LORRAINE LECHMANICK v. STEPHEN A. KISS et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2540-04T3

LORRAINE LECHMANICK,
 
Plaintiff/Appellant,

v.

STEPHEN A. KISS and NEW
JERSEY MANUFACTURERS
INSURANCE COMPANY,

Defendant/Respondents

______________________________________________

Text Box
 
November 17, 2006

Argued September 20, 2006 - Decided

Before Judges Stern and Baxter.

On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, L-811-98.

William W. Graham, argued the cause for appellant
(Law Office of William W. Graham, attorney;
Mr. Graham, on the brief).

Beth S. Block argued the cause for appellant
Stephen A. Kiss (Callan, Koster, Brady &
Brennan, attorneys; Danielle M. Hughes, on the brief).

PER CURIAM

Plaintiff Lorraine Lechmanick appeals from the grant of summary judgment to defendant Kiss dismissing her claims for economic and non-economic damages arising out of an automobile accident with defendant Kiss on March 19, 1996. Plaintiff contends that the judge improperly granted summary judgment dismissing plaintiff s claim for non-economic damages based on the verbal threshold as it existed in 1996. N.J.S.A. 39:6A-8a. Plaintiff further challenges the decision of a different judge which denied plaintiff's motion for reconsideration of the first judge's adverse decision and which further dismissed plaintiff's claim for lost income and barred the opinion of her treating chiropractic physician as a "net opinion."
Because we find that plaintiff presented sufficient evidence to have survived defendant's motion for summary judgment under R. 4:46-2, we reverse. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). Our decision reversing the grant of defendant s motion for summary judgment renders unnecessary any discussion of the denial of the ensuing motion for reconsideration.

I
 
Plaintiff's accident with defendant Kiss occurred three months after plaintiff had sustained a work-related injury. Dr. James Louro, a chiropractic physician, treated her after the work-related accident and after the March 19, 1996 automobile accident with defendant. As a result of the accident, Dr. Louro found, among other injuries to plaintiff, "a significant loss in normal cervical lordosis," a break in the posterior vertebral line, and "foramina enroachment of the C6/C7 nerve root level." Additionally, Dr. Louro found evidence of "paravertebral erector myospasms" along with "spasming of the trapezius deltoid and biceps bilaterally . . . and myospasm of the paravertebral musculature throughout the thoracic and lumbar spine. Dr. Louro attributed all of these findings to the accident with defendant.
Dr. Louro found that the combined effect of these injuries had resulted in a "severe amount of structural damage to the cervical spine. Also, Dr. Louro determined that the accident with defendant caused a "permanent injury to the cervical spine" which he anticipated would result in "remissions and exacerbations of complaints on an alternate basis [which] are quite prevalent following injuries of this nature." His report of May 20, 1999 concluded with the observation that plaintiff was forced to retire from her position at Verizon due to "numerous exacerbations" of the injuries resulting from the automobile accident with defendant on March 19, 1996.
Plaintiff was also examined by a number of physicians at the request of the defendant, all of whom found no evidence of either spasm or gross abnormalities in plaintiff s cervical spine.
Plaintiff's March 19, 1996 accident falls under the verbal threshold that was in place prior to the 1998 Automobile Insurance Cost Reduction Act ("AICRA"). Under the pre-AICRA statute, a party could overcome the verbal threshold if "that person has sustained a personal injury which results in permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; or a significant limitation of use of a body function or system." N.J.S.A. 39:6A-8a. In addition to demonstrating that her injuries fell within at least one of the aforementioned verbal threshold categories, plaintiff was required to demonstrate through "objective, credible evidence" that those injuries have had a "serious impact on her life". Oswin v. Shaw, 129 N.J. 290 (1992).
In granting defendant s motion for summary judgment, the court summarized a series of medical reports that support defendant s position. Referring to those reports, the judge noted that the plaintiff was found to have a normal EMG and MRI but [had] evidence of cervical sprain and strain; that there was no spasm in plaintiff s range of motion and [that] her cervical spine was in a normal range; that plaintiff had minimal tenderness in the postural cervical spine; that plaintiff had reached her maximum level of medical improvement; and that a physical examination of the plaintiff revealed that she had made a complete recovery from any earlier symptoms.
Although the judge thoroughly reviewed the defendant s medical evaluations of the plaintiff, the judge s opinion omits any significant discussion of the findings of plaintiff s treating chiropractor, Dr. Louro. Dr. Louro concluded, as we previously discussed, that as a result of the 1996 accident, plaintiff had suffered a permanent injury to her cervical spine, as shown by objective medical evidence, including spasm.
Despite the evidence from Dr. Louro, the judge made the following findings of fact:
[T]he plaintiff has not provided substantial proofs to show us a substantial injury. . . . Although she alleges . . . that she was caused to quit her job that occurred almost three years after the accident, [t]here was no lost wages at or near the time of the accident.

. . . [T]he plaintiff has not presented any office records or employment records or anything that would substantiate her claim as to disability from her injuries or as to why she was able to work for almost three years following the accident.
 

. . .
 
 
The court . . . had given the plaintiff additional time to provide evidence that a fracture that appeared in the records was related to the accident. The fracture was not related to the accident and therefore the Court will grant summary judgment.

In arriving at her ultimate conclusion, the judge failed to consider the mandate of Oswin. Oswin requires a judge to deny a defendant's motion for summary judgment unless the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2. Oswin, supra, 129 N.J. at 306.
Here, the judge, in granting defendant s motion for summary judgment, discussed in great detail the doctors opinions in support of defendant s position. Yet, the judge s consideration of plaintiff s evidence was limited to a discussion of Dr. Louro s treatment of a foot injury that plaintiff had suffered in the same auto accident. The judge failed to mention any of the spasm found by Dr. Louro. This is significant because, in Owens v. Kessler, 272 N.J. Super. 225 (App. Div. 1994), we held that continued spasm "clearly constitutes prima facie objective evidence of permanent injury. Id. at 232. Dr. Louro found in his May 20, 1999 report that plaintiff presented objective evidence of injury, most notably spasm and significant loss of the normal cervical lordosis. Such findings are sufficient under Owens to raise a genuine issue of material fact of a permanent injury to satisfy the verbal threshold, pursuant to N.J.S.A. 39:6A-8a.
On appeal, our standard of review is identical to that required of the trial judge who ruled on the motion for summary judgment. Stricklen v. Ferrugia, 379 N.J. Super. 296, 300 (App. Div. 2005). In light of that standard, we determine that the judge failed to evaluate the medical proofs in accordance with the standard mandated by R. 4:46-2. Oswin, supra, 129 N.J. at 306-307.
Moreover, the judge s finding that the serious impact on life prong was not satisfied was incorrect, based on the facts she found in her opinion and the applicable law controlling at the time. The judge noted that plaintiff asserted that, because of the injury, she had to sell her wholesale candy business, she was forced to quit her $65,000 Bell Atlantic office manager job, she can no longer exercise on a regular basis, and that she can no longer fish or do housework.
We have held that a plaintiff s loss of physical ability to continue to engage in a social or recreational activity which had been a significant and important component of that plaintiff s way of life constitutes a qualifying serious impact. Dabal v. Sodora, 260 N.J. Super 397, 401 (App. Div. 1992).
In Dabal, the plaintiff had to give up dancing after she had suffered an accident which was a primary social activity in which she frequently engaged. In finding dancing to be a serious impact on life, Judge Pressler wrote that [w]e do not view that assertion as expressing a trivial concern to her if, indeed, dancing had been important to her and if, indeed, her injuries have deprived her of the ability to pursue that activity. Id. at 402.
Here, a reasonable jury could find that the loss of any of the activities plaintiff could no longer engage in had a serious impact on her life activity.

II
 
Turning to the second judge's dismissal of plaintiff s claim for economic loss, we note that a plaintiff is not required to meet the verbal threshold in order to maintain a claim for economic damages. Although N.J.S.A. 39:6A-8a bars recovery of non-economic losses that fail to satisfy the verbal threshold, nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party. N.J.S.A. 39:6A-12.
This court has held that in order for a plaintiff to maintain a claim for economic losses, the verbal threshold need not be met; rather, the plaintiff may recover for economic damages "to the extent that the income loss is otherwise uncompensated by income continuation benefits or otherwise. Bennett v. Hand, 284 N.J. Super. 43, 45 (App. Div. 1995). Further, this court has held that the legislative purpose of the statute was to allow an otherwise eligible person injured in an automobile accident to sue for loss of income regardless of whether the injured person has satisfied the verbal threshold . . . . Ibid.
In the instant case, plaintiff claims that she has suffered economic losses due to the accident with defendant. She asserts that lingering neck pain, numbness in the upper arm, pain between the shoulders, low back pain, muscle cramping, bilateral arm pain, numbness in her lower arms, tight painful neck muscles, and daily pain in the neck and upper back, as a result of the accident, all contributed to her decision to retire from her job.
Conversely, defendant claims that, despite any claimed injuries of plaintiff, there is no causal relationship between the plaintiff s retirement from her job and the accident with defendant. Specifically, defendant argued that the plaintiff could not be deemed to have forcibly retired [because of the accident], when she continued to work for almost three years after the . . . accident, and only retired when she had the necessary number of years to receive full benefits.
In her opinion, the judge recognized these claims of plaintiff and defendant, as well as that a plaintiff need not satisfy the requirements of the verbal threshold in order to pursue a claim for economic damages; nonetheless, she appears to have mistakenly held the plaintiff to the standard set forth in Zoller v. Transamerica Insurance Co., 215 N.J. Super. 552 (App. Div. 1987), which requires a showing of objective, credible medical evidence in order to recover for economic losses. Specifically she held that:
the holding in Zoller instructs that complaints of pain and discomfort are not enough to sustain a claim for lost income where a voluntary retirement has been taken and the plaintiff has been able to resume his or her job duties after an accident. In order to prevail, it is incumbent upon the plaintiff to prove objective, credible medical evidence that the injury has rendered the plaintiff incapable of carrying out his or her work-related duties.

As a result, the judge found that plaintiff has failed to offer any objective, credible medical proof to support her claim that . . . she was incapable of performing [her] job duties. No such showing is required by Bennett.
In order to defeat a motion for summary judgment, plaintiff must only provide enough evidence to create a genuine issue of material fact as to whether she has suffered economic losses as a result of the accident in question. Brill, supra, 142 N.J. at 523. Because the report of Dr. Louro concluded that plaintiff was forced to terminate her employment as a result of the subject accident, such evidence was sufficient to satisfy this standard.
Moreover, the judge seems to have exceeded the mandate of Oswin when she made her decision. There, this court held that [t]he role of the judge in [a summary judgment motion] is to determine whether there is a genuine issue as to a material fact, but not to decide the issue if he finds it to exist. Oswin, supra, 129 N.J. at 307.
In the instant case, the judge did not make any explicit findings as to whether or not a genuine issue of material fact existed. Despite the claims of injury by the plaintiff, the judge, instead, found the facts, and granted summary judgment to defendant. The judge stated:
Even if pain and discomfort were a substantial factor in plaintiff s decision to retire, the unequivocal proofs show that . . . Ms. Lechmanik was able to resume her job after the accident without interruption and to carry out all the tasks necessary to perform her job until she qualified for retirement with full medical benefits. . . . and [therefore] plaintiff cannot sustain her claim for lost wages under the facts of this case and the defendant is entitled to summary judgment.

Thus, even if the judge had been correct in requiring plaintiff to satisfy the holding of Zoller in order to survive defendant s motion to dismiss the claim for economic loss, the motion still should have been denied. This is because Dr. Louro s finding of spasm, and his conclusion that the effects of the accident had caused plaintiff to retire, were a sufficient showing of objective, credible medical evidence to enable the plaintiff to survive the summary judgment motion.
Obviously, had the judge instead applied the Brill standard, as she should have done, the proper result becomes even more clear. Unquestionably, the plaintiff s proofs raised a genuine issue of material fact as to whether she had suffered economic losses as a result of the accident.
We conclude that the opinion of Dr. Louro, that the March 1996 accident with defendant Kiss was the cause of plaintiff's retirement from work three years later, does satisfy the Brill standard. Ultimately, a jury may choose to disbelieve plaintiff's claim that the accident was the cause of her retirement, but issues of causation are best left to a jury to resolve. Doe v. XYC Corp., 382 N.J. Super. 122, 144 (App. Div. 2005). Accordingly, the judgment dismissing plaintiff's claim for economic damages is also reversed.
Plaintiff further challenges on appeal the order granting defendant's motion to strike Dr. Louro's opinion regarding plaintiff's inability to work on the basis that it was a prohibited net opinion. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). We gather from the record that when Dr. Louro was deposed, he offered an opinion that plaintiff's work at a computer was adversely affected by the tingling and numbness in her hands which had resulted from the accident, forcing her to retire. This was sufficient to have satisfied Buckelew s requirement that an expert explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom. Ibid. Thus, the order barring Dr. Louro s opinion of May 20, 1999, was error.
Reversed and remanded for further proceedings not inconsistent with this opinion.

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A-2540-04T3