MARTHA SHAW v. CHERYL A. MATEJEK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1619-04T31619-04T3

MARTHA SHAW,

Plaintiff-Appellant,

v.

CHERYL A. MATEJEK,

Defendant-Respondent.

_____________________________

 

Argued October 25, 2005 - Decided March 27, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, L-3245-03.

Mary Ann Duffy argued the cause for appellant

(Willard Geller, of counsel and on the brief).

Jessica Ann Schlee argued the cause for

respondent (Connell, Connell & Camassa,

attorneys; R. Peter Connell, of counsel; Mr.

Connell and Ms. Schlee, on the brief).

PER CURIAM

On January 28, 2002, plaintiff Martha Shaw was involved in an automobile accident on Route 27 in North Brunswick. She brought suit for personal injuries suffered in the accident on April 30, 2003. Since she elected the "limitation of lawsuit" option, better know as the verbal threshold, on her personal automobile insurance policy, she was subject to the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8, which conditions a suit for non-economic loss to injuries falling within specified categories, which in this instance is "a permanent injury within a reasonable degree of medical probability, other than scarring and disfigurement." N.J.S.A. 39:6A-8(a). An 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.

After the accident, plaintiff was taken to St. Peter's University Medical Center for treatment of pain in her forehead, lip, rib cage and both knees. Rib x-rays revealed no evidence of pneumothorax, and a bilateral knee x-ray showed no fractures, dislocations or abnormalities. Subsequently, plastic surgery was performed on her lip. When the problem persisted with her knees, plaintiff saw Dr. W. Thomas Gutowski, an orthopedist, who ordered an MRI of the left knee which was done on May 9, 2002, and showed the following:

There is moderate chondromalacia patella of the lateral facet. There is a minor joint effusion. The sagittal view demonstrates a marginal osteophyte at the anterior aspect of the femoral condyle, medial better developed than lateral. ... The sagittal proton density series (image 20) demonstrates a small well-circumscribed hyperintensity within the substance of the cartilage of the non-weight bearing surface of the medial femoral condyle. This could reflect a healed osteochondral injury. In the absence of significant medial chondromalacia, this is of doubtful clinical significance.

Plaintiff submitted a certification of permanency pursuant to the directive of N.J.S.A. 39:6A-8(a) from Dr. Gutowski, who opined that plaintiff suffered a permanent injury of "post-traumatic patellofemoral chondromalacia patellae, left greater than right." He based his opinion on his clinical examination of plaintiff.

On June 24, 2003, defendant moved for summary judgment on grounds that plaintiff had failed to satisfy the AICRA verbal threshold. The matter was returnable on July 23, 2004, approximately three months before the expiration of the discovery period. Plaintiff submitted a medical report of Dr. Allan D. Tiedrich, prepared on July 15, 2004, in which he attributed plaintiff's complaints of spasm and tenderness to the July 28, 2002, accident and further opined:

It is also my professional opinion that the patient has suffered significant injuries which have resulted in some degree of permanent disability as evidenced by her continued episodes of pain, spasm, reduced range of motion, diagnosis and abnormal sensation in the injured areas, secondary to bleeding and scarring within the injured tissues themselves...

The prognosis for the future in regards to these injuries is poor, and it is my professional opinion that within a reasonable medical probability the patient will continue to require further medical and/or surgical care (Bilateral knee arthroscopic surgeries) in regards to these injuries and will go on to develop premature, degenerative arthritis in the affected areas.

. . . .

In light of the patient's subjective complaints and objective abnormalities noted on physical examination today, I am referring her for MRI scans of both knees. She will return to see me after these consultations and diagnostic studies have been performed and additional reports and recommendation will be made at that time.

Defendant's motion for summary judgment was heard on August 13, 2004. The motion judge found that the plaintiff's knee condition was degenerative. He therefore concluded that plaintiff did not establish by credible medical evidence that she suffered a permanent injury to satisfy the AICRA verbal threshold and granted summary judgment.

Subsequently, plaintiff moved for reconsideration and attached a report of Dr. Tiedrich, dated September 1, 2004, stating the following:

After initially seeing Martha on July 15, 2004, she went for MRI scans of the left and right knees. In the left knee there was grade-4 chondramalacia patella, which had progress (sic) in comparison to a prior study, which was performed shortly after the 2002 motor vehicle accident. The MRI scans of the right knee fortunately did not show any evidence of frank meniscal tear, significant ligamentous injury of osteochondral fractures. There was not significant joint effusion or other internal abnormalities.

To my professional opinion that the patient suffer (sic) from a previously asymptomatic radiographic chondramalacia patella, which became symptomatic with the motor vehicle accident of January 28, 2002 and this has gone on to be progressively worst (sic). I feel that 80% of patient's current symptomatology is due to the January 28, 2002 motor vehicle accident, 20% pre-existing. I also feel that the patient is an excellent candidate for left knee arthroscopic surgery with chondroplasty and probable synovectomy.

The prognosis for the future in regards to these injuries is poor and she has suffered permanent significant injuries to both knees.

The motion judge denied reconsideration on grounds that the updated report from Dr. Tiedrich still did not supply objective credible medical evidence of a permanent injury. This appeal followed.

We remand the matter for further proceedings. In her certification submitted in opposition to summary judgment plaintiff stated that at the time of the accident she was sixty-two and employed as a full-time massage therapist at the Hilton Hotel in Short Hills. She worked a full-time schedule of thirty-two work hours over four days. After the accident, she claimed that she was unable to work more than eleven hours a week. Therefore, she stated a claim for economic loss as an element of damage, which was not considered by the motion judge. See Martin v. Chhabra, 374 N.J. Super. 387, 395 (App. Div. 2005) (holding that a plaintiff who failed to surmount the verbal threshold may nonetheless recover unreimbursed income losses). See also Loftus-Smith v. Henry, 286 N.J. Super. 477, 488 (App. Div. 1996).

Moreover, Dr. Tiedrich's second report opined that plaintiff had a permanent injury to her knees and attributed eighty percent of the injury to the accident. But he provided no explanation as to how he reached this conclusion. Since plaintiff did not have the benefit of the full discovery period to develop her case and produce further expert reports, if any, we remand with the directive that plaintiff be given an appropriate period of discovery to supplement her medical proofs prior to any subsequent application by defendant for summary judgment.

 
Reversed and remanded.

(continued)

(continued)

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A-1619-04T3

March 27, 2006