PATSY PETRILLO v. RALPH DRAKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7011-03T17011-03T1

PATSY PETRILLO,

Plaintiff-Appellant,

v.

RALPH DRAKE,

Defendant-Respondent.

_______________________________________________

 
Telephonically argued September 14, 2005 - Decided

Before Judges Alley and C.S. Fisher.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-11825-02.

Louis David Balk argued the cause for appellant (Balk & Geddes, attorneys; Mr. Balk, of counsel; Mary M. Theroux, on the brief).

Jeanne M. Walsh argued the cause for respondent (Kramkowski, Fabricant & Bressler, attorneys; Ms. Walsh, of counsel and on the brief).

PER CURIAM

Plaintiff filed a complaint on December 11, 2002, alleging he suffered personal injuries as the result of an automobile accident in East Orange on December 23, 2000. Plaintiff claimed that, on that occasion, defendant negligently operated his vehicle, causing it to rear-end plaintiff's. Plaintiff's complaint was dismissed by way of summary judgment on July 9, 2004, the trial judge reasoning in an oral decision that plaintiff failed to provide a sufficient comparative analysis of his pre-accident injuries with his post-accident complaints, as required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

Plaintiff's claim is governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8b, the Legislature's most recent attempt to eliminate "suits for injuries which are not serious or permanent." N.J.S.A. 39:6A-1.1. On June 14, 2005, while this matter was on appeal, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), changing in some respects the legal landscape for determining whether a claim should pass through AICRA's verbal threshold.

Plaintiff initially argues that, as a result of the Supreme Court's recent decisions, we should reverse and remand so that his factual assertions may be re-examined by the trial court. We reject this contention. The Court did not examine Polk in DiProspero or Serrano, but instead determined only that AICRA did not retain Oswin's subjective prong, thus requiring that a plaintiff must still submit objective evidence of a permanent injury but need not show that the injury has had a serious impact on the plaintiff's life. These recent decisions did not alter the fact that a plaintiff must present a Polk comparative analysis when a prior accident has caused injury to the same effected area of a plaintiff's body. Beltran v. DeLima, 379 N.J. Super. 169, 177-78 (App. Div. 2005); Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). Accordingly, we examine this matter by recognizing that, in order to survive a motion for summary judgment, a plaintiff subject to AICRA remains obligated to comply with Polk when his or her alleged injuries and complaints relate to pre-accident injuries.

The record indicates that plaintiff had suffered injuries prior to the accident in question in 1989, 1995, 1996 and 1998. In concluding that plaintiff failed to provide the comparative analysis required by Polk, because he has asserted that the existing residuals of the prior accidents were allegedly aggravated by the December 23, 2000 accident in question, the trial judge stated:

In opposition to the motion for summary judgment the plaintiff argues that in reading both the October and the June reports of Dr. [Strauchler], one can conclude and infer that there is sufficient analysis of the pre-existing injury and that taking into consideration the totality of the circumstances the plaintiff has satisfied both the objective and subjective prong of the verbal threshold as well as provided a Polk analysis.

. . . [T]he [c]ourt is struggling to identify with any certainty the Polk analysis. And the [c]ourt looks to the October 28, 2003 report . . . wherein the doctor indicates that the range of motion of the patient's neck was severely limited due to pre-existing osteoarthritis, which was aggravated by the motor vehicle accident of December 23rd, 2000.

However, there's no discussion of the medical records prior to the accident as compared to post accident. There's also reference to the ["]degenerative arthritis with . . . minimal [anterolisthesis of] C3 [and] C4 and the [odontoid] was intact["] as a result of the January, 2001 MRI. However, there is no discussion as to the condition or diagnosis of those parts of the body prior to the accident and after the accident. There are generalizations with respect to the aggravation of a pre-existing accident and the doctor concludes, in very broad, conclusory language, that there was an aggravation of a pre-existing injury.

However, that discussion is very brief and conclusory and it fails to satisfy the Polk requirements, so that the condition that existed prior to the accident can be clearly identified and defined . . . [and so that] the aggravation of that pre-existing injury can be clearly identified as well.

Therefore, this [c]ourt finds that the report of the doctor and his analysis of the alleged pre-existing injury and any aggravation that resulted from the accident, which is the subject of this motion, are insufficient to overcome the threshold requirements . . . especially set forth in Polk.

In examining the factual record, we conclude that the trial judge correctly determined that plaintiff's medical expert's opinions failed to include a comparative analysis that conforms with Polk's letter and spirit.

During oral argument, plaintiff's counsel identified three portions of Dr. Strauchler's October 28, 2003 and June 25, 2004 reports that represented what he contends is a Polk analysis sufficient to defeat summary judgment. First, plaintiff referred us to that part of the October 28, 2003 report where Dr. Strauchler stated that plaintiff "has significant cervical osteoarthritis with pain aggravated by his motor vehicle accident of December 23, 2000[, and that he] has a right carpal tunnel syndrome, as well as osteoarthritis of both hands." Second, Dr. Strauchler stated in the June 25, 2004 report that plaintiff "has required significantly more and more frequent doctors visits and has required referrals to multiple medical specialist[s]." And, lastly, plaintiff's counsel has cited the following statement of Dr. Strauchler in the June 25, 2004 report: "I feel there is sufficient evidence to show that [plaintiff's] worsening condition is causally related to his accident of December 23, 2000 and would be willing to testify to that in a court of law."

We agree with the trial judge's determination that these statements or, for that matter, any others contained in Dr. Strauchler's reports, fail to provide the comparative analysis required by Polk. To the extent Dr. Strauchler's reports draw comparisons between plaintiff's physical condition prior to and since the accident, they do so only in a conclusory way. The absence of a proper Polk analysis warranted the entry of summary judgment in favor of defendant.

 
Affirmed.

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

(continued)

(continued)

6

A-7011-03T1

September 23, 2005