HUI CHEN v. DANIEL CASTRO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1854-04T21854-04T2

HUI CHEN,

Plaintiff-Appellant,

v.

DANIEL CASTRO,

Defendant-Respondent.

_________________________________

 

Submitted: November 29, 2005 - Decided:

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5833-03.

Feng Li attorney for appellant.

Leary, Bridge, Tinker & Moran, attorneys for respondent (David J. Dering, of counsel and on the brief).

PER CURIAM

Plaintiff Hui Chen appeals from summary judgment dismissing her complaint for personal injuries arising out of a motor vehicle accident for failure to satisfy the "limitation of lawsuit" threshold under the l998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. The trial judge found plaintiff failed to demonstrate by objective credible evidence that the injuries she sustained were both permanent and serious, and subjectively, that the injuries had a significant or severe impact on her life. See Oswin v. Shaw, 129 N.J. 290 (1992), as applied to AICRA by James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003).

During the pendency of this appeal, our Supreme Court decided Juarez v. J.A. Salerno & Sons, Inc., __ N.J. __ (2005), DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). Under the current case law, "an automobile accident victim who is subject to the [verbal] threshold and sues for noneconomic 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. Such a victim "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. See also Juarez, supra, __ N.J. at __ (slip op. at 3-4).

With respect to the first prong under Oswin, proof by credible objective medical evidence of a qualifying injury, plaintiff argues that she made a sufficient showing to withstand summary judgment. We agree and reverse.

On October 11, 2001, the automobile driven by plaintiff was rear-ended by a vehicle operated by defendant. Plaintiff suffered head, neck and back pain. She began treating with Dr. Valery Rimerman, a board-certified internist, on October l5, 2001. An October 20, 2001 MRI indicated no significant abnormalities of the lumbar spine. However, as to the cervical spine, the MRI indicated protruded disc herniation at C5-C6 with extrinsic pressure on the anterior spinal cord. Dr. Rimerman opined that the nerve conduction study and electromyogram (EMG) performed on December 7, 200l, "would suggest left cervical radiculopathy in C5-6 area and left L-S radiculopathy in L5-S1."

Dr. Rimerman further opined in a May 5, 2002 report, based on these objective tests and other tests she performed, that plaintiff had limited range of motion of her cervical and lumbar spine. The internist's clinical impression was post-traumatic cervical and lumbosacral radiculopathy. She certified that these injuries were causally related to the accident, and concluded that, as a result of the accident, plaintiff developed permanent pain and restricted motility in the affected spine areas.

Plaintiff also presented a March 5, 2003 report from Dr. Vijaykumer Kulkarni, a board-certified general surgeon, who examined her and reviewed the above records and reports. Dr. Kulkarni made the following diagnosis and prognosis:

Diagnosis:

1. Status post sprain/strain, hyperflexion/extension injury involving the cervical spine with disc herniation C5-6 with residual myositis and fibromyositis with radiculopathy.

2. Status post hyperflexion/extension, sprain/strain injury involving the lumbar spine with residual myositis and fibromyositis with left sciatic radiculopathy.

The areas of the body mentioned in the diagnosis have not healed and will not heal to normal function.

Permanency and Prognosis:

In review of the treatment records, objective testing, and the final physical exam it is my opinion, in all medical probability, that Hui Chen has suffered a significant and permanent loss of function to the areas injured. . .

The surgeon also opined that plaintiff's injuries were caused by the accident "[b]ased on the proximity of treatment to the date of the accident, the absence of treatment to the injured parts of the body antecedent to the accident, the mechanism of injury, and the physical findings. . ."

On a summary judgment motion, the judge must consider whether the competent evidential materials comprising the motion record "when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The judge should not weigh the evidence and determine truth, but rather should ascertain whether there is a genuine issue for trial. Ibid. When reviewing a summary judgment on appeal, we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Applying these principles, it is clear to us that, viewing the evidence most favorably to plaintiff, she provided sufficient credible objective medical evidence of permanent injuries caused by the accident of October 11, 2001. MRI studies revealed a disc herniation, and the nerve conduction study and EMG suggested radiculopathy of the lumbar and cervical spine. Additionally, two board-certified physicians opined causality.

 
The motion judge impermissibly engaged in factfinding in her effort to analyze the details of the MRI and EMG studies in a manner that, in her view, would discredit the opinions rendered by plaintiff's medical experts. This usurped the jury's function. Brill, supra, 142 N.J. at 540.

Reversed and remanded for trial.

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A-1854-04T2

December 13, 2005