Branca et al v. Matthews et al

U.S. District Court No. 03-CV-01379; United States District Court (DNJ); opinion by Brotman, U.S.D.J.; filed April 28, 2004. Under AICRA, there has been a consistent denial of relief for soft-tissue injuries, especially those falling under the category of “strains and sprains” because they are not “serious” enough to warrant relief under the statute; based on the nature of plaintiff’s soft-tissue injuries, which are essentially strains and sprains of his neck and back, these injuries are not serious enough within the meaning of AICRA to overcome the “limitation on lawsuit” exceptions. Plaintiff Rocco Branca seeks recovery for noneconomic losses as provided under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a). The court has diversity jurisdiction pursuant to 28 U.S.C. � 1332(a). Defendant moves for summary judgment, arguing that plaintiff’s soft-tissue injuries are not serious enough to qualify for relief under AICRA’s “Limitation on Lawsuit” option, which governs. Branca did not seek treatment at the hospital directly after the accident but was evaluated the following day by Dr. Milton Soiferman, D.O. During his medical evaluation, plaintiff complained of “pains in his neck and shoulder areas and lower back areas.” Dr. Soiferman diagnosed plaintiff as suffering from strains and sprains of the trapezious, rhombiodeus, latissimus and of the cervical, dorsal, and lumbar spine, along with myofasciitis, for which he prescribed “analgesics, muscle relaxers, anti-inflammatory medications, osteopathic manipulative therapy, myofacial soft tissue release techniques . . . heat modalities, and an exercise program.” Branca continued treatment until January 27, 2003, when he was discharged from Dr. Soiferman’s care. Dr. Soiferman concluded that discharge was appropriate because, although plaintiff still suffered soreness and muscle spasm, Branca had “reached maximum medical benefit from . . . care” and treatment was no longer necessary. Prior to his discharge, Branca underwent a computerized range of motion study of the cervical, thoracic and lumbosacral spine, which established that he suffered a 6 percent, 4 percent and 7 percent loss of function, respectively. Plaintiff seeks damages in the amount of $150,000 for his injuries, which plaintiff alleges are permanent and have prevented him from participating in his usual activities and carrying out his usual duties. Under Oswin v. Shaw, 129 N.J. 290, 295 (1992), in order to pierce the verbal threshold, a plaintiff must first “submit objective, credible evidence” of a serious injury. Id. at 315. This prong can be supported by medical testing and valid diagnostic tests conducted in accordance with the “approved protocols.” Jacques v. Kinsey, 347 N.J. Super. 112, 118 (Law Div. 2001). Although the exact scope of medical analysis required depends on “the nature of the disability or impairment,” range-of-motion tests alone will not satisfy the standard required to meet the verbal threshold. Oswin, 129 N.J. 290. Neither will a plaintiff’s subjective complaints substantiate the seriousness requirement. Id. at 314. Once the court determines that the injury meets the seriousness requirement, it must then decide whether the injury has a serious impact on the plaintiff’s life and that plaintiff can show “a nexus between the injury and the disability.” Id. at 318. The court further ruled that questions presented under the verbal threshold should be analyzed in a manner similar to motion for judgment and established a two-part test, often referred to as a “summary judgment plus standard,” for making a verbal threshold determination. First, a court must ask whether under any view of the plaintiff’s injuries they can be said to fall within at least one of the nine categories that New Jersey’s statute specifies, and second, if so, whether the evidence before the court on a motion for summary judgment presents a material dispute of fact regarding the nature and extent of the plaintiff’s injuries. If the court decides from whatever medical reports and other evidence submitted in support of and in opposition to a motion for summary judgment that the injuries do not, as a matter of law, carry the plaintiff’s case across the verbal threshold, then the defendant will prevail on the motion. This determination is made by using the seriousness inquiry stated above. In order to meet the goal of lowering automobile insurance, the most current law, AICRA, provides for a “revised lawsuit threshold . . . which will eliminate suits for injuries which are not serious or permanent, including those for soft-tissue injuries which would more precisely define the benefits available under the medical expense benefit coverage.” N.J.S.A. 39:6A-1.1. The amended statute provided a “limitation on lawsuit option” and a “no limitation on lawsuit option.” 39:6A-8a-b. The limitation on lawsuit option abolished the nine categories that existed in the previous act and instead limited the right to sue for those electing the “limitation of lawsuit option” to individuals who have “sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” 39:6A-8a. The statute defines a permanent injury as one in which “the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.” Id. Some debate arose after the passage of AICRA about whether the new legislation, by eliminating the nine referenced categories of injury in Oswin, intended to modify or overrule Oswin‘s essential holdings. Ultimately, courts concluded that the Oswin holdings remained in force. Courts also debated whether the statute’s preamble equated the word “serious” with “permanent,” thus eliminating the need to make a finding of both to overcome the threshold. That question was settled when the court established that the Legislature intended that “an injury be both serious and permanent to permit a plaintiff to cross the amended verbal threshold.” James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002). That ruling was recently upheld in Serrano v. Serrano, 2004 WL 508593, 6. In that case, the plaintiff suffered soft-tissue injuries nearly identical to the injuries that Branca alleges, including strains and sprains of the cervical, dorsal and lumbar spine, along with trapezius myofascitis, when the vehicle he was a passenger in collided with another vehicle. Although the parties in Serrano advanced their arguments based on the “seriousness of impact” requirement, stating essentially that since plaintiff’s injuries were permanent, they automatically satisfied the “serious impact requirement,” the court refused to conclude that permanent injuries establish seriousness. Id. Instead, the court held that “although the soft tissue injuries . . . are arguably permanent, they do not meet the additional AICRA requirement of seriousness. Without proof of both, plaintiff cannot pierce the present verbal threshold.” Id. at 7. The court, however, did not go so far as to preclude all soft-tissue injuries, stating: “Our decision not to join the fray over the need to establish ‘serious impact’ should not be interpreted as conveying the idea that such proof cannot be used by plaintiffs to show that they have a significant or serious injury. Surely evidence of a serious impact on life resulting from a permanent soft tissue injury can be used to establish that the injury is significant or serious.” Id. More important debate has surfaced concerning whether the Legislature intended to bar recovery for all soft-tissue injuries under AICRA. Serrano reflects what has been a consistent denial of relief for soft-tissue injuries, especially those falling under the category of “strains and sprains” because they are not “serious” enough to warrant relief within the meaning of the statute. Serrano also clarifies the application of the Oswin test under the current law. A growing number of cases have denied recovery for soft-tissue injuries as failing to satisfy the “serious impact” prong under Oswin. Serrano, however, refused to reach the question of serious impact, basing its decision instead on the initial threshold inquiry: is this the type of “serious” injury envisioned by the Legislature under AICRA’s “no-limitation-on-lawsuit option”? Id. In summary, to survive a motion for summary judgment under AICRA, the court must first determine if plaintiff can show by objective, credible evidence that an injury, which falls within the statutorily defined classes of injuries, is both permanent and serious. If the injury survives that inquiry, the court then determines whether the injury has had a serious impact on plaintiff’s life. Only then does the matter survive summary judgment to be presented to a jury for resolution of “factual disputes about the nature and extent of the plaintiff’s injuries.” Oswin, 129 N.J. at 295. Branca’s “strains and sprains” are nearly identical to those that have most recently been rejected by the Appellate Division as too insignificant to warrant coverage under AICRA. Branca’s physician indicates that he suffered “acute, post traumatic, sprain and strain of the cervical, dorsal, and lumbar spines, strains of the latisimus and rhomboid muscles, somatic dysfunction of the bilateral first rib areas, sacroilitis, injury to the myoligamentous supporting structures of the spine, myofascitis, and an aggravation of a previously asymptomatic arthritic condition.” Essentially, plaintiff’s injuries can best be characterized as “strains and sprains” nearly identical to those suffered by plaintiffs in Serrano and James, which plaintiff claims causes him soreness and stiffness in his neck and back and requires taking Ibuprofen twice daily. As to the evidence presented, plaintiff’s physician presents only range-of-motion tests, which indicate that plaintiff’s mobility is measurably, although minimally, decreased. It has already been established that range-of-motion tests alone, because of their subjective nature, do not suffice under the “objective, credible evidence” standard established in Oswin. However, this case is further weakened by the fact that plaintiff was involved in an accident sometime in the 1980s for which he suffered a minor back injury. Plaintiff must not only allege injuries that are permanent and serious in character, as required under AICRA, but must also establish a causal nexus between the accident and the injuries. Although plaintiff’s physician acknowledged plaintiff’s prior accident in his initial consultation after the accident, he failed to establish in his final report or the required physician’s certification that the current injuries are not a result of pre-existing complaints. In his certification, plaintiff’s physician incorporates his medical reports in which he opines that plaintiff’s injuries were “a direct result of the above accident,” and are permanent, but fails to engage any discussion of the relation of those injuries to the prior accident. A physicians assertions, especially where the plaintiff was previously injured, without any medical support, cannot satisfy the objective, credible evidence requirement. While a physician’s certification is required under AICRA, the certification is not sufficient to establish permanent and serious injury. Plaintiff’s certification states simply that plaintiff’s injuries are “permanent since his cervical, thoracic, and lumbar spine and bilateral first ribs have not healed to function normally and will not heal to function normally with further medical treatment.” Dr. Soiferman incorporates his medical reports, which consist of range-of-motion studies, as the “objective clinical evidence” on which he rests his conclusion. New Jersey case law has well established that injuries of this sort, supported by range-of-motion studies and plaintiff’s complaints of pain, are insufficient to establish serious injury. Held: Based on the nature of plaintiff’s soft-tissue injuries, which are essentially strains and sprains of his neck and back, these injuries are not serious enough within the meaning of AICRA to overcome the “limitation on lawsuit” exceptions. In light of the policies that have culminated in the passage of this most recent no-fault legislation, it is fitting to follow Serrano‘s adherence to Oswin, and deny plaintiff’s claim based on his failure to establish that his injuries were serious enough for coverage under the “limitation on lawsuit option” as contemplated by the Legislature under AICRA. Defendants’ motion for summary judgment is granted. � Digested by Steven P. Bann [The slip opinion is 16 pages long.] For plaintiff � Michael N. Borish, of the Pa. bar. For defendants: James Matthews III � Daniel James Distasi (Green, Lundgren & Ryan); Deborah L. Smith � Louise Ann Watson (Styliades, Jackson & Dimeo).