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Reitenouer v. AAA Mid Atlantic Insurance Co.

March 3, 2010

LYNDA REITENOUER, PLAINTIFF-RESPONDENT,
v.
AAA MID ATLANTIC INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1071-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 14, 2009

Before Judges Skillman and Fuentes.

Defendant AAA Mid Atlantic Insurance Company appeals from the judgment of the Law Division awarding plaintiff Lynda Reitenouer personal injury protection (PIP) benefits under N.J.S.A. 39:6A-4 in connection with a 2004 automobile accident.

Plaintiff alleged that this accident exacerbated her pre-existing condition known as reflex sympathetic dystrophy (RSD).*fn1

Defendant argues that: (1) plaintiff failed to establish an exacerbation of RSD by competent objective medical evidence; (2) the trial court's judgment was improperly based on hearsay evidence; (3) the court's assessment of the evidence was influenced by bias against defendant; and (4) the court erred in admitting evidence that was not disclosed in pretrial discovery. We reverse. We are satisfied that plaintiff failed to prove, by competent and objective medical evidence, that the 2004 accident exacerbated her alleged RSD. Because this basis for reversal is dispositive, we need not, and specifically do not, address the remainder of defendant's arguments.

I.

Plaintiff's first suit against defendant to recover PIP benefits concerned medical treatment she received in connection with a June 13, 2001, automobile accident. In early 2002, Dr. Phillip Getson, a board certified family practitioner, diagnosed plaintiff as suffering from RSD. Dr. Getson based this diagnosis on his clinical observations and the conclusions he reached from a thermographic examination of plaintiff's cervical spine. In a report dated June 10, 2002, Dr. Getson gave the following description of how the thermogram test is performed:

The patient's clothing was removed over the examined parts [cervical spine] and those parts were artificially cooled and ventilated and allowed to equilibrate to the surrounding ambient room temperature (62 -- 72 degrees Fahrenheit).

The examination was performed three times at 15-20 minute intervals over the course of approximately one hour and the studies were examined for abnormality and consistency. The study consists of various color thermographs taken in posterior and oblique cervical, lateral, anterior and posterior upper arm, forearm and hand projections. Relative symmetry is the expected norm.

The trial court dismissed plaintiff's PIP coverage claim on April 23, 2004. The court found that plaintiff "failed to establish that [her] diagnosis of RSD was causally related to the June 13, 2001[,] motor vehicle accident."

On December 14, 2004, plaintiff was involved in the automobile accident that is the subject of this appeal. According to plaintiff, she was a passenger in a truck that had come to a full stop in a Target parking lot when a mini-van that was backing out of a parking space struck the vehicle on the side where she was sitting. At the time, plaintiff was still seeing Dr. Getson on a monthly basis for the symptoms related to the 2001 accident.

Plaintiff saw Dr. Getson the day after the 2004 accident. He stated that plaintiff reported ...


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