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Filbert v. Pinto

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2008

PATRICIA FILBERT, PLAINTIFF-APPELLANT,
v.
CAROLYN PINTO AND VAULT, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1439-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2008

Before Judges Parker and R. B. Coleman.

Plaintiff Patricia Filbert appeals from an order entered on April 27, 2007 granting summary judgment dismissing the complaint with prejudice.

This verbal threshold case arises out of an automobile accident that occurred on October 31, 2003. Plaintiff alleges that she suffered chronic traumatic cervical sprain and strain with cervical myofascitis, chronic traumatic thoracic sprain and strain, cervical facet syndrome and probable glenoid labral tear in the right shoulder. A May 30, 2004 MRI of the cervical spine shows normal cervical vertebrae and a June 25, 2005 MRI of her right shoulder shows only an inflammation.

Although plaintiff has submitted a number of medical reports opining that she had serious permanent injuries, she has presented no objective evidence to support those findings. Under DiProspero v. Penn, 183 N.J. 477, 495 (2005), plaintiff no longer must demonstrate an impact on her life, but she must present objective evidence of a permanent injury in order to meet the verbal threshold.

We have carefully considered all of the medical reports submitted by plaintiff and we find that they are all based upon plaintiff's subjective responses indicating pain on palpation or movement. There are no X-rays, MRIs or other objective studies to support a finding of permanent injury. For example, in the March 17, 2006 report of Lawrence I. Barr, D.O., he states that he reviewed plaintiff's right shoulder MRI but does not indicate objective findings shown in the MRI. Rather, he states his "impression" after the MRI "was probable glenoid labral tear and SLAP lesion, right shoulder, I recommend therapy." In the same report, however, Dr. Barr noted:

Examination of the right shoulder showed anterolateral tenderness. Range of motion was full. Impingement sign was negative. Apprehension was mildly positive. O'Brien's test was markedly positive.*fn1 Speed's test was negative. There was a negative drop arm test.

Other reports similarly indicate continuing complaints without any objective evidence to support them. "[T]he certificate of plaintiff's physician asserting permanency . . . does not by itself preclude summary judgment. Rios v. Szivos, 354 N.J. Super. 578, 580 (App. Div. 2002).

We are satisfied that the trial court's grant of summary judgment was supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(A).

Affirmed.


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