MARC SETTLE v. BETTY L. JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1692-05T31692-05T3

MARC SETTLE,

Plaintiff-Appellant,

v.

BETTY L. JONES,

Defendant-Respondent,

and

MET LIFE AUTO & HOME, a corporation

or business organization, METROPOLITAN

PROPERTY & CASUALTY INSURANCE COMPANY,

a corporation or business organization,

Defendants.

_____________________________________________

 

Submitted May 10, 2006 - Decided June 16, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

L-7805-03.

Freeman & Bass, attorneys for appellant (Timothy L. Madden, on the brief).

Soriano, Henkel, Biehl & Matthres, attorneys for respondent (Karen Price, on the brief).

PER CURIAM

Plaintiff Marc Settle appeals from the grant of summary judgment in favor of defendant Betty L. Jones, dismissing his complaint for failing to provide objective evidence of a permanent injury within the meaning of the Automobile Insurance Cost Reduction Act (AICRA). N.J.S.A. 39:6A-8(a). Plaintiff contends that he suffered multiple injuries causally related to the accident, which were verified through objective medical evidence. We reverse.

On July 17, 2002, plaintiff's vehicle was struck by a vehicle operated by defendant Betty Jones as she attempted to make a left turn through traffic. Plaintiff was transported from the scene of the accident to a local hospital where he was treated for upper abdominal and low back pain. He was released and on July 23, 2002, came under the care of Dr. Robert B. Thorne. Two days later, Dr. Thorne ordered an MRI of plaintiff's cervical and lumbar spine. The results revealed a straightened cervical lordosis and disc bulges at C3-4, C4-5, C5-6 and C6-7. In addition, the MRI of the lumbar spine revealed disc degeneration at L4-5 associated with a disc bulge. Plaintiff treated with Dr. Thorne until October 30, 2002, at which time Dr. Thorne reported plaintiff had minimal complaints. In a report dated November 27, 2002, under "Prognosis," Dr. Thorne stated, "Patients with these types of injuries can experience recurrent episodes of pain, for example involving the cervical and thoracic spine and/or headaches over periods of years and intermittently to a permanent degree. Trauma such as this can upset the precisely balanced biomechanics of the spine and involved joints . . . ."

On September 25, 2005, Dr. Thorne submitted a "Certification Pursuant to Automobile Insurance Cost Reduction Action of 1998," in which he certified:

Base[d] upon my professional expertise and the findings in the attached report including reference to clinical objective findings and/or objective medical tests, it is my opinion that within a reasonable degree of medical probability my patient has sustained permanent injury that will have permanent residual sequelae. It is my further opinion that within a reasonable degree of medical probability, that although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury cannot be completely resolved by way of further medical treatment intervention and there will always be some aspect of residual permanent injury experienced for the balance of my patient's lifetime.

In granting summary judgment the motion judge found:

Now, that understanding of the law at this time, it's noteworthy that they [sic] physician's certification . . . the certifying physician first examined the plaintiff on 7/23/02 and drafted a narrative report on 11/27/02, and that the objective evidence of plaintiff's injuries essentially comes down to the clinical diagnosis of disc bu[l]ges and soft tissue injuries.

Dr. Thorn's certification that "permanent residuals cannot be completely resolved by way of further medical intervention" is inconsistent, clearly, with his 11/27/02 report that on 10/30/02, the date of discharge, "the patient had minimal complaints." Examination confirmed this. The patient having obtained the maximum recovery with physical therapy, he was discharged from our care.

Again, albeit that the Court should provide the non-movant with the benefit of all of the favorable findings as to the existence of a permanent injury to a reasonable degree of medical probability, a more careful review of the reports and of the injuries incurred are inconsistent with an objective clinical or radiological finding of a permanent injury to a body part or a body function as set forth in the statute. Rather, the disabilities referred to are of the soft tissue nature, transient in character, and certainly not of the permanent type of disability contemplated by the statute and referred to by the Supreme Court.

A mere reference to recurrent episodes of pain, headaches over periods of years and intermittently to a permanent degree, and the mere reference to some degree of permanency resulting from these injuries as a consequence of predisposition immature arthritis is insufficient to establish a material issue of fact as to a permanent injury to a bodily function or organ to a reasonable degree of medical probability to withstand the motion for summary judgment.

The motion judge highlighted what he perceived was an inconsistency between Dr. Thorne's November 27, 2002, report, which indicated that as of October 30, 2002, plaintiff "had minimal complaints," and the physician's certification executed three years later. We note, however, that in the Prognosis section of the November 2002 report, Dr. Thorne noted the recurrent nature of the residuals associated with "these types of injuries." Hence, to the extent there is any inconsistency between the report and subsequent certification, it is for the jury to resolve. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We are satisfied that plaintiff's proofs, when viewed favorably in the context of a summary judgment motion, present objective evidence of a qualifying, permanent injury sufficient to satisfy the AICRA threshold. See Pungitore v. Brown, 379 N.J. Super. 165, 168-69 (App. Div. 2005).

 
Reversed.

(continued)

(continued)

5

A-1692-05T3

June 16, 2006