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Miller v. Hill

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 26, 2007

CORY MILLER, PLAINTIFF-APPELLANT,
v.
RICHARD L. HILL, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2729-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2007

Before Judges Lintner and Sabatino.

Plaintiff, Cory Miller, appeals from an order granting summary judgment in favor of defendant, Richard Hill, dismissing plaintiff's personal injury complaint. Because this appeal arises on defendant's motion for summary judgment, we view the facts in the light most favorable to plaintiff. DiProspero v. Penn, 183 N.J. 477, 482 (2005) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Applying that standard, we affirm.

Plaintiff was involved in a collision at the intersection of Routes 10 and 46 in Roxbury Township on October 11, 2002. Following the accident, plaintiff was taken to Dover General Hospital where he received emergency treatment. Four days later, he saw Dr. Michael P. Wittig, a chiropractor, complaining of thoracic, lumbar, neck and jaw pain. He also complained of a headache and radiating pain in his right trapezius muscle. Wittig treated plaintiff until January 15, 2003, after which plaintiff commenced treatment with a physical therapist. On April 14, 2004, plaintiff returned to Wittig and complained that his pain had not gone away and nothing seemed to help his low back pain. At that time, Wittig noted that plaintiff had "a normal lumber [sic] range of motion . . . with end point tenderness." He also found "spasm and tenderness over the right and left lumbar paraspinal muscles." Plaintiff underwent an MRI on May 7, 2004. In a report dated August 2, 2004, Wittig diagnosed "[c]hronic thoracic and low back pain with spasm [and] [l]umbar disc bulging." According to Wittig, the MRI revealed "a mild posterior bulging of L5-S1 disc and straightening of the lordosis curve." He reported that plaintiff's low back condition had "developed into a chronic back condition." He believed that plaintiff "will continue to experience periodic exacerbation of symptoms and will require occasional treatments to relieve these [flare]-ups."

On May 24, 2004, Dr. Arthur Tiger, an orthopedic surgeon, reviewed a copy of plaintiff's MRI, and reported that it showed "some muscle spasm" in plaintiff's low back and "a mild bulging disc at the L5-S1 level." He indicated that "there is nothing further that [he] can do for [plaintiff] in regard to these findings." He also recommended that plaintiff continue his chiropractic care as long as it gives him relief.

Defendant was examined by Dr. Barry S. Levine, an orthopedist on December 8, 2005. Levine found that plaintiff's MRI showed "nothing clinically significant and nothing post-traumatic that can be related to the . . . motor vehicle accident." Although he noted plaintiff's symptoms and subjective findings, he concluded that there were "no objective residual[s] of the . . . accident." His opinion remained unchanged after reviewing the emergency room report from Dover General Hospital.

Plaintiff filed his complaint on October 8, 2004. An answer was filed by defendant on March 30, 2005. Defendant filed his summary judgment motion on August 16, 2006, contending plaintiff's medical proofs failed to meet the serious impact test to meet the verbal threshold. The motion was granted on October 27, 2006, without a hearing. On the order memorializing that decision, the judge handwrote, "No objective medical evidence linking the bulging disc to the accident. Moreover, bulge not considered permanent injury."

On appeal, plaintiff, who claims that despite treatment he has not obtained any relief from his complaints, asserts in Point I of his brief that his injuries have seriously impacted his life and are sufficient to meet the verbal threshold under DiProspero, supra, 183 N.J. 477. Contrary to plaintiff's assertion, the DiProspero Court held that under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, plaintiff need not prove the second-prong subjective serious life impact standard set by Oswin v. Shaw, 129 N.J. 290 (1992). DiProspero, supra, 183 N.J. at 506; N.J.S.A. 39:6A-8a. AICRA replaced the prior threshold with fewer categories of injuries and a more objective standard. Serrano v. Serrano, 183 N.J. 508, 514 (2005). Although the Oswin serious impact standard no longer applies, "[t]he new threshold has incorporated Oswin's requirement that the injury be proven by objective credible evidence." Ibid.

The AICRA "limitation on lawsuit threshold" category implicated here is bodily injury[] arising out of the ownership [and] operation . . . of [an] automobile . . . which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment. [N.J.S.A. 39:6A-8a.]

We have carefully reviewed plaintiff's proofs regarding causal relationship and permanency and concur with the motion judge's conclusion that they are inadequate to defeat summary judgment. The record is devoid of any specific objective medical evidence supporting the conclusion that the mild bulging disc found on the MRI one and one-half years post accident is either permanent or caused by the accident.

Plaintiff must do more than provide a medical report that bombards the reader with general phrases such as "chronic back condition" and "periodic exacerbation of symptoms" without relating them to the accident and providing an objective explanation of permanency in terms of the body's failure to heal to function normally. A diagnosis of mild posterior bulging at L5-S1, without more, implicates a pre-existent degenerative condition. There is neither a meaningful objective conclusion nor even a suggestion of a nexus between plaintiff's back condition and the automobile accident. AICRA requires a specialist's certification, under the penalty of perjury, that the plaintiff has sustained a permanent injury causally related to the accident based upon objective findings, within sixty days of the filing of the defendant's answer. The certification is "intended to ensure that only honest and reliable medical evidence and testing procedures would be introduced to prove that an injury meets the threshold." DiProspero, supra, 183 N.J. at 489. Plaintiff never filed the required certification.

While we do not deprecate the seriousness of plaintiff's condition and the subsequent discomfort that he suffers, we are not persuaded that his medical reports meet the magnitude of proof necessary under the surviving Oswin objective medical evidence standard announced in both DiProspero and Serrano to vault the limited lawsuit option. It should not be difficult to obtain a timely report from a doctor providing information concerning permanency and causal relationship of specific positive findings on an MRI following an accident, if such a diagnosis can be made. Plaintiff's failure to so, indeed his failure to obtain the required certification within the one and one-half year interval that elapsed between the filing of defendant's answer and motion for summary judgment, suggest an inability to obtain necessary objective medical proof that he suffered a permanent injury causally related to the accident.

Plaintiff's Point II contention that he should be accorded additional discovery time to develop his medical proofs lacks sufficient merit under these circumstances to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20071026

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