August 24, 2009
WILLIAM CARTER, PLAINTIFF-APPELLANT, AND SYIASHIA HAND, PLAINTIFF,
KELLY CARMON AND ELRAC, INC., INDIVIDUALLY AND A/K/A ENTERPRISE RENT-A-CAR, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1717-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2008
Before Judges Rodríguez and Waugh.
Plaintiff William Carter appeals from the summary judgment in favor of defendants Kelly Carmon and Elrac, Inc., trading as Enterprise Rent-A-Car (Elrac). The judge dismissed the complaint because he found that the injuries sustained by Carter do not meet the verbal threshold requirements set by N.J.S.A. 39:6a-8. We affirm.
These are the salient facts. Carter was injured in a motor vehicle accident on June 18, 2005, while traveling on County Road 537 in Hamilton Township, when the vehicle driven by Carmon rear-ended his vehicle. His passenger, Syiashia Hand, also claimed injuries. However, this appeal is only from the summary judgment against Carter.*fn1
Carter was not taken to the hospital from the scene. He and Hand continued on to their destination, Great Adventure Amusement Park. In the days following the accident, Carter began to experience pain in his lower back, right knee and right arm. Five days after the accident, Carter sought treatment at Horizon Medical Center. There, he was examined and treated by William Burch, M.D. Carter complained of pain in his right knee, lower back, upper back, parestheias in the right upper extremity to the arm and the 4th and 5th digits.
A lumbar MRI was taken a month after the accident. The MRI showed bulging/protruding discs at L3/4, L4/5 and L5/S1, as well as annular tears L3/4 and L5/S1. The MRI also indicated that at the L3/4 level, "minimal age indeterminate left foraminal herniated nuclear material cannot be excluded" and the disc indents the ventral sac.
Carter treated with Dr. Burch for four months, until October 27, 2005. In his final report, dated October 27, 2005, Dr. Burch states, "based on the objective findings of physical examination, a review of the provided records and subjective complaints as stated by the patient, I have concluded that [Carter] has reached a permanent and stationary status." Dr. Burch also certified Carter's injuries as permanent. However, according to the physician's final report, "Carter feels good and has no complaints." There is no reference to any limitation of function nor spasm in the October 27, 2005 report. Carter had full range of motion and full muscle strength in his last visit.
Carter was examined by Thomas K. Bills, M.D., an orthopedist, at the request of the defense. Because we must view the evidence in the light most favorable to Carter, who opposed the motion for summary judgment, we do not recount the results of Dr. Bills' report. Brill v. Guardianship Life Ins. Co., 142 N.J. 520 (1995).
Prior to the accident, Carter had no physical limitations. Since the accident, Carter claims that he has been unable to use his home gym and has been unable to do odd jobs around his home. Carter also testified during pretrial dispositions that he still gets pain in his lower back.
Carter sued Carmon and Elrac to recover non-economic damages for his injuries. He is subject to the threshold set by N.J.S.A. 39:6A-8. Defendants answered and moved for summary judgment. Judge Andrew J. Smithson granted the motion and dismissed Carter's complaint.
On appeal, Carter contends that the judge erred in granting summary judgment in favor of defendants because: (1) the judge "improperly shifted the burden to the nonmoving party;" and (2) Carter "provided objective credible evidence of a permanent injury." We disagree.
N.J.S.A. 39:6A-8(a) requires a plaintiff, such as Carter, who is subject to the limitation on lawsuit option, to show substantial injuries that fit one of the following description: death; dismemberment; significant disfigurement or scarring; displaced fractures; loss of fetus, or a permanent injury within a reasonable degree of medical probability. Moreover, an injury is considered permanent "when the body part or organ or both has not healed to function normally, and will not heal to function property with further medical treatment." Ibid.
Here, Carter alleges that he sustained a permanent injury within a reasonable degree of medical probability. The record supports the existence of an injury. However, nothing in Dr. Burch's report can be construed as meeting the definition of "permanent injury." Although, the physician uses that term, his findings and diagnosis belie his net opinion.
The final report states that the cervical thoracic and lumbar spines, as well as the shoulder, all were within normal limits. There is no spasm or limitation of range or motion. Dr. Burch opines that Carter had improved and reached a permanent and stationary status. The muscle strength and range of motion testing show results all within normal range. There is no pain reported by Carter. The MRI may show an injury, but there is no proof of permanency.