LEROY KNIGHT, et al. v. ARNOLD E. BOGERTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3374-04t23374-04T2

LEROY KNIGHT,

Plaintiff-Appellant,

and

MICHAEL KNIGHT,

Plaintiff,

v.

ARNOLD E. BOGERTY,

Defendant-Respondent.

_____________________________________

 

Argued January 18, 2006 - Decided February 14, 2006

Before Judges Axelrad and Sabatino.

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

L-491-03.

Cindy J. Baen argued the cause for appellants.

William M. Davis argued the cause for respondent (Marc L. Hurvitz & Associates, attorneys; Mr. Davis, on the brief).

PER CURIAM

This auto accident case involves personal injuries subject to the limitation on lawsuit option ("verbal threshold") under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8. The Law Division granted defendant summary judgment, after determining from its own assessment of the medical record that plaintiff's injuries could not vault the threshold. We reverse.

The pertinent history is as follows. Plaintiff Leroy Knight was injured in a motor vehicle accident on November 4, 2001. Knight was a passenger in an automobile that had stopped in traffic and was struck in the rear by a vehicle driven by defendant Arnold Bogerty. The rear-end impact caused Knight's vehicle to collide with a third vehicle that was in front of it. On the day following the accident, plaintiff went to the emergency room of Burdette Tomlin Memorial Hospital, where he was initially treated for an injury to his left ankle. Soon thereafter, plaintiff began to experience lower back pain that radiated into his right leg and numbness and paresthesias in the dorsum of the right foot and right first toe.

On November 13, 2001, plaintiff was evaluated by Dr. Thomas Barrett, M.D. an orthopedic practitioner. Dr. Thomas examined plaintiff and diagnosed him with a left ankle sprain, thoracic and lumbar strain and a degenerative right hip.

Plaintiff began chiropractic treatment with Robert Olivieri, D.C., on November 15, 2001. Plaintiff's complaints at that time included low back pain radiating into his right thigh, left hip pain, headaches, neck pain, mid-back pain and left ankle pain. Dr. Olivieri found decreased range of motion in plaintiff's cervical, thoracic and lumbar regions, with spasm and fixation. Plaintiff pursued with Dr. Oliveri a treatment plan that included spinal x-rays, spinal manipulation, therapeutic exercise, and electric muscle stimulation three times per week.

After reexamining plaintiff in March 2002, Dr. Olivieri noted plaintiff was still having similar complaints of pain, with "significant low back and leg pain after prolonged standing, sitting, bending, twisting and lifting." In his report dated June 4, 2002, Dr. Oliveri observed that plaintiff's "low back and leg pain persist."

During the course of his treatment plaintiff received two epidural block injections, one on March 1, 2002 and the other on June 11, 2002. Plaintiff also received a nerve root block on July 30, 2002. However, despite those invasive measures, plaintiff continued to experience pain.

On December 21, 2001, plaintiff had an MRI study performed on his lumbar spine. The radiologist, Pedro R. Margate, M.D., reported to Dr. Olivieri that that "[t]he disc spaces reveal loss of signal at L2-L3 and L4-L5 due to desiccation. There is associated bulging [discs] at L2-L3 and L4-L5[,] both slightly indenting the thecal sac."

Plaintiff also received treatment from Joseph R. Zerbo, D.O., an orthopedic surgeon. On January 11, 2002, Dr. Zerbo reported to Dr. Olivieri that Dr. Margate's reading of plaintiff's MRI had been incorrect, in that it had missed a herniated lumbar disc at the L4-5 level on the right side. Dr. Zerbo remarked that plaintiff's "injury to the low back [was] secondary to a motor vehicle accident producing a lumbar strain and sprain with lumbar radiculopathy and underlying lumbar disc disease with lumbar disc herniation at L4-5[.]"

A second MRI study of plaintiff's lumbar spine was performed on June 7, 2002. As to this second MRI, Dr. Margate concluded that it indicated "[d]esiccated and bulging discs at L2-3 and L4-5. There is no change compared to 12/21/01."

On May 8, 2002, Dr. Zerbo noted that plaintiff had undergone a second epidural block and was waiting for a third. At the time, Dr. Zerbo noted that plaintiff continued to work as a cook and was suffering back pain on a regular basis. Plaintiff was last seen by Dr. Zerbo on August 12, 2002 for back pain and intermittent leg pain, which he had treated with cortisone shots.

Plaintiff had a third MRI of his lumbar spine performed on February 22, 2003. The radiologist for this final study, Rajesh Patel, M.D., found "[c]onstitutional spinal stenosis compounded by proliferation of epidural fat. More significant spinal stenosis secondary to disc/ostephyte complex at the L2-L3 and L4-L5 level."

Plaintiff's persisting complaints led him to consult a neurologist, Andrew S. Glass, M.D., on August 5, 2002. In Glass' initial examination, plaintiff had presented with low back pain, right lumbosacral radiculopathy and bulging disc annuli at L2-3 and L5-S1.

On December 4, 2002, Dr. Glass certified pursuant to AICRA that plaintiff had suffered a permanent injury as a result of the motor vehicle accident on November 4, 2001. Plaintiff also served on defendant similar certifications from Dr. Oliveri and from a third doctor, Manish Singh, a pain management specialist.

Thereafter, Dr. Glass issued a narrative report on April 16, 2003. He indicated that the initial MRI of the lumbosacral spine revealed "discogenic bulges at L2-3 and L4-5," and that a follow-up MRI "revealed bulging disc annuli and multilevel spondylosis with resultant multilevel lumbar spinal stenosis, which was compounded by epidural lipomatosis." Based upon those abnormalities, Dr. Glass identified plaintiff as a candidate for surgery, specifically decompressive lumbar laminectomy.

Dr. Glass summarized his findings in the penultimate paragraph of his April 16, 2003 report, as follows:

In summary, my diagnostic impression is post-traumatic low back pain with right lumbosacral radiculopathy. MRI, as outlined above, reveals evidence of multilevel bulging disc annuli, multilevel spondylosis and epidural lipomatosis with resultant multilevel lumbar spinal stenosis. Operative intervention as outlined above in the form of decompressive lumbar laminectomy, has been discussed with the patient, and he is contemplating this management option at this point in time. Due to the chronicity of his symptom complex, I believe his long-term prognosis to be quite guarded.

Dr. Glass concluded that "with[in] a reasonable degree of medical probability . . . the motor vehicle accident in question of November 4, 2001 bears proximate causal relationship to the subsequent symptomatology described in the body of this report."

Plaintiff filed a personal injury action under AICRA against Bogerty on September 5, 2003. Discovery concluded on January 11, 2005. In the course of the discovery process, plaintiff was examined at defense counsel's request by Raymond Weiand, D.O., an orthopedist. Dr. Weiand`s findings differed from those of plaintiff's own doctors. In particular, Dr. Weiand opined that the abnormal lumbar MRI findings were preexisting and reflected degenerative changes unrelated to the motor vehicle accident.

Following the discovery end date, defendant moved for summary judgment under the verbal threshold. Plaintiff filed opposition to the motion, including Dr. Glass' April 16, 2003 narrative report, and all of the other medical records that we referenced above.

The trial judge granted the motion, supported by a short memorandum of decision stating his reasons. The analytic portion of the decision stated:

Defendant contends that Plaintiff cannot satisfy either of [the two prongs of the verbal threshold] and therefore it should be granted Summary Judgment.

Plaintiff attempts to satisfy the first prong of the Oswin test by stating, "[t]here is no question that [Plaintiff]'s diagnostic and objective studies to date reveal permanent injuries to his lumbar spine . . . [.]" To support this contention, Plaintiff relies on an MRI performed on February 2, 2002, that revealed the presence of spiral stenosis secondary to a disc/osteophyte complex at the L2-3 and L4-6 levels. Based on this MRI, Dr. Glass diagnosed Plaintiff with post-traumatic low back pain with a right lumbosacral radiculopathy. However, Plaintiff has not offered any objective credible medical proof that indicates Plaintiff's injuries are permanent in nature as required by N.J.S.A. 39:6A-8(6). Dr. Glass's opinion merely states that "[he] believe[s] [Plaintiff]'s long-term prognosis [is] quite guarded." . . . The opinion "quite guarded" does not equate to a finding of permanence. Plaintiff has, therefore, failed to satisfy the first prong of the Oswin test. Oswin 129 N.J. at 318-19.

In Rogozinski v. Turs, the court stated, "[t]he plaintiff must show that the injury is a serious injury. To do so, the plaintiff must present objective credible evidence to support the claim. In addition, the plaintiff must show that the injury has had a serious impact on the plaintiff's life. If the plaintiff fails to raise a genuine issue of material fact on these issues, the Court may grant summary judgment in favor of the defendant." 351 N.J. Super. 536, 552 (Law Div. 2002) (citing Brill v. Guardian Life Ins. Co. 142 N.J. 520 (1995)). Because Plaintiff has failed to satisfy the first prong of the Oswin test, Defendant's Motion for Summary Judgment is granted.

After defendant's motion was granted, Dr. Glass, at the request of plaintiff's counsel, reevaluated plaintiff on August 13, 2004 and issued a supplemental report. Dr. Glass reported that plaintiff was continuing to suffer "unremitting lower back pain with right lower extremity radiation." Dr. Glass' diagnostic impression of plaintiff remained "posttraumatic low back pain with right lumbosacral radiculopathy." Noting that plaintiff was thirty-six years old, Dr. Glass commented that

[m]any patients with the degenerative findings similar to [plaintiff's] MRI, could potentially be asymptomatic. However, [plaintiff] by history was rendered symptomatic immediately following this motor vehicle accident, whereas prior to this [accident] he reported no significant lumbar symptomatology. Therefore, I do believe with a reasonable degree of medical probability that the [accident] in question of November 4, 2001 bears proximate causal relationship to the subsequent symptomatology in the lumbar region that this patient continues to suffer with.

Dr. Glass further stated that

[i]t has now been three years since his accident, and unfortunately I believe he will continue to suffer with chronic lumbar symptomatology as it has not improved to date by report. While I do believe that the findings on MRI are degenerative in nature, I do believe in fact that they were rendered significantly symptomatic by the patient's traumatic injury.

Finally, Dr. Glass concluded that he "believe[d] that these injuries [were] permanent in nature, [because] further medical treatment will not heal the patient."

Plaintiff moved for reconsideration, furnishing the court and defense counsel with Dr. Glass' supplemental report. On February 18, 2005, the trial court denied the motion, finding that "any information used [by Dr. Glass] to form an opinion in this [supplemental] report existed prior to the filing of the initial motion." On that basis, the trial court denied the motion as inadequate under R. 4:49-2 and D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Law Div. 1990), finding that any information relied upon by Dr. Glass to form an opinion in his supplemental report had existed prior to the filing of plaintiff's initial motion.

Initially, we note that defense counsel concedes, in light of the Supreme Court's supervening opinions construing the AICRA verbal threshold in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), that we need not consider whether plaintiff could have surmounted the former so-called "second prong" of verbal threshold by establishing a serious impact from his injuries upon his daily lifestyle. This appeal was pending when DiProspero and Serrano were decided by the Supreme Court, thus entitling plaintiff to the retroactive application of the Court's elimination of the second prong. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005)(applying "pipeline" retroactivity to DiProspero and Serrano).

Although the trial court did not identify the second prong of AICRA as the express basis of his ruling, his memorandum decision did allude, in part, to a need for plaintiff to demonstrate a "serious" injury under AICRA, a facet which is no longer the law under DiProspero and Serrano. See DiProspero, supra, 183 N.J. at 481-82 ("[A]n automobile accident victim who is subject to the [verbal] threshold and sues for noneconomic damages has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact.") and Serrano, supra, 183 N.J. at 510 (Such a victim "has to prove only an injury defined in N.J.S.A. 39:6A-8(a), and does not have to clear the additional hurdle of proving a 'serious injury.'").

We therefore consider only whether the record shows the presence of genuine factual issues on the question of whether plaintiff suffered a permanent injury resulting from the accident. We perceive that the trial court viewed the record on this issue too narrowly, unduly seizing upon the "guarded prognosis" phraseology in Dr. Glass' initial narrative report while overlooking additional proofs in the record indicative of permanency.

A "guarded prognosis" has been defined as "[a] prognosis given by a physician when the outcome of a patient's illness is in doubt." See Williams v. Mehra, 135 F.3d 1105, 1107 n.1 (6th Cir. 1998) (citing Taber's Cyclopedic Medical Dictionary 827 (18th ed. 1997)), reh'g granted, 144 F.3d 428 (6th Cir. 1998), rev'd on other grounds, 186 F.3d 685, 693 (6th Cir. 1999). The phrase "guarded prognosis," is not a synonym for "permanent condition," since a patient with such a prognosis may recover to full health. However, a "guarded prognosis" likewise does not necessarily equate to a temporary condition, for the term envisions that the patient may well have persisting complaints that should be medically monitored.

The reported case law has not uniformly held that a plaintiff whose physicians have described his or her post-accident injury status as "guarded" cannot surmount the verbal threshold. See, e.g., Mack v. Passaic Valley Water Comm'n, 294 N.J. Super. 592, 597, 601 (App. Div. 1996)(reversing summary judgment where plaintiff's neurologist described her prognosis as "guarded," but had also opined that her dizziness and olefactory loss were likely to be permanent); Cineas v. Mammone, 270 N.J. Super. 200, 204, 213 (App. Div. 1994)(reversing summary judgment where plaintiff's treating orthopedist had opined that the injuries had resulted in a permanent disability and that "[h]is prognosis remains guarded"); see also Arencibia v. Rosas, 270 N.J. Super. 339, 348-49 (App. Div. 1994)(reversing summary judgment where plaintiff's neurologist had concluded that plaintiff's "prognosis remains reserved"); but see Cureton v. Eley, 294 N.J. Super. 321, 327-29 (Law Div. 1996)(granting summary judgment where plaintiff's chiropractor had noted a "guarded prognosis," but had otherwise failed to detail in his report any permanent loss of use, permanent limitations of use or significant limitations of plaintiff's bodily functions or systems).

The term "guarded prognosis" is not dispositive either way in creating a triable issue of permanency. Instead, where such an indefinite phrase is used by the plaintiff's doctor, a motion judge should look at the remainder of the medical record to assess whether genuine questions of permanency exist.

Here, the record is replete with indicia, beyond the "quite guarded" long-term prognosis expressed in Dr. Glass' April 16, 2003, report that plaintiff's post-accident injuries "will not heal to function normally." N.J.S.A. 39:6A-8(a). Despite having undergone two epidural blocks and a nerve root block, plaintiff was continuing to have lower back pain, and continued to seek medical assistance for that condition, as of at least April 2003, more than seventeen months after the November 2001 accident. His objective signs of injury persisted, including recurrent lumbar spasm detected by Dr. Glass in an examination on August 5, 2002, and the multiple disc bulges shown on the repeat MRI studies, one of which had indented the thecal sac.

As one possible treatment pathway, Dr. Glass suggested spinal surgery, a decompressive lumbar laminectomy, which plaintiff was contemplating. Indeed, the prefatory language in Dr. Glass' sentence characterizing plaintiff's prognosis as "quite guarded" also refers, quite tellingly, to "the chronicity of [plaintiff's] symptom complex." A fair reading of that sentence, and of the surrounding facts, construed in a light most favorable to plaintiff, leads us to conclude that there are genuine issues of permanency here requiring a jury trial.

We also note that plaintiff had timely filed three certificates of permanency, one of which was authored by Dr. Glass, as attachments to his original complaint. See N.J.S.A. 39:6A-8(a). Plaintiff's counsel did not include the doctors' certifications with his opposition to the summary judgment motion, having assumed that the certifications would be contained in the clerk's file with his complaint. See R. 4:46-2(c)(summary judgment record includes, among other things, the pleadings on file). Although a doctor's certification of permanency, in and of itself, is insufficient to withstand summary judgment on the verbal threshold, see Rios v. Szivos, 354 N.J. Super. 578, 585 (App. Div. 2002), we believe that the certifications here, particularly when read in conjunction with Dr. Glass' narrative report highlighting plaintiff's objective abnormalities and unremitting symptoms, supplied useful clarification that plaintiff's physicians believed that his injuries were indeed permanent.

We need not address the substance of the post-discovery supplemental certification from Dr. Glass, as Dr. Glass' ultimate finding of permanency, and the grounds for that finding, were reasonably apparent from the original motion record.

In sum, fairly viewing the original motion record in a light most favorable to plaintiff, we discern genuine issues of material fact that require the reversal of the summary judgment procured by defendant. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

 
Reversed and remanded for proceedings consistent with this opinion.

(continued)

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A-3374-04t2

February 14, 2006