On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1353-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
A jury found that plaintiff Michael Yankanich failed to sustain any permanent injuries that were proximately caused by the automobile collision at issue.*fn1 Plaintiff appeals from the trial judge's refusal to instruct the jury that if it found plaintiff sustained a herniated disc as a result of the automobile collision in question, then plaintiff satisfied the permanency requirement of the verbal threshold statute. We affirm.
On February 14, 2003, plaintiff's vehicle was struck by a vehicle operated by Daffodel Alinogan. After plaintiff settled with Alinogan for her policy limits, he commenced an underinsured motorist action against his own automobile insurance carrier, defendant Allstate Insurance Company. The trial involved only plaintiff and Allstate.
Immediately after the accident, plaintiff began to experience soreness and a burning sensation in his neck accompanied by numbness and tingling in his hands and arms. Plaintiff was treated for a year by an orthopedic surgeon, Barry Gleimer, D.O., who then referred him to Joan O'Shea, M.D., a neurosurgeon. O'Shea testified that she limits her practice to the care and treatment of spinal problems and operates on disc herniations, fractures of the spine and tumors. She explained that as a neurosurgeon, she is trained to read MRI films and other diagnostic tests, adding that her decision about whether to operate on a patient is based in substantial part upon her assessment of the MRI films. O'Shea testified that her examination of plaintiff and her review of the MRI films led her to conclude that plaintiff had sustained herniated discs at C3-4, C5-6 and C6-7. She also found some degenerative changes in plaintiff's neck.
O'Shea also reviewed the MRI films of plaintiff's lower back and concluded that his low back and leg pain were attributable to a disc herniation at L1-2. She opined that the three herniated discs in plaintiff's neck and the herniated disc in his lower back all resulted from the accident in question. She testified that an MRI is an objective test that a patient cannot fake. When asked whether the disc herniations were a permanent injury, O'Shea answered yes, commenting "[t]hey're not gonna go away."
On cross-examination, O'Shea acknowledged that the MRI films of plaintiff's neck showed disc degeneration at every level except one. O'Shea conceded that the degeneration was not caused by the accident. She also remarked that the MRI films showed degeneration in plaintiff's low back. O'Shea admitted that the radiologist who originally read both the lumbar and cervical MRI's did not diagnose the existence of a herniated disc in either area, but simply stated that he "could not exclude" the possibility of a cervical disc herniation.
O'Shea also acknowledged that when she examined plaintiff during his initial office visit, he exhibited normal motor strength, normal sensation in his arms and legs, normal reflexes, normal gait and normal straight-leg raising. Although she maintained that plaintiff did exhibit "a little" limitation in his range of motion in his neck and lower back, she conceded that a range of motion test "can be faked."
During plaintiff's second, and last, visit to O'Shea in November 2006, she conducted another physical examination and concluded that plaintiff's condition had "improved" since his earlier visit in 2004. Further, O'Shea acknowledged that a disc herniation is not always a permanent injury because in "rare instances when we have a free fragmented disc, [the disc material] will absorb with time." She insisted, however, that the situation where a "free fragmented disc" can be absorbed with time "was not the case in this patient." Thus, she opined there was no possibility that plaintiff's disc herniations would resolve or abate without treatment.
O'Shea also testified on cross-examination that "[t]he pain from the disc herniation can go away" and the "natural history of a disc herniation is that many people will get better. That will happen almost immediately." She commented that if, as was the case here, the patient does not immediately improve, then the surgeon will prescribe an epidural injection or recommend surgery, neither of which plaintiff pursued because of a fear of complications. She concluded her cross-examination by agreeing that "some people can function normally even with a herniation. . . ."
Defendant presented the testimony of its medical expert, Roy B. Friedenthal, M.D. who examined plaintiff four months after plaintiff's last visit to O'Shea. During that examination, plaintiff reported to Friedenthal that his lower back pain and radicular symptoms had fully resolved about three months earlier, ...