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Palucha v. Len

June 3, 2008

ANA PALUCHA AND JOAQUIN PALUCHA, PLAINTIFFS-APPELLANTS,
v.
GUAWEI LEN AND RONG ZENG LI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4977-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 12, 2008

Before Judges S.L. Reisner and Gilroy.

Plaintiffs Ana Palucha and Joaquin Palucha*fn1 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.*fn2 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 ...


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