PATRICIA WALKER et al. v. CARLA A. MITCHELL-DAVIS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6005-03T56005-03T5

PATRICIA WALKER and

JESSE WALKER,

Plaintiffs-Appellants,

v.

CARLA A. MITCHELL-DAVIS and

PRUDENTIAL INSURANCE COMPANY,

Defendants-Respondents.

_______________________________________________________________

 

Argued August 30, 2005 - Decided

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey, Law

Division, Essex County, L-7147-03.

Randall Bass argued the cause for appellants

(Freeman & Bass, attorneys; Mr. Bass, on the

brief).

Kathy A. Kennedy argued the cause for respondents

(Kramkowski, Fabricant & Bressler, attorneys;

Ms. Kennedy, of counsel and on the brief).

PER CURIAM

This is a verbal threshold case. Plaintiff Patricia Walker appeals from a summary judgment order dismissing her complaint. We conclude that when the evidence is viewed in the light most favorable to plaintiff, R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), she has made a prima facie showing of a permanent injury as defined in N.J.S.A. 39:6A-8(a). Accordingly, we reverse.

Plaintiff was thirty-nine years old at the time of the motor vehicle accident on March 18, 2002. Following the accident, plaintiff was driven home by a friend. Her husband then drove her to the Emergency Room at Rahway General Hospital. At the hospital, plaintiff complained of head pain and neck pain. Plaintiff was evaluated and released with instructions to see her own physician. The next day, plaintiff saw Dr. Mallick, who had been treating her for hypertension. Plaintiff advised Dr. Mallick that she was having headaches and that she was experiencing pain in her left shoulder and her back. Dr. Mallick had x-rays taken of plaintiff's skull, cervical spine, and lumbosacral spine on March 19, 2002. There was no evidence of fracture in any of the studies, but degenerative disc disease at L4-L5 and minimal degenerative changes at L5-L6 were noted.

Between March 28, 2002, and August 20, 2002, plaintiff received physical therapy treatments at Newark Rehabilitation Center. The findings from an MRI examination of plaintiff's lumbar spine on April 11, 2002, included the following:

1. Mild degenerative changes L4-L5 with osteoarthritis.

2. L4-L5 bulge without focal disc herniation.

3. Left L3-L4 neural foraminal encroachment secondary to prominent asymmetric bulge along the left postero-lateral disc margin. Although the L4 nerve root is normal, there does appear to be some compression of the exiting L3 nerve within the foramen. Clinical correlation is recommended in terms of possible L3 radiculopathy.

On June 25, 2002, electromyogram (EMG) testing was performed on plaintiff's lumbosacral spinal muscles which revealed "increased insertional irritability in the left L3 parapinals and a few positive waves were noted in this muscle group at rest." Dr. Edmund Matzal also performed a physical examination, and he rendered the following opinion:

As a result of her accident, this patient developed a posttraumatic cephalalgia. She developed a cervical strain and sprain with myofascial pain syndrome, trigger points in the muscles and reduced range of motion. She had an upper level thoracalgia. She was found to have a left L3 radiculitis as noted on the above electromyographic report. There are also signs of a lumbosacral strain and sprain with myofascial pain syndrome, trigger points in the muscles and reduced range of motion.

In a subsequent report on September 17, 2002, Dr. Matzal rendered the following diagnoses:

1. Post traumatic cephalgia.

2. Post concussive syndrome.

3. Cervical strain and sprain.

4. Left shoulder myofascitis.

5. Contusion of the wrists.

6. Lumbosacral strain and sprain with

radiculitis.

7. Disc bulge at L4-5.

8. L3-4 neural foraminal encroachment.

Dr. Matzal's prognosis was as follows:

As a result of the motor vehicular accident that Patricia Walker was involved in on March 18, 2002, I feel the patient suffered the above named diagnoses which are directly and causally related to the motor vehicular accident which took place on the above named date. Within a reasonable degree of medical probability, said injuries to the affected body part and/or organ are permanent in nature in that they have not healed to function normally and will not heal to function normally with further medical treatment.

Plaintiff also relies on an examination and report prepared by Dr. I. Ahmad, on September 4, 2003, which refers to plaintiff's MRI examination on April 11, 2002, and the EMG studies and testing performed by Dr. Matzal. Based on his examination, Dr. Ahmad noted that plaintiff's "cervical spine was spastic," her "lumbosacral spine was under spasms," and her "movements were moderately restricted." Dr. Ahmad also found that plaintiff suffered from permanent injuries from the accident on March 18, 2002, which included the following:

1. Cephalagia

2. Sprain Left Shoulder

3. Spinal Sprain, Arthritis and

Radiculitis

4. Bulging Discs

Based on these findings by both Dr. Matzal and Dr. Ahmad, and the objective tests they relied on, we conclude that plaintiff met her burden of providing sufficient credible, objective medical evidence which, when viewed most favorably to her, could cause a jury to reasonably find that she suffered permanent injuries as a result of the automobile accident on March 18, 2002. Brill, supra, 142 N.J. at 540. We have previously held that "expert findings of bulging discs and significant limitation of motion" create a factual dispute under the no-fault law. Dabal v. Sodora, 260 N.J. Super. 397, 401 (App. Div. 1992). In addition, persistent muscle spasm may be objective evidence of a permanent injury. See Cavanaugh v. Morris, 273 N.J. Super. 38, 40-41 (App. Div. 1994) (continuing muscle spasms for more than one year sufficient to raise a question of fact).

The trial court found that plaintiff did not produce objective evidence "of an injury that would breach the threshold," and it also found that plaintiff failed to establish a causal connection "because none of the plaintiff's doctors engaged in a comparative analysis." In Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), we stated:

A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8(a).

[Polk, supra, 268 N.J. Super. at 575.]

In this case, plaintiff testified at her deposition that she had been involved in a motor vehicle accident "ten or twenty years ago." Plaintiff stated that she injured her "whole back," "both knees," and her left shoulder when "a lady ran a stop sign and hit me." Plaintiff recalled that she went to a chiropractor following the accident and that her lawsuit was settled for seventy-eight hundred dollars. Plaintiff testified that the accident happened in Newark, but she was unable to name the chiropractor she saw or the attorney who handled her case. At her deposition, plaintiff attributed all of her present complaints and disabilities to the accident on March 18, 2002.

The record supports plaintiff's position that, although she suffered prior injuries to the same body parts as those injured in this automobile accident, the minor injuries she sustained many years ago completely resolved and were asymptomatic at the time of this accident on March 18, 2002. Moreover, unless medical documentation pertaining to any prior accidents becomes available, it is unrealistic to either expect or require plaintiff to present "a comparative analysis of [her] residuals prior to the accident with the injuries suffered in the automobile accident at issue." Polk supra, 268 N.J. Super. at 575.

In our view, plaintiff's proofs of permanency were adequate to defeat summary judgment. Therefore, we reverse the grant of summary judgment and remand for further proceedings consistent with DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). See also Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005) (holding that the DiProspero and Serrano decisions are to be afforded pipeline retroactivity).

 
Reversed and remanded.

Because Patricia Walker's husband, Jesse Walker, is asserting a derivative claim, we refer to Patricia Walker alone as "plaintiff."

(continued)

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A-6005-03T5

November 21, 2005