FELIXSINDRO RODRIGUEZ-SANTA v. MARIE C. JEROME et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3307-05T33307-05T3

FELIXSINDRO RODRIGUEZ-SANTA,

Plaintiff-Appellant,

v.

MARIE C. JEROME and DAVID J. SAMILA,

Defendants-Respondents.

________________________________________________________________

 

Argued October 31, 2006 - Decided December 28, 2006

Before Judges Payne and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-319-05.

John J. Pisano argued the cause for appellant.

Raymond R. Connell argued the cause for respondent Marie C. Jerome (Dwyer, Connell & Lisbona, attorneys; Mr. Connell of counsel and on the brief).

Brian G. Steller argued the cause for respondent David J. Samila (Connell Foley, attorneys; Mr. Steller, of counsel; Patrick S. Brannigan, on the brief).

PER CURIAM

Plaintiff suffered injuries to his back and neck resulting from two distinct automobile accidents that occurred approximately six months apart. Each defendant filed a motion for summary judgment. Each motion was granted after the motion judge determined plaintiff did not submit a sufficient comparative analysis of the injuries suffered, Polk v. Daconceicao, 268 N.J. Super. 568, 575-76 (App. Div. 1993), and therefore did not satisfy the verbal threshold requirement under the 1998 Automobile Insurance Cost Reduction Act (AICRA). N.J.S.A. 39:6A-8(a). Plaintiff appeals from the dismissal of his complaint. After review of the record, we discern sufficient evidence to create a genuine issue of material fact that should not have been resolved by summary judgment. Accordingly, we reverse.

Viewing the facts presented most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following evidence. On January 9, 2003, while traveling in the southbound lane of McCarter Highway, the vehicle driven by plaintiff Felixsindro Rodriguez-Santa was struck by the vehicle driven by defendant

Marie C. Jerome, who was making a left turn onto McCarter Highway. Two days after this collision, plaintiff sought treatment from Thomas Debari, D.C., who requested that plaintiff undergo an MRI. The MRI report of plaintiff's cervical spine, dated March 13, 2003, revealed a radiographic of "mild diffuse disc bulging at C4/5 and C5/6, moderately impressing on the anterior thecal sac at these levels." Plaintiff's MRI report of his lumbar spine, also dated March 13, 2003, revealed "mild diffuse disc bulging at L3/4 and L4/5, mildly impressing on the anterior thecal sac at these levels."

On June 7, 2003, plaintiff's vehicle was rear-ended by the vehicle driven by defendant David J. Samila. Plaintiff reported injuries to his back and neck. An MRI performed on September 2, 2003, revealed plaintiff's cervical spine had "moderate disc bulging at C5-6 moderately impressing on the anterior thecal sac at this level along with [m]ild disc bulging . . . present at C3-4 and C4-5 mildly impressing on the anterior thecal sac at these levels." Plaintiff's lumbar spine showed "mild diffuse disc bulging at L4-5 and L5-S1[,] mildly effacing the anterior thecal sac at these levels."

Plaintiff commenced care with Andrew Sands, D.C. of Physical Rehab of Newark, who diagnosed plaintiff as having cervical and lumbar myofascial syndrome. Thereafter, plaintiff began treatment with Marvin Friedlander and the physicians of "The Back Institute," which included cervical facet joint trigger point injections, use of a cervical collar, and physical therapy. Reports regarding progress and treatment were submitted. We need not describe the physical examinations and the corresponding results in detail, but we note that the physicians reported, with respect to all of the affected areas, tenderness in the cervical and lumbar spine, and some limitation of motion in the cervical area. Dr. Friedlander filed a physician's certification, required as a condition for maintaining a cause of action under AICRA's "verbal threshold," N.J.S.A. 39:6A-8(a), citing his treatment of plaintiff "for injuries sustained in a 01/09/03 motor vehicle accident and aggravated in a 06/07/03 automobile accident."

On July 14, 2005, Dr. Friedlander performed a C5-6 discectomy with the installation of a locking plate. On December 13, 2005, a second surgery on plaintiff's lumbar spine resulted in pedicle screws at L5-S1.

Plaintiff seeks the reversal of summary judgment and the order dismissing his complaint, maintaining he met AICRA's limitation on the right to claim damages for noneconomic loss by showing that "as a result of bodily injury, arising out of the

. . . operation . . . or use of" an automobile, plaintiff has sustained "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a). Plaintiff argues, contrary to the motion judge's determination, a Polk analysis is not required to pursue his claims against Jerome. See Polk, supra, 268 N.J. Super. at 575. As to Samila, if such a comparative analysis is found to be necessary, Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005). certif. granted, 186 N.J. 243 (2006), plaintiff satisfied his summary judgment burden.

Summary judgment as to claims arising from the accident with Jerome must be reversed because the motion judge gave no reasons for concluding a comparative analysis of plaintiff's injuries was necessitated as to this accident. Polk, which involved a claim for aggravation of a preexisting injury, required a comparative analysis of the plaintiff's "residuals prior to the accident with the injuries suffered in the automobile accident at issue" to prove the aggravation. Polk, supra, 268 N.J. Super. at 575. Polk has no applicability when analyzing plaintiff's proofs in satisfying AICRA's requirements that a plaintiff present objective credible evidence of a serious permanent injury. Id. The motion judge made no findings on this issue. See R. 1:7-4(a).

Regarding the injuries suffered after the accident with Samila, plaintiff's physician accepted the radiological findings dated September 2, 2003, revealing moderate disc budging at C5-6, mild disc bulging at C3-4, C4-5, L4-5 and L5-S1, with impingement of the thecal sac, in reaching his diagnosis. This diagnosis differed from plaintiff's condition after the first accident. Not only had the degree of bulging at C5-6 increased, but also newly visible bulges at C3-4 and L5-S1 were discerned. Surgical intervention occurred to address the areas at C5-6 and L5-S1. We determine there is sufficient objective credible evidence showing plaintiff suffered permanent injuries, as required by AICRA, to proceed in his suit for pain and suffering damages. Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 333-34 (2005); Serrano v. Serrano, 183 N.J. 508, 509 (2005). That same evidence, when viewed most favorably to plaintiff, supports a finding that the permanent injury caused by the automobile accident is sufficiently differentiated from the previous injuries. Consequently, a genuine and material factual question was raised, requiring reversal of the grant of summary judgment.

Reversed and remanded.

 

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A-3307-05T3

December 28, 2006