ANA PALUCHA et al. v. GUAWEI LEN et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5747-06T25747-06T2

ANA PALUCHA and JOAQUIN

PALUCHA,

Plaintiffs-Appellants,

v.

GUAWEI LEN and RONG ZENG LI,

Defendants-Respondents.

__________________________________

 

Argued May 12, 2008 - Decided

Before Judges S.L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-4977-05.

Daniel P. Boyle argued the cause for appellants (Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser, P.A., attorneys; Mr. Boyle, on the brief).

Elizabeth R. Brennan argued the cause for respondents (Romando, Tucker, Zirulnik & Sherlock, attorneys; Ms. Brennan, of counsel; Ellen G. Bertman, on the brief).

PER CURIAM

Plaintiffs Ana Palucha and Joaquin Palucha appeal from a June 8, 2007 order of the trial court dismissing their complaint on summary judgment. We affirm.

I

Plaintiff Ana Palucha was injured in an automobile accident on August 11, 2003, making the case subject to the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Because she was subject to the limitation on lawsuit threshold, absent proof of a displaced fracture or other injury not pertinent here, plaintiff was barred from recovering non-economic damages unless she could prove that she suffered an injury to a body part that was "permanent," meaning that the body part or organ "has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a). Accordingly, we have reviewed the summary judgment record with the AICRA standard in mind.

A vehicle driven by defendant Rong Zen Li hit the side of plaintiff's car. Plaintiff was taken to the hospital complaining of pain in her head, neck, back and legs. An X-ray of her pelvis was normal; however, through an MRI scan, plaintiff was later diagnosed with non-displaced hairline fractures of two pelvic bones. There is no dispute that by February 19, 2004, a pelvic X-ray revealed that the fractures had healed normally.

A CT scan of plaintiff's head on August 11, 2003, was normal. A later MRI showed "a small focus area of high T2 intensity in the right occipital lobe." However, the MRI report itself indicated that the "area of high T2 intensity" could be attributable to a wide range of conditions including Lyme disease, small vessel disease, or migraine. Nothing in the MRI report indicated that the high intensity area was associated with a traumatically-induced condition.

On October 19, 2006, more than three years after the accident, plaintiff was examined once by a psychiatrist, Dr. Peter M. Crain, who opined based on his interview and a review of plaintiff's medical records, that she suffered from "Post-Concussion Syndrome with Headaches and Alteration in Short-Term Memory," and "Adjustment Disorder with Depressed Mood, Chronic." Based on that records review and the interview, he concluded that "[a]s a result of the accident of August 11, 2003, the patient has sustained the above-diagnosed conditions, which are permanent in nature."

Dr. Crain provided no explanation as to how he reached his diagnoses and, in particular, how he concluded that the conditions were "permanent." He opined that plaintiff suffered from memory loss based on two brief tests performed in his office, but he provided no information as to what a baseline normal response to those tests would have been or how, if at all, plaintiff's test results deviated from normal results. Contrary to AICRA's requirements, Dr. Crain also did not opine that the conditions would not improve to normal with treatment. He provided no treatment, nor does the record contain any evidence that plaintiff received treatment for those conditions after she saw Dr. Crain.

On February 7, 2005, plaintiff was seen by Dr. Allan D. Tiedrich, who reviewed her medical records, including the reports of the various CT and MRI scans of her head and pelvis. Based on plaintiff's complaints about headaches, pain in her left shoulder, left wrist and ankle, anxiety, and numbness in her left hand, Dr. Tiedrich examined those body parts and found some "positive" signs; however, he did not explain the significance of those signs. He reported the following "diagnostic impression":

1. Sprain and strain to the left shoulder with acute internal derangement with chronic secondary fibromyositis and myofascitis.

2. Sprain and strain to the left wrist with chronic secondary fibromyositis and myofascitis of the left wrist.

3. Post-traumatic left carpal tunnel syndrome.

4. Sprain and strain to the left ankle with chronic secondary fibromyositis and myofascitis of the left ankle.

5. Post-traumatic stress and anxiety.

6. Sprain and strain to the left hemi-pelvis and acute non-displaced fracture of the left sacral ala and left superior pubic ramus with chronic secondary fibromyositis and myofascitis of these areas.

7. Acute intracranial injury with shear injury resulting in small focus of high T2 intensity lesion in the right occipital lobe.

8. Blunt abdominal trauma with acute hematuria, resolved.

Dr. Tiedrich opined that plaintiff

has suffered significant injuries which have resulted in some degree of permanent disability as evidenced by her continued episodes of pain, reduced range of motion, diagnosis and abnormal sensation in the injured areas, secondary to bleeding and scarring within the injured tissues themselves, which has resulted in a decreased independence in the patient's activities of daily life.

He further opined that her prognosis was "poor" and that she "will continue to require further medical and/or surgical care (left shoulder arthroscopy, left carpal tunnel release) in regards to these injuries." Notably, in this report, he did not opine that any of the affected body parts would not heal to function normally with further medical treatment. Rather, he suggested that further treatment might be required, and he referred plaintiff for an MRI of her left shoulder and other diagnostic tests that had not previously been performed.

However, on February 7, 2005, Tiedrich also signed a physician's certification of permanency, which referenced and incorporated his February 7, 2005 report. He certified that it was his opinion that plaintiff sustained "a permanent injury in her left shoulder, left wrist, left ankle, alla [sic] of the left sacrum and the superior pubic ramus of the left that have not healed to function normally and will not heal to function normally." The latter two references are to the pelvic bones, the fractures in which were subsequently found to have completely healed.

On April 25, 2005, an MRI of the left shoulder revealed:

moderate increase in signal within the supraspinatus tendon with no significant retraction of the musculotendinous junction. Mild hypertrophic changes are present within the acromioclavicular joint with effacement of the subacromial fat. Findings are consistent with grade 1 shoulder impingement syndrome with moderate tendinopathy and tendinitis of the supraspinatus tendon. The remaining rotator cuff muscles and tendons are grossly intact.

. . . No acute fracture or dislocation is present.

On November 17, 2005, plaintiff was examined by Dr. Matthew Garfinkel, to whom plaintiff was referred by Dr. Tiedrich. After examining her left shoulder, and reviewing the X-rays of the left shoulder, which revealed "Type II Acromin" and the MRI, which revealed "Rotator cuff tendonitis and impingement," Garfinkel's impression was "[l]eft shoulder Rotator cuff tendonitis and possible labral tear." Garfinkel gave plaintiff a physical therapy prescription and an injection of Lidocaine and depo-medrol.

Garfinkel noted, on December 15, 2005, that his review of the MRI indicated "acromial impingement and Rotator cuff changes with possible tear." His impression was "left shoulder Rotator cuff tendonitis and possible labral tear."

At plaintiff's last visit with Garfinkel on January 12, 2006, he reviewed treatment options with plaintiff including conservative treatment versus surgery. Garfinkel's impression and final diagnosis, on January 12, 2006, was "left shoulder rotator cuff tendonitis vs. tear." We understand this to mean that plaintiff had tendonitis, rather than a torn rotator cuff.

In his "Narrative Report" dated July 13, 2006, Garfinkel opined that "the injuries sustained are of a permanent nature." However, he provided no opinion that plaintiff's shoulder would not heal to function normally even with the surgery or the "conservative treatment" that he had discussed with her. There was no explanation as to what the surgery or other treatment would entail, its possible risks, or the likelihood that it would relieve plaintiff's symptoms.

On June 8, 2007, Judge LeBlon granted defendants' motion for summary judgment, reasoning that:

[T]he statute requires that . . . the plaintiff show that there is a permanent injury . . . within a reasonable degree of medical probability other than a scarring disfigurement, and I find that . . . the plaintiff's alleged injuries do not meet the verbal threshold.

Here, there was a hairline fracture, which was not displaced. . . . [E]verything else seems to be sprain and strain. The only other one would be the left shoulder in which it's describe[d] as a[n] impingement at one point, but then the . . . final diagnosis appears to be left shoulder rotator cuff tendonitis, and I find, . . . that does not meet the requirements of the verbal threshold statute.

And, accordingly, I'm going to grant the motion for summary judgment.

II

We review a trial judge's grant of summary judgment de novo, using the same standard employed by the trial court. Prudential Prop. & Cas. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). As did the trial judge, we conclude that, even viewed in the light most favorable to plaintiff, the evidence was insufficient to satisfy the "permanent injury" standard under AICRA. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

AICRA requires a plaintiff to prove a permanent injury by objective medical evidence. DiProspero v. Penn, 183 N.J. 477, 495 (2005). Moreover, to maintain an action under AICRA, plaintiff must file a doctor's certification attesting to the permanent injury with objective medical evidence including medical tests:

The certification shall state, under penalty of perjury, that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence, which may include medical testing, except that any such testing shall be performed in accordance with medical protocols pursuant to [N.J.S.A. 39:A-4] and the use of valid diagnostic tests administered in accordance with [N.J.S.A. 39:6A-4.7]. Such testing may not be experimental in nature or dependent entirely upon subjective patient response.

[N.J.S.A. 39:6A-8a.]

While the certificate of permanency is not the only evidence to be considered in determining whether a plaintiff has vaulted the AICRA threshold, plaintiff's evidence must contain a physician's analysis explaining "which injuries were designated 'permanent'" and identifying "the objective medical evidence to support the diagnosis of permanency." Davidson v. Slater, 189 N.J. 166, 190 (2007).

On this appeal, plaintiff relies on Dr. Tiedrich's February 7, 2005 narrative report and Dr. Garfinkel's July 13, 2006 report, urging that these reports are sufficient to establish a permanent injury. We disagree. Neither one of these reports is sufficiently specific to establish that plaintiff has suffered a permanent injury within the meaning of the statute. Neither report explains how or why plaintiff has suffered an injury to a body part that will not heal to function normally even with further medical treatment.

In large part, both doctors diagnosed plaintiff with soft tissue injuries in the form of strains, sprains and tendonitis. In fact, although Dr. Tiedrich opined that plaintiff had suffered a permanent injury to her shoulder, he referred her to another specialist to perform the objective MRI testing on the shoulder which had not been done at the time he rendered his report. He also referred her to another specialist, Dr. Garfinkel, for possible further treatment. Hence, at the time he rendered his February 7, 2005 report, Dr. Tiedrich was in no position to render an opinion that plaintiff's shoulder was injured such that it would not heal to function normally even with further treatment.

Likewise, Dr. Garfinkel's report does not explain the nature of plaintiff's injury; there is no explanation as to what "shoulder rotator cuff tendonitis" is or why it is a permanent injury. Plaintiff also relies on Dr. Garfinkel's finding of "positive Neer and Hawkins signs," although the doctor's report does not explain this medical jargon much less opine that these "signs" are evidence of a permanent injury that will not heal with further treatment. As significantly, Dr. Garfinkel's report did not opine that plaintiff's injuries would not heal to function normally even with further treatment. Indeed, he could hardly do so, because he discussed with plaintiff the possibility of further treatment, an option she evidently declined.

We likewise conclude that Dr. Crain's report, rendered on the basis of one interview with plaintiff three years after the accident, was patently insufficient to satisfy AICRA. Plaintiff's arguments concerning Dr. Crain's report are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

Joaquin Palucha filed a per quod claim based on his wife Ana's injuries. In this opinion, "plaintiff" refers to Ana Palucha.

Defendants did not file a cross-appeal. We therefore will not address their argument that there was no agency relationship between defendant Guawei Len, who owned the car, and the defendant driver, Li. In any event the issue is rendered moot by our decision here.

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A-5747-06T2

June 3, 2008