ANTHONY J. IMMORDINO, JR. et al. v. ANTHONY R. ROMANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0016-04T50016-04T5

ANTHONY J. IMMORDINO, JR. and

JULIE A. IMMORDINO, his wife,

Plaintiffs-Appellants,

v.

ANTHONY R. ROMANO,

Defendant-Respondent.

_________________________________

 

Argued October 31, 2005 - Decided

Before Judges Lintner, Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, Docket No. MER-L-3338-02.

Christopher S. Froba argued the cause for appellant,

Julie A. Immordino (Stark & Stark, attorneys; Mr. Froba, of counsel and on the brief).

William F. Hartigan, Jr. argued the cause for respondent (McLaughlin & Cooper, attorneys; John J. Gentile, of counsel; Mr. Hartigan, on the brief).

PER CURIAM

This is a verbal threshold case in which plaintiff, Julie A. Immordino, appeals from a summary judgment dismissing her personal injury, automobile negligence complaint against defendant, Anthony R. Romano. The judge concluded, based on the motion papers, that plaintiff's proofs did not establish either an objective permanent injury or a Polk comparative analysis deemed necessary because of injuries sustained in two earlier accidents. We disagree on both issues and consequently remand for trial.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. On October 18, 2000, the vehicle in which plaintiff was a passenger was rear-ended by a vehicle driven by defendant and then pushed into a vehicle in front. Plaintiff, a forty-one year old woman, injured her right shoulder when it banged on her car door. She sought emergency treatment at a local hospital where a physician noted muscle spasm in her neck, and she was discharged the same day with a diagnosis of musculo-skeletal back pain.

Plaintiff treated with Dr. Martin Scott from October 24, 2000 to November 19, 2001. Treatment included medication and a series of manipulative therapies. Because of persistent right shoulder pain however, plaintiff was referred to Dr. Aaron Sporn, an orthopedic surgeon. During her physical examination on January 30, 2001, plaintiff reported symptoms of "cracking, grinding and clicking" and pain with extremes of motion. Dr. Sporn noted a mildly positive impingement sign and moderate to marked amount of crepitus and cracking from her gleno-humeral (shoulder) joint. His prognosis was that the crepitus and grinding "is probably going to remain." Dr. Sporn diagnosed "right shoulder subacromial bursitis and impingement[;] bilateral gleno-humeral crepitus, symptomatic and more prominent on the right."

A February 9, 2001 MRI of plaintiff's right shoulder disclosed "slight effusion at the gleno-humeral joint, [and] increased signal and increased thickness of the supraspinatus

tendon." Because this finding was compatible with either a partial thickness tear or tendonitis, clinical correlation was suggested. Consequently, Dr. Sporn performed further examinations of plaintiff on February 12, 2001 and May 7, 2001, which revealed continuing "positive impingement . . . and tenderness over the subacromial bursa." On plaintiff's last visit on May 7, 2001, Dr. Sporn injected her shoulder joint in an effort to ease her pain.

An MRI of plaintiff's lumbar spine performed on November 7, 2001, disclosed "an annular disc bulge at L1-2 and [pre-existing] facet hypertrophy with encroachment upon the neural foramina at L4-5 and L5/S1." According to plaintiff's treating physician, Dr. Scott, the encroachment caused "irritation of the nerve roots (radiculopathy) to the lower extremities which continued to plague [plaintiff] at the time of her discharge." At the time of plaintiff's discharge, Dr. Scott diagnosed the following conditions:

1. Partial thickness tear supraspinatus tendon right shoulder.

2. Effusion right shoulder.

3. Cervical strain and sprain with resultant muscle spasm and spondylosis.

4. Lumbar sprain and strain with resultant muscle spasm and spondylosis.

5. Lower extremity radiculitis.

6. Chronic pain syndrome.

7. Fibromyalgia.

Dr. Scott causally related these conditions to the automobile accident on October 18, 2000. He also certified that "these injuries represent permanent injuries which were unlikely to resolve with additional time."

Apparently, plaintiff may have injured one of her shoulders in a previous motor vehicle accident some thirteen years earlier and again in a lawnmower incident at her home one year prior to the accident which is the subject of the present lawsuit. However, she underwent only minimal treatment for the former and there has been a complete resolution of symptoms long before the subject accident, and "no real sequelae over the years."

In granting summary judgment for defendant, the motion judge found no evidence of serious injury and no Polk comparative analysis. She concluded:

There's no question that plaintiff has objective evidence of an injury, but the question is whether or not that injury has prevented the body part or organ from functioning normally. The complaints of the plaintiff are simply not supported by objective credible evidence, and the absence of any treatment, the absence of follow-through with the physical therapy that according to the plaintiff's own medical records from her own doctor that she agreed to continue leads this Court to conclude that the injuries about which the plaintiff has complained are not the type of injuries for which -- not the serious type injuries for which the ACRA statute was intended to compensate, so that the Court is satisfied that just with respect to the first prong that there is no genuine issue of material fact in dispute.

With respect to the . . . Polk analysis[] . . . that shoulder injury was reportedly some time in 2000, prior to the accident in question, and so, even in the absence of objective records, those prior records could certainly be helpful, those chiropractic records could be helpful in just establishing which shoulder was injured, or whether it was the neck that was injured because the plaintiff doesn't remember, she doesn't know. She says it was resolved, but she doesn't provide any records whatsoever.

So, even in the[ir] absence . . . it's unclear what, if any, impact the -- whether the shoulder represents an aggravation of a right shoulder injury, or an aggravation of a neck injury. But the objective record of plaintiff's treatment over the last three years, or the absence of treatment, the absence of medication certainly convinces this Court that the injuries, although they have caused difficulty and have affected her life, the Court is not satisfied that the injuries are sufficiently serious to justify the denial of the summary judgment motion[.]

We do not share the motion judge's appraisal of the facts or relevant law.

The Automobile Insurance Cost Reduction Act (AICRA),

L. 1998, c. 21, 11, which was effective for all automobile insurance policies issued on or after March 22, 1999, amended the verbal threshold lawsuit limitations contained in N.J.S.A. 39:6A-8a to permit claims for non-economic loss for soft-tissue injuries only when the injured party "has sustained a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." Ibid. Moreover, "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Thus, to overcome the "limitation on lawsuit" threshold, plaintiff must submit "objective credible [medical] evidence" of "a permanent injury." Serrano v. Serrano, 183 N.J. 508, 514, 519 (2005). Plaintiff need not show that the injury was serious, id. at 518; or had caused "a serious life impact." DiProspero v. Penn, 183 N.J. 477, 506 (2005).

We are satisfied that plaintiff's objective clinical evidence here, including the reports of Drs. Scott and Sporn, the MRI tests that have been performed, and the physicians' physical examinations and resulting findings, establish that the October 18, 2000 automobile accident caused injuries to her right shoulder and back which "ha[ve] not healed to function normally and will not heal to function normally." N.J.S.A. 39:6A-8a. As for the distinctness of the recent shoulder injury, even assuming the continuing viability of Polk's requirement of a comparative analysis in the context of a verbal threshold summary judgment motion, compare Davidson v. Slater, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 11) (explaining that "the comparative analysis requirement of Polk and its progeny engrafts an additional element upon [the] causation aspect of the verbal threshold standard"), with Lucky v. Holland, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 9) (stating that plaintiff must "provide an adequate Polk analysis with respect to her . . . injury[]"), and Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.) (explaining use of Polk "to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not"), certif. denied, 180 N.J. 457 (2004), we are further satisfied that no such analysis was required in this case. Significantly, plaintiff does not allege an aggravation of a preexisting shoulder condition. According to the undisputed medical evidence, whatever the mature and extent of her prior shoulder injuries, plaintiff's physical condition had been functionally quiescent until this accident. She has had no episodes of pain or other problems until then. Under these circumstances, no comparative analysis was necessary as plaintiff's proofs, without more, meet the "desideratum of an objectively-based medical opinion that the disability is fairly attributable to the injury suffered in the accident" at issue, sufficient at least to withstand defendant's motion for summary judgment. Foti v. Johnson, 269 N.J. Super. 198, 203 (App. Div. 1993). Of course, causation then becomes a question of fact for the jury to decide.

 
Reversed and remanded for trial.

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

(continued)

(continued)

8

A-0016-04T5

November 16, 2005