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Rios v. Szivos11/6/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 8, 2002
We granted leave to appeal to consider whether a treating physician's certificate, in compliance with N.J.S.A. 39:6A-8(a), is, by itself, sufficient to satisfy the "verbal threshold" (now properly called the " imitation on lawsuit option") and warrants a jury trial on plaintiff's suit for non-economic losses under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA" or "the Act"), N.J.S.A. 39:6A -1 to -35, as amended by L. 1998, c. 21, in a case in which plaintiff claims to have suffered "a permanent injury."
We hold that the trial judge erroneously concluded that the providing of a certificate, by itself, required the denial of defendant's motion for summary judgment. We do so because the legislative history resulting in the adoption of AICRA, see e.g., Weidner and Caravan, "The 'New' Verbal Threshold: But Is It Improved," 24 Seton Hall Leg. J. 117, 124-136 (1999), evidences a legislative intent to decrease the number of cases crossing the threshold and proceeding to trial, and, consequently, lower the number of judgments for non-economic loss, thereby reducing automobile insurance costs. We conclude, as did the Law Division in Rogozinski v. Turs, 351 N.J. Super. 536 (2002), that
ecause AICRA reflects an intention to 'tighten' the threshold and further restrict lawsuits arising from automobile accidents to claims for injuries that are permanent and serious, AICRA does not reflect an intention to modify the essential holdings of Oswin v. Shaw, [129 N.J. 290 (1992)]. Therefore, the plaintiff must show, by the presentation of objective credible evidence, that the injuries come within one of the categories of injuries defined in the amendatory legislation. In addition, the plaintiff must show that the injuries have had a serious impact upon the plaintiff's life. [Rogozinski, supra, 351 N.J. Super. at 549.] As to the preservation of the "serious impact" requirement, see also James v. Torres, __ N.J. Super. __ (App. Div. 2002).
Given AICRA's intention to retain the Oswin summary judgment model, the certificate of plaintiff's physician asserting permanency, and filed under N.J.S.A. 39:6A-8(a), does not by itself preclude summary judgment.
I.
On August 4, 1999, the parties were involved in a motor vehicle accident. As a result, plaintiff claims to have suffered "disc bulges L4-L5 and L6-S1," as well as an aggravation of a "herniated disc L5-S1" previously sustained in a 1996 work related accident. At the time of the prior accident, a lumbar magnetic resonance imaging ("MRI") revealed that Rios suffered a "small central protrusion L5-S1."
Following the 1999 accident, plaintiff received medical treatment, including physical therapy, from several health care providers. She also filed a Physician's "Certification Pursuant to Automobile Insurance Cost Reduction Act of 1998," as required by AICRA, N.J.S.A. 39:6A-8(a), in this action. Therein, Dr. John Hochberg certified:
1. I am a licensed physician of the state of New Jersey and was a treating physician for automobile-related injuries incurred by Maria C. Rios resulting from an accident on Au ust 4, 1999.
2. Based upon my professional expertise and the findings in the attached report including reference to clinical objective findings and/or objective medical test, it is my opinion that, within a reasonable degree of medical probability, my patient has sustained permanent injury with significant disfigurement or significant scarring that will have permanent residual sequelae.
3. Based on objective medical testing, my patient
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