WILLIAM D. REED v. SARA ENDL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2768-05T22768-05T2

WILLIAM D. REED,

Plaintiff-Appellant,

v.

SARA ENDL,

Defendant-Respondent.

________________________________________________________________

 

Submitted September 12, 2006 - Decided September 27, 2006

Before Judges Lisa and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1437-04.

Bongiovanni, Collins & Warden, attorneys for appellant (Jeffrey W. Warden, on the brief).

Kramkowski, Lynes, Fabricant & Bressler, attorneys for respondent (Kathy A. Kennedy, of counsel and on the brief).

PER CURIAM

This is a verbal threshold case under N.J.S.A. 39:6A-8a, the Automobile Insurance Cost Reduction Act of 1998 (AICRA). Plaintiff, William D. Reed, appeals the Law Division's January 27, 2006 order granting summary judgment in favor of defendant, Sarah Endl, dismissing plaintiff's complaint. We reverse.

On June 7, 2003, plaintiff was driving his automobile northbound on the Garden State Parkway, in Clifton, when he was struck in the rear by the vehicle being operated by defendant. As a result of injuries sustained in the accident, on June 11, 2003, plaintiff presented himself for examination and treatment to Dr. Anthony Blake, a chiropractic physician, with whom plaintiff underwent conservative chiropractic manipulative treatment over the course of three months, until September 17, 2003.

According to Dr. Blake's October 14, 2003 report, plaintiff's chief complaints were pain in his neck, shoulder, and mid and lower back radiating into his buttocks. Plaintiff underwent an MRI of the lumbar spine on July 1, 2003. The radiologist, Dr. Jesse M. Cohen, reported that the sagittal and axial image of the lumbar spine showed disc space narrowing at L5-S1 with decreased signal present in the L5-S1 disc, compatible with desiccation, and a very small central disc herniation at the L5-S1 level. Thereafter, Dr. Blake, based on plaintiff's complaints, clinical examination, and MRI findings diagnosed plaintiff with "[a]cute traumatic hyperflexion/ hyperextension injury to the cervical, thoracic, and lumbar spines causing multiple subluxation syndromes." Dr. Blake concluded that "[t]hese injuries are causally related to the accident described." Dr. Blake further opined "that this patient has suffered a serious intervertebral disc injury as a result of the accident as evidenced on an MRI" and that although the injury can respond well to "physical therapy, mild spinal manipulation, traction, certain exercises and some medication, when these measures fail to provide enough relief of this patient to be productive and somewhat comfortable, surgical intervention should be considered. This condition represents a serious permanent injury causally related to the accident in question."

Plaintiff was also attended to by Dr. Auriemma, an osteopathic physician. On October 14, 2003, Dr. Auriemma wrote that plaintiff was "going to have an on-going problem in the cervical and lumbar region and as a result of this injury; he has significant decrease of the cervical and lumbar range of motion. . . . Therefore, these injuries are serious and permanent in nature."

In granting defendant's motion for summary judgment, the motion judge found (1) that a chiropractor is "not permitted to opine on medical issues"; (2) that the chiropractor's "certification of permanency is a net opinion and does not comply with R[ios]"; and (3) that plaintiff did not meet his burden as he failed to show that he "has suffered a permanent injury that cannot be healed to function with further medical treatment, and that this is caused by the accident." The motion judge additionally found that Dr. Auriemma's opinion that plaintiff suffered a permanent injury was a "net opinion," and that there is not "credible medical evidence that support[s] the fact that these injuries were caused by the accident and that they cannot be fixed with further medical intervention."

We are convinced that the motion judge erred in holding that a chiropractic physician is not qualified to render an opinion to a reasonable degree of medical certainty with respect to an injury to plaintiff's cervical, thoracic and lumbar spine.

N.J.S.A. 39:6A-8a, states that the meaning of physician for "purposes of this subsection . . . means a physician as defined in section 5 of P.L. 1939, c115 (C.45:9-5.1)." N.J.S.A. 39:6A-8a. N.J.S.A. 45:9-5.1, (referred to as section 5 of P.L. 1939 in N.J.S.A. 39:6A-8a) provides, "the term 'physician and surgeon' or 'physician or surgeon' shall be deemed to include practitioners in any branch of medicine and/or surgery or method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition." N.J.S.A. 45:9-5.1.

In Afram v. Heller, 380 N.J. Super. 545, 551 (App. Div. 2005), we reversed the motion judge's grant of summary judgment granted principally on the judge's mistaken belief that because the "physician" was a chiropractor, he was, therefore, not qualified to give an opinion regarding the plaintiff's permanent injuries. Id. at 546-48. We agreed with the views expressed in the Law Division's opinions in Pensabene v. Straus, 342 N.J. Super. 196 (Law Div. 2001) and Olate v. Crocker, 380 N.J. Super. 203 (Law Div. 2002) and held that "chiropractors are qualified under the statute [N.J.S.A. 39:6A-8a] to render opinions on causation and permanency in respect of the types of injuries they treat." Id. at 550-51.

We are also satisfied that the February 16, 2004 certificate of permanency provided by Dr. Blake satisfies the requirement of N.J.S.A. 39:6A-8a. Dr. Blake's certification states the following:

Based upon my examination(s), treatment(s), objective findings and testing, there is a reasonable medical probability that the injuries set forth in my narrative report are permanent in nature and my patient's (neck, back, etc.) will not completely heal to function normally even if further medical treatment is rendered.

My patient, while under my medical care, manifested the following objective symptoms of a permanent injury:

1. Disc herniation at L5/S1 level and sprain and strain of the lumbosacral spine;

2. Acute traumatic hyperflexion/ hyperextension injury to the lumbar spine;

3. Acute traumatic hyperflexion/ hyperextension injury to the cervical spine;

4. Acute traumatic hyperflexion/ hyperextension injury to the thoracic spine;

5. Multiple subluxation syndromes associated with cervicalgia, cephalgia, pain in the thoracic spine and lumbalgia.

Under penalty of perjury, the plaintiff has sustained an injury that satisfies the statutory threshold.

N.J.S.A. 39:6A-8a provides in relevant part:

In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician . . . . The certification shall state, under penalty of perjury, that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence, which may include, medical testing. . .

[N.J.S.A. 39:6A-8a. (emphasis added).]

The "injury described above" refers to "a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8a. An injury will be considered permanent when it occurs to a body part or organ and "has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8a.

A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we apply the standard articulated by the Supreme Court in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

Therefore, we must assume plaintiff's version of the facts are true and give plaintiff the benefit of all favorable inferences. Id. at 536.

We reverse and remand to the trial court in light of the Supreme Court's opinions in DiProspero v. Penn, 183 N.J. 477 (2005), Serrano v. Serrano, 183 N.J. 508 (2005), and Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005). Serrano concluded that "plaintiff need only prove [by objective credible medical evidence] that he suffered an injury described in N.J.S.A. 39:6A-8a's limitation on lawsuit threshold to recover non-economic damages." Serrano, supra, 183 N.J. at 510, 519.

In order to survive a motion for summary judgment, a plaintiff who alleges that he sustained a permanent injury, other than scarring or disfigurement, must prove that he suffers from a permanent injury to a body part or organ causally related to the accident in issue. Id. at 519. The Court rejected placing a judicially crafted serious injury standard into the limitation on lawsuit threshold concluding that the Legislature considered the injuries defined in N.J.S.A. 39:6A-8a to be serious by their very nature. Id. at 518. An additional requirement of N.J.S.A. 39:6A-8a is that a plaintiff must file a certification by a physician that the injury satisfies one of the statutory criteria by reference to objective clinical evidence. DiProspero, supra, 183 N.J. at 488-89.

Here, plaintiff asserts that the evidence he has produced satisfies the sixth category contained in N.J.S.A. 39:6A-8a, "a permanent injury within a reasonable degree of medical probability . . . ." In support of this assertion, plaintiff has supplied objective credible evidence shown by the MRI finding of a disc herniation at the L5-S1 level, and clinical findings on post accident physical examination, contained in the medical reports of Dr. Blake and Dr. Auriemma. Additionally, Dr. Blake has supplied a physician's certification, in accordance with the statutory requirement, that plaintiff's injury is permanent.

Accordingly, we are satisfied that plaintiff has submitted the requisite evidence to satisfy the limitation on lawsuit threshold sufficient to allow a jury to resolve his claim for non-economic damages. We reverse the Law Division's January 27, 2006 order granting summary judgment and remand the matter for trial.

Reversed and remanded.

 

Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002).

(continued)

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9

A-2768-05T2

 

September 27, 2006