WALTER ARAVICH et al. v. ANTHONY F. SPERO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5850-04T55850-04T5

WALTER ARAVICH and

MARY ARAVICH,

Plaintiffs-Appellants,

v.

ANTHONY F. SPERO,

Defendant-Respondent.

_________________________________

 

Submitted: May 23, 2006 - Decided June 27, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3547-04.

Drazin & Warshaw, attorneys for appellants (Christopher R. Brown, on the brief).

Sherman & Viscomi, attorneys for respondent (Patricia R. Lyons, on the brief).

PER CURIAM

Plaintiff Walter Aravich appeals from summary judgment dismissing his complaint for personal injuries arising out of a motor vehicle accident for failure to satisfy the "limitation on lawsuit" threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. The trial judge found that plaintiff had failed to establish a permanent injury through objective credible medical evidence and that plaintiff had not demonstrated the injuries had a serious impact on his life. See Oswin v. Shaw, 129 N.J. 290 (1992), as applied to AICRA by James v. Torres, 354 N.J. Super. 586, 591 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). Accordingly, by order of May 27, 2005, Judge Coogan dismissed plaintiff's complaint for non-economic damages.

On June 14, 2005, the Supreme Court issued its seminal opinions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), interpreting the AICRA statute. In those opinions, the Court construed AICRA as eliminating the so-called "second" or "lifestyle impact" prong of the verbal threshold. DiProspero, supra, 183 N.J. at 491-506; Serrano, supra, 183 N.J. at 509-10. Additionally, the court held that an AICRA plaintiff "has to prove only an injury defined in N.J.S.A. 39:6A-8a, and does not have to clear the additional hurdle of proving a 'serious injury.'" Serrano, supra, 183 N.J. at 510.

On July 11, 2005, plaintiff filed an appeal of the order for summary judgment. For reasons that are difficult to discern from the record, plaintiff then filed a motion with the trial judge for reconsideration of the summary judgment dismissal, which was denied by order of August 19, 2005.

On appeal, plaintiff contends he has made a sufficient showing of objective evidence of a permanent injury to satisfy the requirements of N.J.S.A. 39:6A-8 and withstand summary judgment. We disagree and affirm.

Sixty-year old plaintiff was involved in an automobile accident on June 5, 2003. He was seen at the emergency room, at which time he complained of abdominal and chest pain, trouble breathing, laceration of his left elbow and back, and extensive bruising in the chest and right arm. Radiological examinations of the abdomen, chest and left elbow were negative, although degenerative osteophytes were noted in the thoracic spine. An MRI performed on October 23, 2003 disclosed "[m]inor degenerative disc and facet changes involving the lumbar level . . . with convex left scoliosis." Additionally, the report states that a small broad-based left foraminal ridge is "suspected" at L2-L3 and a "right foraminal ridge/disc formation is noted at L3-L4." The report also notes "mild foraminal stenosis on the left at L4-L5 and the right at L3-L4" with no significant canal compromise.

Plaintiff was referred by his family physician to neurologist Alan Pertchick, M.D., who in turn referred plaintiff to Scott Metzger, M.D., a pain management specialist, who performed lumbar epidural steroid injections for lumbar radiculopathy on August 17, 2004, September 14, 2004, and October 19, 2004, and facet joint injections on November 30, 2004 for lumbar facet arthropathy. Dr. Metzger noted that plaintiff had improvement in his symptoms following the last injection, "suggesting that a portion of his residual pain is related to a diagnosis of facet joint arthropathy."

Dr. Pertchik examined plaintiff on July 22, 2003, and provided treatment approximately every one or two months, for a total of about eight visits through January 24, 2005. His April 30, 2005 report reflects a diagnosis following the last visit of post-traumatic lumbar strain and bi-lateral lumbar radiculopathies. A neurological examination revealed lumbar spine tenderness, spasm and limited ranges of motion, antalgic gait (walking with pain), and absent ankle reflexes. The doctor opined that all the conditions were caused by the motor vehicle accident and "have exceeded twelve months and are permanent."

The judge found plaintiff's injury did not qualify as a permanent injury based upon credible objective medical evidence. He noted that the x-rays taken on the day of the accident either revealed a normal result or a condition that was described as degenerative. Judge Coogan stated:

For example, in looking at the x-rays as analyzed by the radiologist, we see the word stenosis. Stenosis is a condition that develops over time leading to a narrowing of the spinal canal. Like disc bulges, virtually every person is likely to develop some form of stenosis during their lifetime. It merely is a matter of different severities.

Factors such as canal size, weight, activities and genetics play major roles in stenosis even with evidence of thoracic outlet syndrome. [T]here is no evidence that this type of injury is either permanent or causally related to the accident in treatment.

We are satisfied that the medical reports confirm the degenerative findings noted by the trial judge. Degeneration is not generally considered a traumatically-induced injury sufficient to satisfy the verbal threshold. See Sherry v. Buonansonti, 287 N.J. Super. 518, 521 (App. Div. 1996); Rogozinski v. Turs, 351 N.J. Super. 536, 553 (Law Div. 2002). Serrano's elimination of the requirement of serious injury did not change that result.

Although muscle spasms may be considered evidence of a permanent injury sufficient to withstand summary judgment, Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994), plaintiff's medical history contains no evidence of this condition. Dr. Pertchik does not report finding the existence of spasm during his examination on July 22, 2003, or in his office notes of November 24, 2003, October 25, 2004, or January 24, 2005. Nor is there any explanation or elaboration in his final report of April 30, 2005 for such finding; he merely notes he observed "spasm and limited ranges of motion" when he conducted the January neurological examination of plaintiff. Nor does Dr. Metzger report finding the existence of spasm. During his July 9, 2004 examination of plaintiff, he reports only complaints of tenderness, and only upon "deep palpation of the lumbosacral junction."

Even considering the more liberal standard of viewing verbal threshold summary judgment applications following DiProspero and Serrano, we are satisfied the trial judge correctly concluded that plaintiff failed to present objective, credible medical evidence of a permanent injury causally related to his motor vehicle accident sufficient to raise a legitimate factual dispute and overcome summary judgment.

Affirmed.

 

Taber's Cyclopedic Medical Dictionary 155 (17th ed. 1993), defines "arthropathy" as "[any] joint disease," "an inflammatory joint disease; arthritis."

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A-5850-04T5

June 27, 2006