ROSA CARRION v. DIANE PARIBELLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3659-04T23659-04T2

ROSA CARRION,

Plaintiff-Appellant,

v.

DIANE PARIBELLO,

Defendant-Respondent.

___________________________

 

Argued February 15, 2005 - Decided April 20, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, L-665-04.

Patricia M. Love argued the cause for

appellant (Hendricks & Hendricks, attorneys;

Ms. Love, of counsel and on the brief).

James M. Merendino argued the cause for

Respondent (Sherman & Viscomi, attorneys;

Tejal Dalal, on the brief).

PER CURIAM

Plaintiff Rosa Carrion appeals from a summary judgment dismissing her personal injury complaint against defendant Diane Paribello for failure to meet the limitation on lawsuit threshold of N.J.S.A. 39:6A-8(a). As of August 6, 2002, the date of the automobile accident, plaintiff had elected the "verbal threshold" option of her automobile insurance policy, restricting the recovery of non-economic damages to certain types of injuries, notably, "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a). After the accident, plaintiff complained of pain in her neck, lower back and arm. She was treated by Dr. Prem Rangala, an orthopedic surgeon. X-rays were performed with negative findings. Dr. Rangala recommended continuation of physical therapy and referred plaintiff for a cervical MRI, which was performed on September 28, 2002. As interpreted by the radiologist, Dr. Ajax E. George, in his report of October 1, 2002, the MRI films revealed no abnormalities.

Meanwhile, on August 12, 2002, the plaintiff began treatment with another orthopedist, Dr. John L. Hochberg. In his November 15, 2002, report Dr. Hochberg noted that an MRI had been performed but he had not received the results. At that time he made no determination of any cervical disk involvement or other permanent injury. Thereafter, at the request of Dr. Hochberg, an MRI of plaintiff's cervical spine was performed on June 21, 2003. This time the results as read by Dr. Ravindra M. Ginde revealed disk herniation at the C4-C5 level. In his report of June 1, 2004, Dr. Hochberg concluded that plaintiff had suffered a ruptured disk in her neck, noting the June 21, 2003 MRI report. He did not mention the September 28, 2002 MRI.

On January 30, 2004, plaintiff filed her complaint alleging personal injuries and lost wages. Following defendant's answer, plaintiff served defendant with a certification of permanency pursuant to the requirements of N.J.S.A. 39:6A-8.1 in which Dr. Hochberg certified that plaintiff had sustained a permanent injury, namely, cervical disk herniation at C4-C5 as noted on the MRI of June 25, 2003.

On January 19, 2005, defendant filed a motion for summary judgment on grounds that the plaintiff had failed to sustain her burden under N.J.S.A. 39:6A-8.1 of providing objective evidence of an injury that was causally related to the accident since the first MRI after the accident disclosed no permanent injury. Defendant submitted no certification by a physician in support of her motion. In response plaintiff argued that absent any medical opinion or evidence submitted by defendant, the issue as to whether the first MRI of September 28, 2002, would negate the causal relationship between the accident and the June 21, 2003, finding of a herniated disk was a genuine issue of a material fact which, taken together with all legitimate inferences favoring plaintiff, would require submission of the issue to a jury under R. 4:46-2(c).

The motion judge granted summary judgment to defendant, stating her reasons as follows:

Although plaintiff has offered objective medical tests that tend to prove she suffered an injury that is permanent and/or serious in nature, she has not offered sufficient credible evidence establishing that her injuries are causally related to the motor vehicle accident of August 6, 2002. Following the accident, the plaintiff underwent x-rays on August 7 and August 15, 2002. On both occasions the x-rays came back unremarkable. Additionally, the plaintiff underwent an MRI on October 1, 2002, which revealed no herniation, degeneration or other abnormalities. On June 25, 2003, when plaintiff underwent a second MRI, and contrary to the first MRI, the second MRI revealed herniations of disks C5, 6 and other problems.

Plaintiff's attempt to use the second MRI result as objective medical evidence establishing that her injuries are causally related to the August 6, 2002, motor vehicle accident is problematic given the fact that approximately ten and a half months have passed from the time that the accident occurred [until] the time the MRI was conducted. Moreover, the fact that the second MRI contradicts the results of

two x-rays and a previous MRI, which were all conducted within two months of the accident, creates further doubt that the injuries shown in the second MRI were causally related to the motor vehicle accident.

Therefore, I find plaintiff has failed to present objective credible evidence to prove she sustained a permanent injury which is causally related to the motor vehicle accident in question.

We reverse. It is well settled that in reviewing any summary judgment motion, a court must consider the facts in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here there were reports of two MRIs interpreted by two different radiologists with contrary findings

but only one physician's interpretation of those tests as applied to the plaintiff's clinical signs, symptoms and history after the 2002 motor vehicle accident. Even assuming the reports of both radiologists to be accurate, we cannot assume an intervening cause to plaintiff's detriment. In this instance, the motion judge engaged in fact finding, which is the province of a jury, on what we determine is a material factual issue.

Reversed and remanded for trial.

 

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A-3659-04T2

April 20, 2006