On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1851-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2009
Before Judges Lisa and Baxter.
Plaintiff, Marc Bellvue,*fn1 appeals from a summary judgment dismissing his personal injury claim against New Jersey Transit Bus Operations (NJT) and its bus driver, Andrew D. Graves, Jr. The dismissal was based upon plaintiff's failure to satisfy the threshold for recovery contained in the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Plaintiff argues that the judicial interpretation of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, should be applied in interpreting the TCA tort recovery threshold, which would have the effect of reducing the requirements of that threshold. Plaintiff contends that he might have satisfied such a reduced threshold and been able to withstand summary judgment. We reject plaintiff's argument and affirm.
On August 1, 2005, plaintiff was driving his car in East Orange, when he was struck in the rear by an NJT bus operated by Graves. Plaintiff did not seek immediate medical attention, but contended that his neck began to hurt the next day. He presented at a local emergency room on August 8, 2005, where he was diagnosed with lower back pain and sprain and released with advice to take Ibuprofen and Flexeril.
On September 27, 2005, plaintiff was examined by Dr. Steven M. Lomazow, a neurologist, who concluded that plaintiff was "suffering from myofascial cervical and lumbar dysfunction, probably superimposed upon a low-grade diabetic neuropathy in his legs." Dr. Lomazow expressed no opinion as to whether plaintiff's condition was permanent, caused a loss of function that was substantial, or was related to the accident.
On March 13, 2006, plaintiff underwent MRI studies, which revealed bulging discs at C3-4, C4-5, C5-6, and L4-5. Straightening of the normal lordotic curvature of the cervical spine was also noted.
Plaintiff was examined on May 10, 2006 by Dr. Brinda Kantha, of the New Jersey Institute for Minimally Invasive Spine Care. She found that plaintiff had sustained a cervical and lumbar sprain, cervical radiculopathy, the disc bulges that were identified in the MRI studies, and lower back pain. She recommended a series of two lumbar epidural steroid injections. According to plaintiff's deposition testimony he received one or two "shot[s]" from Dr. Kantha, which were presumably the recommended lumbar injections. Dr. Kantha did not express an opinion as to whether plaintiff's condition was permanent, caused a loss of function that was substantial, or was related to the accident.
On August 2, 2007, Dr. Robert T. Latimer, a psychiatrist, evaluated plaintiff. He concluded that plaintiff was depressed and anxious because of pain from the accident, was having difficulty sleeping, and was limited in his function as a result of the pain.
On August 3, 2007, Dr. I. Ahmad, an orthopedist, examined plaintiff and diagnosed him with cephalalgia (headache), spinal sprain, bulging discs, and stenosis. He opined that plaintiff had suffered "significant injuries" from the accident, would have "difficulty in performing activities of everyday life," and would probably "need further medical and surgical treatments in the future."
From August 16, 2005 to March 29, 2006, plaintiff underwent a course of physical therapy at Newark Rehabilitation Center. This included range of motion exercises and therapeutic modalities to the involved areas. It appears that Dr. Kantha administered lumbar epidural steroid injections in May 2006. It does not appear that plaintiff received any further medical treatment since then.
Plaintiff was fifty-seven years old at the time of the accident. He had been employed by Ford Motor Company since 1972. He missed only two days work as a result of the accident. At the time of his deposition on January 9, 2008, plaintiff continued to be employed by Ford Motor Company. However, due to plant closings, he had been placed by the company at the VA home in Paramus, where he was working in security and with the veterans.
Plaintiff had prior problems with his back and right shoulder stemming from a work-related injury in the early 1990s. As a result of that injury, he underwent surgery on his right shoulder. He also had been a diabetic for ...