On appeal from Superior Court of New Jersey, Law Division, Passaic County, L-27-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Stern and Waugh.
Plaintiff Vito Mannina appeals from the dismissal on summary judgment of his automobile-related personal injury action. In this appeal, Mannina contends that there were genuine issues of material fact with respect to whether the nature of his injuries satisfied the verbal threshold established by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to-35, such that summary judgment was inappropriate. For the reasons set forth below, we remand to the trial court for further consideration and for findings of fact and conclusions of law.
In January 2005, Mannina was involved in a two vehicle collision in Clifton, New Jersey. His motor vehicle was struck from behind by the motor vehicle operated by defendant Zujey Gonzalez-Morales and owned by defendant Odilia Morales. At the time of the accident, Mannina was subject to the verbal threshold set forth in N.J.S.A. 39:6A-8(a), which limits recovery for non-economic loss to persons who have sustained a bodily injury which results in death, dismemberment, significant disfigurement, displaced fractures, loss of a fetus, or "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." As will be discussed below, the "permanent injury" provision is the only potentially viable one in Mannina's case.
Mannina filed suit on January 2, 2007. After defendants filed their answer, a period of discovery ensued. Defendants filed a motion for summary judgment in August 2007. The motion was decided on the papers and granted by order dated November 2, 2007, but without an explanation of the motion judge's reasons. This appeal followed.
As noted, the accident occurred in January 2005. Mannina sought treatment from Thomas Abraham, M.D., on August 17, 2005, which was approximately six months following the accident. He had received treatment from his family doctor in the interim, but sought further treatment from Dr. Abraham when his symptoms did not improve. Those symptoms included pain in the neck, back, left shoulder, and left knee. When first seen by Dr. Abraham, he complained of "marked neck pain radiating to the arms," as well as "severe pain in the back radiating to the legs with painful motion." On physical examination, Dr. Abraham noted tenderness, decreased ranges of motion, and spasm of the paracervical and trapezii muscles, as well as spasm of the illiolumbar and paraspinal muscles. He also noted bilateral hamstring spasms.
On November 10, 2005, Mannina had a CT scan of the cervical spine. The radiologist noted the following:
Ther[e] is disc space narrowing at C3-4 and C6-7. The vertebral bodies and posterior elements are otherwise intact without evidence of fracture or misalignment. There is no evidence of canal stenosis or foraminal stenosis. The paravertebral soft tissues have a normal appearance. No obvious disc herniations are seen. However, this would be better visualized on a magnetic resonance scan, which could be obtained subsequently if clinically indicated.
IMPRESSION: REVERSAL OF THE NORMAL CERVICAL LORDOSIS SUGGESTING MUSCLE SPASM. DEGENERATIVE DISC DISEASE AT C3-4 AND C6-7.
NO EVIDENCE OF FRACTURE, CANAL STENOSIS OR OBVIOUS DISC HERNIATION.
There was also a CT scan of the lumbar spine on the same date. The radiologist noted:
The lumbar vertebral bodies are in normal alignment through L5. There is a mild spondylolisthesis at L5-S1 with mild anterior displacement at L5 on S1. There is a disc space narrowing with vacuum phenomenon consistent with disc degeneration at the L5-S1 level. Facet arthropathy is seen in the lower lumbar spine and spondylolysis are suspected at the L5-S1 level, definitely on the right and probably on the left. No evidence of a focal disc herniation is seen. However, this would be better demonstrated on a magnetic resonance study, which could be obtained ...