SEAN LEE v. WILLIAM M. LAFFEY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4038-04T24038-04T2

SEAN LEE,

Plaintiff-Appellant,

v.

WILLIAM M. LAFFEY and WILLIAM M.

LAFFEY, JR.,

Defendants-Respondents.

_______________________________________________________________

 

Argued March 1, 2006 - Decided March 28, 2006

Before Judges Fall and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Docket No. L-1297-04.

Joseph G. Perone argued the cause for appellant

(Deitch & Perone, attorneys; Mr. Perone, on the

brief).

Joseph V. Pinto argued the cause for respondents

(Slowinski Atkins, attorneys; Mr. Pinto, on the

brief).

PER CURIAM

In this verbal threshold case, plaintiff Sean Lee appeals from an order entered in the Law Division on March 4, 2005, granting summary judgment in favor of defendants William M. Laffey and William M. Laffey, Jr., dismissing the complaint for failure to meet the permanent injury verbal threshold requirement contained in N.J.S.A. 39:6A-8(a), and denying as moot his motion for partial summary judgment against defendants on the issue of liability.

This appeal arises from a motor vehicle accident occurring on March 18, 2002 in Tinton Falls. Plaintiff, who was operating a motor vehicle owned by Hester S. Lee, was stopped at a red traffic signal on Wayside Road at its intersection with Shafto Road. As the signal turned green, he proceeded into the intersection and was struck by a vehicle being operated by defendant William M. Laffey, Jr. and owned by defendant William M. Laffey.

Plaintiff began to experience pain on the left side of his forehead, in his neck, left foot, and left ankle approximately one hour after the accident. Later that day, he was examined by Dr. Nafisa Bhoori at I.M.A. Medical Center, and was given medication for the pain. The next day, March 19, 2002, plaintiff returned to I.M.A. X-rays taken of his cervical spine, left ankle, left foot, and skull disclosed no fractures or other abnormalities. He received no other treatment or care from I.M.A.

On April 1, 2002, plaintiff was examined by Dr. Thomas Nettis, a chiropractor. Plaintiff complained of cervical pain. Dr. Nettis diagnosed him as suffering from an acute cervical sprain and strain, and embarked on a course of treatment consisting of moist heat therapy, electrical muscle stimulation, massage therapy, and spinal manipulation, approximately three times per week, ending on July 18, 2002.

When his cervical pain did not resolve and became worse, he began treatment with Dr. Emanuel M. Hiras, another chiropractor, on July 23, 2003. Plaintiff was treated by Dr. Hiras intermittently thereafter. Dr. Hiras issued a report dated July 28, 2004, diagnosing plaintiff as suffering from a chronic cervical sprain/strain; cervical muscle spasm; chronic thoracic sprain/strain' chronic lumbar sprain/strain; headaches; cervical radiculopathy; and lumbar radiculopathy, all causally related to the March 18, 2002 accident. Dr. Hiras stated that the injuries sustained by plaintiff "to his neck, mid back, low back, and shoulder are permanent as these areas will not return to their normal level of functioning."

An MRI of plaintiff's cervical spine, taken on January 21, 2004, disclosed a mild uncovertebral hypertrophy without evidence of significant disc bulge or focal disc herniations at the C4-C5 and C5-C6 levels, a mild diffuse disc bulge without focal disc herniation at C6-C7, and an unremarkable cervical spinal cord.

On February 10, 2004, plaintiff was evaluated by Dr. R. Neil Pelman of Spinal & Head Trauma Associates. Plaintiff complained of persistent neck pain radiating to his left upper extremity with weakness in his left arm, pain in his left shoulder, and left frontal headaches approximately once per month. Dr. Pelman ordered an EMG study, which was completed on March 9, 2004, which disclosed chronic left-sided C6-C7 radiculopathy.

On April 20, 2004, plaintiff was examined by Dr. Harris N. Bram of Spinal & Head Trauma Associates, for pain management. Dr. Bram recommended cervical facet nerve injections. Dr. Pelman recommended an MRI study of plaintiff's left shoulder, which was completed on September 11, 2004, and which ruled out any rotator cuff tear.

On January 26, 2005, Dr. M. Othee of Spinal & Head Trauma Associates issued a report diagnosing plaintiff as suffering a C6-C7 disc bulge; left C6-C7 radiculopathy; left shoulder impingement/supraspinatus tendonitis; myofascitis; and cervical facet pain, causally related to the March 18, 2002 accident. Dr. Othee opined that these injuries were permanent in nature.

The complaint was filed in the Law Division on January 18, 2004. Upon completion of discovery, defendant moved for summary judgment, contending that plaintiff had failed to meet the verbal threshold requirement of a permanent injury as required by N.J.S.A. 39:6A-8(a). Plaintiff cross-moved from partial summary judgment on the issue of liability.

The motions were argued in the Law Division before Judge O'Hagan on March 4, 2005. In granting summary judgment in favor of defendants, the judge recited our opinions in Serrano and James requiring a finding that the injury sustained is not only permanent, but serious, and found that "[b]y no means can it be said here that this plaintiff has sustained the type of serious injury contemplated by the Legislature so as to carry him across the verbal threshold." (Emphasis added).

 
In light of the Supreme Court decisions in DiProspero v. Penn, 183 N.J. 477 (2005), Serrano v. Serrano, 183 N.J. 508, (2005), and particularly Juarez v. J.A. Salerno, 185 N.J. 332 (2005), where the Court specifically disapproved of the "serious injury" standard, we reverse the grant of summary judgment and remand for further proceedings.

Reversed and remanded.

At depositions, plaintiff testified his treatment with Dr. Nettis continued until December 2002; however, the reports contained in the record on appeal indicated he stopped treatment with Dr. Nettis in July 2002.

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A-4038-04T2

March 28, 2006