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DeCastro v. Ferrer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 31, 2009

MAGDA R. SUAREZ DECASTRO, PLAINTIFF-APPELLANT,
v.
VICTOR RIVERA FERRER, NYORKA D. RIVERA, DEFENDANTS, AND ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-2562-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 25, 2009

Before Judges Payne and Ashrafi.

After a motor vehicle collision occurring on November 30, 2005 between a car driven by Magda Suarez DeCastro and a car driven by Victor Rivera Ferrer and owned by Nyorka D. Rivera and a denial of uninsured motorist (UM) benefits by Suarez DeCastro's insurer, Allstate Insurance Company, Suarez DeCastro filed suit against Ferrer, Rivera and Allstate. Although the record is not clear, it is likely that Ferrer and Rivera either were not served or did not answer the complaint. Issue was joined with Allstate, and following the period for discovery, Allstate sought summary judgment on the ground that plaintiff did not satisfy the limit on lawsuit option's threshold for permanent injury as established by the Automobile Insurance Cost Reduction Act (AICRA). See N.J.S.A. 39-6A:8a (requiring evidence of "a permanent injury within a reasonable degree of medical probability" and specifying that "[a]n 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."). The motion was granted, and reconsideration was denied. Plaintiff has appealed.

Plaintiff claims that she was injured on November 30, 2005 when her vehicle was struck in the rear after plaintiff had stopped for a red light. The record presented to the motion judge in opposition to summary judgment discloses that plaintiff was treated at Palisades Medical Center for neck and shoulder pain, and referred to an orthopedist in Fort Lee.

On December 5, 2005, plaintiff commenced treatment with chiropractor Anthony Marsh, presenting with complaints of headaches, neck pain, upper extremity pain, upper back pain, and left shoulder pain, radiating down from the cervical spine. In a report dated January 25, 2006, Dr. Marsh found that plaintiff had sustained acute cervical sprain/strain, acute post-traumatic cephalgia, acute thoracic sprain/strain, and acute post traumatic contusion to the left shoulder. The doctor opined that plaintiff's prognosis was "guarded" and that she "still manifests signs and symptoms consistent with the original injuries due to the motor vehicle accident of 11/30/2005." Treatment appears to have lasted only from December 5 to 20, 2005 and to have consisted of seven visits.

Plaintiff was treated by Dr. Roman Kosiborod, an osteopath specializing in pain management, from December 22, 2005 to April 3, 2006. In his April 19, 2006 report, the doctor listed three "care paths" for "Cervical spine, soft tissue injury (Strain/sprain/contusion whiplash of the neck)"; "Thoracic spine, soft tissue injury (Strain/sprain/contusion of upper back)"; and "Lumbar-sacral spine, soft tissue injury (Strain/sprain/contusion of low back)." The report also stated that results of an MRI conducted on February 7, 2006 were "consistent with an impression of bulge at the disc at C4-C5,"*fn1 with straightening of the cervical lordosis. Various physical therapeutic, osteopathic manipulative, and other treatments were administered. Although plaintiff was preoperatively diagnosed as having a disc bulge at C4-C5 with cervical radiculopathy, Dr. Kosiborod administered three cervical epidural injections at C6-C7, as well as trigger point trapezius and transforaminal injections. The doctor's final diagnosis was "Displacement of cervical intervertebral disc without myelopathy, [n]onallopathic lesions of cervical region, [and] [t]raumatic [m]usculoli[g]amentous sprains and strain of neck (whiplash)."

The doctor concluded his report by stating that plaintiff "has been under our care since 12/22/200[5] for injuries sustained in a motor vehicle accident on 11/30/2005" and "[a]t the present time no further therapy is required for the injuries sustained on 11/30/2005 since she has reached maximum benefit from the treatment rendered." However, the doctor also stated that "[a]s the result of the injuries Ms. Castro sustained she will have long-term residual effects affecting her ability to regain full strength and movement in her neck. The patient has responded to treatment, but will continue to experience weakness in these musculo-ligamentous structures." The doctor did not directly address either causation or permanency in his report.

After reviewing this evidence, the motion judge granted summary judgment to Allstate, ruling that none of the medical reports produced by the plaintiff established causality or permanency. An order granting that relief was entered on March 14, 2008.

Thereafter, plaintiff moved for reconsideration, claiming that Dr. Kosiborod's certification of permanency had been inadvertently omitted from plaintiff's initial opposition to Allstate's motion.*fn2 In that certification, Dr. Kosiborod stated the following:

1. I am a licensed physician of the State of New Jersey and was a treating physician for automobile related injuries incurred by Magda Castro resulting from an accident which occurred on 11/30/2005.

2. Based upon my professional expertise and the findings in the attached report including reference to clinical objective findings and/or objective medical tests, it is my opinion that, with a reasonable degree of medical probability, my patient . . . Magda Castro has sustained permanent injury that will have permanent residual sequelae. MRI testing of the cervical spine showed bulge of the disc at C4-C5 with straightening of the cervical lordosis.

3. It is my further opinion that, within a reasonable degree of medical probability, that although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injuries 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 my patient's lifetime.

Upon reconsideration, the motion judge did not regard this certification, when viewed together with Dr. Kosiborod's report, as sufficient to meet AICRA's threshold, ruling that the evidence presented did not establish permanency.

Plaintiff has appealed. At oral argument on appeal, plaintiff's counsel stated that he was limiting his claim to the bulge at C4-C5 and to proofs of causation and permanency given by Dr. Kosiborod.

We view the evidence presented in a light most favorable to the plaintiff. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). When viewed in that light, we find plaintiff's proofs, although not particularly strong, to be sufficient to survive summary judgment. The Court has interpreted AICRA's language literally as requiring proof only of permanency, as that condition is statutorily defined. DiProspero v. Penn, 183 N.J. 477, 506 (2005). Further, the Court has suggested that MRI evidence of a disc protrusion would satisfy AICRA's requirements, if accompanied by a competent opinion that the protrusion was permanent in nature. Davidson v. Slater, 189 N.J. 166, 190 (2007).

In assessing the evidence in this case, we find it appropriate, in light of Davidson, id. at 188-90, to consider together Dr. Kosiborod's certification of permanency and his more detailed report, particularly because the doctor specifically incorporated into his certification "the findings in [that] attached report." We conclude that, when viewed in this fashion, the doctor's report provides a proper medical foundation for his certification of permanency, which might otherwise be challenged as a net opinion under standards articulated in Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981). Together, Dr. Kosiborod's opinions, when read in a light most favorable to plaintiff, establish that plaintiff sustained a permanent injury with permanent residential sequelae, consisting of a cervical disc bulge at C4-C5 with straightening of the cervical lordosis, and that the injury was causally related to the automobile accident occurring on November 30, 2005. That is all that AICRA requires in this circumstance.

Accordingly, summary judgment is reversed and the matter is remanded for trial.


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