KATHLEEN J. KELLY v. JENGLI LIU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2123-04T32123-04T3

KATHLEEN J. KELLY,

Plaintiff-Appellant,

v.

JENGLI LIU,

Defendant-Respondent.

_______________________________________

 

Argued October 3, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-2983-03.

Terence G. Van Dzura argued the cause for appellant.

Cindy Newman argued the cause for respondent (Jennifer M. Campbell, attorney; Ms. Newman, on the brief).

PER CURIAM

Plaintiff Kathleen J. Kelly appeals from an order entered December 17, 2004 granting summary judgment in favor of defendant Jengli Liu and dismissing plaintiff's complaint. We reverse.

This action arises from an automobile accident that occurred on June 12, 2002. Plaintiff alleges that that she was stopped at a stop sign in Chester Township, when her vehicle was struck in the rear by a car driven by defendant. It is undisputed that plaintiff is subject to the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a), as amended by the Automobile Insurance Cost Reduction Act of 1998. Here, the motion judge found that plaintiff had not presented sufficient evidence to vault the threshold and dismissed plaintiff's complaint.

The record before the motion judge reveals that on the day of the accident, plaintiff presented to a chiropractor, Dr. Anthony Delli Santi, who rendered a report dated October 28, 2003. Delli Santi said that, on this first visit, he examined plaintiff and observed spasm in the cervical, thoracic and lumbar regions of the spine. The doctor noted that plaintiff's range of motion was markedly reduced and painful. In addition, Delli Santi performed certain orthopedic tests which he said elicited positive pain responses. Those tests included foraminal compression testing, straight leg raising, heel walking and a spinous percussion test. Delli Santi made the following initial diagnosis: acute traumatic cervical, thoracic and lumbosacral sprain/strain injury; acute cervical bilateral brachial radiculitis; acute thoracic inter-segmental dysarthria with associated neuropathy; acute brachial radiculopathy; acute cervical migraine headaches; and acute lumbosacral dysarthria myositis with acute sciatic radiolopathy.

Plaintiff returned to Delli Santi on June 26, 2003 for another consultation. On this visit, plaintiff complained of intermittent episodes of painful joint stiffness in the neck and upper back. She also complained of lower back joint pain and stiffness along with attacks of sudden muscle spasms in the lower back. Delli Santi performed another physical examination. He observed muscle spasm on palpation at various levels of plaintiff's cervical, thoracic and lumbar spine. The doctor also performed orthopedic tests which he said showed "painfully reduced" range of motion in the cervical spine and "slightly decreased" range of motion of the lumbosacral spine.

Delli Santi noted that an MRI had been performed on plaintiff's cervical spine on September 10, 2002. The report of the MRI, written by radiologist Dr. Steven Festa, states among other things that the MRI showed no evidence of a significant disc bulge at C2-C3 and C3-C6; a diffuse disc bulge with osteophytic ridge formation at C4-C5; a mild diffuse disc bulge at C5-C6 which "mildly" indents the thecal sac and does not touch the spinal cord; and no evidence of significant disc bulge or herniation at C6-C7 and C7-T1. In his "impression," Dr. Festa noted only the spondylitic changes at C4-C5 and C5-C6.

In addition, an MRI was performed on plaintiff's lumbar spine on January 9, 2003. The report of this MRI was written by radiologist Dr. Jeffry Lindenbaum, who stated that the MRI showed mild degenerative disc disease at L3-L4 and L4-L5; a mild disc bulge at L3-L4 without significant canal or recess impingement; and a "small central and left paracentral disc extrusion with disc material just reaching the thecal sac" resulting in "mild canal stenosis." Lindenbaum said that the MRI also revealed a probable "incidental sacral root sleeve cyst."

Based on his physical examinations, tests and the MRI reports, Delli Santi provided the following diagnosis: disc pathology with myelopthy; traumatic cervical, thoracic and lumbosacral neuritis; and acute lumbosacral sprain/strain with inter-vertebral disc involvement. The doctor opined that plaintiff had sustained a "severe injury" to the cervical inter-vertebral discs, with accompanying nerve root radiculopathy and myelopathy that at times can be "severely symptomatic resulting in chronic joint pain, [and] episodes of severe painful muscle spasms." Delli Santi stated that plaintiff's condition was consistent with symptoms resulting from disc injury in the cervical spine. The doctor also noted that the MRI revealed a disc herniation at L4-L5. Delli Santi opined that plaintiff will suffer intermittent episodes of nerve root pain and muscle spasm. The doctor said that the injuries were causally related to the accident, plaintiff's condition was "highly guarded" and surgical intervention may be likely due to the nature of the injuries.

Plaintiff also presented to Dr. Allan D. Tiedrich, an orthopedist, who issued a report dated May 24, 2004. Tiedrich noted that plaintiff had complaints of pain in the neck and back. She also complained of headaches and numbness radiating into her upper and lower extremities. Tiedrich performed a physical examination which revealed limitations in the range of motion of plaintiff's cervical and lumbar spine. The doctor additionally noted palpable muscle spasm in both the cervical and lumbar regions of plaintiff's spine.

Tiedrich offered the following diagnosis: sprain and strain to the cervical, dorsal and lumbosacral spine with chronic secondary fibromyositis and myofascitis; post-traumatic muscle tension headaches; acute C4-C5, C5-C6 bulging annuli; acute L4-L5 herniated nucleus pulposus with thecal sac compression; and cervical and lumbosacral radiculopathy. Tiedrich opined that plaintiff had suffered significant injuries that have resulted in some degree of permanent disability, as evidenced by, among other symptoms, plaintiff's continued episodes of pain, spasm and reduced range of motion. The doctor added that plaintiff's prognosis was poor. He stated that "within a reasonable medical probability" plaintiff will continue to require further medical and/or surgical care for her treatment, including an L4-L5 discectomy with fusion.

In concluding that plaintiff did not meet the threshold, the motion judge said that plaintiff was required to present objective credible evidence of a permanent injury and must establish that the injury has had a serious impact upon her life. The judge found that plaintiff had not met the second prong of the test because she did not miss any work and was able to perform the same tasks that she performed before the accident, even if there was some pain involved in those activities. The judge added that there were "other issues," such as "the lack of electrode nerve treatment or diagnosis which also is a factor in objective permanency." The judge did not elaborate. He merely said, "I am dismissing the case." Counsel questioned the judge as to whether he was finding that plaintiff had failed to present sufficient objective evidence of a permanent injury or whether he was merely concluding that plaintiff had not shown the injuries have had a serious impact on her life. The judge responded by stating that he found, as a matter of law, that plaintiff had not satisfied either prong of the test.

In dismissing plaintiff's complaint, the motion judge relied upon our decision in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), where we held that the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a) required that a plaintiff subject to the threshold establish that the injury caused a serious life impact. However, while this appeal was pending, the Supreme Court in DiProspero v. Penn, 183 N.J. 477 (2005), rejected our interpretation of the statute and held that N.J.S.A. 39:6A-8(a), does not contain a serious life impact standard. The Supreme Court also determined in Serrano v. Serrano, 183 N.J. 508 (2005), that N.J.S.A. 39:6A-8(a) did not include a serious injury standard. To vault the threshold, the plaintiff need only present objective credible evidence of an injury "fitting into one of the six statutorily defined threshold categories." Id. at 518. We subsequently held in Beltran v. DeLima, 379 N.J. Super. 169, 176-177 (App. Div. 2005), that DiProspero and Serrano would be applied retroactively to all cases pending in the trial courts and on appeal.

We are convinced that the judgment at issue should be reversed and the matter remanded to the trial court for reconsideration. Here, the motion judge applied the serious impact requirement disapproved in DiProspero. We recognize that this was not the sole basis for the judge's decision. The judge also found that plaintiff had not presented sufficient objective credible evidence to raise a genuine issue of material fact as to whether she sustained a permanent injury that meets the threshold. However, the judge provided only a cursory explanation for his decision on this issue and, in the absence of a more detailed statement of reasons, we cannot say whether the judge's decision was informed by the serious injury standard rejected in Serrano.

Moreover, as we stated previously, in his decision on the record, the judge mentioned the absence of electro-diagnostic testing which he said was "a factor in objective permanency." But the judge did not specifically address the other objective evidence supporting plaintiff's claims. The report of the MRI study of plaintiff's lumbar spine showed a disc "extrusion" at L4-L5. Dr. Tiedrich relied upon the report as support for his opinion that plaintiff had sustained a disc herniation that may require surgical intervention. In addition, Dr. Tiedrich observed muscle spasm in both the cervical and lumbar regions of plaintiff's spine almost two years after the subject accident. Persistent muscle spasm may be objective evidence of a permanent injury. Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994). We are convinced that a remand is warranted so that the judge may undertake a thorough review of all of the objective evidence presented by plaintiff under the standard enunciated in Serrano.

Reversed and remanded for further proceedings consistent with this opinion.

 

(continued)

(continued)

9

A-2123-04T3

October 12, 2005