ADA FITCH v. ENRIQUE J. COCA et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0655-05T10655-05T1

ADA FITCH,

Plaintiff-Appellant,

v.

ENRIQUE J. COCA and JUDITH A.

ZANIPATIN,

Defendants-Respondents.

__________________________________

 

Submitted May 8, 2006 - Decided

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Union County, Docket No. L-1867-04.

Kessler, Digiovanni & Jesuele, attorneys for appellant (Janice Vasquez, on the brief).

Kramkowski, Lynes, Fabricant & Bressler, attorneys for respondents (Scott J. Krupa, Of counsel and on the brief).

PER CURIAM

This is a "limitation on lawsuit" threshold case in which plaintiff, Ada Fitch, appeals from a summary judgment dismissing her personal injury, automobile negligence complaint. The judge concluded, based on the motion papers, that plaintiff's proofs did not establish a Polk comparative analysis deemed necessary because of a pre-existing condition. We disagree and consequently remand for trial.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. On June 14, 2002, the car that plaintiff was driving was rear-ended by a vehicle operated by defendant Enrique J. Coca and owned by defendant Judith A. Zanipatin. Plaintiff went to the emergency room of a local hospital the next day complaining of injuries to her neck, shoulders, back and hands. She was diagnosed with neck and back sprain and released.

Plaintiff thereafter treated with Dr. Mark Friedman from June 20, 2002, through May 30, 2003. Physical examination revealed neck and back spasm and tenderness, which persisted throughout her entire course of treatment. An EMG/NCV on August 10, 2002 confirmed plaintiff's C6-C7 cervical radiculopathy. Moreover, on September 24, 2002, an MRI of the cervical spine revealed, among other things, straightening of the lordotic curvature producing mild central spinal stenosis from C2-C7, and mild bilateral foraminal narrowing at C6-7 and C7-T1 associated with a small posterior central-to-right sided disc protrusion at C6-7, compressing the anterior cervical cord. And finally, a February 19, 2003 lumbar spine MRI demonstrated a disc herniation at L4-5 and stenosis.

Upon discharge on May 30, 2003, Dr. Friedman diagnosed plaintiff with cervical sprain and strain with cervical radiculopathy; herniated disc and stenosis; lumbosacral sprain and strain with probable lumbar radiculopathy; and sprain and strain to the right hand and wrist. Although plaintiff had been involved in a previous motor vehicle accident in 1997, wherein she injured her hip, back and head, Dr. Friedman noted in his initial examination report of June 20, 2002, that plaintiff was asymptomatic prior to the June 14, 2002 accident, and again in his February 27, 2003 report that plaintiff was functioning well before the present accident. Dr. Friedman concluded, therefore, that plaintiff's current injuries were directly caused by the June 14, 2002 automobile accident and were permanent in nature.

In granting summary judgment dismissal of plaintiff's complaint for want of a Polk analysis, the motion judge reasoned:

The problem here is that plaintiff was involved in another accident sometime in 1997 where she was hit by a truck at an intersection. She says she injured her hip, neck, back and head. She underwent surgery on her left knee, carpal tunnel, and surgery I believe for carpal tunnel on both of her wrists.

. . . .

I'm satisfied there is a[n] objective injury. Polk, however, requires that a diagnosis of aggravation of a preexisting injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to this act, prior to this accident, as with the injuries suffered in this accident.

There has to be an evaluation of the medical records of the patient prior to the trauma as well as post-trauma.

Courts have held that without a comparative analysis the conclusion, and that's what we have from Dr. Friedman, the conclusion that the pre accident condition has been aggravated perhaps or has, it has not, it's independent, must be deemed insufficient and what we have in the most recent, which is basically a restatement of what he said previously is that,

["]I've been asked to comment on the effects of the 1997 motor vehicle accident.

In my opinion there was no aggravation of these prior conditions because Ms. Fitch, and I paraphrase, Ms. Fitch has not been feeling any effects of the prior injury.["]

That's not, that is not the analysis that Polk requires.

Dr. Friedman does not make any specific reference to Mrs. Fitch's previous medical condition. We don't know whether or not she had that herniation in the prior accident.

We don't know whether or not the bulges were there after that prior accident.

She may have been asymptomatic for a period of time. That's, that's possible then therefore there would be an aggravation perhaps of that injury. We don't even have the doctor say, it's, the pain that she's experienced here was caused by a result of those prior conditions but she's going to be, the pain will go away. He says no this is a permanent, he says it in another location.

Dr. Friedman's statement therefore is a mere recognition of a prior injury without any real analysis other than to opine, without comparison that plaintiff appeared to have become worse.

We disagree. There was no need for a Polk analysis.

The Automobile Insurance Cost Reduction Act (AICRA),

L. 1998, c. 21, 11, which was effective for all automobile insurance policies issued on or after March 22, 1999, amended the verbal threshold lawsuit limitations contained in N.J.S.A. 39:6A-8a to permit claims for non-economic loss for soft-tissue injuries only when the injured party "has sustained a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." Ibid. Moreover, "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Thus, to overcome the "limitation on lawsuit threshold," plaintiff must submit "objective credible [medical] evidence" of "a permanent injury." Serrano v. Serrano, 183 N.J. 508, 514, 519 (2005). Plaintiff need not show that the injury was serious, id. at 518; or had caused "a serious life impact." DiProspero v. Penn, 183 N.J. 477, 506 (2005).

We are satisfied that the objective medical evidence here, including the MRI tests and EMG/NCV evaluation, along with the physician's examinations and resulting findings, raise a genuine issue of material fact as to whether the June 14, 2002 automobile accident caused injuries to plaintiff's neck and back which have "not healed to function normally and will not heal to function normally." N.J.S.A. 39:6A-8a. See also Serrano, supra, 183 N.J. at 509, 511; Oswin v. Shaw, 129 N.J. 290, 320 (1992); Bennett v. Lugo, 368 N.J. Super. 466, 474, 476 (App. Div.), certif. denied, 180 N.J. 457 (2004); Moreno v. Greenfield, 272 N.J. Super. 456, 463 (App. Div. 1994); Arencibia v. Rosas, 270 N.J. Super. 339, 347 (App. Div. 1994); Cineas v. Mammone, 270 N.J. Super. 200, 211 (App. Div. 1994); Dabal v. Sodoro, 260 N.J. Super. 397, 401 (App. Div. 1992).

As for the distinctness of plaintiff's recent injuries, Polk's requirement of a comparative analysis has no continuing viability in the context of a "limitation on lawsuit" threshold summary judgment motion. See Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) ("[T]he comparative analysis requirement of Polk and its progeny engrafts an additional element upon [the] causation aspect of the verbal threshold standard."), certif. granted, 186 N.J. 243 (2006); Hardison v. King, 381 N.J. Super. 129, 133 (App. Div. 2005) ("The elimination of Oswin's second prong undercut most, if not all, of Polk's justification, to connect causally a plaintiff's complaints of serious impact to the subject accident rather than to prior accidents or conditions."). But see Lucky v. Holland, 380 N.J. Super. 566, 573 (App. Div. 2005) (stating that plaintiff must "provide an adequate Polk analysis with respect to her . . . injury"). In any event, we are further satisfied that no such analysis was required in this case. According to Dr. Friedman, plaintiff was asymptomatic prior to the current accident, and whatever the nature and extent of her pre-existing condition, plaintiff's physical condition had been functionally quiescent until this accident. Under these circumstances, no comparative analysis was necessary as plaintiff's proofs, without more, meet "the desideratum of an objectively-based medical opinion that the disability is fairly attributable to the injury suffered in the accident" at issue, sufficient at least to withstand defendants' motion for summary judgment. Foti v. Johnson, 269 N.J. Super. 198, 203 (App. Div. 1993). Of course, causation remains a question of fact for the jury to decide.

Reversed and remanded for trial.

 

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

(continued)

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A-0655-05T1

May 31, 2006