On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2861-03.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2006
Before Judges Conley, Weissbard and Winkelstein.
In this personal injury case arising under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), we are called on to determine the meaning of "significant scarring," one of the means of crossing the verbal threshold, N.J.S.A. 39:6A-8a, and the circumstances under which that category is subject to resolution by summary judgment.
Plaintiff Maria Soto appeals from a summary judgment in favor of defendants Lisa and James Scaringelli based on a determination by a summary judgment motion judge that a scar on plaintiff's shoulder, resulting from surgery, did not amount to "significant scarring" sufficient to overcome the verbal threshold. We conclude that plaintiff's scar presented a jury question, requiring that we reverse the summary judgment and remand for trial.
On January 6, 2002, plaintiff was walking through the parking lot of the Best Buy store located in Nassau Park Mall in West Windsor Township when she was struck by defendants' car, which was operated by defendant Lisa Scaringelli and registered to defendant James Scaringelli. Plaintiff's daughter, who was present at the time of the accident, drove her to Robert Wood Johnson Hospital where x-rays were taken and a non-prescription drug was provided for pain. Plaintiff was discharged with a diagnosis of left shoulder sprain. A month after the accident, plaintiff had an MRI which revealed "signal changes in the superior aspect of the supraspinatus tendon." The doctor reviewing the MRI noted that "a slight partial tear in this area could be considered in the differential diagnoses" and recommended "clinical correlation." As a result, plaintiff was referred to an orthopedic specialist, Dr. Aita, who concluded that plaintiff may have sustained "a strain of the rotator cuff." He did not feel any further studies were warranted at that time but did recommend that plaintiff participate in a supervised therapy program and return for a review in approximately one month. After further reviews and continued therapy, Dr. Aita administered a corticosteroid injection, which led him to discharge plaintiff from active treatment on July 24, 2002. On October 23, 2002, plaintiff returned to Dr. Aita with renewed complaints of left shoulder pain. His examination was "compatible with impingement syndrome of the shoulder," resulting in a recommendation for either a repeat injection or an arthroscopic subacromial decompression. Eventually, surgery was performed on March 11, 2003. The diagnosis was:
1. Synovitis/labral fraying, left shoulder.
2. Rotator cuff tear, left shoulder.
3. Impingement syndrome, left shoulder.
4. Osteoarthritis, left acromioclavicular joint.
The procedures performed were:
1. Diagnostic left shoulder arthroscopy with ...