MATTHEW MOSIELLO v. CHRISTOPHER WALLACE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1803-04T31803-04T3

MATTHEW MOSIELLO,

Plaintiff-Appellant,

v.

CHRISTOPHER WALLACE,

Defendant-Respondent,

and

JANET WALLACE,

Defendant.

 

Submitted September 14, 2005 - Decided

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MON-L-935-04.

Herbert I. Ellis, attorney for appellant (Ralph E. Stubbs, on the brief).

Barry & Prindiville, attorneys for respondent (John C. Prindiville, on the brief).

PER CURIAM

Plaintiff, Matthew Mosiello, was injured on March 4, 2002, when the motorcycle he was riding was struck by a vehicle driven by defendant, Christopher Wallace. Plaintiff's lawsuit seeking compensation for his injuries is governed by the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.

AICRA requires that within sixty days following the date the defendant answers the complaint, the plaintiff shall file a certificate of permanency from a physician stating that the plaintiff has sustained an injury. N.J.S.A. 39:6A-8a. In accordance with that requirement, plaintiff submitted a certificate of permanency executed by Dr. Ira Klemons, a dentist. Several months later, defendant moved to dismiss plaintiff's complaint on the grounds that Dr. Klemons's certificate of permanency was no longer sufficient in light of the apparent resolution of many of plaintiff's symptoms. On November 5, 2004, the trial judge granted that motion. It is from the order memorializing that decision that plaintiff appeals. We reverse.

At the time of the accident, plaintiff was just shy of his nineteenth birthday. He was taken by the first aid squad to Riverview Medical Center where x-rays of his cervical spine, abdomen and pelvis were negative. He complained of neck pain and was found to have muscle spasms of the neck.

Plaintiff sought treatment from Brian Torpey, M.D., an orthopedist, on April 30, 2002, with complaints of persistent pain and discomfort in his neck, back and knee. When examined by Dr. Torpey in April, in the area of his cervical spine, plaintiff had marked muscle spasm, which extended down into the scapular musculature bilaterally. He had limited lateral rotation of his neck, secondary to the muscle spasm, which was also noted in his lumbosacral spine.

Prior to the accident, plaintiff had suffered an anterior cruciate ligament injury and medial meniscal tear. A physical examination of his left knee revealed an effusion. He limped, favored his left knee, and had medial joint-line tenderness. The doctor noted that "a new finding on his left knee examination was that of focal anterior lateral joint pain and some subtle crepitus in the anterior and lateral aspect of his knee." While plaintiff had a history of instability of the left knee, the doctor found that the motor vehicle accident appeared to have aggravated plaintiff's left knee injuries. Subsequently, on December 23, 2002, plaintiff underwent an operation for a left knee anterior cruciate ligament tear and a left knee medial meniscal tear.

In a follow-up consultation with Dr. Torpey on April 13, 2004, plaintiff continued to complain of neck and back pain with referred discomfort in his upper extremities, right neck pain and discomfort related to exertion. The doctor noted that an MRI from August 2003 revealed C5-C6 and C6-C7 disc pathology.

On June 15, 2002, plaintiff began treatment with Dr. Klemons, the Director of the Center for Headaches and Facial Pain in South Amboy, primarily for head, neck and face pain. According to the doctor's June 15, 2002 report, plaintiff's pain resulted from the injuries he sustained in the March 4, 2002 accident.

Pursuant to the requirements of AICRA, plaintiff timely submitted the certificate of permanency. In that certificate, Dr. Klemons referred to his June 2002 and November 2002 reports, noting that plaintiff sustained permanent injuries as a result of the subject automobile accident. Dr. Klemons's reports related solely to plaintiff's head, neck and facial pain, not to his knee pain. The doctor certified that:

3. Any opinions set forth in my reports dated June 15, 2002 and November 5, 2002 are within a reasonable medical probability.

4. The Plaintiff, as a result of a motor vehicle accident on March 4, 2002, sustained injuries which are set forth in the body of my reports.

5. As set forth in my reports dated June 15, 2002 and November 5, 2002 certain injuries that the plaintiff sustained are permanent in nature. . . .

6. There is objective clinical evidence indicating to me that certain injuries sustained by the plaintiff are permanent as set forth in my reports dated June 15, 2002 and November 5, 2002.

7. I also certify that the testing referred to in my reports performed on the plaintiff is not experimental in nature or dependent entirely upon subjective patient response.

In support of his motion to dismiss plaintiff's complaint based upon the insufficiency of the certificate of permanency, defendant attached a form from a November 5, 2002 report from Dr. Klemons's office. The form was captioned "Change in Symptoms Report." Plaintiff wrote on the form that the symptoms that he previously complained of to Dr. Klemons were "gone" by that date. The court relied upon this form to dismiss plaintiff's complaint. In so doing, the judge observed:

In the case I had, which is this case, you seem to think that I decided this because there was no certificate of permanency. That's not why I decided to grant the motion.

The reason I granted the motion, because no matter whether you call it a certificate of permanency or a report of Dr. [Klemons], the plaintiff eight months after the accident said, all his symptoms are gone.

. . . .

[On] 11/5/02 plaintiff says, headaches gone, eye pain gone, dizziness gone, tinnitus gone, ear pain not even applicable. Facial pain gone, TMJ joint pain gone, chest pain gone, signed by the plaintiff.

So my decision was not because the plaintiff didn't submit a certificate of permanency. He submitted a report -- he even had a certificate. But the bottom line is, the plaintiff rebutted what the doctor said. That was the basis for my decision.

As noted, AICRA requires that a plaintiff, within sixty days following a defendant's answer, provide a physician's certification stating that the plaintiff sustained an injury to satisfy the statute's tort option provision. N.J.S.A. 39:6A-8a. The physician certification is not, however, "a fundamental element of the AICRA cause of action." Casinelli v. Manglapus, 181 N.J. 354, 363 (2004). Finding that the physician certification was not to be equated to a pleading, id. at 364, the Casinelli Court noted that the physician certification provision of AICRA "has two purposes: to supply evidence that a plaintiff has, in fact, sustained an injury that qualifies for recovery of non-economic damages under the new verbal threshold and, to provide a legal foundation for a charge of perjury, should false swearing later be shown." Id. at 362. While the Court did not address the issue raised here, it did conclude that when such a certification was filed late, "discovery-type sanctions" would be appropriate, rather than dismissal of a plaintiff's complaint. Id. at 365.

Given the Court's holding in Casinelli, which was decided after the trial judge's decision in this case, we cannot sanction the dismissal of plaintiff's complaint. Plaintiff complied with the AICRA requirements by timely filing the physician certification, which, at the time it was filed, met the statutory criteria. As the physician certification is not a fundamental element of plaintiff's cause of action, Casinelli, supra, 183 N.J. at 363, once it has been properly filed it has no subsequent bearing on the sufficiency of plaintiff's cause of action. We find no authority to negate the filing simply because plaintiff's symptoms may have subsequently resolved.

This is not to say that defendant would have been precluded from filing a summary judgment motion on the grounds that because plaintiff's symptoms had resolved, he does not suffer a permanent injury as is required to vault the threshold to recover for pain and suffering. See N.J.S.A. 39:6A-8a. But, that is not what happened here. The motion judge dismissed plaintiff's complaint solely because, in his opinion, the resolution of plaintiff's symptoms negated the physician certificate. The trial judge did not analyze defendant's motion on the summary judgment model. He did not consider, for example, (1) that portion of Dr. Klemons's November 5, 2002 report that finds that plaintiff's injuries "will make him susceptible to relapse and to future re-injure"; (2) the August 26, 2003 MRI that found "tiny central disc herniations at C5-C6 and C6-C7"; or (3) Dr. Torpey's opinion that based upon "new findings in the lateral aspect of [plaintiff's] knee," the accident aggravated plaintiff's preexisting left knee injury. That evidence would necessarily have had a bearing on whether plaintiff made a prima facie showing sufficient to vault the AICRA verbal threshold.

 
Reversed and remanded for further proceedings consistent with this opinion.

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A-1803-04T3

September 20, 2005