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Estrada v. Lisciandrello

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2009

KATHERINE ESTRADA, PLAINTIFF-APPELLANT,
v.
SALVATORE LISCIANDRELLO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0953-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2008

Before Judges Lisa and Sapp-Peterson.

Plaintiff, Katherine Estrada, appeals from the November 16, 2007 order granting summary judgment dismissing her complaint for failure to vault the verbal threshold requirements under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, 39:6A-8(a). The motion judge concluded that plaintiff had not "produced any recent objective credible evidence derived from accepted diagnostic test[s] which demonstrat[ed] . . . a permanent injury as a result of the accident." We reverse.

According to the proofs viewed most favorably towards plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 544 (1995), the accident occurred on June 22, 2004, when plaintiff was rear-ended by a vehicle operated by defendant, Salvatore Lisciandrello, as she was stopped at a traffic light. While en route, via ambulance, to a nearby hospital, plaintiff developed back pain. X-rays were taken and she was discharged later that day. The next day she came under the care of Dr. Paul K. Azimov of the Osteopathic Medical Care Center, P.C., from whom she received treatment for the next eight months. At this initial visit, plaintiff complained of headaches, neck pain radiating to the left arm, left shoulder pain, and low back pain. Dr. Azimov's examination revealed muscle spasms in the cervical and lumbar regions of the spine. He diagnosed her as suffering from cervical, lumbar and shoulder pain and sprain, as well as muscle spasms. Upon reexamination the next month, plaintiff continued to experience low back pain that radiated to both legs, as well as neck and shoulder pain, although the pain in the latter two areas had improved. Dr. Azimov recommended that plaintiff continue with the previously prescribed treatment plan and that she undergo a magnetic resonance imaging scan (MRI).

Plaintiff underwent an MRI on August 30, 2004. The radiologist's impression from that imaging was that plaintiff suffered from a mild disc bulge at the L5/S1 level of the lumbar spine. An electro-diagnostic study performed by Dr. Azimov on October 6, 2004 revealed evidence of acute right S1 radiculopathy. She continued with the treatment plan of weekly physical therapy and spinal manipulation over the next several months but, by February 18, 2005, Dr. Azimov concluded that plaintiff had "reached a point of maximum medical improvement that can be offered in this office with conservative care."

Over the next two years, plaintiff received no further treatment. On May 1, 2007, at the request of the defense, plaintiff was evaluated by Dr. Barry Levine of Metropolitan Orthopedic Consultants, P.A. Plaintiff reported to him that she continued to experience low back pain that affected her sleep and activities of daily living. Upon examination, Dr. Levine found: (1) no acute distress; (2) plaintiff walked with normal posture and gait; (3) there was no spasm or tenderness in the low back; (4) plaintiff was able to put her back through a full range of motion without complaint; and (5) the neuromuscular exam was "completely normal." He interpreted the MRI from August 30 as revealing "nothing clinically significant and nothing that can be considered post traumatic." He opined, to a reasonable degree of medical certainty, that plaintiff had "no objective residual of the 6/22/04 accident."

On September 7, 2007, plaintiff returned to Dr. Azimov for a follow-up examination. He reported that plaintiff continued "to demonstrate signs and symptoms of residual pathology to the muscular-skeletal and nervous structure of the lumbar spine." His examination revealed tenderness along the lumbar spine, particularly at the L2, L5, and S1 levels on the right and left side with "Para muscle spasms . . . noted with restricted range of motion in both horizontal and vertical planes."

Plaintiff was deposed on February 28, 2007. She testified that "at times my back hurts very much and I cannot walk well and my right leg bothers me or at times the left one. So I cannot bend down properly. Walking for too long either because it hurts very much over here like my hip." She also testified that she is unable to sweep, mop, or lift heavy objects.

Defendant moved for summary judgment contending that plaintiff failed to demonstrate, with objective evidence, that she suffered a "permanent injury" as a result of the accident. The motion judge agreed and, in a statement of reasons appended to the dismissal order, the judge acknowledged that plaintiff had presented some objective evidence, but reasoned that a plaintiff must produce recent, objective evidence of a permanent injury. In the instant case, the report by [plaintiff]'s D.O. dated September 7, 2007, which seemingly only reviews previously generated data, and the MRI taken in 2004 does not relate . . . the "mild bulge" to plaintiff's present complaints and speaks only in terms of soft tissue injuries and the objective standard is not met. In short, the plaintiff has not produced any recent objective credible evidence derived from accepted diagnostic test[s] which demonstrates to the court that she sustained a permanent injury as a result of the accident.

As part of the requisite proofs necessary to vault the verbal threshold, a plaintiff must provide a defendant with a certification from a licensed treating physician or a board certified licensed physician certifying that the plaintiff has sustained a qualifying injury. N.J.S.A. 39:6A-8(a). The certification must be based upon "objective clinical evidence, which may include medical testing, except that any such testing shall be performed in accordance with medical protocols pursuant to [N.J.S.A. 39:6A-4] and the use of valid diagnostic tests administered in accordance with [N.J.S.A. 39:6A-4.7]." Ibid. The recognized diagnostic testing under AICRA includes MRI and needle EMG testing. See N.J.A.C. 11:3-4.5.

Thus, the objective testing plaintiff underwent satisfied the requirements under AICRA for objective testing. Nothing under AICRA or in decisional law interpreting AICRA requires that a plaintiff, who has undergone such testing, from which a diagnosis of a qualifying injury has been reached, present "updated" additional objective testing. The fact that plaintiff's proofs did not include updated diagnostic testing may affect the jury's assessment of her proofs. However, when viewed most favorably towards her, the age of the testing did not eliminate, as a disputed fact, whether plaintiff sustained a permanent injury as defined under AICRA. Further, the proofs also establish that Dr. Azimov diagnosed muscle spasm during the course of plaintiff's initial eight-month treatment and two years later. See Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994) (holding that continued spasm "clearly constitutes prima facie objective evidence of permanent injury").

On appeal, our standard of review is identical to that required of the trial judge who ruled on the motion for summary judgment. Stricklen v. Ferrugia, 379 N.J. Super. 296, 300 (App. Div. 2005). In that regard, the trial judge must deny the motion unless "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Oswin v. Shaw, 129 N.J. 290, 306 (1992). We determine that here the judge failed to evaluate plaintiff's proofs in accordance with this standard. Ibid.

Reversed.

20090122

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