WILLIAM DAVIS et al. v. RACHELE GASPARI et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4102-04T54102-04T5

WILLIAM DAVIS and

JOSEPHINE DAVIS,

Plaintiffs-Respondents,

v.

RACHELE GASPARI and ANTHONY

GASPARI,

Defendants-Appellants.

_______________________________________

 

Submitted October 26, 2005 - Decided November 17, 2005

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Gloucester County,

L-1688-03.

Marmero & Mammano, attorneys for appellant

(David J. Schrager, on the brief).

Law Office of Debra Hart, attorneys

for respondent (Andrea Hemschoot, on the

brief).

PER CURIAM

This case requires us to determine whether plaintiffs William and Josephine Davis presented sufficient evidence to maintain a suit for noneconomic losses under the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1 to -35. Plaintiff William Davis filed a complaint for noneconomic losses resulting from personal injuries he sustained in an automobile accident. His wife's claims are per quod. He appeals from a grant of summary judgment in favor of defendants Rachele and Anthony Gaspari.

Relying upon this court's decision in Serrano v. Serrano, 367 N.J. Super. 450 (App. Div. 2004), the trial judge granted summary judgment to defendants finding that plaintiff failed to establish that his permanent injuries are "serious" and concluding that the "injuries are insufficient to vault the verbal threshold." Subsequent to the trial court's decision, the Supreme Court reversed Serrano, 183 N.J. 508, 518 (2005). For that reason, we consider the evidential materials presented on the motion under the standards established in Serrano and in the light most favorable to plaintiffs, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). That review leads us to conclude that reversal and remand for trial are required.

The car accident that led to Davis' injury occurred on November 21, 2001. He was sixty-nine years old and retired at the time of the accident. Although he had seen a chiropractor about stiffness in his back in 1999, he was not receiving any treatment at the time of his accident.

Davis saw his family doctor six days after the accident. The doctor prescribed medication and physical therapy. Davis underwent a course of physical therapy during February and March 2002. His symptoms did not resolve.

In March 2002 he saw a chiropractor, Bryan C. Russell, D.C. Russell's initial examination revealed the following: "gross muscle spasm along the posterior cervical paraspinal musculature, bilaterally; positive results on foraminal compression, shoulder depressor and Soto Hall tests; and range of motion in the cervical spine at eighty-five percent of normal. Russell also found gross muscle spasm through the mid-thoracic and lumbar paraspinal musculature. Fabere-Patrick's, Ely's, and Hibb's tests were positive and range of motion for the "thoraco-lumbar spine" was eighty percent of normal.

Russell requested MRI studies. Norman Ruttenberg, D.O. read an MRI of Davis' cervical spine taken on April 5, 2002, and found a "reversal of the normal cervical lordotic curve"; "diffuse degenerative arthritis and degenerative disc disease throughout the cervical spine causing minimal bilateral foraminal stenosis at C3-C4 and C5-C6 and right foraminal stenosis as C6-C7"; and no herniations or bulges. A May 1, 2002, MRI study of Davis' lumbar spine showed diffuse degenerative arthritis and degenerative disc disease, bilateral foraminal stenosis at L3-L4, L4-L5 and L5-S1, and diffuse bulging of the L2-L3 through the L5-S1 discs.

In July 2002, Davis was evaluated by Dr. Ronald L. Brody, M.D. During a physical examination, Dr. Brody found range of motion in Davis' lumbrosacral spine was limited to seventy percent of normal and palpable trigger points at Davis' left trapezius muscle area. He also considered the MRI results obtained in the spring. The doctor's impression was degenerative disc disease at C3-C4, C5-C6 and L4-L5, right foraminal stenosis at C6-C7, diffuse broad-based bulging of L2-L3 to L5-S1 and probable cervical/lumbrosacral radiculopathy. The doctor also found sub-acute cervical and lumbroscaral strain and sprain with injury to myoligamentous structures and sub-acute left trapezius myofascitis with trigger points. Dr. Brody recommended continued physical therapy and chiropractic care, therapeutic massage, myofascial release, range of motion exercise, use of a cervical pillow and a lumbosacaral support brace and trigger point injections for pain control as needed.

In January 2003, Russell detected changes. Range of motion in Davis' cervical spine had decreased approximately ten percent and deep muscle spasms were still present at the upper thoracic paraspinal musculature. Although all tests of the lumbar spine, other than Ely's test, were negative, range of lumbar motion had decreased approximately twenty percent.

Dr. Russell's January 2003 report explained the connection between Davis' degenerative condition and the accident as follows:

In this traumatic injury of the spine, it seems imperative to assume the patient has suffered an avulsive insult to the longitudinal ligaments and accessory spinal ligaments, resulting in possible spondylosis and hypertrophic arthritic change at the facet surfaces.

. . . .

A subluxation syndrome was caused by trauma to the spine. The subluxation causes the vertebrae to twist from its normal position. The articulating surfaces have been wrenched apart and there is subsequent stretching of the ligaments and connective structure.

Cervical nerve root compression resulted in neck pain and radicular symptomatology. Lumbrosacral facet and nerve root compression produced lower back pain and radicular complaints. The subsequent irritation causes the muscles supporting the injured area to spasm and to splint in an effort to immobilize the area as a protective mechanism for further aggravation and re-injury. Adhesions may develop at the site of the ligament and tendon attachments. These ligaments have been torn and stretched. Scar tissue replaces the injured connective tissue as it heals. The new adhesions lack the necessary elasticity found in healthy connective tissue.

The formation of scar tissue decreases the normal range of motion. Loss of full range of motion will give rise to calcification in the form of arthritic deposits that further limit the range of motion. There is also a possibility of microtraumatic spondylitis formation at the injury site. Due to the mechanism of the traumatically inducted sprain and strain injury, there is general weakening of the supportive soft tissue structure.

Dr. Russell concluded:

The prognosis is poor due to the preponderance of both objective signs and subjective symptoms over one year after the initial somatic trauma occurred. This includes positive orthopedic tests, bilateral foraminal stenosis at C3-4 and C5-6, lumbar MRI . . . as well as structural impairments that included diminished ROM and strength capacity in the cervical and lumbar spines. This confirms that the patient sustained injuries resulting from the accident.

It is my professional opinion that the injuries suffered by the patient, Mr. William Davis, are chronic and permanent. It is evident that areas of pre-existing degeneration were also aggravated by the accident and have not healed to function normally. It is unlikely that further treatment or time will provide additional gains or relief, primarily due to the patient's age. . . .

I affirm that comparative studies of the medical history, as presented by the patient, with the aforementioned examination findings indicate that the patient's injuries were not pre-existing, but were sustained in the accident of November 22, 2001.

Dr. Russell completed a certificate of permanency on April 13, 2003, in which he certified:

[W]ithin a reasonable degree of medical certainty in my field, [] William Davis has suffered permanent injuries as a result of the aforementioned 11-22-01 (sic) accident.

My opinion is reasonably based and verified by subjective and positive clinical objective findings. I define permanency as follows: the injured areas have not healed to function normally and the injured areas will not heal to function normally with further medical treatment. The injured areas in question are the neck and back that includes restrictions in range of motion in multiple axes of the cervical and lumbar spine and on objective clinical physical examination, the presence of paravertebral muscle spasm, and on motion palpation, the presence of hypomobility and decreased joint play in the cervical and lumbar spine.

It is further my opinion that, within a reasonable degree of medical probability, that although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury are not expected to be completely resolved by way of further medical treatment intervention.

. . . .

[Emphasis added.]

Dr. Gregory S. Maslow, M.D. reached similar conclusions. He recognized that Davis' restricted range of motion "may be related to underlying degenerative disc disease." Nonetheless, he concluded, "in the absence of prior neck and back complaints it is my opinion within reasonable medical certainty, that the majority of the restricted motion and the pain . . . are causally related to the accident . . . and represent significant disability and impairment . . . ." He continued, "there is objective evidence of permanency and disability in this case causally related to the accident . . . ."

We must accept the facts and medical opinions favorable to Davis on defendant's motion for summary judgment. That evidence is sufficient to meet the threshold set in N.J.S.A. 39:6A-8a. A plaintiff need only prove "by objective clinical evidence, supported by a physician certification, under penalty of perjury, an injury [caused by the subject accident] fitting into one of the six statutorily defined threshold categories." Serrano, supra, 183 N.J. at 518. Davis was not required to show that the injury was "serious." Ibid.

Plaintiff's evidence meets that standard. He asserts a "permanent injury within a reasonable degree of medical probability," N.J.S.A. 39:6A-8a, i.e., that "the [injured] body part . . . has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Despite his degenerative disease, Davis was not having problems at the time of the accident. Dr. Russell's report explains the connection between the accident and the aggravation of the condition caused by the injuries. In addition, Dr. Russell's and Dr. Maslow's reports include a comparative analysis and reference to MRI studies, muscle spasm and reduced range of motion. See McClelland v. Tucker, 273 N.J. Super. 410, 415-16 (App. Div. 1994).

 
Reversed and remanded for trial.

Because this case includes a comparative analysis, we need not express a view on whether the comparative analysis required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993) applies in every AICRA case. Separate panels of this court have divided on the issue. Compare Davidson v. Slater, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 11) with Lucky v. Holland, 380 N.J. Super. 566, 573 (App. Div. 2005). To the extent that this case involves a "claim for aggravation of preexisting conditions . . . , some comparative analysis would be necessary to prove the aggravation, at the least at the time of a jury trial." Davidson, supra, ___ N.J. Super. at ___ (slip op. at 11-12). Analysis sufficient to allow the jury to consider the issue has been provided in this case where the preexisting degenerative conditions were largely asymptomatic before the accident. See Hardison v. King, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 6-12); Moreno v. Greenfield, 272 N.J. Super. 456, 460-63 (App. Div. 1994); Foti v. Johnson, 269 N.J. Super. 198, 202-03 (App. Div. 1993).

(continued)

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9

A-4102-04T5

November 17, 2005