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Afram v. Heller

October 4, 2005


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-6991-02.

The opinion of the court was delivered by: Kestin, P.J.A.D.



Argued: September 13, 2005

Before Judges Kestin, R. B. Coleman and Seltzer.

Plaintiff appeals from an order granting defendant's motion for summary judgment and dismissing the complaint. We reverse and remand.

Plaintiff was injured in a motor vehicle accident on November 22, 2000. The complaint in this matter was filed on August 8, 2002. Following discovery, defendant filed a motion for summary judgment seeking dismissal of the complaint pursuant to the applicable verbal threshold in N.J.S.A. 39:6A-8a, a provision of the Automobile Insurance Cost Reduction Act of 1998 (AICRA). Defendant contended, inter alia, that plaintiff had not made an adequate showing that he had sustained a serious injury of a permanent nature in the accident; that plaintiff had proffered no evidence that his alleged injuries had inflicted a significant impact on his life; and that plaintiff had failed to provide the comparative analysis, required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), of his pre-existing back injury and subsequent shoulder lesion/mass with the injuries allegedly sustained in the accident that gave rise to this suit.

The physician's certification required by statute as a condition for maintaining a cause of action, see N.J.S.A. 39:6A-8a, had been provided by a chiropractor, Dr. David Podell. He certified in general terms that "within a reasonable degree of medical probability [plaintiff] has sustained permanent injury that will have permanent residual sequelae." The certification went on to add: "It is my further opinion . . . within a reasonable degree of medical probability, that although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury cannot be completely resolved by way of further medical treatment intervention and there will always be some aspect of residual permanent injury experienced for the balance of [plaintiff's] lifetime."

As the matter came before the trial court on summary judgment, plaintiff's specific allegations of injuries were recited in his opposing certification as follows:

Ever since the . . . accident, I have continued to suffer from numerous serious injuries, including cervical herniations in my neck and a partially torn rotator cuff in my left shoulder, as evidenced by MRI examinations. Prior to the subject accident, I had never injured or experienced medical problems with my neck or my left shoulder. Similarly, I have not been involved in any traumatic events subsequent to [] November 22, 2000, and, thus, have not re-injured my neck or my left shoulder.

The certification went on to describe the effects of the injuries on plaintiff's lifestyle activities. Plaintiff asserted that the injuries and limitations had been continuous since the accident and he specified two pain medications that he continued to take.

Among the other papers submitted in opposition to the motion were: Dr. Podell's medical report dated March 15, 2004, revising and updating his initial report of April 1, 2002. Both of those documents recited diagnoses of cervical, thoracic, and lumbar spine injuries, and mentioned "right ankle tenosynovitis." The later report added "multiple cervical disc herniations" and "sprain/strain of the left shoulder with partial tear" to the initial diagnoses. Plaintiff's opposition papers also included a report and office records from Dr. Ira Esformes, M.D.; and an office note and report that plaintiff represented was from a Dr. Gross. Additionally, plaintiff submitted a certification from a podiatrist, Dr. Morris R. Morin, reporting a January 24, 2004 diagnosis of peroneal tendonitis (right foot) for which he had treated plaintiff, and opining that that injury was a result of the November 2000 accident and that "injuries of this type can become permanent." The record discloses hospital emergency room notes entered a week after the accident listing right foot pain and possible Achilles tendonitis.

At oral argument on the motion for summary judgment, plaintiff conceded, as he has before us, that the conditions described as a left shoulder lesion/mass were unrelated to the accident, but he has continued to assert that the rotator cuff tear in that shoulder was a separate, related injury.

In deciding the matter adversely to plaintiff, the motion judge stated: "[T]here are no objective tests that indicate [plaintiff] has a permanent injury that will not heal." Referring to the ...

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