RONALD AUSTIN et al. v. EVA M. DiGREGORIO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4419-04T54419-04T5

RONALD AUSTIN and EVELYN AUSTIN,

his wife,

Plaintiffs-Appellants,

v.

EVA M. DiGREGORIO,

Defendant-Respondent.

__________________________________

 

Argued February 14, 2006 - Decided March 13, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Gloucester County, Docket No.

GLO-L-1678-03.

Kenneth R. Austin argued the cause for appellants.

William L. Lundgren argued the cause for respondent

(Green, Lundgren & Ryan, attorneys; Charles F.

Blumenstein, II, on the brief).

PER CURIAM

This is a verbal threshold case in which plaintiff, Ronald Austin, appeals from a summary judgment dismissing his personal injury, automobile negligence complaint against defendant, Eva M. DiGregorio. The judge concluded, based on the motion papers, that plaintiff's proofs did not establish an objective permanent and serious injury. We disagree and consequently remand for trial.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. On October 29, 2001, the vehicle plaintiff was operating was involved in a three-car chain collision. Plaintiff's car was first in line, stopped at an intersection, when defendant's vehicle rear-ended the middle car, which was pushed into plaintiff's car.

Plaintiff, who was fifty-four years old at the time, went to his family physician the next day, complaining of neck and back stiffness with pain radiating down his right leg. Prior to the accident, there was no cervical, lumbar, or radicular complaints, injuries or treatment. In any event, plaintiff was referred to Dr. Biggiani with whom he treated for the next five months. Upon physical examination, Dr. Biggiani observed spasm and decreased range of motion in the lumbar spine.

On December 26, 2001, plaintiff underwent an MRI of the lumbar spine, which revealed degenerative arthritis and disc disease from L2 down through L5, S-1; broad-based bulging of the L2-3 and L4-5 discs; and a suggestion of a right lateral subligamentous herniation, L4-5, causing right foraminal stenosis. Consequently, Dr. Biggiani diagnosed chronic lumbar strain and sprain with associated lumbar disc syndrome, and a herniated disc at L4-5 with foraminal encroachment/stenosis on the right side.

Plaintiff consulted with Dr. Eby Banas, a neurologist, on January 2, 2002, and February 6, 2002. Dr. Banas' examination revealed continuing muscle spasms and tenderness at the cervical and lumbar paravertebral regions.

Plaintiff was also seen by Dr. Gary Goldstein, an orthopedic surgeon. An EMG, which Dr. Goldstein performed on November 3, 2003, was positive for a "[c]linically active right L4-5 radiculopathy." This diagnostic finding correlated with plaintiff's "clinically active disc herniation at the L4-5 level on the right," which Dr. Goldstein attributed to the October 29, 2001 automobile accident. Although plaintiff had pre-existing degenerative disease of the lumbar spine, it was, according to Dr. Goldstein, "asymptomatic," and "made symptomatic with probable addition of L4-5 right subligamentous disc herniation, which is clinically active at this time."

In granting summary judgment for defendant, the motion judge found no evidence of permanent and serious injury. Despite finding evidence that plaintiff has "what amounts to a clinically active disk herniation at the L-4, 5 level on the right[,] . . . . consistent with his radiculopathy, as well as the EMG . . . which was positive for on-going radiculopathy at this time[,]" the judge nevertheless concluded:

To survive summary judgment the plaintiff must come forward with objective credible evidence that is -- medical evidence of an injury that is both permanent and serious.

In this case the plaintiff was diagnosed with essentially soft tissue injuries and I include the herniated disk in that category.

The herniated disk does have symptoms of radiating pain from time to time. The doctors refer to it as radiculitis, which I take to mean that it's a temporary inflammation that can resolve from time to time, rather than a permanent nerve type damage.

In any event, I am guided by the reports of all his treating health care professionals that these are soft tissue injuries that are appropriate for conservative treatment, including a basically lifelong program of home exercises and stretching and that these are not the type of injuries, nor is this the kind of treatment that would warrant a case moving past the verbal threshold.

We disagree.

The Automobile Insurance Cost Reduction Act (AICRA),

L. 1998, c. 21, 11, which was effective for all automobile insurance policies issued on or after March 22, 1999, amended the verbal threshold lawsuit limitations contained in N.J.S.A. 39:6A-8a to permit claims for non-economic loss for soft-tissue injuries only when the injured party "has sustained a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8a. Moreover, "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Thus, to overcome the "limitation on lawsuit threshold," plaintiff must submit "objective credible [medical] evidence" of "a permanent injury." Serrano v. Serrano, 183 N.J. 508, 514, 519 (2005). Plaintiff need not show that the injury was serious, id. at 518; or had caused "a serious life impact." DiProspero v. Penn, 183 N.J. 477, 506 (2005).

We are satisfied that plaintiff's objective clinical evidence here, including the reports of Drs. Goldstein, Banas and Biggiani, the diagnostic testing, and the physicians' physical examinations and resulting findings, raise a genuine issue of material fact as to whether the October 29, 2001 automobile accident caused injuries to plaintiff's lower back which "ha[ve] not healed to function normally and will not heal to function normally . . . ." N.J.S.A. 39:6A-8a. Upon physical examination of plaintiff, Drs. Biggiani and Banas found post-traumatic muscle spasm. A medical finding of muscle spasm causally related to the accident alone can be sufficient to constitute objective evidence of permanent injury sufficient to meet the verbal threshold. Oswin v. Shaw, 129 N.J. 290, 320 (1992); Moreno v. Greenfield, 272 N.J. Super. 456, 463 (App. Div. 1994); Arencibia v. Rosas, 270 N.J. Super. 339, 347 (App. Div. 1994). In discussing the issue of whether the presence of spasms meets the verbal threshold requirement of credible, objective medical evidence of permanent injury, we have explained:

Stated conversely, the presence of spasm initially and thereafter during treatment is an objective manifestation of injury. Spasm that is still evident, as here, twenty-six months after cessation of active medical treatment, clearly constitutes prima facie objective evidence of permanent injury. At the very least, persistent existence of spasm raises a genuine issue of material fact sufficient to withstand summary judgment. This conclusion is consistent with our decision in Phillips v. Phillips, 267 N.J. Super. 305 (App. Div. 1993), where the plaintiff initially had mild paravertebral spasm but two years thereafter did not manifest spasm in the neck or spine. Continued spasm was also recognized as objective evidence of injury sufficient to withstand a motion for summary judgment in Foti v. Johnson, . . . 269 N.J. Super. [198,] 201 [(App. Div. 1993).]

[Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994) (citations omitted).]

Moreover, the EMG revealed an active right L4-5 radiculopathy at the precise level of the lumbar disc pathology shown on the MRI. In Dr. Goldstein's opinion, plaintiff's pre-existing but asymptomatic degenerative disease of the lumbar spine was permanently symptomatic, post-accident, with probable addition of an L4-5 right subligamentous disc herniation. Clearly, a radiculopathy and a herniated disc are the type of injuries that have been held to satisfy the "limitation on lawsuit" threshold under AICRA. Serrano, supra, 183 N.J. at 509, 511; Bennett v. Lugo, 368 N.J. Super. 466, 474-476 (App. Div.), certif. denied, 180 N.J. 457 (2004). Here, we conclude that plaintiff's proofs are sufficient to establish a qualifying injury and, therefore, withstand defendant's motion for summary judgment. Of course, causation then becomes a question of fact for the jury to decide.

 
Lastly, we note that defendant's remaining contention concerning the sufficiency of Dr. Goldstein's certification of permanency was not raised below and is, therefore, precluded from consideration now. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, we find the contention without merit. R. 2:11-3(e)(1)(E).

Reversed and remanded for trial.

Plaintiff's wife, Evelyn Austin, sued per quod.

(continued)

(continued)

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A-4419-04T5

March 13, 2006