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Afram v. Heller10/4/2005
intiff [could] proceed to trial on a claim of permanency when supported only by a chiropractic opinion."
In reaching that result, the judge posited dictionary definitions of "physician" and "chiropractor," and analyzed this State's statutory and regulatory schemes for licensure in the context of those definitions. She determined:
Chiropractors simply are not permitted to diagnose or treat the systems and functions of the body that physicians are trained and statutorily licensed to do[,] N.J.S.A. 45:9-18; N.J.A.C. 13:44-1, et seq. [, and] are also not permitted to perform the panoply of objective diagnostic tests that physicians are obliged to use and which the AICRA statute requires before an opinion on permanency can be given[,] N.J.S.A. 45:9-14.5; N.J.S.A. 39:6A-8. (Footnotes omitted.)] and concluded that
New Jersey statutes in all fields use the word physician only in reference to a medical doctor (M.D.) or osteopath (D.O.) * * * The New Jersey legislature has explicitly used the word chiropractor in any statute in which they meant to permit a chiropractor and a physician to do certain things. * * * No statute has been construed to infer or impute chiropractor into the word physician especially where the objective of the statute is to restrict rights to only medically cognizable objectively permanent injuries to the interior of the body's systems or functions. * * *
A chiropractor would be viewed in the same manner as would a lay person, as practicing medicine without a license were he/she to offer the type of opinions required to prove permanency pursuant to AICRA, and thus could be subject to fraud claims. * * *
The overwhelming evidence in common law and the express reading of the statute compel this court to conclude that a chiropractor is not a "physician" under N.J.S.A. 39:6A-8 and thus cannot offer expert testimony at trial to support a claim for permanent injuries under AICRA. (Footnotes and citations omitted.)
In contradistinction to this view, another trial court, in a published opinion almost two years earlier, Pensabene v. Straus, 342 N.J. Super. 196 (Law Div. 2001), had decided that a chiropractor is qualified to provide the certification required by statute. Except to cite Pensabene in a footnote and state "respectful disagree[ment] with analysis[,]" the motion judge in this matter did not discuss the rationale of that case. Nor, in disposing of the instant motion, did she cite or discuss Olarte v. Crocker, ___ N.J. Super. ___ (Law Div. 2002)(2002 WL 32086768; 2002 N.J. Super. Lexis 541), decided several months before the decision in Chun and approved for publication a year before the decision in the instant matter. The trial court in Olarte reached a similar conclusion to that articulated in Pensabene, on "arguments raised [that] were not addressed in Pensabene," id. at ___ (2002 N.J. Super. Lexis 541 at *6), the focus of which included the motion judge's approach in the instant matter and went beyond. See id. at ___ (2002 N.J. Super. Lexis 541 at *1 to *20).
After studying the matter in the light of the written and oral arguments of the parties, we hold the views expressed by the trial courts in Pensabene and Olarte to be valid and controlling on the question whether a chiropractor's certification is adequate to satisfy the requirements of N.J.S.A. 39:6A-8a, and we reject the rationale and conclusion of the motion judge in this case on that question. In short, we agree substantially with the rationales articulated by Judges Sweeney and DeLuccia in Pensabene and Olarte respectively, and we apply them generally to conclude that chiropractors are qualified under the statute to render opinions on causation and
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