THERESA BROWN et al. v. MOSHE RITTERMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3757-04T53757-04T5

THERESA BROWN and GERARD BROWN,

her husband,

Plaintiffs-Appellants,

v.

MOSHE RITTERMAN,

Defendant-Respondent.

________________________________________________________________

 

Submitted March 7, 2006 - Decided March 22, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2653-03.

Ansell, Zaro, Grimm & Aaron, attorneys for appellants (Richard B. Ansell, of counsel and on the brief; Kristine M. Bergman, on the brief).

Parker McCay, attorneys for respondent (J. Brooks DiDonato, of counsel; Stacy L. Moore, Jr., on the brief).

PER CURIAM

Plaintiff, Theresa Brown, appeals from a summary judgment dismissing her motor vehicle personal injury complaint for failure to satisfy the limitation on lawsuit threshold. See N.J.S.A. 39:6A-8a. Plaintiff argues on appeal that she presented sufficient evidence from which a jury could find that she suffered a qualifying permanent injury caused by the accident. We agree and reverse and remand for trial.

The accident occurred on April 9, 2002. Plaintiff did not obtain medical care that day. Two days later, experiencing pain in her neck, back and both arms, plaintiff reported to a nearby emergency room for treatment. She was released, and then began a course of treatment with her primary care physician, Dr. Lookman K. Odejobi.

Working as a mail carrier during the 1990s, plaintiff suffered several injuries. She was involved in two vehicular accidents, which resulted in relatively minor injuries to her mid to lower back. In the mid-1990s, plaintiff engaged in a twisting motion in her mail delivery vehicle while lifting a mail tray. This resulted in a pinched nerve in her neck, and caused numbness and tingling sensations in her right hand. Plaintiff continued to experience symptomology in her right arm and hand for the next several years, and those symptoms existed at the time of the April 9, 2002 accident. Prior to the accident, plaintiff had ceased her employment with the postal service and worked part-time as a school cafeteria aide.

On April 30, 2002, plaintiff began a course of treatment with Seaview Orthopaedic & Medical Associates. During the course of her treatment, she was referred by her treating physicians to Dr. Arthur P. Vasen, a specialist in hand surgery. She was also evaluated by Dr. Richard Sacks, an orthopedic specialist, and she underwent an independent medical examination at the request of the personal injury protection insurer by Dr. Irving D. Strouse.

Plaintiff's claimed permanent injuries as a result of the April 9, 2002 accident are: (1) aggravation of a pre-existing cervical injury, (2) aggravation of a pre-existing right carpal tunnel syndrome, and (3) left carpal tunnel syndrome. She does not deny the existence of pre-existing pathology of her cervical spine. An MRI performed on March 13, 2002, about one month before the accident, revealed a probable disc protrusion at C5-6 with a very small disc protrusion at C6-7. Another MRI performed on January 28, 2003 revealed an actual (rather than probable) small disc protrusion at C5-6, and a small (rather than very small) disc protrusion at C6-7. Whether the difference in these reports is medically significant is an issue we need not resolve at this time for reasons we will shortly mention.

Plaintiff also does not dispute that she had a pre-existing right carpal tunnel syndrome. Based upon clinical observations and an EMG study, her physicians opined that the pre-existing condition was aggravated by the April 9, 2002 accident. Dr. Vasen performed a right carpal tunnel release on March 3, 2003.

When Dr. Vasen examined plaintiff on May 1, 2003, he observed objective clinical evidence of left carpal tunnel syndrome, which was consistent with the symptoms reported since soon after the accident by plaintiff. In particular, Dr. Vasen reported that "[h]er left hand has a positive Tinel's at the carpal tunnel, a positive Phalen's test, sensation is intact to light touch." Dr. Vasen performed a left carpal tunnel release on May 19, 2003.

An EMG study performed on September 23, 2004 confirmed the presence of a left carpal tunnel syndrome, albeit "on the milder side of . . . moderate." The study also revealed a left C6 radiculopathy. In a supplemental report, after reviewing the results of the EMG study, Dr. Sacks opined that these diagnoses were "clearly, within the realm of medical probability, causally related to [plaintiff's] original injury sustained as a result of the motor vehicle accident of April 9, 2002 and represent both a worsening and recurrence of her prior conditions."

In his consideration of defendant's summary judgment motion, the motion judge analyzed the medical records and reports. The judge made a detailed analysis of the reports pertaining to plaintiff's cervical spine both before and after the accident and concluded that plaintiff failed to present sufficient evidence with respect to her neck to carry her across the verbal threshold. The judge reasoned that the reported differences in the pre- and post-accident MRIs were "negligible." As to the bilateral carpal tunnel syndrome, the judge was of the view that the right side was pre-existing and, to the extent of any aggravation, the surgery was very successful and plaintiff was doing well. With respect to the left side, the judge found that the surgery was also successful and any residual problems were of the mild variety. The judge thus acknowledged that plaintiff demonstrated a factual issue that she suffered permanent injuries in the accident but concluded that "plaintiff has not offered proof of a serious injury that carries her across the verbal threshold." (emphasis added).

The summary judgment motion was decided before the Supreme Court rendered its decisions in DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005), and thus, the trial judge did not have the benefit of the change in the law occasioned by those decisions. Indeed, in finding that plaintiff's carpal tunnel residua were insufficiently "serious" the judge cited our decision in Serrano, which held that a qualifying permanent injury must be "serious." Serrano v. Serrano, 367 N.J. Super. 450, 461 (App. Div. 2004). The Supreme Court rejected that proposition and held that any permanent injury would qualify. Serrano v. Serrano, supra, 183 N.J. at 518-19; see also Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005) (confirming there is no "serious injury" requirement under N.J.S.A. 39:6A-8a). All that is required to cross the threshold is the establishment of permanent injury by "objective credible evidence." DiProspero v. Penn, supra, 183 N.J. at 495.

When evaluating a summary judgment motion, the evidence must be viewed most favorably to the non-moving party, together with all favorable inferences. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36 (1995). Applying this standard, in light of the current status of the law as set forth in DiProspero and Serrano, we are satisfied that plaintiff provided sufficient evidence from which a jury could reasonably find that she suffered a permanent injury caused by the accident of April 9, 2002. In particular, viewing the evidence most favorably to plaintiff, the jury could reasonably find that the left carpal tunnel syndrome was a new injury caused by this accident. It could also find an aggravation of her right carpal tunnel syndrome and pre-existing cervical condition.

We need not decide in this case whether a comparative analysis between pre- and post-accident residuals continues to be required under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. See Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). Compare Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) (concluding a comparative analysis is no longer required), certif. granted, 2006 N.J. LEXIS 101 (N.J. Jan. 17, 2006), with Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003) (concluding a comparative analysis is still required). The asserted permanent injury to the left hand and arm is a new injury, and the comparative analysis contained in the medical reports with regard to the right hand and arm and cervical spine is adequate to raise a jury issue. Further, if plaintiff provides adequate, objective evidence of any permanent injury, she is entitled to "sue for noneconomic loss causally related to all injuries sustained in [the 2002] automobile accident." Puso v. Kenyon, 272 N.J. Super. 280, 293 (App. Div. 1994).

 
Reversed and remanded.

Gerard Brown, the husband of Theresa Brown, also sued per quod.

(continued)

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A-3757-04T5

March 22, 2006