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Duffy v. O'Connell

February 28, 1995

ELETHA DUFFY, PLAINTIFF-APPELLANT,
v.
ANITA O'CONNELL AND DONALD VANARELLI, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Somerset County.

Approved for Publication February 28, 1995.

Before Judges Brody, Stein and Levy.

The opinion of the court was delivered by: Levy

The opinion of the court was delivered by P.G. LEVY, J.A.D.

Plaintiff sought non-economic damages for personal injuries arising out of an automobile accident. After discovery was complete, defendants moved for summary judgment, arguing that plaintiff failed to meet the "verbal threshold" of N.J.S.A. 39:6A-8a. The motion was granted. On appeal plaintiff contends the motion Judge failed to consider her qualification under the ninth category of the verbal threshold concerning a disability for at least 90 out of the 180 days immediately following the accident. We affirm the grant of summary judgment resulting in the order of November 29, 1993, dismissing the complaint.

Plaintiff was injured in an automobile accident on July 20, 1990. She was treated by an orthopaedist, Martin L. Sorger, M.D., who observed "bilateral paracervical spasm" and his diagnosis was "traumatic cervical strain." When he last saw plaintiff on September 6, 1990, his opinion was that she suffered a strain which was not permanent, but she "would have intermittent pain in both the cervical and lumbar spines." He noted that "with rest, heat, analgesics and exercises, her symptoms have improved." One week later plaintiff was seen by another orthopaedist, Paul J. Hirsch, M.D. He directed plaintiff to have an MRI test, and although the radiologist opined the MRI was normal, Dr. Hirsch saw "evidence of disc bulging." He advised plaintiff to stay out of work for the remainder of the week, returning the next Monday but limiting her hours to no more than half-days and resuming her physical therapy at that time. In June 1991, he advised her she could resume a cautious swimming program. His diagnoses were cervical sprain syndrome, thoracic sprain syndrome, lumbosacral sprain syndrome and tronchanteric bursitis (caused by the treatment of her lower back). Based on symptoms existing one year after the accident, Dr. Hirsch opined "it is medically probable that Ms. Duffy has sustained a permanent impairment of her lower back, reasonably related to the described motor vehicle accident." Subsequently, between December 1991 and May 1992, plaintiff was treated at the Family Chiropractic Center by Drs. Svihovec and Ershow. They concluded plaintiff's condition was not permanent but it was "quite feasible [there could be] re-exacerbation on an ongoing basis." They reviewed the MRI of October 1990 and observed "evidence of a moderate posterior disc bulge at the fourth and fifth lumbar disc levels." Their diagnoses were "cervical-thoracic sprain-strain type injury" and "compensatory strain to the lumbosacral spine."

N.J.S.A. 39:6A-8(a) excludes liability for non-economic loss from bodily injuries related to an automobile accident "unless [the injured] person has sustained a personal injury which results in ... [9] a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment ...." New York has the identical definition. N.Y. Ins. Law § 5102(d) (McKinney 1994).

The seminal case concerning verbal threshold issues is Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992). In Oswin the Supreme Court directed trial courts to follow the summary judgment model and decide whether the alleged injury, if proven, meets the requirements of one of the verbal threshold categories. Id. at 294. Noting that our no-fault statute was based on New York's, Oswin directs use of that state's standards to evaluate a plaintiff's injuries, citing specifically the decision of the New York Court of Appeals in Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088 (1982). Id. at 315.

The Court adopted the New York rule that a "plaintiff must show a material dispute of fact by credible, objective medical evidence," and "a nexus between the injury and disability," meaning proof that "the injury had a serious impact on the plaintiff and her life." Id. at 314, 318. The Court emphasized that it required objective proof of soft-tissue injuries and consequent disability. Id. at 319-20. A doctor's mere parroting or paraphrasing of the threshold statute is insufficient to meet the test. Id. at 320.

At first, the motion Judge decided the objective evidence was insufficient to meet the verbal threshold. Subsequently he determined "that plaintiff has met the objective criteria and that the disc bulge and some limitation of motion constitute a 'serious injury'." The spasm noted by Dr. Sorger, the disc bulging seen by Dr. Hirsch and the disc bulge observed by Drs. Svihovec and Ershow constitute objective proof of the injury they diagnosed: a strain of plaintiff's lower back. Having found credible objective medical evidence of a serious injury, the motion Judge must then determine whether there is "objective evidence demonstrating a 'fit' within the statutory definition." Oswin v. Shaw, supra, 129 N.J. at 318.

In this case where plaintiff seeks qualification only for a type 9 injury, the Judge must examine the proofs of plaintiff's experiences and of her inability to perform "substantially all of the material acts" constituting her usual and customary daily activities during 90 of the 180 days following the accident. It is obvious that such proof would catalog the plaintiff's usual and customary daily activities, listing the amount of time spent working, performing household work, engaging in recreational and social activities and whatever might constitute a particular plaintiff's lifestyle. If, after appropriate discovery, it appears those particular activities are not disputed, the trial Judge must determine whether the plaintiff's inability to perform some of those activities fits the statutory standard.

Costa v. Perez, 272 N.J. Super. 108, 639 A.2d 372 (App. Div. 1994), provides an example of the proofs to be marshalled and considered by the motion Judge. A plaintiff must show prima facie proof that the injury was "based on objective medically-determined medical evidence," that it "prevented the plaintiff from performing substantially all the material acts which constitute that person's usual customary and daily activities," and that the restrictions on activity had to last for at least 90 of the first 180 days. Id. at 113. In Costa, plaintiff's doctor certified she had been temporarily disabled for 105 days. We held that a jury could infer the plaintiff suffered a type 9 injury because the doctor found her disabled for the requisite number of days, she would not be able to accept employment with her arm in a sling for three months and she was attending physical therapy every day. Id. at 115-16.

In Licari, the Court of Appeals of New York considered type 9 claims and said:

the words "substantially all" should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment. As to the statutory 90/180-day period of disability requirement, it should be considered a ...


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