MELISSA POLLNER v. ADAM PERRY and DAVID PERRY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2125-04T32125-04T3

MELISSA POLLNER,

Plaintiff-Appellant,

v.

ADAM PERRY and DAVID PERRY,

Defendants-Respondents.

_______________________________________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Parker and Grall.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, L-5864-01.

Goldstein, Ballen, O'Rourke & Wildstein, attorneys

for appellant (Thomas L. Bell, on the brief).

Sherlock, Dougherty & Zirulnik, attorneys for

respondents (Barbara Nabors, on the brief).

PER CURIAM

In this verbal threshold case, plaintiff Melissa Pollner appeals from an order entered on November 19, 2004, granting summary judgment dismissing the complaint on the ground that there was no objective evidence of a permanent injury. The specific injury at issue is a bulge at L4-5, without impingement. We reverse and remand.

Plaintiff was involved in an auto accident with defendant on July 20, 2000, in which she claims to have suffered a permanent injury at L4-5. She did not seek medical attention, however, until July 24, 2000, at which time she reported to an emergency room (ER) complaining of left shoulder pain, neck pain, left hand pain and numbness. The ER doctor diagnosed left shoulder sprain and left hand radiculopathy. Thereafter, an MRI of the lumbosacral spine done in August 2000 disclosed a bulging disc at L4-5, a mild straightening of the lordotic curvature of the lumbar spine and hemangioma in the L4 vertebral body.

Plaintiff was referred to Dr. Kent Lerner for an orthopedic evaluation in November 2000. Lerner diagnosed a "sprain of the lumbar spine with degenerative active disc disease at L4-5 and spondylolisthesis at L4-5." She was examined by Dominick D'Agostino, D.C., a chiropractor, in August 2001. After evaluating plaintiff's previous MRI and medical records and performing a series of tests, D'Agostino stated, "it is my clinical opinion that [plaintiff's] residuals are a direct result of the injuries sustained in the accident of 7/20/00 and . . . . [plaintiff] has a high degree of medical probability of permanency causing continued pain and functional impairment." Plaintiff was ultimately referred to the Pain Management Center at Beth Israel Hospital in Passaic, where she was diagnosed with a lumbar disc bulge at L4-5, cervicalgia with myofascial pain, possible sacroiliitis, and lumbago with myofascial pain.

At oral argument, the motion judge noted that in an unpublished decision we distinguished between a bulge with no impingement and a disc herniation. Consequently, he held:

I'm constrained I think in this case to conclude that since all the doctors agree that there was no disc herniation at the . . . L4/5 level and there is no evidence of . . . impingement that the plaintiff has not made . . . the grade on . . . the objective test and that as a matter of law, I'm compelled to grant the summary judgment.

In this appeal, plaintiff argues (1) the plain language of AICRA only requires her to produce objective clinical evidence of a permanent injury; (2) the legislature did not intend to restrict the rights of accident victims who have sustained a permanent injury; (3) verbal threshold to reduce the cost of auto insurance is a failed experiment and the court should protect the legal rights of victims who sustain permanent injuries; (4) the Supreme Court decision in Knowles v. Mantua Twp. Soccer Ass'n requires the James restriction to be relaxed; and (5) summary judgment should be denied because plaintiff could have obtained a verdict of permanent injury. The essence of all of this verbiage is that plaintiff believes that she proved a permanent injury and should be permitted to proceed.

In DiProspero v. Penn, 183 N.J. 477, 482 (2005), plaintiff suffered a strain/sprain of the temporomandibular joint (TMJ) and cervical, lumbar and thoracic disc bulges as a result of an automobile accident. Two physicians certified that plaintiff's injuries were permanent. Id. at 483. The Supreme Court held that the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, required that a plaintiff "who is subject to the threshold and sues for noneconomic damages has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact" previously articulated in Oswin v. Shaw, 129 N.J. 290 (1992). Id. at 481. In disposing of the serious impact prong of the Oswin test, the Court remanded the matter to the trial court for proceedings on the permanent injury. Id. at 506.

Here, plaintiff's injury, a disc bulge at L4-5, is similar to, but less extensive than, the injury suffered by the plaintiff in DiProspero. As in DiProspero, plaintiff's treating physicians opined that the injury is permanent. We are aware that courts have differed in deciding whether a disc bulge, as opposed to a disc herniation, constitutes a permanent injury. In construing the evidence most favorably to plaintiff, on a summary judgment motion, the trial court must accept as true the opinion of plaintiff's physician that the injury is permanent. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We, therefore, reverse the grant of summary judgment and remand for trial.

We note further that the motion judge erred in relying on an unpublished opinion in granting summary judgment. Rule 1:36-3 still provides that "[n]o unpublished opinion shall constitute precedent or be binding upon any court," albeit unpublished opinions are now widely available on the internet.

 
Reversed and remanded for trial.

Plaintiff's brief was filed before the Supreme Court decisions in DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005).

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5

A-2125-04T3

October 24, 2005

 


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