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[U] Cadena v. Latch

Superior Court of Pennsylvania

September 13, 2013



Appeal from the Order Entered October 1, 2012 In the Court of Common Pleas of Berks County Civil Division at No(s): 09-11475




Appellant, Romeris Cadena, appeals from the October 1, 2012 order granting the motion for summary judgment filed by Appellee, James P. Latch, and dismissing all of Appellant's claims with prejudice. After careful review, we reverse and remand for further proceedings.

The trial court summarized the relevant facts and procedural history of this case as follows.

[Appellant] filed a complaint for non-economic damages for injuries sustained in a motor vehicle accident on October 18, 2007. [Appellee] rear-ended [Appellant]'s vehicle while she was in motion. [Appellant] alleged in the complaint that she suffered injuries, including but not limited to, disc injuries, and/or exacerbation thereof, nerve damages, cervical sprain and strain, cervical radiculitis, and lumbar radiculitis. Although she complained about pain in her shoulder and chest, [Appellant] initially refused emergency treatment at the accident site. She believed that she did not feel hurt enough to call an ambulance; instead, she went home to bed. She went to the hospital the next day because she was not feeling any better. She was told to do the same things that she was told to do the day before and was sent home again. [Appellant] is an accountant and missed approximately one week of work. She is not seeking either a work loss claim or a claim for unpaid medical expenses.
In her deposition, [Appellant] testified that she never had any back pain, neck pain, left eye pain or shoulder problems before her accident; however, she suffered from these problems at various times after the accident. [Appellant] was in two prior accidents before the instant one. She skidded off the road and hit a tree in one accident and went off the road and got stuck in mud in another accident.
Prior to the accident, [Appellant] did not have a primary care physician. On October 20, 2007, she went to a doctor in Lebanon, Pennsylvania, who sent her to a Lebanon hospital for tests because her pain had increased. That hospital diagnosed her with cervical strain and a headache, told her to continue her pain medication, and prescribed bed rest for three days.
On November 29, 2007, [Appellant] went to an orthopedic doctor for left-sided head pain, eye pain, visual dysfunction, left shoulder pain, neck pain, headaches, sensitivity to bright lights during headaches, lower back pain, numbness, and tingling in the left arm. This doctor diagnosed her with cervical and lumbrosacral sprain and strain; cervical radiculitis, lumbar radiculitis, left shoulder contusion and impingement syndrome, and post-traumatic headaches. [Appellant] treated with him on five occasions, including her July 10, 2008 discharge. During that period [Appellant] went to ten physical therapy visits from November 27, 2007, through March 18, 2008. On discharge, the diagnosis was cervical radiculitis, lumbar radiculitis, bilateral C5 radiculopathy, left-sided C6 radiculopathy, L4-L5 radiculopathy, cervical sprain and strain, lumbrosacral sprain and strain, lumbar disc bulging, DJD, and multilevel lumbar HNP. Since her discharge from this doctor, [Appellant] has not sought additional treatment from him or any other doctor.
A cervical spine MRI study was performed on December 12, 2007, [and] revealed mild degenerative changes at C4-C5, C5-C6, and C6-C7. No traumatic injury was noted. A lumbar spine MRI study revealed a disc bulge and degenerative changes at L3-L4, degenerative change with disc bulge and superimposed left paracentral herniation at L4-L5, and likely impingement of the left L5 nerve roots in the lateral recess. No traumatic injury was noted.
A lower extremity EMG on December 18, 2007 was consistent with a left L5 radiculopathy. An upper extremity EMG study on May 16, 2008 was consistent with a bilateral C5 and left C6 radiculopathy, three months or older.
[Appellant] never refilled her pain medication. [Appellant] has no doctor appointments scheduled in the future. At her deposition on June 23, 2010, [Appellant] testified that her pain and headaches had decreased and her eyesight had improved. She took Motrin as needed for her shoulder pain. She gained approximately fifty pounds after the accident due to lack of activity and was depressed about the weight gain. She was uncomfortable standing so she missed some of her children's music presentations. A daughter went to live with her father because she was bored living with [Appellant] due to her lack of activity; however, [Appellant] went on vacations. [Appellant] was not as sexually active after the accident as she was before. She also did not drive as much in order to avoid possible pain.
[Appellant] had an independent medical examination in June 2011. This examination concludes that [Appellant] sustained a sprain of the facet joints of the cervical spine and lumbrosacral spine, as well as a strain of the para vertebral musculature involving the lumbar spine and cervical spine as a result of the accident. This report also states that [Appellant] had pre-existing degenerative changes in the cervical spine and lumbar spine, both involving the discs and ...

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