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DeCamillo v. Allstate New Jersey Insurance Co.

November 10, 2009

THOMAS DECAMILLO, PLAINTIFF-APPELLANT,
v.
ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1018-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2009

Before Judges Parrillo and Ashrafi.

In this personal injury automobile negligence action, plaintiff Thomas DeCamillo appeals from a judgment incorporating a jury verdict denying him recovery for non-economic damages, and from court orders denying his motion for judgment at trial, for judgment notwithstanding the verdict, and for a new trial. We affirm.

Plaintiff was involved in an automobile accident on May 29, 2003. He complained of pain in his lower back, shoulders, knees and neck, and sought treatment. Because he was subject to the lawsuit threshold, in order to sustain his damages claim, other than lost wages, it was necessary for him to prove a permanent injury by objective medical evidence. N.J.S.A. 39:6A-8(a). To this end, at the ensuing trial, plaintiff presented Dr. Nazra Haidri, a specialist in neurology and electromyography, who, although not plaintiff's treating physician, examined him at counsel's request.

As a result of his medical examination, Dr. Haidri found that plaintiff walked slowly due to pain and that his left shoulder movements were painful. Dr. Haidri also noted tenderness in plaintiff's neck muscles, "spasm of his lumbar paravertebral muscle," and "tenderness to percussion over his lumbar spine or low back."

In addition to his physical examination, Dr. Haidri also reviewed reports of an MRI and electromyography (EMG) test performed on plaintiff. According to Dr. Haidri, the MRI of plaintiff's lumber spine revealed a "right lateral disc protrusion . . . at L5-S1 and a small central disk [sic] protrusion at T12-L1." Dr. Haidri further explained that disc protrusions occur when the cushions between the vertebrae protrude after "there's damage to the outer tough part" of the disc. In this regard, the MRI report indicated a loss of signal from the L5-S1 and L2-L3 discs consistent with disc desiccation. Desiccation signifies a drying out of the disc, a degenerative condition which can be due to aging as well as trauma.

Dr. Haidri also noted that the EMG indicated "acute left L4-L5 radiculopathy," which he described as "a disease of the nerve root" - "spinal nerves [that] come out between vertebrae." Although he said that radiculopathy can be acutely caused by trauma, Dr. Haidri also acknowledged other causes, such as diabetes, Lyme disease, Reye Syndrome, cancer, and other ailments.

Dr. Haidri diagnosed plaintiff with post-concussion syndrome, traumatic headaches, cervical and lumbar sprain, left shoulder injury, symptoms consistent with bilateral lumbar radiculopathy, and left knee injury. The expert opined that plaintiff's disc protrusions and radiculopathy were permanent - "once the disk [sic] is damaged, that is permanent damage . . ." - and caused by the May 29, 2003 car accident. He based the latter conclusion, in part, on the fact that plaintiff's past medical history was devoid of any such injury. According to Dr. Haidri, "[plaintiff] was completely healthy before the accident. He had no previous back injuries, he had no previous back pain. . . . So on the basis of the history and the tests, and the exam, it's my opinion that those protruded disks [sic] are related to the accident."

The defense presented Dr. Angelo Lopano, an orthopedic surgeon, who offered opposing expert opinions as to both permanency and causation. His physical examination of plaintiff, who walked well without a limp, revealed no tenderness or spasm in the cervical spine, dorsal/lumbar spine or neck, which had "very good motion," and tested normal; and no heat, redness, tenderness, fusion, or muscle atrophy in either the knees or shoulders, with both enjoying good range of motion.

Like Dr. Haidri, Dr. Lopano also reviewed the MRI films. The MRI of plaintiff's knee, taken two weeks after the car accident, showed no fracture, dislocation, or disruption of the soft tissue, and the images were consistent with soft tissue injury, a conclusion confirmed by Dr. Lopano's examination of plaintiff's left knee about ten months after the MRI, which indicated, as noted, good motion with no instability and no significant injury.

Dr. Lopano's review of the MRI of plaintiff's lumbar spine revealed a disc protrusion at L5-S1, consistent with the radiologist's report, which noted a disc protrusion at L5-S1 and a minimal disc protrusion at T12-L1. Further elaborating, Dr. Lopano explained that in reviewing images of plaintiff's lumbar spine, he found disc degenerative changes consistent with disc desiccation (or dehydration) particularly at L5-S1 with a protrusion at that level. According to Dr. Lopano, discs dry up with age and as the discs get drier they become thinner resulting in bulging. As the disc gets drier and thinner, it becomes a protrusion. Disc protrusions are particularly prevalent in individuals over forty and obese, like plaintiff. In fact, about six weeks after the accident, plaintiff was 100 to 110 pounds overweight.

In Dr. Lopano's opinion, the disc desiccation had to have begun prior to the car accident, as it develops over a period of four to six years. Nevertheless, Dr. Lopano could not opine to a reasonable degree of medical certainty that the actual protrusions of plaintiff's discs were present prior to the car accident. And while Dr. Lopano also acknowledged that obesity may predispose an individual to a back injury, he stated that obese persons more commonly suffer from spinal abnormalities, even absent a traumatic accident. As ...


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