GERALDINO MATTIA v. ALPHONSE J. CAPONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3961-04T13961-04T1

GERALDINO MATTIA,

Plaintiff-Appellant,

v.

ALPHONSE J. CAPONE,

Defendant-Respondent.

_______________________________________

 

Submitted November 14, 2005 - Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-10932-02.

Chris N. Anastos, attorney for appellant.

Garrity, Graham, Favetta & Flinn, attorneys for respondent (William L. Bracaglia, on the brief).

PER CURIAM

Plaintiff Geraldino Mattia appeals from an order entered June 1, 2004 granting summary judgment in favor of defendant Alphonse J. Capone on plaintiff's claims for non-economic damages arising from a motor vehicle accident that occurred on June 18, 2001. Plaintiff's motion for reconsideration was denied by order entered July 23, 2004. Plaintiff argues that the motion judge erred in finding that his claims failed to meet the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a), as amended by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. We agree and therefore reverse the judgment.

Plaintiff asserts that he sustained in the June 18, 2001 accident injuries to his lower back, wrist and left shoulder. He treated with chiropractor Dr. Lawrence Petracco for several months after the accident. MRIs were performed on August 1, 2001 and October 25, 2001. The MRI of plaintiff's lumbar spine showed a disc bulge at the L4-L5 level. In addition, the MRI of plaintiff's left shoulder revealed "tendonitis and or partial thickness tear of the supraspinatus tendon." Petracco provided a report dated February 20, 2002, in which he diagnosed plaintiff as having diffuse bulging of the L4-L5 disc, tendonitis and a tear of the supraspinatus tendon. Petracco opined that plaintiff had "permanent pathologies secondary to trauma."

In October 2001, plaintiff underwent surgery at Columbus Hospital to repair the rotator cuff tear in his left shoulder. Thereafter, plaintiff followed a course of physical therapy that continued into February 2002. Plaintiff presented to David F. Porter, D.O. for an evaluation. In a report dated April 29, 2002, Porter stated that plaintiff had complained of pain, stiffness and soreness in the back and left shoulder. Plaintiff also reported that he had a limited range of motion in his left shoulder and had difficulty performing certain tasks.

Porter examined plaintiff and made the following findings:

Physical inspection of the left shoulder revealed a 4-5 cm scar on the AC joint area with keloid formation. There was moderate erythema along the scar noted. There was tenderness on palpation in the rotator cuff area. Internal and external rotation was within normal limits. Abduction was 110-120 degrees and painful. Flexion was within normal limits. Physical inspection of lumbosacral spine revealed a normal lordotic curve. There was no tenderness on palpation noted. Forward flexion was 90 degrees. Straight leg raising was negative bilaterally. Tightness in the hamstrings was noted bilaterally.

Porter added the following comments respecting permanency:

Based on my impartial findings, I believe that [plaintiff] is left, as a result of the accident [of June 18, 2001], with both a significant and permanent loss of function in the use of the areas noted in the physical exam. The overall prognosis for a significant improvement is limited since injuries of this nature are precursors to progressive arthritic changes in the [joints] adjacent to and involving the areas injured. In summary, as a result of this accident, the patient has suffered the injuries noted with the significant residuals noted. In all medical likelihood, the patient may suffer acute and intermittent flare-ups, which in the future will require further evaluation and treatment.

At the request of defendant, plaintiff presented to Dr. David J. Greifinger for an examination. Greifinger furnished a report dated November 4, 2003. Greifinger noted that plaintiff's left shoulder had a well-healed surgical incision and there was no evidence of infection. Plaintiff carried out full and symmetric range of motion in abduction, flexion, internal and external rotation. There was no evidence of instability in either shoulder. The lumbar spine showed a well preserved lordosis, and motion of the lumbar spine was in a "complete arc" in forward flexion, lateral flexion, rotation and extension. There also was no pain associated with these motions. However, the straight leg raising test was negative bilaterally. Greifinger noted that plaintiff had been released from care and had resumed work. Greifinger opined that he found "some degree of permanency" in the left shoulder injury but no permanent injury to the spine.

The motion judge concluded that plaintiff had not presented sufficient objective clinical evidence to establish that he sustained a "permanent injury" in the accident. In particular, the judge found that there was insufficient evidence to show that plaintiff's shoulder injury post-surgery is "serious and substantial." The judge also found that plaintiff had not shown that his injuries have had a serious impact upon his life. Plaintiff filed a motion for reconsideration. In ruling on that motion, the judge found no basis to alter her prior determination. The judge also considered plaintiff's claim that his surgical scar was a "significant disfigurement or significant scarring" under N.J.S.A. 39:6A-8(a). The judge reviewed the photos of the scar and found as a matter of law that the photos did not show a scar that meets the statutory threshold.

In ruling on defendant's summary judgment motion, and plaintiff's motion for reconsideration, the motion judge followed our decision in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), where we held that the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a) required that a plaintiff establish that his or her injuries caused a serious life impact. However, while this appeal was pending, the Supreme Court in DiProspero v. Penn, 183 N.J. 477 (2005), rejected our interpretation of the statute and held that N.J.S.A. 39:6A-8(a) does not contain a serious life impact standard. The Supreme Court also determined in Serrano v. Serrano, 183 N.J. 508 (2005), that N.J.S.A. 39:6A-8(a) does not include a serious injury standard. Therefore, to vault the threshold, the plaintiff need only present objective credible evidence of an injury "fitting into one of the six statutorily defined threshold categories." Id. at 518. We subsequently held in Beltran v. DeLima, 379 N.J. Super. 169, 176-177 (App. Div. 2005), that DiProspero and Serrano would be applied retroactively to all cases pending in the trial courts and on appeal.

We are convinced that in view of the Supreme Court's decisions in DiProspero and Serrano, the judgment must be reversed and the matter remanded for trial. First, 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 lower back and left shoulder are permanent injuries under N.J.S.A. 39:6A-8(a). The MRI report shows a bulging disc at the L4-L5 level of the spine. Petracco and Porter both opined that the injury is permanent. Moreover, it is undisputed that plaintiff's left shoulder was injured in the accident and he required surgery to repair the tear in the rotator cuff. Porter found that after surgery, the injury to the left shoulder had "significant residuals." In our view, the evidence is sufficient to raise a genuine issue of material fact as to whether plaintiff's injuries to his lower back and left shoulder are permanent.

In addition, plaintiff asserts that the surgical scar on his left shoulder meets the limitation on lawsuit threshold because the injury qualifies as a "significant disfigurement or significant scarring." N.J.S.A. 39:6A-8(a). As we stated in Puso v. Kenyon, 272 N.J. Super. 280, 288 (App. Div. 1994), significant means "something more than . . . minor." (quoting from Licari v. Elliott, 455 N.Y.S.2d 570, 573, 441 N.E.2d 1088, 1091 (N.Y. 1982)). In addition, plaintiff must show that his scar "impairs or injures" his appearance and renders it "unsightly, misshapen or imperfect" or deforming in some manner. Id. at 289 (quoting from Falcone v. Branker, 135 N.J. Super. 137, 145 (Law. Div. 1975)). See also Gilhooley v. County of Union, 164 N.J. 533, 544 (2000) (relying upon Puso for definition of "permanent disfigurement" under Tort Claims Act, N.J.S.A. 59:1-1 to 12-3).

In our view, the photos of the scar that were submitted to the motion judge raise a genuine issue of material fact as to whether plaintiff's scar is "significant" and that issue also should be resolved by the trier of fact. See Gilhooley, supra, 164 N.J. at 546 (holding that jury should decide whether a scar is "unsightly," "misshapen" or "imperfect").

 
Reversed and remanded.

(continued)

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A-3961-04T1

November 29, 2005