DOLORES DENIGRIS v. FRANK DENIGRIS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6371-03T26371-03T2

DOLORES DENIGRIS,

Plaintiff-Appellant,

v.

FRANK DENIGRIS and MARK D.

FINNOCHIARO,

Defendants-Respondents.

_________________________________

 

Argued September 21, 2005 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. L-7265-02.

Donald A. Caminiti argued the cause for

appellant (Breslin and Breslin, attorneys;

Mr. Caminiti, on the brief).

Michael Dougherty argued the cause for

respondent Frank DeNigris (Dougherty &

Zirulnik attorneys; Mr. Dougherty on the

brief).

Albert H. Wunsch, III argued the cause for

respondent Mark D. Finocchiaro.

PER CURIAM

On July 21, 2000, plaintiff Dolores DeNigris was a passenger in a car driven by her husband Frank DeNigris when it collided with a police car driven by defendant Mark Finnochiaro. Plaintiff was over sixty years old at the time of the accident. She filed a personal injury cause of action against the drivers of both cars.

Plaintiff's cause of action against her husband is governed by the verbal threshold limitations of her automobile policy, pursuant to the Automobile Insurance Cost Reduction Act (AICRA). N.J.S.A. 39:6A-8. In order to prevail against Finnochiaro, who was a municipal employee, driving a municipal vehicle at the time of the accident, plaintiff must satisfy the relevant provisions of the Tort Claims Act (TCA), N.J.S.A. 59:9-2(d).

On defendants' motion for summary judgment, the trial court dismissed plaintiff's cause of action as to both defendants, based on her failure to satisfy the relevant statutory requirements. Specifically, as to her claims against her husband, the motion judge found that: (1) plaintiff had not presented objective medical evidence showing that she sustained a serious, permanent injury, as defined in N.J.S.A. 39:6A-8(a); (2) the injuries she sustained did not have a serious impact on her life; and (3) she did not establish a causal nexus between the injuries and the accident. As to Finnochiaro, the court found that plaintiff had not overcome the relevant verbal threshold provisions of the TCA. Plaintiff now appeals from these orders.

I

We gather the following facts from the record developed before the trial court. We start by noting that plaintiff did not receive any medical treatment at the scene of the accident. After arriving home, she experienced for the first time pain in her right shoulder. Later that day, she went to Holy Name Hospital's emergency room, where she was diagnosed with mild right-sided tenderness and moderate spasm in her neck. She was released from the hospital that same day.

Approximately one week after the accident, plaintiff consulted with Dr. Brian Bauer, an orthopedic surgeon. An MRI of her right shoulder taken on October 30, 2000 revealed:

Advanced degenerative signal changes of the supraspinatus tendon associated with a full thickness rotator cuff of the anterior distal tendon. Associated subacromium/ subdeltoid joint effusion. Associated de-generative changes of the acromioclavicular joint, encroaching upon the muscle/tendon junction. Associated changes of tendonitis of the infraspinatus and subscapularis tendons. Degenerative changes of the anterior cartilaginous labrum. Poor visual-ization of the anterior biceps tendon which may correlate with an associated tear.

Dr. Bauer diagnosed plaintiff with a torn rotator cuff and advised surgery to repair the injury.

An MRI of her cervical spine was also taken. It showed:

Diffuse spondylitic spur encroachment on the anterior thecal sac and anterior cervical spinal cord. The findings likely in association with degenerative discogenic changes are causing encroachment with mild central canal stenosis, prominent at C3-C4, C4-C5 and C5-C6. Degenerative changes within the facet joints and uncovertebral joints are associated with bilateral foraminal stenosis, prominent at C4-C5, and C5-C6.

Based on these findings, Dr. Bauer diagnosed plaintiff as having cervical degenerative disk disease. An MRI taken on June 9, 2000, (forty-two days before the accident), revealed degenerative disk disease. An analysis of the October 30, 2000 MRI, (approximately three months after the accident) stated that "[t]he findings [at this time] are minimally changed from the prior exam of 6-9-2000."

On November 16, 2000, plaintiff was admitted to Holy Name Hospital for surgical repair of the right rotator cuff tear. Following surgery, she developed spontaneous serous drainage from the wound. This complication required that her shoulder be immobilized for a longer period of time than otherwise would have been necessary. The procedure was a success despite this complication. The operation left a thin white surgical scar on her right shoulder, measuring approximately 3 inches in length.

Following the surgery, plaintiff received physical therapy three times a week, for a period of six weeks. She indicated at her deposition that, despite her doctor's advice, she decided to discontinue physical therapy treatments. She has not received any subsequent treatment for her right shoulder.

In a report dated June 24, 2002, plaintiff's treating physician gave the following description of both her progress and of her continuing complaints:

At this time, she has persistent pain and discomfort in the right shoulder. She is unable to pass her right shoulder through extremes of internal and external range of motion. Also noteworthy, is the patient still has persistent parathesias in the right upper extremity. MRI at the time showed that the patient had cervical degenerative disk disease. Most likely the accident caused the symptoms to be exacerbated and most likely the condition was made worse by the traumatic episode. I also have seen the patient previously for degenerative disk disease of the lumbar spine.

Presently the patient has complaints of pain in the lower back that are increased in severity from the time before the operation. MRI of the lumbar spine in the past showed degenerative disk disease.

At this time, the patient's main complaints are persistent pain in the right shoulder with decreased strength and inability to use the shoulder for any functional activity. The patient also has persistent pain and parathesias in both hands. Complaints of low back pain and radicular symptoms radiating to the right leg are also noteworthy. The significant [sic] of which would have to be determined at a later date. At this time, the patient appears to have reached a plateau with physical therapy. She is able to participate in a quality of life that is somewhat functional. Whether she will require further surgery in the future needs to be re-evaluated at a further [sic] date.

I directly relate the problems that she has now, especially with her right shoulder to the accident she described. I believe that the degenerative disk disease in the cervical and lumbar spine had been made worse by the accident.

[Emphasis added.]

Plaintiff was also examined by a physician retained by the defense. He concluded that, although possible, it was not probable that the July 21, 2000 accident caused plaintiff's rotator cuff injury. He also opined that plaintiff had made a satisfactory recovery from her surgery. As to her back injuries, he concluded that "[a]ny injuries that she may have sustained to the cervical and/or lumbosacral regions were superimposed on preexistent, degenerative changes in both areas[,] as well as being superimposed on prior treatment for associated lumbosacral symptomatology."

II

We start our analysis by emphasizing that, in reviewing a grant of summary judgment, we employ the same standard that governs trial courts. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998). Because our review involves a purely legal analysis, we are not obligated to defer to the trial court's legal conclusions. Illva Saronno Corp. v. Liberty Hill Realty, Inc., 344 N.J. Super. 443, 450 (App. Div. 2001).

Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Without assessing credibility, weighing the evidence, or determining its truth, the motion judge must "consider whether the competent evidential materials presented, 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).

Against the facts presented, we are required to analyze two separate legal issues: (1) whether plaintiff has presented sufficient evidence to survive summary judgment under AICRA; and (2) whether, in her case against the police officer, she has satisfied the verbal threshold provisions of the TCA.

A

The AICRA Claims

It is now settled, that in a case brought under AICRA, plaintiff must prove only that she sustained a permanent injury that falls within the categories enumerated in N.J.S.A. 39:6A-8. DiProspero v. Penn, 183 N.J. 477, 506 (2005); Serrano v. Serrano, 183 N.J. 508, 518 (2005). A substantial impact analysis, as an element of the cause of action, is no longer part of the equation. Ibid.

Here, plaintiff presented objective medical evidence that she sustained a torn rotator cuff as a result of the July 21, 2000 accident. Although the injury was surgically repaired, she continues to experience residual pain and her shoulder movements are significantly limited. Her treating physician has opined that these problems are proximately related to the accident, and are permanent in nature. In our view, this evidence is sufficient for plaintiff to survive the motion of defendant DeNigris for summary judgment as to her rotator cuff injury.

The same cannot be said, however, of plaintiff's back injuries. It is not disputed that plaintiff had degenerative problems with her back well before the accident. Her treating physician's statement that her "degenerative disk disease in the cervical and lumbar spine had been made worse by the accident," however, is devoid of the medical analysis required by Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993).

We recognize that there is no unanimity of thought on this issue. By implication, one appellate panel has recently reaffirmed the continued viability of Polk, in the context of a summary judgment motion, even after DiProspero and Serrano. Lucky v. Holland, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 2). A different panel has expressly rejected Polk in this context, because, in its view, "the comparative analysis requirement of Polk and its progeny engrafts an additional [statutorily unwarranted] element upon this causation aspect of the verbal threshold standard." Davidson v. Slater, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 11). The Davidson panel would thus limit Polk to require plaintiff to present to a jury, as a component of damages, a comparative medical analysis of aggravation of a preexisting injury, when such a claim is asserted. Davidson, supra, ___ N.J. Super. at ___ (slip op. at 11-12).

Finally, in Hardison v. King, ___ N.J. Super. ___ (App. Div. 2005), approved for publication after both Lucky and Davidson, a third appellate panel addressed an issue that we do not directly confront here; namely, whether a Polk analysis is still required in non-aggravation cases.

In our view, Polk, at its essence, stands for the straight forward proposition that, as part of her burden of proof, plaintiff is required to establish a causal link between the accident giving rise to the cause of action and any resulting injury, including, obviously, the aggravation of a preexisting condition. This requirement is not limited to an apportionment of damages analysis, but relates directly to plaintiff's burden to overcome the statutory limitations in N.J.S.A. 39:6A-8. Thus, as Judge Lefelt noted in Hardison, a comparative evidence analysis depends upon whether the facts, as presented "call[] into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident." Ibid.

Here, we are satisfied that the motion judge correctly determined that plaintiff failed to meet her burden of proof under Polk as to her preexisting back condition. The one-sentence statement made by plaintiff's treating physician that her "degenerative disk disease" in plaintiff's cervical and lumbar spine have been made worse by the accident, is not a comparative medical analysis, but a mere conclusion, akin to a net opinion. This solitary statement lacks an evaluation of plaintiff's medical history, juxtaposed against her post-accident physical condition. This is the type of analysis envisioned by Polk, and still legally required under AICRA.

B

The TCA Claims

Pursuant to N.J.S.A. 59:9-2(d), a plaintiff is precluded from recovering damages for pain and suffering against a public entity or public employee except "in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00." In order to satisfy the threshold limitation, the plaintiff must establish "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 540-541 (2000). The hurdles presented by these requirements are high. N.J.S.A. 59:9-2(d); Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 330 (2003).

Under the first prong, a plaintiff must proffer evidence of an objective permanent injury. Id. at 331. Claims based on temporary injuries will not satisfy the threshold requirement, regardless of how painful and debilitating the injury. Brooks v. Odom, 150 N.J. 395, 403 (1997). A plaintiff must do more than claim an "impairment of plaintiff's health and ability to participate in activities." Ibid.

In Brooks, the Court held that although the plaintiff experienced pain when performing certain tasks, "the injuries were not severe enough or verifiable enough to constitute 'a permanent loss of a bodily function.'" Knowles, supra, 176 N.J. at 333 (quoting Brooks, supra, 150 N.J. at 406). The plaintiff complained of pain when sitting or standing for extended periods of time and found performing household chores, specifically those requiring lifting or bending, difficult. Brooks, supra, 150 N.J. at 400. The Court concluded that, although the pain and limited motion in plaintiff's neck and back were permanent, the injury did not rise to the level of "a permanent loss of a bodily function." Id. at 406. The plaintiff was still able to function in her capacity as a teacher's aide and homemaker. Ibid.

Here, plaintiff has not presented sufficient objective medical evidence that her surgically repaired rotator cuff constitutes "a permanent loss of a bodily function." Although, based on the medical evidence, a rational jury could find that the limitations of motion and the pain associated therewith are permanent and significant, this same evidence is insufficient, as a matter of law, to establish a loss of a bodily function.

III

Thus, by way of recapitulation, the trial court's order dismissing plaintiff's cause of action against defendant DeNigris under AICRA for the injury sustained to her rotator cuff is reversed. The sections of the order dismissing plaintiff's claims based on injuries to her back, and claims against defendant Finnochiaro, in his capacity as a municipal employee, are affirmed. The matter is remanded for further proceedings consistent with this opinion.

Affirmed in part. Reversed in part. Remanded.

 

Although not relevant to the issues to be decided in this appeal, the evidence suggests that the DeNigris car may have been primarily responsible for the accident, by proceeding through an intersection in violation of a red light traffic signal.

(continued)

(continued)

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A-6371-03T2

November 15, 2005