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Rubino v. Kozlowski

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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