Owens v. Kessler

639 A.2d 738, 272 N.J. Super. 225
CourtNew Jersey Superior Court Appellate Division
DecidedApril 5, 1994
StatusPublished
Cited by9 cases

This text of 639 A.2d 738 (Owens v. Kessler) 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
Owens v. Kessler, 639 A.2d 738, 272 N.J. Super. 225 (N.J. Ct. App. 1994).

Opinion

272 N.J. Super. 225 (1994)
639 A.2d 738

RICKY OWENS, PLAINTIFF-APPELLANT,
v.
JACK KESSLER, GMAC LEASING AND TIM WHITE, DEFENDANTS-RESPONDENTS.

Superior Court of New Jersey, Appellate Division.

Argued March 15, 1994.
Decided April 5, 1994.

*226 Before Judges PRESSLER, BROCHIN and KLEINER.

Richard Wildstein argued the cause for appellant (Goldstein, Ballen, O'Rourke & Wildstein, attorneys; Mr. Wildstein on the brief and the reply brief).

*227 Robert A. Giannone argued the cause for respondent Jack Kessler (Donington, Karcher, Salmond, Ronan & Rainone, attorneys; Mr. Giannone on the brief).

Paul J. Curreri argued the cause for respondent Tim White (Dwyer, Connell & Lisbone, attorneys; Mr. Curreri on the brief).

The opinion of the court was delivered by KLEINER, J.S.C. (temporarily assigned)

This is a verbal threshold case, N.J.S.A. 39:6A-8a, in which plaintiff Ricky Owens appeals from a summary judgment dismissing his claim for noneconomic damages resulting from an automobile collision on December 22, 1989. Plaintiff was a passenger in a motor vehicle operated by defendant Tim White which collided with a vehicle operated by defendant Jack Kessler.[1] Both defendants moved for summary judgment which was granted. We conclude that the motion judge failed to properly apply the summary-judgment model as mandated by the Supreme Court in Oswin v. Shaw, 129 N.J. 290, 294, 609 A.2d 415 (1992), and accordingly, we reverse.

On December 22, 1989, plaintiff was eighteen years old, unemployed, and had discontinued his high school education. While in school he had actively participated in organized sports including football, basketball and baseball. His interest in athletics as a recreational pursuit continued after leaving school until the date of his injury. He asserted that he had never experienced any prior injury and had been in excellent physical condition.

Plaintiff was initially examined in a hospital emergency room immediately following the accident. X-rays taken that day were negative, and plaintiff was released. He visited his treating physician, Dr. Mariamma Thomas, a diplomate of the American Board of Physical Medicine and Rehabilitation, on January 2, *228 1990, and thereafter on thirty-five other dates until he was released from active treatment on April 10, 1990.

Dr. Thomas' initial report comprehensively analyzed plaintiff's condition as of the date of initial diagnosis and as of the date of discharge. On plaintiff's initial examination, Dr. Thomas found spasm in both posterior muscle groups and trapezii in the cervical spine. Spasm was also noted in the dorsal spine and paravertebral muscles. Additionally, "[t]here was spasm and tenderness with tender fibrositic nodules." The balance of the doctor's preliminary diagnosis focused upon range of motion measurements and plaintiff's subjective complaints. Plaintiff was advised to take analgesics and anti-inflammatory agents for pain and was treated with physical therapy consisting of ice, heat, massage, ultrasound, electrical stimulation and traction. He was also advised to commence a home exercise program and to wear a soft cervical collar.

On April 10, 1990, the spasm which was evident originally in plaintiff's paracervical and paravertebral muscles was still evident. Based upon a range of motion comparison between the January 2, 1990 and the final visit, the doctor concluded that the patient's condition had improved. The doctor specifically noted:

Though there has been some improvement and relief of pain, this patient's prognosis for complete recovery is poor. In all medical probability, this patient will continue to suffer the effects of the significant and permanent consequential limitation of the musculo skeletal system function involving the cervical spine, dorsal spine, and right shoulder. It is my opinion that within reasonable medical probability, it can be stated that his injuries are the result of the accident of 12-22-89. He is susceptible to painful relapses throughout his life, particularly at the time of stress. Due to significant permanent limitation and significant amount of pain, this patient had great difficulty in performing to any extent his usual daily activities, hobbies and work requirements without chronic discomfort and pain. The injuries of the cervical spine, dorsal spine, and right shoulder are permanent.

We note that plaintiff alleges he struck his head against the interior top of the vehicle during the collision and subsequently complained of headaches and dizziness. Dr. Thomas noted plaintiff had post-concussion syndrome, offered no treatment, but recommended that if the headaches persisted, plaintiff should see a neurologist. Plaintiff did not require neurologic treatment.

*229 On discharge from active medical treatment, plaintiff secured employment with Scaffolding, USA. However, that job involved heavy lifting and he certified that he was forced to leave that position. Since the summer of 1992, plaintiff has been employed by a furniture company and as a general laborer in a warehouse. Heavy lifting required by these jobs has caused him continued back pain. His certification states:

Although the condition of my neck has improved somewhat as a result of treatment with Dr. Thomas's office, and the neck pains come and go there has been no improvement in the condition of my mid-back area. In fact, the mid-back pain has gotten worse. During the periods I was doing physical work, the pain was constant. Now that I am not working, the pains come approximately three or four times a week. I currently take Tylenol, Advil or Doans pills for the pain.

On February 23, 1993, plaintiff was reevaluated by Dr. Thomas. Her report of that date indicates:

Cervical examination elicits complaints of pain to palpation of the bilateral C2-C7 paraspinal muscles. There is [sic] significant spasms of the paracervical muscles. Range of motion of the cervical spine showed flexion to be restricted 10 percent and all other movements to be restricted 20 percent. Lateral flexion and rotation to the left was restricted 20 percent.
Thoracic examination elicits complaint of pain to palpation of the bilateral upper trapezii and upper paravertebral muscles. There is some localized areas corresponding to trigger point zones which are tender. There is a complaint of pain to palpation of the bilateral T4-T8 paraspinal muscles. There is marked spasm of the upper paravertebral muscles and trapezii bilaterally. Range of motion of the dorsal spine showed flexion to be restricted 10 percent and all other movements to be restricted 15 percent. Examination of the right shoulder revealed significant tenderness on palpation. Range of motion was restricted 5 percent in all ranges and painful on abduction.

In granting summary judgment to defendants, the motion judge summarized the plaintiff's medical presentation:

1. Treating physician Thomas makes it very clear in her initial report that if the plaintiff was suffering from persistent [sic] headaches and radiculopathy, there should be an examination, treatment and report from a neurologist. Where is that neurologist in this case? Where are the MRIs? What type of pain medication is this plaintiff relying on? (He later says that he's relying on Tylenol or Advil, normal over-the-counter pain relief medication.) Next, Dr.

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Bluebook (online)
639 A.2d 738, 272 N.J. Super. 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-kessler-njsuperctappdiv-1994.