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Harris v. Lacey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 tenderness, and significant limitations of range of motion in his cervical, thoracic and lumbo-sacral area and be expected to have future difficulties to the regions treated. []

Harris, in my opinion, will also have chronic recurring cervical, thoracic and lumbo-sacral pain and joint tenderness upon inclement weather, twisting, turning, and any excessive physical endeavors.

On September 21, 2006, Harris filed a certification of permanency pursuant to N.J.S.A. 39:6A-8(a). The certification was given by Dr. Belverio. It stated, in pertinent part, as follows:

2. Based upon my professional expertise and the findings including objective clinical evidence and/or objective medical diagnostic tests, it is my opinion that within a reasonable degree of medical probability my patient has sustained a permanent injury to a body part or organ which has not healed to function normally and will not heal to function normally with further medical treatment and will have a permanent residual sequelae.

3. It is my further opinion that within a reasonable degree of medical probability, further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury cannot be completely resolved by way of further medical treatment intervention and there will always be some aspect of residual permanent injury experienced for the balance of the patient's lifetime.

Harris consulted with Dr. Jerald Vizzone on November 17, 2006, for an orthopedic evaluation. Dr. Vizzone's report of April 6, 2007, states as follows:

IMPRESSIONS:

1. Status post motor vehicle accident on August 23, 2004.

2. Cervical sprain/strain/whiplash injury; disc bulges at C4-5 and C5-6.

3. Cervical radiculopathy.

4. Posttraumatic right shoulder impingement syndrome with glenoid labral tear.

5. Lumbar spine sprain/strain; disc bulges at L3-4 and L4-5.

6. Lumbar radiculopathy.

DISCUSSION:

In conclusion, within a reasonable degree of medical probability, the injuries described above demonstrate a direct causal relationship to the motor vehicle accident on August 23, 2004. The patient's cervical and lumbar MRI studies demonstrate multiple disc bulges. His right shoulder MRI demonstrates rotator cuff impingement as well as tears of the anterior and posterior glenoid labra. His symptoms have been refractory to conservative treatment and, as such, these injuries are permanent in nature.

The patient specifically denied any prior history of right shoulder injury and denied any injuries to his right shoulder subsequent to the motor vehicle accident of August 23, 2004. His right shoulder MRI demonstrates rotator cuff impingement as well as tears of the anterior and posterior glenoid labra. As he has failed conservative treatment and continues to have objective signs of weakness, decreased mobility and positive provocative testing, surgical intervention for definitive treatment of the right shoulder is indicated. This fact was discussed in detail with Mr. Harris but he elects not to pursue further treatment for his injuries at this time.

It is likely, with a reasonable degree of medical probability, that the patient will require further treatment with respect to his neck and back injuries, including but not limited to further physical therapy, pain management for epidural steroid injections and possible surgical intervention. Again, the patient elects not to pursue further treatment at this time.

Lacey moved before the trial court for summary judgment, based upon the plaintiff's failure to satisfy the requirements of N.J.S.A. 39:6A-8. Harris opposed the motion. In a cursory oral opinion that did not satisfy the requirements of Rule 1:7-4(a), the motion judge granted the motion and dismissed the complaint. Harris appeals.

II.

An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

In this case, the only potentially viable element of the 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." 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, 482 (2005), or a "serious injury." Serrano v. Serrano, 183 N.J. 508, 510 (2005).

Taking the certification of permanency and the medical reports in the record as a whole, and giving Harris the benefit of the favorable inferences arising from them, we are satisfied that Harris has met his burden to demonstrate that there is "objective credible evidence" that he suffered a "permanent injury."

The MRI results for the shoulder revealed rotator cuff impingement and tears of the anterior and posterior glenoid labra. Although the radiologist's report characterized them as being "secondary to productive changes at the acromioclavicular joint," Harris's medical reports opine that they were the result of the accident. During the oral argument in the Law Division, the motion judge dismissed the shoulder findings because there was a finding of "full range of motion." Nevertheless, Dr. Vizzone's reported that "[i]nternal and external rotation was painful and limited as compared to the contralateral side" and that there was "tenderness to palpation about the right shoulder" and "palpable tenderness over the anterior and posterior glenohumeral joint."

While Dr. Vizzone's findings are "subjective," so is the "full range of motion" finding. That a patient can move in a normal range does not mean that the movement is not painful. There is an "objective" finding of injury to the shoulder on the MRI and medical opinion relating it to the accident. There is also a certification of permanency from Dr. Belverio. Together, these proofs are sufficient to withstand a motion for summary judgment.

We need not reach the issue of whether an MRI finding of a bulging disc itself satisfies this prong of the verbal threshold, but note that the motion judge cited no case law for his assertion that it does not. We know of no such reported decision. See Pardo v. Dominguez, 382 N.J. Super. 489, 494 (App. Div. 2006). The record in this case reflects that the radiologist found more than mere bulges. As quoted above, there was evidence of "pressure effect on the ventral aspect of the thecal sac without cervical cord compression" with respect to the cervical spine and "thecal sac compression and narrowing of the inferior recess of each neural foramen" with respect to the lumbar spine, all resulting from the bulges. We are satisfied that these findings, together with the certification of permanency, satisfy the requirements of the statute for summary judgment purposes.

III.

In summary, we reverse the entry of summary judgment in favor of Lacey and remand to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

20090409

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