JOHN MONTES AND LETITIA MONTES v. MARY BETH WARHURST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1667-04T31667-04T3

JOHN MONTES AND LETITIA MONTES,

Plaintiffs-Appellants,

v.

MARY BETH WARHURST,

Defendant-Respondent.

______________________________________________________________

 

Submitted December 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket no. L-1567-03.

Frank C. Babcock attorney for appellant.

Eugene P. Tazzetto attorneys for respondent (William M. Fanning, on the brief).

PER CURIAM

Plaintiffs, John Montes (John) and Letitia Montes (Letitia), appeal the Law Division's October 22, 2004 order granting summary judgment on behalf of defendant, Mary Beth Warhurst, pursuant to the court's oral decision of October 22, 2004. In this decision, the court found that plaintiffs failed to prove that they suffered in the March 31, 2001 automobile accident an injury described by the limitation on lawsuit threshold contained in N.J.S.A. 39:6A-8a, entitling them to recover non-economic damages.

On March 31, 2001, John, with Letitia as a passenger, was driving a motor vehicle that was involved in an accident with a vehicle being driven by defendant at the 18E exit on the New Jersey Turnpike in Secaucus. Plaintiffs filed suit on May 19, 2003 seeking damages for their pain and suffering from personal injuries sustained by them in the accident. On August 19, 2003, defendant moved for summary judgment on the basis that plaintiffs' alleged injuries failed to meet the limitation on lawsuit threshold selected in their insurance policy.

The motion judge granted summary judgment as to the claims of both John and Letitia. The court stated:

Based upon all of the above, and -- it's -- it's my finding that I find that the plaintiff -- plaintiffs in this matter have not met the -- the verbal threshold. I -- I find that from the MRIs and from the reports that I've just referenced that the injuries that each of them sustained are more in the nature of degenerative diseases as opposed to traumatic injuries and I -- I don't believe that there's a material issue of fact as to -- as to that. I -- I don't find that they've established the first prong of Oswin. . . .

Our Supreme Court in Serrano v. Serrano, 183 N.J. 508, 510 (2005) held that a plaintiff subject to the limitation on lawsuit threshold need only prove that he or she suffered an injury defined in N.J.S.A. 39:6A-8a. A plaintiff who alleges, as here, that he or she has sustained a permanent injury to a body part or organ causally related to the accident, therefore, must demonstrate that the body part or organ claimed to be permanently injured has not healed to function normally and will not heal to function normally with medical treatment. N.J.S.A. 39:6A-8a(6). In Serrano, the Court held that a plaintiff does not have to clear an additional hurdle of proving a "serious injury" because "the Legislature considered the injuries defined in N.J.S.A. 39:6A-8a to be serious by their very nature." Id. at 510. However, the Supreme Court also made clear that to overcome the limitation on lawsuit threshold, a plaintiff must submit "objective[,] credible [medical] evidence[]" of a permanent injury. Id. at 514. See also DiProspero v. Penn, 183 N.J. 477, 506 (2005); Juarez v. J.A. Salerno & Sons, Inc., ___ N.J. ___ (November 23, 2005); Pungitore v. Brown, 379 N.J. Super. 165, 167-69 (App. Div. 2005).

As to fifty-eight year old John, on April 1, 2001, diagnostic x-rays were taken at the Meadowlands Hospital emergency room where plaintiffs were taken by ambulance for evaluation immediately following the accident. The x-ray of John's lumbosacral spine in applicable part reads, "narrowing of disc space at L5-S1 . . . . Hyper-trophic changes are seen anteriorly off all the lumbar vertebrae." The Impression was "degenerative changes." The cervical spine x-ray with obliques states, "Narrowing of disc space C5-C6, C6-C7 is noted . . . Encroachment upon the neural foramins C5-C6, C6-C7 is identified bilaterally . . . Hypertrophic changes seen anteriorly off C6 and C7." The impression was: "Degenerative changes C5-C6, C6-C7."

The clinical correlations of John's objective x-ray, his later MRI and the clinical impressions of Dr. M. Arnouk, John's treating physician, based on Dr. Arnouk's treatment of John from April 3, 2001 to December 4, 2001, are contained in a letter by Dr. Arnouk dated February 2, 2003. The letter states that on April 3, 2001, when John first presented himself for treatment, John's subjective complaints of neck pain, right sided chest wall pain and headache were evaluated. Dr. Arnouk saw evidence of restrictions to John's cervical spine and tenderness on palpation to the right side of the chest wall area, and minimal discomfort to his low back and left knee area. As a result of a deterioration of symptoms, on April 16, 2001, John was referred by Dr. Arnouk for an MRI of his cervical and lumbo-sacral spine area. Both studies were done on April 24, 2001 and revealed spinal stenosis between the C3 and C7 vertebrae and superimposed degenerative disease. The lumbo-sacral spine MRI showed multiple degenerative disc disease, including L1-L2 moderate posteriolateral disc herniation on the left side.

Due to persistent symptoms, Dr. Arnouk recommended John for physical therapy modalities at Franklin Lakes Physical Therapy on April 30, 2001. John was discharged with functional gains after nineteen physical therapy treatment sessions for myo-facial pain. Dr. Arnouk stated that he saw John on multiple follow-ups between April 30, 2001 and his discharge from care on December 4, 2001, during which John showed slow but progressive improvement in his symptoms, as well as his capability to carry on his normal daily activities.

Dr. Arnouk's summary of his treatment of John stated:

In summary, Mr. Montes sustained multiple soft and musculoskeletal injuries as a result of his unfortunate motor vehicle accident. Those injuries consist of cervical spine myalgia, tension headache, right chest wall contusion, Lumbo-Sacral spine strain, with evidence of exacerbation of underlying degenerative spine disease, and left knee mild to moderate pain. His symptoms improved slowly with medical therapy as well as physical therapy that he had performed on a weekly basis. At the time of his discharge from my follow-up, he had minimal symptoms, and overall, he restored reasonably his functional capacity. His overall prognosis is good, although I cannot rule out occasional exacerbation of his neck and back complaints in the future.

An MRI of John's knee revealed degenerative patellofemoral and tibiafemoral arthritic changes, a partial tear of the anterior cruciate ligament and a tear of the posterior horn of the medical meniscus and fluid in the knee joint. There are no medical reports indicating whether the tears were or are able to be repaired or whether knee injections that have been provided to John have given him palliative and functional relief of his symptoms.

This appeal arises from the grant of summary judgment to defendant. A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we apply the standard articulated by the Supreme Court in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

Therefore, we must assume plaintiffs' version of the facts is true and give plaintiffs the benefit of all favorable inferences. Id. at 535-36.

We are satisfied that John's medical documentation does not demonstrate a permanent injury proximately caused by the accident, as required by N.J.S.A. 39:6A-8a. Most of the injuries to John's cervical and lumbar spine are degenerative in nature. Those that are not are not supported by objective medical evidence but are largely subjective complaints of pain and limitations. Additionally, Dr. Arnouk's report does not support a finding that the diagnosed injuries either have not healed or will not heal to function normally with medical treatment. We are, therefore, convinced that the motion judge properly granted summary judgment to defendant as to John's complaint.

As to fifty-nine year old Letitia, Dr. Arnouk's February 2, 2003 letter provides a comprehensive analysis of his treatment of Letitia and correlates his clinical impressions with the MRI studies he requested of Letitia's cervical and lumbar spine. Letitia was seen by him on April 3, 2001 for her subjective complaints of pain in her neck area, numbness in her upper arm, headache, bilateral shoulder pain and lower back pain, which restricted her ability to walk. Physical examination showed severe restrictions and pain with motion, tenderness on palpation and sensory deficit in both upper shoulders. The lower back was tender to flexion and extension with tenderness in the lumbo-sacral spine area. At follow-up on April 16, 2001, Letitia showed persistent moderate to severe cervical myalgia, evidence of cervical radiculopathy syndrome, persistent lower back discomfort and restriction in movement.

The CT scan of the cervical and lumbo-sacral spine for which she was referred revealed posterior ridging with indentation of the thecal sac from C3-C4 to C6-C7, with degenerative central spinal stenosis and bilateral foraminal encroachment at C4-C5 and C5-C6. The CT scan of the lumbo-sacral spine revealed at L3-L4 degenerative disc disease and bulging annulus indentation of the thecal sac and facet joint hypertrophy at L3-L4, L4-L5 and L5-S-1.

Letitia was also referred for physical therapy evaluation and treatment at Franklin Lakes Physical Therapy. With the prescribed medications and physical therapy treatments, Letitia showed slow but progressive improvement during the next six to twelve months.

Dr. Arnouk, in summary, stated:

Mrs. Montes sustained multiple soft tissue, musculo-skeletal injuries, moderate to severe cervical myalgia, and exacerbation of her degenerative cervical spine disease with transient radiculopathy. She also had Lumbo Sacral spine pain and restrictions of movement due to exacerbation of underlying degenerative disease. Her tension headache improved earlier in the course of treatment, and her anxiety reaction probably effected, to a certain degree, her other medical conditions including diabetes and morbid obesity. Although patient had improved with months and months of treatment, she had persistent residual complaints at the time of her discharge. I think she will continue to have occasional flare-up in the near future. I did explain to the patient the extent of her problems and the need to take certain precautionary measures to avoid such unfavorable difficulties that might occur.

As a result of her continuing complaints of neck and back symptoms, Letitia was sent for evaluation by Dr. Dante A. Implicito, a spine specialist. The August 9, 2001 report by Dr. Implicito, based on Letitia's history, her physical examination and a review of the reports of her imaging studies, concluded that Letitia has a right-sided lumbar radiculopathy on her cervical spine and shoulder findings, and her shoulder findings appear to be recovering with physical therapy.

A further evaluation of Letitia was performed on August 28, 2001 by Dr. Alvin Wertentheil, who in his September 6, 2001 report opined that Letitia sustained injuries to her neck, thoracic spine, and lumbar spine with sciatica, headaches, swelling of her feet and limitation of motion in the neck laterally and forward, although range of motion in her upper extremities was within normal limits. The report noted obesity and a history of diabetes. Dr. Wertentheil related Letitia's injuries to the accident and concluded that they had aggravated her diabetes. He stated that she had improved with medication and physiotherapy and that maximum medical intervention had been met.

We are satisfied that the objective clinical evidence as recited in the letters of Drs. Arnouk, Implicito and Wertentheil, the MRI findings and the physicians and physical therapists' physical examinations and resulting findings, establish that the March 31, 2001 automobile accident caused an aggravation of Letitia's previous quiescent degenerative condition in her lumbar and cervical spine.

However, Letitia's medical documentation from Dr. Arnouk, Dr. Implicito and Dr. Wertentheil fail to demonstrate a permanent injury proximately caused by the March 31, 2001 accident to a reasonable degree of medical probability. Most of the injuries to Letitia's cervical and lumbar spine are attributable to an aggravation of degenerative spinal disease of long standing. The medical opinions conclude that Letitia has improved or is recovering with medication and physical therapy. Dr. Arnouk projects only a possibility, not probability, of occasional flare ups of her symptomology in the near future. Accordingly, the medical proofs do not support the requirement of N.J.S.A. 39:6A-8a that injuries claimed to be permanent have not healed to function normally and will not heal to function normally with medical treatment. We are convinced, therefore, that summary judgment was properly granted to defendant based on Letitia's complaint as well.

 
Affirmed.

The Automobile Insurance Cost Reduction Act (AICRA) also requires the filing of a physician's certification that a plaintiff has sustained an injury that qualifies for recovery of non-economic damages under the new verbal threshold. Casinelli v. Manglapus, 181 N.J. 354, 362 (2004). The required certification is not implicated in this appeal.

Defendant, in her brief in opposition to plaintiffs' appeal, alleges that plaintiffs' counsel, in violation of Rule 1.7(b) of the New Jersey Rules of Professional Conduct (RPC), should be precluded from representing plaintiffs in this appeal. "Appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indemnity Insurance Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

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A-1667-04T3

December 19, 2005