Afram v. Heller

883 A.2d 407, 380 N.J. Super. 545, 2005 N.J. Super. LEXIS 289
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 4, 2005
StatusPublished
Cited by1 cases

This text of 883 A.2d 407 (Afram v. Heller) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Afram v. Heller, 883 A.2d 407, 380 N.J. Super. 545, 2005 N.J. Super. LEXIS 289 (N.J. Ct. App. 2005).

Opinion

The opinion of the court was delivered by

KESTIN, P.J.A.D.

Plaintiff appeals from an order granting defendant’s motion for summary judgment and dismissing the complaint. We reverse and remand.

[547]*547Plaintiff was injured in a motor vehicle accident on November 22, 2000. The complaint in this matter was filed on August 8, 2002. Following discovery, defendant filed a motion for summary judgment seeking dismissal of the complaint pursuant to the applicable verbal threshold in N.J.S.A. 39:6A-8a, a provision of the Automobile Insurance Cost Reduction Act of 1998 (AICRA). Defendant contended, inter alia, that plaintiff had not made an adequate showing that he had sustained a serious injury of a permanent nature in the accident; that plaintiff had proffered no evidence that his alleged injuries had inflicted a significant impact on his life; and that plaintiff had failed to provide the comparative analysis, required by Polk v. Daconceicao, 268 N.J.Super. 568, 634 A.2d 135 (App.Div.1993), of his pre-existing back injury and subsequent shoulder lesion/mass with the injuries allegedly sustained in the accident that gave rise to this suit.

The physician’s certification required by statute as a condition for maintaining a cause of action, see N.J.S.A. 39:6A-8a, had been provided by a chiropractor, Dr. David Podell. He certified in general terms that “within a reasonable degree of medical probability [plaintiff] has sustained permanent injury that will have permanent residual sequelae.” The certification went on to add: “It is my further opinion ... within a reasonable degree of medical probability, that although 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 [plaintiffs] lifetime.”

As the matter came before the trial court on summary judgment, plaintiffs specific allegations of injuries were recited in his opposing certification as follows:

Ever since the ... accident, I have continued to suffer from numerous serious injuries, including cervical herniations in my neck and a partially tom rotator cuff in my left shoulder, as evidenced by MRI examinations. Prior to the subject accident, I had never injured or experienced medical problems with my neck or my left shoulder. Similarly, I have not been involved in any traumatic events [548]*548subsequent to [ ] November 22, 2000, and, thus, have not re-injured my neck or my left shoulder.

The certification went on to describe the effects of the injuries on plaintiff’s lifestyle activities. Plaintiff asserted that the injuries and limitations had been continuous since the accident and he specified two pain medications that he continued to take.

Among the other papers submitted in opposition to the motion were: Dr. Podell’s medical report dated March 15, 2004, revising and updating his initial report of April 1, 2002. Both of those documents recited diagnoses of cervical, thoracic, and lumbar spine injuries, and mentioned “right ankle tenosynovitis.” The later report added “multiple cervical disc herniations” and “sprain/ strain of the left shoulder with partial tear” to the initial diagnoses. Plaintiffs opposition papers also included a report and office records from Dr. Ira Esformes, M.D.; and an office note and report that plaintiff represented was from a Dr. Gross. Additionally, plaintiff submitted a certification from a podiatrist, Dr. Morris R. Morin, reporting a January 24, 2004 diagnosis of peroneal tendonitis (right foot) for which he had treated plaintiff, and opining that that injury was a result of the November 2000 accident and that “injuries of this type can become permanent.” The record discloses hospital emergency room notes entered a week after the accident listing right foot pain and possible Achilles tendonitis.

At oral argument on the motion for summary judgment, plaintiff conceded, as he has before us, that the conditions described as a left shoulder lesion/mass were unrelated to the accident, but he has continued to assert that the rotator cuff tear in that shoulder was a separate, related injury.

In deciding the matter adversely to plaintiff, the motion judge stated: “[Tjhere are no objective tests that indicate [plaintiff] has a permanent, injury that will not heal.” Referring to the MRI-diagnosed C5-6 and C6-7 herniations, the judge observed:

No one on this record who is competent to testify about what that means has causally connected that to the accident. There is nothing from an orthopedist, neurologist or any other competent medical doctor to tell us how that objectively [549]*549was causally connected to the accident and objectively how it is a permanent injury that will ... not heal and ... will have an effect on [plaintiffs] life.
He did go to very competent orthopedists, Dr. Esformist and Dr. Gross, each of whom ... know[s] how to make a report concerning motor vehicle accidents and how one must phrase the findings to indicate causal connection. Neither one of them has done that at all.
And as my opinion in Chun indicates, a chiropractor does not have the credentials, has no education that would allow for that person to specify anything permanent occurring on the interior of any person’s body or to diagnose or project whether it will or can heal, because the only treatment a chiropractor is permitted is external manipulation of the spine, and that’s it. Certainly can’t talk about a shoulder.
And certainly the seriousness of Mr. Afram’s concurrent infection and mass that had to be excised from his shoulder, and how that affected his ability to move, has a significant bearing on whether an MRI that is said to have shown a partial rotator cuff tear, which nobody, again, causally connects to this accident, but giving him the benefit of the doubt and saying it does, nobody has indicated on this record in competent form how this partial rotator cuff tear would affect a human being and whether or not it’s permanent and how it interacted with the serious problem he had with surgeries to taire out the mass and the infection, and how ... the consequences of that surgery affect his ability to do the things he says he now can’t do.
There is no objective evidence on this record that this Court could allow to go to a fact-finder, unfortunately.

The judge went on to find that plaintiffs showing of serious impact upon his lifestyle had also been inadequate, and concluded by “incorporating] the statements I’ve made here and my Chun v. Henick opinion ... into this order which will grant the summary judgment.” In reaching her determination, the motion judge also noted, in respect of the foot injury, that she was “not satisfied that a podiatrist is a person who can say that this is permanent when what he does is give injections for pain that has intermittently occurred and been treated since the accident.”

The motion judge had handed down the unpublished opinion in Chun v. Henick some fifteen months earlier. In it, she provided a negative answer to the question whether, under the requirements of N.J.S.A.

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Bluebook (online)
883 A.2d 407, 380 N.J. Super. 545, 2005 N.J. Super. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/afram-v-heller-njsuperctappdiv-2005.