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Rubino v. Kozlowski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 15, 2008

VINCENT RUBINO, PLAINTIFF-APPELLANT,
v.
DANIEL H. KOZLOWSKI AND CHERYL I. KOZLOWSKI, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-464-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 26, 2008

Before Judges Payne and Alvarez.

Plaintiff, Vincent Rubino, appeals from an order of February 23, 2007 granting summary judgment to defendants Daniel and Cheryl Kozlowski on plaintiff's claims of injury arising from an April 10, 2002 motor vehicle accident and from an order of May 11, 2007 denying reconsideration. The motion judge determined that plaintiff failed to present objective medical evidence of permanent injury caused by the accident and thus did not meet the requirements of the limitation on lawsuit threshold, N.J.S.A. 39:6A-8a, to which he was subject. Following a review of the record in light of applicable legal standards, Prudential Property Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), we affirm.

The police report contained in the record indicates that plaintiff's vehicle was struck in the area of the left rear door by a car driven by Daniel Kozlowski and owned by Cheryl Kozlowski, causing mild to moderate damage to both cars. Each driver claimed to have been proceeding on a green light. Although both vehicles remained drivable, plaintiff's car was towed when plaintiff was unable to immediately produce evidence of insurance. Upon arrival at the accident scene, the reporting police officer observed no injuries and no need for medical attention. At the time of the accident, plaintiff, who was born on December 23, 1927, was seventy-four years of age.

Three days after the accident, on April 13, 2002, plaintiff was seen in the emergency department of St. Francis Medical Center for injuries to the lower back, right shoulder and left thigh. He was discharged with a diagnosis of lumbar strain and multiple contusions.

From April 19, 2002 to September 23, 2002, plaintiff received chiropractic treatment from Dr. Ralph Bencivengo. At the time of discharge, plaintiff continued to complain of pain in his right shoulder and right upper trapezius area, as well as pain in his right lower cervical area and lumbar region. According to Dr. Bencivengo, at discharge, plaintiff "continued to exhibit objective findings of spasm, limited range of motion and orthopedic tests which indicated spinal joint and spinal nerve inflammation."

X-rays, performed on April 25, 2002, disclosed degenerative changes from C4 to C7 with straightening of the lower cervical spine; slight degenerative changes at L2-L3 and L4-L5 with minimal scoliosis; and mild hypertropic changes in the acromioclavicular joint of the shoulder and calcific tendonitis. A CT scan of the lumbar spine, performed on July 6, 2002, disclosed "some degenerative changes . . . involving the disc at 4-5" with bulging of the annulus but no herniation. The scan also disclosed "some mild degenerative changes . . . involving the apophyseal joints." Dr. Bencivengo noted this evidence of degenerative changes in his report of December 4, 2002.

However, he concluded without significant explanation that the "degenerative changes are not the cause of [plaintiff's] subjective or objective findings."

Commencing on June 13, 2002, plaintiff was treated for pain management by Barry A. Korn, D.O., who initially diagnosed lumbar myofacitis, right shoulder acromioclavicular joint dysfunction and lumbar facet dysfunction and concluded, in a report dated June 13, 2002:

Based on my physical examination with the loss of range of motion, history and ongoing complaints, it is my opinion that this patient has sustained injury as the result of the motor vehicle accident which occurred on April 10, 2002.

Dr. Korn treated plaintiff with trigger point injections in the lumbar area, percutaneous electrical nerve stimulation and fluoromethane spray on June 27, July 11 and July 18, 2002. Plaintiff was discharged on July 25, 2002 with findings of "better mobility and decreased pain." Mild paravertebral spasm was noted in the lumbar spine, but no trigger points were observed. At that time, Dr. Korn diagnosed lumbar myofascial pain syndrome, degenerative disc disease at L3-L4, L4-L5 and L5-S1, lumbar facet syndrome, right shoulder acromioclavicular joint dysfunction, and lumbar facet dysfunction. Significantly, in his report of July 11, 2002, Dr. Korn noted that the CT scan of plaintiff's lumbar spine had disclosed "degenerative facet changes" along with "degenerative disc disease at L4-5, L5-6 and L5-S1."

As the result of a reported "flare up of low back pain over the past week," plaintiff returned to Dr. Korn on August 13, 2002, who resumed prior treatments on that date and on August 22 and September 12, 2002. Plaintiff was again discharged on September 19, 2002 following plaintiff's report of "intermittent periods of pain and spasm in low back but overall significant improvement." Examination disclosed "mild" lumbar paravertebral muscle spasm and lumbar facet tenderness.

On December 12, 2002, plaintiff returned to Dr. Korn with complaints of right shoulder and low back pain. Trigger point injections in the right shoulder were administered. Additional treatment to the lumbar spine was administered on January 9, 2003 and January 23, 2003, at which point facet blocks were recommended.

Because Dr. Korn was not qualified to perform facet blocks, plaintiff was referred to Adam Sackstein, M.D., who performed cervical facet joint injections to the right C4-C5, C5-C6 and C6-C7 joints on March 5, 2003 and April 4, 2003; lumbar facet joint injections to the right L3-L4 joint and bilaterally at L4-L5 and L5-S1 on May 7, 2003; and bilateral injections to all three lumbar joints on June 18, 2003. On July 30, 2003, Dr. Sackstein performed a right L3-L4, L4-L5 and L5-S1 facet joint median nerve branch radiofrequency rhizotomy, effectively destroying that portion of the targeted nerves, but not relieving plaintiff's pain. Dr. Sackstein resumed facet joint injections on August 18, 2004, focusing on the left sacroiliac, left L4-L5 and L5-S1 facet joints. Injections to the right L3-L4, L4-L5, L5-S1 and sacroiliac facet joints also were performed on September 15, 2004. Additionally, plaintiff was treated at various times with Bextra, Licoderm patches, Ultracet, and Celebrex. A corset brace was also prescribed. At the conclusion of treatment, plaintiff had no complaints of cervical pain, although he still complained of lumbar pain. He did not return for further treatment after September 2004.

In addition to the reports of Dr. Bencivengo and Dr. Korn mentioned previously, the record also contains additional reports from Dr. Korn dated September 12, 2002, January 9, 2003, and January 23, 2003, each of which detailed the treatment rendered, recommendations, and the doctor's assessment or diagnosis. A report from Dr. Sackstein dated February 6, 2003 and an additional report rendered by him on October 26, 2005, after defendants' motion for summary judgment had been filed, also were provided. In his February 6 report, Dr. Sackstein noted:

There was tenderness in the right upper trapezius and cervical paraspinals. There was pain on range of motion of the cervical spine, especially in extension and lateral flexion and rotation. [Plaintiff] also had some tenderness in the right lumbosacral region. There was flattening of both the lumbar and cervical lordosis.

It is my impression that Vincent is suffering from a cervical lumbar facet syndrome and degenerative disc disease. As the majority of his pain is mechanical and non-radicular, I feel that he may benefit from a series of facet blocks.

The doctor did not provide any opinion as to causation. However, in his later October 26, 2005 report, the doctor stated that: "Based on Vincent's reported history and physical examination, the causality appears to be the motor vehicle accident of April 10, 2002."

A de bene esse deposition of Dr. Sackstein was conducted on May 3, 2006. At that time, Dr. Sackstein explained that facet joint syndrome is "an inflammatory process, so it's just like arthritis or inflammation or irritation anywhere else in your body." However, facet syndrome "is unfortunately not something that you can necessarily see on imaging, because it is not like a herniated disc that you would see on an MRI. It is much more a diagnosis based on how the patient presents to you, what their physical findings are." Treatment is rendered by placing needles in the facet joints in the area "where the patient states they have pain." First, a local anesthetic is introduced, and if it causes the pain to cease, then a steroid is injected. When asked what the cause of facet syndrome is, the doctor responded:

Pretty much any traumatic event can cause facet pain. So it can be a -- as in this case a motor vehicle accident, it can be a fall, it can be being struck forcefully on the back of the head or the neck. There are patients who do develop it gradually over time on a degenerative basis. Those are probably the principal causes.

The doctor explained that median nerve rhizotomies, which destroy a portion of the nerve that supplies the joint, are "[g]enerally speaking . . . performed in patients who have not responded to prior treatment." However, the treatment was not successful in plaintiff's case. Even if success had been achieved, the doctor explained that rhizotomies last only six to eighteen months, because the nerves regenerate over time.

In granting summary judgment and denying plaintiff's motion for reconsideration, the motion judge assumed that plaintiff suffered from pain. However, after reviewing the evidence that we have summarized, the judge concluded that "there was no objective medical evidence showing that the condition plaintiff complained of was caused by this accident." As the judge noted in his initial decision: "[Y]ou don't have an MRI, you don't have an x-ray, you don't have an EMG, MCV, you don't have continuing spasm. And in my simple mind . . . one of those has to come into the plus column."

Following a careful review of the record, we agree with the motion judge that the objective proofs, when viewed in a light most favorable to plaintiff, fail to establish the existence of a permanent injury causally related to the April 2002 motor vehicle accident. In this regard, plaintiff has been diagnosed as suffering from facet syndrome on the basis of his subjective complaints of pain. Facet syndrome, as Dr. Sackstein acknowledges, can have traumatic or degenerative origins. Plaintiff's expert, Dr. Korn, described plaintiff's condition in his July 11, 2002 report as degenerative. Similarly, Dr. Sackstein acknowledged that plaintiff's muscular spasms, which were intermittent in nature, could be either traumatically induced or caused by degenerative conditions such as those evidenced on plaintiff's x-rays and CT scan. Although Dr. Sackstein, along with the other physicians treating plaintiff, concluded that, in this case, the origin of plaintiff's pain was the April 2002 accident, the only basis for that conclusion was plaintiff's statement that the pain commenced after the accident occurred. Unfortunately, there is no objective confirmation of that fact, or any objective evidence of any injury to plaintiff that can be causally related to his motor vehicle accident.

Accordingly, we affirm.

20080915

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