NEIL A. SARGENTELLI v. ROOPAH SINGH, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0752-04T1752-04T1

NEIL A. SARGENTELLI,

Plaintiff-Appellant,

v.

ROOPDAI SINGH and

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendants-Respondents.

__________________________________________

 

Submitted: September 12, 2005 - Decided:

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-1860-03.

Fusco & Macaluso, attorneys for appellant (Vincent J. Bochis, on the brief).

Connell Foley, attorneys for respondents (Kathleen S. Murphy, of counsel; Antonio Celii, on the brief).

PER CURIAM

Plaintiff Neil A. Sargentelli, a thirty-five year old carpenter, was injured in a motor vehicle collision on July 13, 2001. As a result, he sued the owner and operator of the other vehicle, defendant Roopdai Singh. Sargentelli's automobile insurance coverage is subject to the limitation on lawsuit threshold pursuant to the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. He now appeals from a summary judgment dismissing his personal injury claim for failure to meet the verbal threshold. Specifically, he argues that the report submitted by his treating physician met the requirements set by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). We disagree.

We summarize the evidence presented to the motion judge in the light most favorable to Sargentelli. His present injuries include a cervical herniation, cervical and lumbar bulges, as well as back and head injuries. However, Sargentelli had two prior accidents. In 1993, he was injured in a bicycle accident. He sustained an injury to the cervical spine, lumbar spine and left knee. In 1999 he was injured in an automobile accident. In the 1999 accident he sustained a herniation at the C5/C6, C6/C7, C7/C8, L3/L4, L4/L5 and L5/S1 levels. Sargentelli asserts that before the current accident, he was asymptomatic.

Sargentelli's treating physician, Robert Matturro, D.C., a chiropractor, prepared three reports which were submitted to the motion judge. In the first report, dated March 19, 2002, Dr. Maturro diagnosed that Sargentelli suffered from the following: severe lumbar and cervical sprain/strain; permanent restriction of lumbar and cervical motion; permanent post-traumatic lumbar and cervical spasms; post-traumatic disc bulges at C5/C6, L3/L4, L4/L5, and L5/S1; post-traumatic disc herniation at C6/C7; and thoracic sprain/strain. This first report mentioned the 1993 and 1999 accidents and the injuries sustained then. However, there was no causal allocation or apportionment of the current injuries among the three traumas.

In the second report, dated July 30, 2004, Dr. Maturro added the following concluding line: "In my opinion the patient's condition is attributable 0% to the 1993 accident, 50% to the [1999] accident and %0% [sic] to the [current] accident." The third report was identical to the second, except that it corrected the typographical error to reflect that 50% of the injuries were attributable to the current accident. Other than this conclusory statement the reports do not contain any reasons for this allocation.

Judge Claude Coleman granted Singh's motion for summary judgment based upon the absence of a proper Polk analysis. The judge said:

An analysis differentiating pre-existing injuries from those caused by the current accident is required. [Sargentelli] has suffered prior injury to the cervical and lumbar spine and has a preexisting degenerative condition that without a comparative analysis, causes the claim to fail as a matter of law.

On appeal, Sargentelli contends that he has satisfied the following: (1) the Polk requirement; (2) the verbal threshold by demonstrating permanent injury as evidenced by the credible and objective medical testing; and (3) the requirements of the Oswin decision by establishing that the subject accident was the direct and proximate cause of Sargentelli's injuries. Sargentelli also contends that summary judgment was inappropriate because there were genuine issues of material fact.

We disagree with these contentions and concur with Judge Coleman that the Polk analysis provided by Sargentelli's expert, was inadequate to meet the requisite burden. We begin our analysis with a review of the governing authorities. In Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993) we set forth the test to determine if a pre-existing injury or condition was aggravated by a subsequent trauma. W held:

A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold.

[Ibid. ]

Similarly in Serrano v. Serrano, 367 N.J. Super. 450, 460-461 (App. Div. 2004), rev'd on other grounds 183 N.J. 508 (2005), we affirmed the dismissal of a personal injury claim in part because of plaintiff's failure to provide an analysis comparing a pre-existing injury condition with his claimed post-accident injury.

In Ostasz v. Howard, 357 N.J. Super. 65 (App. Div. 2003), we held that passage of AICRA, involving substantive modification of the verbal threshold, did not affect the Polk requirement of providing a comparative analysis regarding pre-existing injuries. See also Bennett v. Lugo, 368 N.J. Super. 466, 473-476 (App. Div.), certif. den. 180 N.J. 457 (2004) (noting that the Polk analysis survives the adoption of AICRA and finding that the extensive analysis of plaintiff's doctors met the Polk standard), Beltran v. DeLima, 379 N.J. Super. 169, 177-178 (App. Div. 2005).

Judged against that standard, the three reports authored by Dr. Maturro do not carry Sargentelli's burden. There is no analysis for his allocations of percentages. In short, it is a net opinion on the Polk issue.

 
Affirmed.

Oswin v Shaw, 129 N.J. 290 (1992).

(continued)

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A-0752-04T1

September 22, 2005