JAMES COUCH v. PEEBLES POOLE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6976-03T16976-03T1

JAMES COUCH,

Plaintiff-Appellant,

v.

PEEBLES POOLE and

EARL M. POOLE,

individually, jointly, severally,

and/or in the alternative,

Defendants-Respondents.

_________________________________

 

Submitted January 23, 2006 - Decided February 24, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1461-03.

Begelman & Orlow, attorneys for appellant (Jordan R. Irwin, on the brief).

Styliades, Jackson & Dimeo, attorneys for respondents (Brian M. Doyno, on the brief).

PER CURIAM

Plaintiff, James C. Couch, appeals from an order of summary judgment of July 9, 2004, dismissing his complaint for personal injuries arising out of a motor vehicle accident that occurred on June 2, 2001, 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 motion judge determined that plaintiff failed to demonstrate by objective, credible evidence that he sustained a qualifying injury as defined in the statute, and subjectively, that the injury had a serious impact on his life. See James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), applying the two-prong test of Oswin v. Shaw, 129 N.J. 290 (1992), to post-AICRA cases.

If the issues before the court were limited to the "serious impact" prong of Oswin, we would summarily reverse under the recent cases of Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005), DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). Under the recent Supreme Court cases, "an automobile accident victim who is subject to the threshold and sues for non[-]economic damages has to satisfy only one of AICRA's six threshold categories[,] and does not have the additional requirement of proving a serious life impact." DiProspero, supra, 183 N.J. at 481-82. A plaintiff "has to prove only an injury defined in N.J.S.A. 39:6A-8[a], and does not have to clear the additional hurdle of proving a 'serious injury.'" Juarez, supra, 185 N.J. at 333-34 (quoting Serrano, supra, 183 N.J. at 510). In this matter, however, we must also determine whether the motion judge's decision concerning the objective prong is sustainable. Plaintiff argues that he presented sufficient proofs on the issue to withstand the motion. We agree, and therefore, reverse the judgment.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "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." R. 4:46-2(c). In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence." Brill, supra, 142 N.J. at 535. To make the determination, the judge must accept as true all evidence that supports the position of the party defending against the motion and accord him or her the benefit of all legitimate inferences which can be deduced therefrom. Ibid. "[I]f reasonable minds could differ, the motion must be denied." Ibid. (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

On June 2, 2001, plaintiff suffered injuries while a passenger in a vehicle that was struck in the rear by a vehicle operated by defendant, Pebbles Poole. Plaintiff, age 44, was taken from the place of the accident to the Rancocas Hospital emergency room where he complained of pain to his neck and shoulders. Plaintiff was discharged with a diagnosis of a cervical strain. Plaintiff presented himself to his family physician, Dr. Yeahseon Choi, on June 5, 2001, complaining of pain to the same areas of his body. Plaintiff remained under Dr. Choi's care for several months, during which time his pain and soreness increased, and he developed a sensitivity to touch and a tingling sensation in his upper and middle back. On June 29, 2001, plaintiff underwent a magnetic resonance imaging (MRI) examination of both shoulders. The reports disclosed tendinosis in both shoulders; focal partial tears at the cortical zones of the supraspinatous tendons bilaterally, together with possible partial tears of the right infraspinatous tendon and the left anterior glenoid labrum.

Plaintiff next came under the care of Dr. Paul Marchetto, an orthopedic surgeon, on August 20, 2001. The doctor noted extreme hypersensitivity over both shoulders and upper back. Dr. Marchetto referred plaintiff to Dr. William Murphy, a physiatrist for an evaluation and possible electromyogram (EMG) and nerve conduction studies. After his initial examination, Dr. Murphy recommended an MRI of the cervical spine to rule out cervical disc disease, stenosis and spondylosis, as well as an EMG of the cervical spine and upper extremities to rule out radiculopathy. The cervical MRI was conducted on October 9, 2001. Dr. Murphy interpreted the study as disclosing "several bulging discs identified particularly at C5-6 and C6-7 [levels] with underlying osteoarthritis identified and spondolytic ridging. There was no evidence of acute disc herniation identified." On November 1, 2001, plaintiff underwent an EMG. Dr. Murphy described the evaluation as "an abnormal study consistent with bilateral C6-7 nerve root irritation more prominent on the left of a moderate severity subacute in nature."

Plaintiff came under the care of Dr. Judi Tassone on June 10, 2002, and remained under her treatment into 2004. Dr. Tassone's initial impression was that plaintiff suffers "upper back pain with sensitivity throughout the dorsal spine with a history of cervical sprain and shoulder pain by history." "He has developed a chronic pain-like syndrome associated with nerve sensitivity of the cutaneous fibers of the shoulder muscle regions." Dr. Tassone prescribed several pain medications. Plaintiff underwent a second EMG, and an MRI of the thoracic and lumbar spine. The EMG was positive disclosing "some mild delays in the sensory studies to the left hand in the median ulnar distribution." The MRI's disclosed degenerative changes in both the thoracic and lumbar areas of the spine.

On June 26, 2003, plaintiff was examined by Dr. Sondra DeAntonio, a neurologist, at the request of Dr. Tassone. The doctor described her examination as "abnormal," after finding that plaintiff had "an extreme reaction to light touch and to pin at the lateral aspect of the patient's back on both sides and running from about C8 down to about L5." Dr. DeAntonio diagnosed plaintiff with neuralgia, cervical radiculopathy/disc disease and rotator cuff tear.

On June 17, 2003, Dr. Tassone completed and executed a physician's certification at the request of plaintiff in which she opined that plaintiff suffered a "permanent [injury that] has not healed to function normally[,] and will not heal to function normally with further medical treatment." She stated the injury was to the dorsal spine, primarily the thoracic area. Although the certification only referenced her clinical findings, it is clear from her treating records that she had seen and considered the MRI and EMG examination reports.

On March 17, 2000, plaintiff suffered a slip and fall accident in which he injured his neck, back and shoulders, for which he was still receiving chiropractic treatment at the time of the present accident. His chiropractic physician, Dr. Bill E. Stefanou, opined that the shoulder injuries had increased significantly after the car accident. He opined that plaintiff suffered tendinosis with partial tears of the tendons in both shoulders and that the injuries were causally related to the June 2, 2001, accident.

Plaintiff claims a category six injury, i.e., "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8a. An injury is considered permanent under the statute "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 are satisfied that plaintiff presented sufficient objective evidence to raise a genuine issue of material fact as to whether the injuries to plaintiff's shoulders and back are permanent injuries under N.J.S.A. 39:6A-8a. The June 29, 2001, MRIs of both shoulders disclosed partial tears of the tendons, and Dr. Stefanou opined that they are causally related to the automobile accident and are permanent in nature. EMG studies were abnormal, and Dr. Murphy diagnosed bulging discs at the C6-7 level. Lastly, Dr. Tassone diagnosed plaintiff with a chronic pain-like syndrome associated with nerve sensitivity of the cutaneous fibers of the shoulder muscle regions, which has lasted from the time of the accident through March 2004, and she has certified the condition as permanent.

Defendant argues in the alternative, that even if plaintiff has presented objective, credible evidence of an injury under the first prong of Oswin, plaintiff's appeal must be denied because he failed to come forward with a proper Polk analysis to distinguish the injuries suffered in the 2001 automobile accident from the injuries suffered in the slip and fall accident of March 2000. Defendant contends that the comparative analysis presented by Dr. Stefanou is inadequate because it is "not premised on the type of objective medical proofs" required by Polk.

We recognize that there exists a divergence of opinion among different panels of this court concerning whether the Polk requirement that a plaintiff come forward with a comparative analysis to distinguish pre- and post-accident injuries survived AICRA. Several panels have answered in the affirmative. See Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005); Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.), certif. denied, 180 N.J. 457 (2004); Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). To the contrary, see Davidson v. Slater, 381 N.J. Super. 22, 28-29 (App. Div. 2005), certif. granted, ____ N.J. ____ (2006). In this case, however, we need not reach the issue because we determine that Dr. Stefanou's letter report satisfies the comparative analysis required by Polk. Dr. Stefanou treated plaintiff for the injuries suffered in the slip and fall accident on March 17, 2000; examined plaintiff on March 19, 2004; and compared the medical records from his treatment of plaintiff for the slip and fall, which treatment only lasted a couple of months, to plaintiff's medical records for the treatment and residuals from the automobile accident. After this comparison, Stefanou opined "that the present trauma is more serious than the first[,] which only affected the right shoulder, and now includes the added feature of [the] left shoulder." He also stated "[t]hese new injuries most certainly are affecting his functional capabilities and are chronic and permanent in nature." We are satisfied that plaintiff presented sufficient proofs to withstand the motion for summary judgment. Accordingly, we reverse and remand for trial.

 

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

(continued)

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A-6976-03T1

February 24, 2006