September 29, 2008
VITO MANNINA, PLAINTIFF-APPELLANT,
ZUJEY GONZALEZ-MORALES, ODILIA MORALES, NEFTALI D. GONZALEZ, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 subsequently if clinically indicated. There is no evidence of canal stenosis or foraminal stenosis. The paravertebral soft tissues have a normal appearance.
IMPRESSION: MILD SPONDYLOLISTHESIS WITH ASSOCIATED SPONDYLOLYSIS AT L5-S1. ADVANCED DEGENERATIVE DISC DISEASE WITH VACUUM PHENOMENON AT L5-S1. NO DEFINITE EVIDENCE OF DISC HERNIATION OR CANAL STENOSIS.
Mannina was seen again by Dr. Abraham on November 16, 2005. The doctor again noted spasms near the cervical spine and lumbosacral spine. He also noted decreased ranges of motion and tenderness.
Dr. Abraham's report, which is dated November 21, 2005, concludes as follows:
It is my opinion that there is a direct causal relationship between the patient's injuries and the accident of 1-12-05. He continues with persistent significant neck and back pain, which has become worse with physical activities, inclement weather, and stress. The spasms of the paracervical, paravertebral, trapezia, and hamstring muscles are significant enough to give him poor sleep, and also produce painful restriction on the range of motion of the neck and back. The restriction in the range of motion of the neck and back is not solely due to pain, but also due to muscle spasms of the neck and back. The injuries of this nature are accompanied by over-stretching and tearing of both muscular and ligamentous tissues. These tissues heal with scarring and never do regain flexibility and elasticity exhibited prior to injury. If his pain syndromes get worse and are not relieved by conservative measures, he will require further therapy and/or injection treatment. Injuries of the cervical spine, left knee, and lumbosacral spine are permanent. The prognosis for a complete recovery is poor. He was advised to see an orthopedist for evaluation of his pain in the spine.
It appears from the record that, after the submission of Dr. Abraham's report, Mannina underwent trigger point injections for the lumbar spine on April 5, 2006, at which point Richard Lipsky, M.D., noted muscle spasms. The record does not reflect any further medical examinations or treatments after April 2006.
In Mannina's case, the only potentially viable element of the AICRA verbal threshold is "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). That section further provides that 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."
In order to survive a motion for summary judgment, a plaintiff need only demonstrate "by objective credible evidence" that he suffered a "permanent injury." See Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). A plaintiff does not need to demonstrate a "serious life impact," DiProspero v. Penn, 183 N.J. 477, 481-82 (2005), or a "serious injury." Serrano v. Serrano, 183 N.J. 508, 510 (2005).
In this case, it appears from our review of the record that the only instances of objective medical evidence in this case are the results of the CT scans and the doctors' findings of muscle spasm on physical examination. The record does not reflect any electromyogram or nerve conduction studies. Range of motion tests are not ordinarily considered objective medical tests. Jacques v. Kinsey, 347 N.J. Super. 112, 119 (Law Div. 2001).
The radiologist concluded from the CT scans that there was "degenerative disc disease"*fn1 and the possibility of muscle spasm. There was no "definite" or "obvious" evidence of disc herniation. Although the radiologist suggested consideration of follow-up MRI studies "if clinically indicated," there are no such studies in the record.
Our determination of the merits of this appeal is, unfortunately, foreclosed by the fact that the record contains no statement of reasons as required by R. 1:7-4(a). That Rule provides that the "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon... on every motion decided by a written order that is appealable as of right." Because the summary judgment order dismissed the entire complaint, the provisions of the rule were patently applicable. Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006). In addition, R. 2:5-1(b) requires a trial judge to submit "a written opinion stating findings of fact and inclusions of law" upon receipt of the notice of appeal in a case for which no such opinion, whether written or oral, has previously been prepared.
Our review of the record discloses that the order under appeal contains no reference to either a written or oral decision, as required by R. 1:6-2(f). The appendix contains a notice in response to the plaintiff's transcript request to the effect that the "matter was not put on the record." We are at a loss to understand the apparent failure of the motion judge to comply with R. 1:7-4(a), as well as R. 1:6-2(f) and R. 2:5-1(b).
Because we do not have the benefit of findings of fact and conclusions of law from the motion judge, we do not know what consideration was given by the motion judge to the findings related to the CT scans or muscle spasm. In particular, we note that findings of muscle spasms over an extended period of time may satisfy the verbal threshold, depending upon their duration. Pardo, supra, 382 N.J. Super. at 493; Moreno v. Greenfield, 272 N.J. Super. 456, 463-65 (App. Div. 1994); Jacques, supra, 347 N.J. Super. at 119-124 (citing numerous cases). Such findings for a limited period of time, such as four or five months, will not support a finding of "permanent injury." Jacques, supra, 347 N.J. at 120. Because there are no findings of fact and conclusions of law, we do not know whether the motion judge considered the issue of muscles spasms and, if he did, what weight he gave to them.
Consequently, we remand to the matter to the trial court for reconsideration of the motion for summary judgment in light of the applicable law and for findings of fact and conclusions of law as required by R. 1:6-2(f). We retain jurisdiction.