KHABIRA AAZEEM v. JEFFREY BOWERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2139-05T52139-05T5

KHABIRA AAZEEM,

Plaintiff-Appellant,

v.

JEFFREY BOWERS,

Defendant-Respondent.

________________________________

 

Submitted September 5, 2006 - Decided September 14, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

L-2667-03.

Blackburn Ibezim Okechuku, attorneys for appellant (Michael I. Okechuku, of counsel and on the brief).

McElroy, Deutsch, Mulvaney & Carpenter, attorneys for respondent (Joseph A. Campbell, on the brief).

PER CURIAM

Plaintiff, Khabira Aazeem, appeals from an order of summary judgment dismissing her complaint for personal injuries arising out of a motor vehicle accident that occurred on May 16, 2002, for failure to satisfy the "limitation on lawsuit" threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. The motion judge determined that plaintiff failed to demonstrate by objective credible medical evidence that she suffered a permanent injury, within a reasonable degree of medical probability, other than scarring or disfigurement as a result of the accident, as required by Category 6 of AICRA. The motion judge also concluded that because plaintiff had prior degenerative problems throughout her cervical, thoracic, and lumbar spine, her failure to provide a Polk analysis required granting defendant's motion.

On appeal, plaintiff asserts that under AICRA a Polk analysis is no longer required and her medical proofs were sufficient, when viewed in a light most favorable to her, to meet "the objective medical evidence standard" for a Category 6 injury to vault the verbal threshold. DiProspero v. Penn, 183 N.J. 477, 495 (2005). We conclude that plaintiff's medical proofs did not meet the objective credible evidence standard required by AICRA and affirm the order granting summary judgment. Accordingly, we need not determine whether Polk is still viable under AICRA.

Because this appeal arises from the grant of a motion for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff[]." Strawn v. Canuso, 140 N.J. 43, 48 (1995). Following the accident in which defendant Jeffery Bowers struck plaintiff's vehicle in the rear, plaintiff went to the emergency room at Rahway Hospital, complaining of mild neck and back pain. She also had a contusion of the left knee. The emergency room report noted neck and lumbar sprain. X-rays of the cervical spine revealed "[m]oderate to severe endplate degenerative disease at C5-6 and C6-7 with mild anterior subluxation at C4-5." The need for an MRI was clinically indicated. Lumbosacral x-rays "show[ed] mild straightening of the normal lumbar lordosis" along with "a mild anterior spondylolisthesis of L3 and L4." Plaintiff came under the treatment of Dr. Fadairo Afolabi, a chiropractor. On May 25, 2002, open MRIs of the cervical, thoracic, and lumbar spine were performed. MRI reports electronically signed by Dr. Arthur Green, M.D., revealed the following relevant impressions:

Lumbar spine:

1. Posteriorly herniated L4-L5 and L5-S1 disc.

2. Thinly based posteriorly bulging L2-L3 and L3-L4 disc.

3. Lumbar spine disc degeneration with facet arthritis.

Cervical spine:

1. There are severe degenerative arthritic changes of the cervical spine at C5-C6 and C6-C7 levels with spondylosis and facet arthritis, as described.

2. C5-C6 and to a greater degree C6-C7 spinal canal and neural foraminial stenosis.

3. Posteriorly bulging C2-C3, C3-C4 and C4-C5 disc.

Thoracic spine:

1. Thoracic spine degenerative disc space disease.

2. Incidentally demonstrated are prominent arthritic changes of the cervical spine.

In a report of October 1, 2002, following what is described as having "undergone a clinical course of Chiropractic care," Dr. Afolabi listed the following "ASSESSMEMT/DIAGNOSIS:"

Traumatic insult to the cervical spine complicated by intervertebral disc syndrome and radiculopathy.

Hyperextension-hyperflexion type injury (whiplash) of the cervical spine.

Hyperflexion-hyperextension type injury (whiplash) of the thoracic spine.

Primary cervical subluxation accompanied by paravertebral muscle spasms.

Traumatic Insult to the soft tissues of the neck and cervical paravertebral musculature with accompanying radiculitis.

Multiple intersegmental vertebral spine disrelationships, accompanied by degenerative disc disease.

Lumbosacral sprain/strain with accompanying vertebral subluxation.

Thoracolumbar sprain/strain resulting in intervertebral spinal motor unit disrelationships.

Lumbar radiculitis with pain radiating into the buttocks and leg via the lumboosacral plexus.

Post traumatic lumbar sprain/strain with associated low back pain, complicated by exacerbations caused by normal activities of daily living.

Traumatically induced disc injury, with resultant neurological deficient in the form of motor and sensory impairments.

In a separate paragraph following the above-described injuries, Dr. Afolabi stated, "[b]ased on examinations, radiographic studies and other objective and subjective symptomatology, I have determined with reasonable medical certainty, that [plaintiff] did in fact receive the above stated injuries as a result of the above noted accident." Later, under "PROGNOSIS," the doctor wrote "this patient has attained maximum medical improvement and presents with permanencies and impairments to bodily parts that have resulted from the injuries sustained in the aforementioned accident."

In granting defendant's motion, the judge made the following observations:

There is nothing in the report that you've submitted here that says that the disc herniation, A, is permanent, or, B, that it was causally related to this accident. Somebody has to testify . . . there is no narrative report from anyone that says those two things.

. . . .

Recently, our Supreme Court, in reviewing the 199[8] amendments, said that the additional burden of a plaintiff demonstrating the serious impact upon her life is not required. Nonetheless . . . the Supreme Court has said that doesn't mean that you don't have to prove your case by objective medical standards. It goes without saying that admissibility at a trial as to permanency must be opined by an expert, or he will not be able to discuss that at the time of trial.

Characterizing the doctor's report as a "hodgepodge," the judge noted the various conditions described in the diagnosis section and its general reference to permanent injury and asked the following rhetorical question:

What ones is he talking about, and how are they permanent and in what manner? I'm not sure. That's it with regard to permanency. The secondary question, except for the supplemental report, there was really no mention of . . . the MRI itself.

On appeal, plaintiff reprises the same argument she made before the motion judge, that a reading of Dr. Afolabi's report that incorporates the MRI findings established sufficient objective medical proof that the herniated and bulging discs were caused by the accident and permanent in nature, thus vaulting the threshold. Defendant counters, asserting that Dr. Afolabi's report fails to identify a qualifying permanent injury sufficient to satisfy the threshold.

We have carefully reviewed plaintiff's proofs of permanency against the applicable principles of law and concur with the motion judge's conclusion that they are inadequate to defeat summary judgment. The record is devoid of any specific objective medical evidence supporting the conclusion that either the herniated or bulging discs found on the MRI were caused by the accident or are permanent. By imposing the requirement that the plaintiff prove by objective credible evidence that the injury fell into one of the threshold categories, AICRA replaced the prior threshold with fewer categories of injuries and a more objective standard. Serrano v. Serrano, 183 N.J. 508, 514 (2005). "The new threshold has incorporated Oswin's requirement that the injury be proven by objective credible evidence." Ibid.

Plaintiff must do more than provide a report that bombards the reader with a list of various injuries, some of which are clearly degenerative or preexisting and others that may or may not be permanent, together with a general conclusion that they are all causally related to the accident and permanent in nature. Such a report does not meet the surviving Oswin standard of objective medical proof announced in both DiProspero and Serrano. A plaintiff is required to provide something more than repetitive general use of the word "permanency" devoid of objective medical findings respecting those specific injuries that are claimed to be permanent and caused by the accident. Dr. Afolabi's report does not meet the magnitude of proof necessary to establish the objective medical standard to vault the threshold. In pointing out the deficiencies in the report, the motion judge parenthetically observed that is not ordinarily difficult to obtain a report from a doctor providing information concerning permanency and causal relationship of specific positive herniated disc findings on an MRI taken shortly after an accident. Such was not done here. Simply put, plaintiff's proofs were insufficient to establish objective medical evidence of a permanent injury related to the accident.

 
Affirmed.

Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993)

Davidson v. Slater, 381 N.J. Super. 22, 28-29 (App. Div. 2005), certif. granted, 186 N.J. 243 (2006), held that the Polk analysis requirement did not survive AICRA. Other panels of this court, however, have held that the Polk requirement survived AICRA, and plaintiffs are still required to come forward with a Polk analysis to distinguish pre- and post-accident injuries. See Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005); Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div. 2004), certif. denied, 180 N.J. 457 (2004); Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). The issue is currently before the Supreme Court.

The October 1 report was supplemented with a report dated October 31, which was substantially identical to the October 1 report, but adds under "MRI STUDIES" the results of the prior MRI as reported by Dr. Green.

(continued)

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A-2139-05T5

 

September 14, 2006