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Harris v. Lacey

April 9, 2009

HERMAN HARRIS, JR., PLAINTIFF, AND GREGORY HARRIS, PLAINTIFF-APPELLANT,
v.
KEMANI LACEY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-2746-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 11, 2009

Before Judges Stern and Waugh.

Plaintiff Gregory Harris appeals the dismissal on summary judgment of his personal injury action against defendant Kemani Lacey. The dismissal was premised on Lacey's assertion that Harris's injuries do not satisfy the requirements of the verbal threshold established by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -35, specifically N.J.S.A. 39:6A-8(a) ("a permanent injury within a reasonable degree of medical probability"). We reverse.

I.

This matter arises out of an automobile accident that occurred on August 23, 2004. Harris was a passenger in a vehicle operated by his father.

Four days after the accident, Harris began treatment with Dr. Frank Belverio, a chiropractor. He remained under Dr. Belverio's care for approximately three months. Dr. Belverio referred Harris for MRI scans of his cervical and lumbar spines, which were conducted on November 16, 2004. The MRI scan of the cervical spine revealed annular bulging at C4-C5 and C5-C6, which resulted in a "pressure effect on the ventral aspect of the thecal sac without cervical cord compression," according to the radiologist's report. The MRI scan of the lumbar spine revealed annular bulges at L3-4 and L4-5, which resulted "in thecal sac compression and narrowing of the inferior recess of each neural foramen," also according to the radiologist.

On November 16, 2004, Harris also had an MRI scan of his right shoulder, which revealed rotator cuff impingement and tears of the anterior and posterior glenoid labra. The radiologist's report of the right shoulder states that the rotator cuff impingement of the right shoulder is "secondary to productive changes at the acromioclavicular joint."

Although they had been recommended by Dr. Belverio, Harris did not have any electrodiagnostic testing. However, Dr. Nalini Prasad, a neurologist, conducted a neurological examination on November 30, 2004. Dr. Prasad diagnosed cervical sprain, lumbosacral sprain, cervical disc bulges at C4-C5 and C5-C6, and lumbar disc bulges at L3-L4 and L4-L5.

At the conclusion of Harris's treatment, Dr. Belverio authored a narrative report dated May 24, 2005. His "Final Discharge Diagnosis" with respect to Harris included the following: disc bulges at C4-5 and C5-6; disc bulges at L4-5 and L5-S1; impingement of the rotator cuff; tears of the anterior and posterior glenoid labra; post traumatic cervical, thoracic, and lumbar sprains and strains; and cervical radiculitis. He opined that there was "a direct causal relationship between [Harris's] condition and the accident."

In the section of his report titled "Prognosis," Dr. Belverio stated the following:

[] Harris responded to a regime of treatments, however, exacerbation[s] continue to be reported by the patient. At the conclusion of the treatment, the patient was still suffering from pain, muscle spasms and loss of range of motion to the cervical, thoracic and lumbo-sacral spine. Muscle spasm, myositis and myofascitis are still present on palpation of the spine and is a contributing factor in this accident, which has left the patient with significant limitations, causally related to this accident. It is my opinion that these exacerbations are due solely to the severe injuries to his cervical, thoracic and lumbo-sacral spine, which the patient suffered in the accident on August 23, 2004. The overall prognosis is poor since the injuries of this type are frequent precursors to traumatic arthritis in the regions involved.

Because of these injuries, he has been limited, to a great extent, in performing his usual work activities and daily functions at home from the time of my initial examination to the present. Because of constant and severe cervical, thoracic and lumbo-sacral spine pain he has been unable to do any bending, stooping, lifting to clean his home and exercise without a great deal of discomfort. [] Harris will continue to have episodes of pain when performing the activities listed in the above statement and when performing his usual work duties, all of which require standing, lifting, bending and walking. [] Harris, in my opinion, will continue to have episodes of pain, joint ...


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