from carpal tunnel syndrome and low back injuries prior to the automobile accident. She was diagnosed with bilateral carpal tunnel syndrome in March 1990, and she had carpal tunnel surgery in May 1990. Doctors' notes from February 1997 through October 1999 showed that plaintiff was suffering from back and shoulder pain.
Prior to her automobile accident, plaintiff was employed by the Vineland Residential Center as a cook. She had previously been employed as a packer. In March 1996 and March 1997, she suffered low back injuries while lifting boxes at work. Dr. Jon Heist, who examined her for a workers' compensation claim, noted in December 1997 that these work accidents caused plaintiff a "permanent disability . . . in the amount of 20% permanent partial total based on the residuals of a lumbosacral sprain and strain with right sciatic neuralgia." Plaintiff returned to work full time as a cook after these accidents, and continued working until the December 1999 automobile accident.
Dr. Friedenthal, an orthopedic surgeon and defendant's expert, evaluated plaintiff in September 2003. He issued a November 18, 2003 report based on that evaluation and on prior medical reports. He opined at trial that plaintiff's carpal tunnel syndrome was not caused or aggravated by the December 1999 automobile accident and that she suffered from this condition before the accident. Dr. Friedenthal also expressed an opinion that plaintiff's ...