CRESCENT WRIGHT v. MARIA MUDRICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3983-04T23983-04T2

CRESCENT WRIGHT,

Plaintiff-Appellant,

v.

MARIA MUDRICK,

Defendant-Respondent.

___________________________________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, L-353-04.

Nowell Amoroso Klein Bierman, attorneys

for appellant (Michael J. Noonan, on the brief).

Judith A. Heim, attorney for respondent

(Olivier J. Kirmser, on the brief).

PER CURIAM

Defendant obtained summary judgment on in this personal injury, automobile accident case on the ground that plaintiff's injuries did not satisfy the verbal threshold established in N.J.S.A. 39:6A-8(a). Plaintiff appeals, and we reverse. The primary question is whether the evidence, viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), includes objective clinical evidence of a permanent injury caused by the accident.

On April 18, 2002, defendant drove her vehicle into the rear of plaintiff's vehicle. X-rays taken at Valley Hospital the same day were reported to show that

[t]he cervical spine curvature is normal. The vertebral bodies and posterior elements are intact. There is no evidence of fracture or dislocation. An ununited apophysis of the C6 spinous process is incidentally noted. There is mild to moderate narrowing of the C5-6 disc space. The prevertebral soft tissues are within normal limits.

The impression was "[n]o evidence of fracture."

From April 20, 2002 through April 29, 2002, plaintiff received five chiropractic treatments from Dr. Jeffrey Altman for muscle spasms and pain stiffness and tenderness in her neck and back.

On April 26, 2002, an MRI was performed on plaintiff, and on April 29, 2002, the neuroradiologist prepared a written report as follows:

Scans show evidence of a herniated disc at C5-C6. No cervical cord compression or neural foraminal narrowing is seen. There is reversal of the cervical lordosis centered at the C5-C6 level. The remaining disc spaces are preserved. The remaining formina are patent.

The cervical cord shows no atrophy, widening or syringomyelia. No abnormal cervical cord signal is seen. The cervicomedullary junction is normal.

The vertebral bodies have normal marrow signal. The paraspinal soft tissues are unremarkable. The conus medullaris and intrathecal structures are normal.

The report concluded with this impression: "Herniated disc at C5-C6 with reversal of cervical lordosis centered at this level.

Robert Adair, M.D., examined plaintiff on April 26, 2002, and pursuant to his direction, plaintiff received a course of physical therapy from May 1, 2002, through August 2002. Dr. Adair also sent plaintiff to Michael A. Meese, M.D., for an orthopedic evaluation. Although he has not provided a report, his office note of May 13, 2002, indicates that he reviewed the MRI, which he described as revealing "a herniated disc at C5/C6 with some impingement." He also noted spasm in plaintiff's neck. His diagnosis for the neck was cervical strain. The notes indicate continued spasm on March 28, May 9, 2003, and August 23, 2004. He also found lumbar strain and sprains of plaintiff's shoulders. At Doctor Adair's request, plaintiff saw Dev. R. Gupta, M.D., for a neurological consultation on May 15, 2002. Dr. Gupta found spasm in plaintiff's neck muscles but complete neurological normality. He concluded that plaintiff was suffering from cervical and lumbosacral sprain.

On September 20, 2002, Dr. Adair prepared a written report that took note of the MRI and described the results of his examinations of April 26 and August 26, 2002, and the other information developed by the date of the report. After describing plaintiff's complaints as of August 26, 2002, his findings of spasm, stiffness and limitation of motion, the doctor concluded as follows:

As a result of injuries sustained in a motor vehicle accident of April 18, 2002, Crescent Wright has suffered injuries of a permanent and permanent partial nature to her musculoskeletal system. . . . [On August 26, 2002], the patient's condition was fair and prognosis was guarded.

The injuries diagnosed were "1. Cervical HNP C5-C6 with reversal of the cervical lordosis centered at this level by MRI (4/26/02); 2. Lumbosacral derangement; 3. Bilateral shoulder contusions; 4. Right lumbar radiculopathy; 5. Posttraumatic radiculopathy."

Finally, at the request of Dr. Meese, plaintiff was examined by Thomas R. Peterson, M.D., a neurological surgeon. He rendered a report on December 3, 2004. Based on the MRI, he concluded that plaintiff "has degenerative disc disease and kyphosis at C5-6 and to a lesser degree at C4-5." He found that the "canal, lateral recesses, foramina are open at all levels." His impression was this:

The patient is a 58-year old woman with cervical and lumbar discogenic disease and radiculopathy causally related to an April 2002 motor vehicle accident. The 4/6/02 cervical MRI documents pre-existing asymptomatic discogenic disease which was aggravated by the motor vehicle accident. She probably needs anterior diskectomy and fusion at C4-5 and at C5-6 and probably an L4-5 posterior interbody lumbar fusion with instrumentation. At the moment she wants no surgery.

Two years before the present accident, plaintiff went for physical therapy on three occasions over a nineteen-day period. The only reports are those of a physical therapist. There is no indication of x-rays, MRIs, or other diagnostic studies, and no medical diagnosis. Apparently, plaintiff was treated for a sore shoulder and neck. The therapy helped and plaintiff was asymptomatic until the present accident.

In Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994), we held that the persistence of spasm for twenty-six months raised a genuine issue of material fact with respect to whether there was sufficient objective evidence of a permanent injury. And in Moreno v. Greenfield, 272 N.J. Super. 456, 462-63 (App. Div. 1994), we said this:

In the case before us the objective evidence of injury is clear. Dr. Jacobson observed spasms in the cervical musculature and the thoraco/lumbosacral area over a two-year period. More important, however, is the documented L5-S1 herniated disc and the attendant problems suffered by plaintiff. Spasm alone could provide objective evidence of the injury and could be sufficient to satisfy the verbal threshold in certain circumstances. Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994); see also Oswin v. Shaw, 129 N.J. 290, 320 (1992); Cineas v. Mammone, 270 N.J. Super. 200, 211, (App. Div. 1994); Arencibia v. Rosas, 270 N.J. Super. 339, 347 (App. Div. 1994). Adding the herniated disc to these facts clearly establishes adequate objective evidence to withstand a summary judgment motion.

The motion judge said nothing about the spasms and focused only on the herniated disc. She found the plaintiff's evidence wanting as to the disc because the MRI did not indicate impingement. Assuming that impingement is necessary, we cannot ignore the fact that Dr. Meese looked at the MRI and was satisfied from his inspection that there had been some impingement. Given Owens and Moreno, this aspect of the ruling was erroneous.

The judge also faulted plaintiff's evidence because of the absence of any comparison as may be called for by Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). Recently another panel held that a Polk analysis was no longer required in light of the Supreme Court's decision in DiProspero v. Penn, 183 N.J. 477 (2005). Davidson v. Slater, ____ N.J. Super. ____ (App. Div. 2005) (slip op. at 11). We need not decide whether we agree with the Davidson decision because in this case no medical records were presented for comparison other than forms signed by a physical therapist. In short, there was no evidence of residuals from the discomfort plaintiff experienced two years before the present accident. Therefore, a Polk analysis would have been impossible.

 
Reversed and remanded for trial.

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A-3983-04T2

December 8, 2005