SHEILA S. HUGGINS et al. v. MICHELLE L. ROLLICK, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5126-04T55126-04T5

SHEILA S. HUGGINS and

L. HUGGINS, et ux,

Plaintiff-Appellant,

v.

MICHELLE L. ROLLICK,

VAUGHN VANDEGRIFT,

Defendants-Respondents.

 

Argued March 1, 2006 - Decided March 13, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3692-03.

Joel Wayne Garber argued the cause for appellant.

William H. Hanifen, IV argued the cause for respondents.

PER CURIAM

Plaintiff Sheila Huggins was operating her motor vehicle on July 2, 2001, when she was struck from behind while stopped at a red traffic signal on Springdale Road in Cherry Hill Township by a vehicle operated by defendant Michelle Rollick. Plaintiff appeals from an April 15, 2005 summary judgment that dismissed her complaint based on a failure to meet the verbal threshold. We reverse.

Following the accident, the forty-five-year-old plaintiff was initially treated by a chiropractor, Dr. Gecys, who performed "manipulative treatment, electrical stimulation and heat." She was examined by Barry S. Gleimer, D.O., an orthopedist, on August 28, 2001. At the time of Dr. Gleimer's examination, plaintiff had improved but continued to be symptomatic. On examination, her lumbar spine showed moderate spasm and tenderness; straight leg raising was positive for sciatic pain to the left leg. The doctor's impression was that she was suffering from post-traumatic lumbar strain and sprain with myofascitis; he recommended that she undergo an MRI of the lumbar spine.

On October 25, 2001, plaintiff was seen by Don H. Ho, M.D., for an electrodiagnostic examination of both lower extremities and her lumbosacral paraspinal muscles. Plaintiff complained that since the accident, she began experiencing increased low back pain. The EMG test revealed "involvement (injury) of the bilateral L5 and the S1 nerve roots[,]" of mild-to-moderate severity. The examination also revealed "[u]nderlying, mild, chronic reinnervation changes" in plaintiff's bilateral L4 nerve roots. Dr. Ho considered the EMG findings abnormal and consistent with lumbosacral radiculopathy. He concluded that: "Due to the permanent nature of the severity of her multiple nerve root injuries, the prognosis for full recovery is guarded." He associated the abnormal EMG findings with the July 2, 2001 automobile accident.

Plaintiff continued to experience low back pain. On January 24, 2002, she was treated by Anna D. Lee, M.D., Dr. Ho's associate. Dr. Lee found that plaintiff had a "visible and palpable twitch response" from her muscle regions. That response continued through examinations/treatments on January 31, 2002 and February 22, 2002.

In support of her claim, plaintiff submitted a certification of permanency from Murray H. Moliken, M.D. He certified that to a reasonable degree of medical probability, plaintiff sustained permanent injuries to her back, which "have not healed to function normally and will not heal to function normally with further medical treatment." He grounded his opinion on an October 19, 2001 EMG performed by Dr. Lee, which revealed lumbosacral radiculopathy bilaterally at L5-S1, as well as cervical radiculopathy bilaterally at C5-6.

In rendering his decision to dismiss plaintiff's complaint, the motion judge made the following findings:

The positive EMG that shows a bilateral radiculopathy, both upper and lower, is a positive finding but does not in and of itself indicate a permanent injury, particularly where the plaintiff in her clinical responses does not point to that type of pain but says her pain is localized to the lumbar area. And positive findings do not equate with permanent injury and I don't see any permanent injury in this case. What I see is basic soft-tissue injury, Oswin type of injury.

With respect to the -- so I make that finding or determination. But also, with respect to the substantial impact, there is nothing in the medical records that indicate that any physician prohibited her from doing any of the things that she claims she can't do. And, further, this woman hasn't been treated for at least three years and I don't see where this meets the AICRA standard so the motion will be granted.

In other words, the judge concluded that plaintiff did not have a permanent injury, and that her injuries did not have a substantial impact on her life. As to the latter, to vault the verbal threshold it is no longer necessary that a plaintiff demonstrate that the injuries from the accident resulted in a serious impact upon his or her life. DiProspero v. Penn, 183 N.J. 477, 481-82 (2005). We therefore limit our discussion to whether plaintiff has demonstrated that her injuries satisfy one of the six statutorily-defined threshold categories in AICRA. See Serrano v. Serrano, 183 N.J. 508, 509 (2005); DiProspero, supra, 183 N.J. at 481-82. One of those criteria is a permanent injury within a reasonable degree of medical probability. DiProspero, supra, 183 N.J. at 488; N.J.S.A. 39:6A-8a. Thus, so long as plaintiff proves by objective medical evidence that she suffered a permanent injury by reason of the automobile accident, she is entitled to sue for pain and suffering. See Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005).

 
Here, the EMG tests, Dr. Ho's findings, and Dr. Moliken's certification of permanency, are sufficient to vault plaintiff over the verbal threshold for purposes of summary judgment. EMG testing revealed nerve root involvement and radiculopathy. Dr. Ho believed plaintiff's injuries were permanent and causally related to the automobile accident. He gave plaintiff a guarded prognosis for recovery. Dr. Moliken certified that the injuries to plaintiff's back were permanent, and had not healed to function normally; he based his opinion upon clinical EMG findings.

Reversed.

Plaintiff L. Huggins, Sheila Huggins's husband, has a per quod claim. All references in this opinion to plaintiff are to Sheila Huggins.

Plaintiff has also filed a negligent entrustment claim against defendant Vaughn Vandegrift, who plaintiff alleges owned the vehicle driven by Michelle Rollick. The trial judge did not address the negligent entrustment claim, and neither do we.

Oswin v. Shaw, 129 N.J. 290 (1992).

1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a.

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A-5126-04T5

March 13, 2006