JOSHUA L. KIRSTEIN v. DONG W. KIM et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6462-04T36462-04T3

JOSHUA L. KIRSTEIN,

Plaintiff-Appellant,

v.

DONG W. KIM and CHASE

MANHATTAN CORP.,

Defendants-Respondents.

_______________________________________

 

Submitted January 30, 2006 - Decided February 10, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-L-1264-04.

Mezzacca & Kwasnik, attorneys for appellant (A. Lawrence Mezzacca, III, on the brief).

William P. LaRosa, attorney for respondents (Edward I. Davis, of counsel and on the brief).

PER CURIAM

Plaintiff filed a complaint alleging that he sustained permanent injuries on February 24, 2002 when the motorcycle on which he was riding collided with a vehicle owned by defendant Chase Manhattan Corporation and operated by defendant Dong W. Kim. Plaintiff appeals from an order entered June 24, 2005 granting summary judgment in favor of defendants on the ground that plaintiff had not presented sufficient evidence to raise a genuine issue of material fact as to whether his injuries meet the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a), as amended by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35. We affirm.

We briefly summarize the evidence presented to the trial court on the motion. Following the accident, plaintiff was taken by ambulance to Robert Wood Johnson University Hospital in New Brunswick. X-rays were taken. A CT scan of plaintiff's brain was performed and no abnormalities were observed. The final "patient diagnostic reports" state that plaintiff's right hip, right shoulder, left hand, and chest were normal. There was no evidence of a left femoral fracture. However, one report notes a "subtle lucency" in the "left superior pubic ramus" which might represent a "subtle fracture."

Plaintiff was examined on March 18, 2002 at University Orthopedic Associates, and a report of the exam notes the presence of paraspinal spasm in the cervical spine. There was no significant restriction on range of motion. The upper extremities were found to be "unremarkable bilaterally." Plaintiff had normal function of his hands, wrists, elbows and shoulders. Both upper extremities appeared "neurovascularly intact." The lower extremity exam showed "some tenderness over the greater trochanteric region" with no restriction of the range of motion of the hip. The knee, ankle, foot and left upper extremity were "completely unremarkable." Both legs were found to be "neurovascularly intact."

Plaintiff was involved in a prior motor vehicle accident on April 19, 2001. He treated at Mandell Chiropractic, P.A., which provided a report dated August 23, 2001 that states plaintiff complained of headaches and pain in his neck, right shoulder, lower back and left knee. The report notes findings of tenderness of the spine, including the cervical, lumbar and lumbo-sacral regions. According to the report, the tenderness was indicative of damage to the ligaments. The report also notes muscle spasm in the cervical and lumbar musculature, as well as in the trapezius muscles. The report states that these pathologies resulted in restricted ranges of motion in the cervical and the thoracolumbar spine.

MRIs of plaintiff's cervical spine, lumbar spine and left knee were performed on June 20, 2001. The report of the cervical MRI notes a reversal of the cervical lordosis; broad based disc bulges with no central canal, subarticular or foraminal stenosis at C2-C3, C3-C4, C4-C5, C5-C6, and C6-C7; and no significant disc bulge or herniation at C7-T1. The report of the lumbar MRI showed disc bulging at levels L2-L3 to L5-S1, no evidence of spinal canal or neural foraminal stenosis but narrowing of the left subarticular zone at L4-L5. The MRI of the left knee showed abnormal signal "in the posterior horn of the medial meniscus consistent with degenerative change." However, there was no evidence of articular surface tear of the menisci and no evidence of collateral or cruciate ligament tear.

An electromyography and nerve conduction study was performed on August 13, 2001. The report of that test showed the presence of left C6-C7 and right C-5 radiculopathy.

On April 30, 2002, after the accident that is the subject of the instant lawsuit, an MRI was performed on plaintiff's cervical spine. The report of the MRI states that that there were "minimal" disc bulges. There was a "small diffuse" disc bulge at C3-C4. There was a "tiny diffuse" bulge at C4-C5. In addition, there was a "small diffuse" bulge at C5-C6. The bulges were not the cause of any significant spinal canal or neural foraminal stenosis. In addition, there was no evidence of disc bulges or spinal/neural stenosis at the other levels of the cervical spine. The results of this MRI were compared to the MRI study dated June 20, 2001. In her report dated May 1, 2002, Kerstin A. Slawek, M.D. states that the cervical MRI of April 30, 2002 showed "no significant change" from the June 20, 2001 cervical MRI.

Plaintiff produced a final narrative report dated October 1, 2003 from Jamie S. Blecher, D.C. of the Align Chiropractic Group. Blecher notes that plaintiff had a prior accident in 2001 but plaintiff informed Blecher that the "pain is different" and "more severe." Plaintiff said that he had no physical problems or handicaps prior to the February 24, 2002 accident. Plaintiff complained of constant neck, low back, right hip and leg pain. Blecher notes that, in his final examination on October 9, 2002, he found tenderness and spasm on palpation of the cervical, thoracic and lumbar regions of the spine. There were limitations to the ranges of motion in the cervical and lumbosacral spine. Blecher states that the MRI showed disc bulges at "multiple levels." Blecher's final diagnosis is: joint dysfunction of the cervical spine, cervico-thoracic myofascitis, lumbosacral myofascitis, and disc damage to the cervical spine.

In the report, under a sub-section entitled "Permanency," Blecher states:

Based upon the limitations in functional capabilities presented by this patient along with the longevity of the symptomology, it is my opinion that, within a reasonable degree of medical probability, this patient has sustained a significant limitation of use and impaired function in his neck. The patient can use his neck but only in a limited manner due to the recurring pain upon routine activities. These opinions are based upon significant objective findings and subjective findings pertinent to this patient, such as pain restrictions in ordinary and routine activities, limitation of motion of the neck, MRI, neurological examination and pain as demonstrated by musculoskeletal testing.

In the section called, "Doctor's Opinion," Blecher asserts that his examination and the testing "establishes" that plaintiff's complaints are "consistent with the mechanism of the injury and type of trauma sustained by this patient as a result of the accident on February 24, 2002." Blecher goes on to state:

The patient was working and functioning without restrictions or limitations at the time of the current injury. The fact that this patient was duly gainful in activities of daily living and was working without restrictions supports the patient's comments that he had no impairment prior to this accident.

Blecher opines that the injuries contained in his diagnosis "are causally related to the patient's motor vehicle accident on February 24, 2002."

The motion judge granted defendant's motion for summary judgment because plaintiff failed to provide a comparative analysis between the injuries sustained in the 2001 accident from those allegedly sustained in the 2002 accident at issue in this case. Ruling from the bench, the judge concluded that such a comparative analysis was required by Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993).

The judge noted that in the 2001 accident, plaintiff's treating chiropractor concluded that plaintiff had suffered permanent injuries to the cervical and lumbar spine, as evidenced by disc bulges at multiple levels of the cervical and lumbar spine. The judge stated that these injuries had been confirmed by MRI studies performed in 2001 as well as an EMG and nerve conduction study performed on August 13, 2001, which revealed the presence of left C6-C7 and right C-5 radiculopathy. The judge added:

Plaintiff testified he sustained injuries to his neck, back, jaw, and shoulder as a result of the prior 2001 accident. [Plaintiff] [t]estified he was still having problems with his prior injuries when the subject accident occurred. Plaintiff has failed to produce a comparative analysis of the...residuals, both before and after the accident in question in this case as required by Polk. Thus, there is a lack of objective clinical medical evidence of a permanent injury or aggravation related to the subject accident.

The judge entered an order granting defendants' motion and this appeal followed.

Under our Court Rules, summary judgment shall be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid. A genuine issue of material fact does not exist if there is "a single, unavoidable resolution of the alleged disputed issue of fact. . . ." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). When reviewing an order granting summary judgment, we consider whether the motion judge correctly applied these principles. Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We are convinced that the judge properly granted summary judgment in this case because plaintiff did not present sufficient objective credible evidence to raise a genuine issue of material fact as to whether he sustained a permanent injury in the February 24, 2002 accident.

Under AICRA, a plaintiff may not bring an action for non-economic damage unless the plaintiff shows that, in the operation or use of an automobile, plaintiff sustained an injury that comes within one of the six categories of injuries in N.J.S.A. 39:6A-8(a). In this case, plaintiff alleges that he sustained in the February 24, 2002 accident "a permanent injury within a reasonable degree of medical probability." Under the threshold statute, an injury is considered to be 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.

In DiProspero v. Penn, 183 N.J. 477, 481-82 (2005), our Supreme Court held that the "serious life impact" standard which had been previously applied to the statutory threshold pursuant to Oswin v. Shaw, 129 N.J. 290 (1992), does not apply to the limitation on lawsuit enacted as part of AICRA. The Court determined that, in order to vault the threshold, a plaintiff need only satisfy one of the six categories of injuries in N.J.S.A. 39:6A-8(a) "and does not have the additional requirement of proving a serious life impact." DiProspero, supra, 183 N.J. at 482.

In Serrano v. Serrano, 183 N.J. 508 (2005), the Court concluded that a plaintiff subject to the AICRA limitation on lawsuit threshold is not required to prove the injury is a serious injury because "the statute and its history strongly suggest that the Legislature considered all of the threshold injuries to be serious injuries." Id. at 516. The Court in Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005), reaffirmed its decision in Serrano and stated that the plaintiff subject to the limitation on lawsuit threshold "need only prove that [the] injuries satisfy one of the threshold categories in AICRA." Id. at 334. A plaintiff claiming a permanent injury is "required only to prove by objective credible evidence that" the injury is permanent as that term is defined in N.J.S.A. 39:6A-8(a). Ibid.

Here, the motion judge granted summary judgment because plaintiff had not provided a comparative analysis of the injuries sustained by plaintiff in the April 19, 2001 accident and the injuries allegedly sustained in the February 24, 2002 accident. The judge ruled that such a comparison is required by Polk, supra, 268 N.J. Super. at 575.

Different panels of this court have disagreed about whether the Polk requirement remains viable after the enactment of AICRA. Compare Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003), with Davidson v. Slater, 381 N.J. Super. 22, 27-29 (App. Div. 2005). There also has been a difference of opinion as to whether Polk applies only to claims of an aggravation of a pre-existing injury. Compare Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.), certif. denied, 180 N.J. 457 (2004), with Hardison v. King, 381 N.J. Super. 129, 134-35 (App. Div. 2005).

We decline to express a view as to whether a Polk analysis is required in this case. We are convinced that, even if such a comparative analysis is not required, plaintiff has failed to present sufficient objective evidence to raise a genuine issue of material fact as to whether he sustained in the 2002 accident a permanent injury as defined in N.J.S.A. 39:6A-8(a).

As we stated previously, in his report, Blecher opines that plaintiff sustained permanent injuries in the 2002 accident, which he diagnosed as joint dysfunction of the cervical spine, cervico-thoracic myofascitis, lumbosacral myofascitis, and disc damage to the cervical spine. However, the MRI study performed after the 2001 accident showed disc bulges at virtually all levels of the cervical spine. The MRI study of the cervical spine performed following the 2002 accident showed "no significant change" from the June 20, 2001 cervical MRI. The MRIs therefore show that the injuries to plaintiff's cervical spine were sustained in the 2001 accident and there was no significant change in the condition of plaintiff's cervical spine as a result of the 2002 accident. Thus, the MRI reports do not provide objective evidence of a permanent injury related to the 2002 accident.

Furthermore, in his report, Blecher points to other evidence which he says supports his opinion that plaintiff sustained a permanent injury in the 2002 accident. Blecher says that he observed spasm in the neck in an examination of plaintiff on October 9, 2002. Spasm is considered objective evidence of an injury. Oswin, supra, 129 N.J. at 319-20. However, Blecher observed spasm several months after the accident. This is not the sort of "persistent muscle spasm" that is indicative of a permanent injury. See Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994)(holding that evidence of spasm twenty-six months after cessation of treatment "constitutes prima facie objective evidence of a permanent injury."). Moreover, Blecher's report relies heavily on plaintiff's complaints of pain and limitations on the range of motion. Plaintiff's complaints are subjective and the range of motion tests are based on plaintiff's pain responses. Oswin, supra, 129 N.J. at 320. This evidence is not the sort of objective evidence of injury required to vault the threshold.

 
Affirmed.

The "trochanter" is one of the bony "processes" on the upper part of the femur. The American Heritage Stedman's Medical Dictionary, 854 (1995).

"Stenosis" is a constriction or narrowing. Id. at 787.

"Myofascitis" is also known as "myositis fibrosa," which is defined as the "induration of a muscle through an interstitial growth of fibrous tissue." Id. at 543.

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A-6462-04T3

February 10, 2006