MERCEDES BAUMAN et al. v. JEANNE VIRGILIO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5565-04T35565-04T3

MERCEDES BAUMAN and

EDWARD BAUMAN,

Plaintiffs-Appellants,

v.

JEANNE VIRGILIO and DCFS TRUST,

Defendants-Respondents.

_____________________________

 

Submitted October 11, 2006 - Decided December 4, 2006

Before Judges Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2479-03.

Steven P. Lombardi, attorney for appellants.

McElroy, Deutsch, Mulvaney & Carpenter attorneys for respondents (Joseph J. McGlone, of counsel; Anthony J. Fredella, on the brief).

PER CURIAM

Plaintiff's automobile negligence complaint was dismissed after entry of summary judgment, as the motion judge determined plaintiff's expert failed to present medical evidence causally linking any permanent injury to the motor vehicle accident. N.J.S.A. 39:6A-8. Additionally, the motion judge noted plaintiff's medical expert failed to adequately perform a Polk comparative analysis of a pre-existing neck and back condition. After review of the record, we find sufficient evidence to create a genuine issue of material fact that should not have been resolved by summary judgment. Accordingly, we reverse.

Viewing the facts presented most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following evidence. On October 10, 2001, while driving south on Center Grove Road in Randolph, the vehicle driven by plaintiff Mercedes Bauman was struck by the automobile driven by defendant Jeanne Virgilio, who failed to yield to plaintiff's vehicle, which had the right of way. Plaintiff asserts the accident caused permanent injury to her neck and lower back.

Plaintiff initially injured her neck and back when she slipped and fell on September 11, 1999. Radiographic evidence on that date revealed no fractures and the recommended treatment included a cervical collar, ice packs, and pain medication. Arthur H. Tiger, M.D., examined plaintiff after the fall, on April 28, 2000. Plaintiff was in "moderate distress because of her neck and back discomfort. Upon examination [plaintiff had] significant spasm and loss of the usual lordotic curvature in both the neck and lower lumbar region."

Dr. Tiger requested an MRI of the lumbar and cervical spine, which was completed on May 11, 2000. The radiologists' impressions revealed "left foraminal encroachment at L1-2, diffuse bulging at L2-3[,]" and "cystic nerve root changes at L5-S1 on the right" lumbar spine. The cervical spine was shown to have" [d]isc herniation at C4-5 and [a] disc bulge at C5-6." Dr. Tiger recommended, and plaintiff attended, twenty-four to twenty-five physical therapy sessions. Plaintiff underwent EMG testing on July 12, 2000, which evidenced "a diagnosis of a moderate left-sided, greater than right, 5-1 radiculopathy."

In his March 2, 2001 report, Dr. Tiger notes plaintiff remained symptomatic during the February 28, 2001 examination, and was experiencing "stiffness in her neck and lower back" and "radiating pain into her left lower extremity as well as some radiating pain into the left upper extremity." At Dr. Tiger's recommendation, plaintiff stopped physical therapy and was advised to commence epidural injections. Dr. Tiger's conclusion, following his March 2, 2001 follow-up examination, was that plaintiff "has chronic, permanent, and progressive injuries to both her neck and lower back that [are] causing her a significant functional disability . . . that [are] of a permanent basis."

In September 2001, plaintiff consulted with Carl Giordano, M.D., regarding surgical intervention because her neck and back condition was "unresponsive to conservative care." On December 10, 2001, plaintiff underwent a laminectomy performed at L2, 3, 4, 5 and S1. The surgeon noted a majority of stenosis "in the lateral recess at L3-4 and L4-5. There was mild stenosis at L2-3 and L5-S1."

Following the ensuing automobile accident of October 10, 2001, but before her surgery, plaintiff again sought an MRI of her cervical spine. The report dated October 31, 2001, presents the radiologists' impressions as follows:

C4-5 shows a moderately large left paracentral disc herniation with associated posterior osteophyte indenting the thecal sac and cord, as on prior [MRI]. C5-6 shows disc bulge with associated bony ridge/posterior osteophyte indenting the thecal sac. C6-7 shows a shallow right paracentral disc herniation slightly indenting the thecal sac. C3-4 shows a tiny very shallow central disc herniation with associated posterior spur, minimally indenting the thecal sac.

Plaintiff returned to Dr. Tiger for examination. In his report dated April 5, 2002, Dr. Tiger fails to mention the October 10, 2001 automobile accident. Dr. Tiger performed another evaluation on September 26, 2003. That report is attached to Dr. Tiger's physician's certification required as a condition for maintaining a cause of action under the "limitation on lawsuit option" (frequently called the "verbal threshold") of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Dr. Tiger references the automobile accident and describes plaintiff's current symptoms. Dr. Tiger also discusses his review of plaintiff's post-accident MRI, comparing its results to the MRI taken after her fall. In his report he states:

[Plaintiff] did have a cervical MRI on [October 31, 2001], which showed evidence of a herniated disc at the 4-5 and 6-7 levels with evidence of bulging discs at 5-6 and 3-4. This was significantly changed from a pre[-]motor vehicle accident status.

. . . .

It is my opinion [plaintiff] did injure her neck in the initial [September 11, 1999] accident and did sustain a herniated disc at the 4-5 level as well as a bulging disc at the 5-6 level with aggravated arthritis. The motor vehicle accident did make her significantly worse.

It is my impression that the patient does have significant injuries to her neck and back as a result of the slip and fall and her neck injuries were worsened by the motor vehicle accident.

. . . .

It is my impression that the patient will always have pain and discomfort in and about her neck and back and always have radicular symptoms from her neck and lower back into her left upper and left lower extremity.

Following oral argument, the motion judge determined Dr. Tiger's expert report failed to opine whether it was the automobile accident that caused the changes in plaintiff's cervical spine as evidenced in the October 31, 2001 MRI. The motion judge dismissed the complaint "for lack of causation," suggesting plaintiff obtain a supplemental report and file a motion for reconsideration.

Under AICRA, the limitation on the right to claim damages for noneconomic loss set forth in the verbal threshold is overcome if plaintiff shows that "as a result of bodily injury, arising out of the . . . operation . . . or use of" an automobile, plaintiff has sustained "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8a. An injury is 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.

We find Dr. Tiger's report sufficiently identifies permanent injuries suffered by plaintiff after the automobile accident, which are verified by objective clinical evidence. When comparing the MRI results, Dr. Tiger discussed the changes in plaintiff's cervical spine, specifically noting the newly visible herniation at C6-7. He also references the impairment at C3-4 characterizing it a "disc bulge." Dr. Tiger's articulation that plaintiff's "neck injuries were worsened by the motor vehicle accident" and that plaintiff's MRI evidence "was significantly changed from a pre-motor vehicle accident status[,]" satisfactorily attributes the accident as the cause of plaintiff's newly visible herniated discs, which qualify as permanent injuries satisfying the threshold. See Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006).

We briefly address the Polk issue. Subsequent to the dismissal of plaintiff's case, a disagreement arose regarding the viability of Polk in light of the Supreme Court's decisions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). See Lucky v. Holland, 380 N.J. Super. 566, 569-70 (App. Div. 2005); Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005); and Hardison v. King, 381 N.J. Super. 130, 134 (App. Div. 2005). On September 12, 2006 the Supreme Court heard arguments after granting certification in Davidson, presumably to address the divergent opinions. Without recounting the circumstances of these decisions we conclude that plaintiff satisfied her summary judgment burden whether or not Polk is applicable. There is sufficient credible objective evidence to show that plaintiff suffered permanent injuries, as required by AICRA, to proceed in her suit for pain and suffering damages. Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 333-34 (2005); Serrano, supra, 183 N.J. at 509 (2005); DiProspero, supra, 183 N.J. at 480-82. That same evidence, when viewed most favorably to plaintiff, supports a finding that the permanent injury caused by the automobile accident is sufficiently differentiated from the previous injuries. Consequently, a genuine and material factual question was raised requiring reversal of the grant of summary judgment.

Reversed and remanded for trial.

 
 

As used in this opinion, plaintiff refers solely to Mercedes Bauman, however it is acknowledged Edward Bauman presents a loss of consortium claim.

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

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A-5565-04T3

December 4, 2006