On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8693-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Simonelli.
Plaintiff Sisy Manoj suffered injuries in an October 14, 2003, motor vehicle collision when defendant Sonya T. Son disregarded a stop sign. Summary judgment and dismissal of plaintiff's complaint for economic and non-economic losses were entered following the motion judge's determination that plaintiff's proofs failed to demonstrate her injuries were permanent, a requirement to vault the verbal threshold of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. We affirm in part and reverse in part.
Immediately following the collision, plaintiff was examined and released from Virtua Hospital. Thereafter, she was treated by Marc L. Kahn, M.D., of Garden State Orthopedics. Dr. Kahn determined plaintiff suffered acute traumatic cervical and lumbosacral sprain and strain. Plaintiff was six months pregnant at the time of the accident. Her immediate treatment was limited to physical therapy and Tylenol. Plaintiff continued therapeutic modalities, but symptoms persisted and additional symptoms developed, including lower left extremity radiculopathy. She commenced steroid injection treatments. Following an MRI study on March 4, 2004, Dr. Kahn determined the presence of bulging discs at L4-L5 and disc protrusion at L3-L4. Plaintiff's last treatment was on April 8, 2004.
Dr. Kahn prepared a certification of permanency. N.J.S.A. 39:6A-8(a). Dr. Kahn did not specifically refer to any objective clinical evidence or medical testing, and he did not certify that plaintiff sustained an injury to a "body part or organ, or both [that] has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.; DiProspero v. Penn, 183 N.J. 477, 481 (2005).
After the accident, plaintiff was not able to resume her employment as a machine operator at Baxter Health Care for six and one-half months. Her lost wages of $16,520 were partially mitigated by $9,109 of State disability benefits.
When granting defendant's summary judgment motion, the trial court stated,
[a] mild bulge without evidence of causation does not equate to permanency . . . . The MRI of March the 5th, 2004, . . . shows mild, non-focal dis[c] protrusions at L3-4.
No evidence of compression injury. L4-5 shows only a slightly bulging annulus. L2-3 and L1-2 are normal. L5-S1 is normal. Plaintiff has not established causation of these bulges to the accident in question. Plaintiff contends that her verified disc injuries and continued pain present ample objective and credible evidence of permanent lumbar injuries. Viewing the facts in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we concur with the motion judge's conclusions that plaintiff's proofs regarding her non-economic damage claims are inadequate to defeat summary judgment.
Among plaintiff's proofs, no objective explanation of permanency is submitted, particularly in light of plaintiff's lapsed treatment. The finding of permanency must be based on something more than plaintiff's subjective complaints of pain. Oswin v. Shaw, 129 N.J. 290, 319-21 (1992); Chalef v. Ryerson, 277 N.J. Super. 22, 37 (App. Div. 1994). Moreover, plaintiff provides nothing more than her conclusion that there exists a nexus between plaintiff's lumbar pain complaints and the automobile accident. We are satisfied that the proofs do not carry plaintiff over the verbal threshold.
We conclude however, that plaintiff's claim for economic damages was not properly dismissed. "'[E]ven though failing to meet the verbal threshold, [a plaintiff] may still maintain a suit for economic losses, excluding, of course, any medical deductible and co-payment not paid under the PIP coverage of her insurance policy.'" Jefferson v. Freeman, 296 N.J. Super. 54, 67-68 (App. Div. 1996) (quoting Shorter v. Leach, 277 N.J. Super. 617, 622 (Law Div. 1994)); Bennett v. Hand, 284 N.J. Super. 43, 47 (App. Div. 1995). Defendant argues plaintiff has supplied insufficient facts to support her lost wage claim. The motion judge made no findings in this regard. We determine the plaintiff's interrogatory answers and production of the State disability award provide prima facie evidence of the amount of the claim allowing her the opportunity to present further proofs.
We affirm the order of summary judgment dismissing plaintiff's claims of non-economic loss and reverse and remand for trial on ...