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Diaz v. Gonzalez

July 7, 2008

NANCY DIAZ AND MIGUEL DIAZ, PLAINTIFFS-APPELLANTS,
v.
NYVIA C. GONZALEZ AND HONDA LEASE TRUST, DEFENDANTS-RESPONDENTS, AND JOSE M. RODRIGUEZ ESTRELLA AND WHITE CONCORD TOURS, INC., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-731-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 29, 2008

Before Judges Cuff and Lihotz.

This is a verbal threshold case. Defendant Nyvia Gonzalez stipulated liability. The matter proceeded to trial on the issues of permanency, proximate cause and damages. A jury found that none of plaintiff's injuries were permanent and this appeal follows. We affirm.

Plaintiff Nancy Diaz was a passenger in a minibus. As the minibus entered an intersection in Union City, Gonzalez ignored a stop sign, entered the same intersection, and struck the minibus with her automobile. At the time of the collision, plaintiff fell forward attempting to brace herself with her arms and feet, and struck her right knee against a part of the minibus.

Plaintiff was transported to a local hospital where she was examined, provided with painkillers and released. At the hospital, plaintiff complained of pain in her arms, head, legs, and back. Thereafter, plaintiff sought treatment from Sall/Myers Medical Associates. A physician examined plaintiff and reported complaints of headaches, neck problems, mid-back problems, and lower back problems. He diagnosed a shoulder sprain, a hand and wrist sprain, and contusions to plaintiff's foot and ankle. He ordered a cervical MRI, placed plaintiff's wrist in a splint, and ordered a physical therapy regime. As directed, plaintiff received physical therapy three times a week for two months, after which she received no other physical therapy treatment.

At trial, plaintiff testified that she continues to experience pain in her arms, her hands, and right knee. She noted that she has difficulty lifting things. Her wrists hurt, especially in cold weather. She has difficulty preparing meals because she feels pain in her right arm when she chops ingredients. She also experiences pain when she performs ordinary household chores, such as sweeping, mopping, and moving items. Her fingers get numb when she attempts to grab things. Plaintiff testified that Motrin helps to relieve her pain.

On a follow-up visit, a physician performed a neurological examination and ordered two additional MRIs and an electromyogram (EMG). Dr. Dane, a board certified neurologist at Sall/Myers, testified that plaintiff's cervical MRI revealed disc herniations at C4-5 and C5-6. He noted no evidence of degenerative disease or bone abnormality. A lumbar MRI revealed a condition known as listhesis or "a displacement of [the] L5 [vertebrae] relative to [the] S1 [vertebrae]." The doctor opined that the condition was long-standing and predated the August 9, 2004 accident. Dr. Dane also testified that neither the cervical MRI nor the lumbar MRI revealed any pressure on plaintiff's nerve roots.

The prescribed EMG was performed on October 8, 2004. Dr. Dane testified that the study suggested bilateral carpal tunnel syndrome. Following a December 17, 2004 examination, Dr. Dane diagnosed the following conditions: post-traumatic bilateral carpal tunnel syndrome, a flexion/extension injury to plaintiff's cervical spine with chronic inflammatory change fibrosis, fibromyositis and facet synovitis, lumbosacral radiculitis, traumatic aggravation of the L5-S1 listhesis, and post-traumatic tenosynovitis of the right ankle with decreased range of motion.

At trial, Dr. Dane testified that the bilateral carpal tunnel syndrome, the cervical injuries, the shoulder injuries and the ankle injuries were entirely related to the August 2004 collision. He opined that the accident aggravated the pre-existing listhesis condition. He also opined that plaintiff's injuries were permanent and that additional treatment would not cause the identified body parts to heal to their normal function.

Dr. Dane conceded that plaintiff failed to advise him of one of her two prior automobile accidents. He acknowledged that his diagnosis could be affected by plaintiff withholding relevant information.

Defendant presented the testimony of Dr. Joseph Dryer, a board certified orthopedist. Dr. Dryer reviewed plaintiff's medical records and conducted a physical examination. He observed normal range of motion in her neck and spine. Dr. Dryer noted the L5-S1 listhesis. He, too, opined that it was a pre-existing condition. He also observed no evidence of disc herniation in plaintiff's lumbar spine. He did observe, however, evidence of degenerative disc disease. Dr. Dryer also observed no nerve compression in the lumbar or cervical spine and testified that plaintiff did not complain of any neck pain.

Dr. Dryer concluded that plaintiff did not suffer any permanent injury from the August 2004 accident. He diagnosed a temporary cervical strain, a temporary lumbar strain, and a temporary right foot strain, all of which had resolved. ...


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