DENISE HELUK et al. v. CATHERINE A. CLARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1985-04T11985-04T1

DENISE HELUK and

KENNETH HELUK,

Plaintiff-Respondents,

v.

CATHERINE A. CLARK,

Defendant-Appellant,

and

MICHAEL L. KING,

Defendant.

_____________________________________________

 

Argued: October 31, 2005 - Decided June 12, 2006

Before Judges A. A. Rodr guez, Alley and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-1916-02.

Thomas F. Chansky argued the cause for appellant (Mauro, Savo, Camerino & Grant, attorneys; Mr. Chansky, on the brief).

A. Todd Mayo argued the cause for respondents (Mayo & Russ, attorneys; Mr. Mayo, on the brief).

PER CURIAM

On Thursday, February 15, 2001, Denise Heluk was operating her motor vehicle on Perrineville Road in Highstown, when it was struck by a vehicle owned by Michael L. King and operated by Catherine A. Clark. Heluk sustained injuries. She and her husband Kenneth Heluk sued Clark and King. Following a jury trial, Heluk was awarded $100,000 in compensatory damages and her husband was awarded $10,000 in per quod damages. The jury also found that Heluk sustained a permanent injury and that Clark was solely negligent in causing the accident.

Clark appeals, contending that her motions to dismiss for failure to satisfy the tort threshold or to provide comparative analysis of injuries, pursuant to Polk v. Daconceicao, should have been granted. We affirm.

At the time of the accident, Heluk was a thirty-eight year old, married woman who worked as a nanny for her brother's children four days a week. She had been involved in two prior automobile accident. In the first, her vehicle was hit when another vehicle ran a stop sign. This caused the airbag in Heluk's vehicle to deploy. She went to the hospital because the powder from the airbag deployment went into her face and the paramedics wanted to make sure this was not a problem. Apparently, there was no other consequence to this accident. The second accident occurred when Heluk hit a deer. She did not seek medical attention after that accident.

On February 15, 2001, Heluk did not go to the hospital from the scene of the accident. She was examined by her family physician the following week. According to Heluk, the physician "moved my legs around, . . . checked out my back and gave me a prescription to take for inflammation."

Subsequently, Heluk's auto body mechanic referred her to Allen Wolkoff, D.C., a chiropractor. Dr. Wolkoff examined her on March 2, 2001. She complained that as a result of the accident she was experiencing lower back, neck and shoulder pains. She indicated "difficulty sitting, bending to lift the young child that she care[s] for [and] walking." She also reported that the injuries have interfered with her ability to engage in sexual activity. Dr. Wolkoff did not perform x-rays because it was possible that Heluk was pregnant. Dr. Wolkoff's initial exam indicated:

limitation of range of motion in neck flexion and extension, lower back flexion and extension . . . [and] almost every range of motion was limited. There was [also] spasm, palpated, felt in the spine which is significant.

Subsequent examinations revealed "loss of sensation to the left lateral thigh." He referred Heluk for an MRI.

Noham Escar, M.D., a neuro-radiologist, read the MRI report, which showed a central disc herniation, at L5/S1 with an increased signal that is consistent with an annular tear. There was no indication of nerve route compression.

Based on the MRI report, Dr. Wolkoff opined that Heluk's injury was permanent and that the disc herniation was caused by the February 15, 2001 accident. He made this assessment based on a lack of history or objective evidence of any pre-existing injury. Dr. Wolkoff treated Heluk on approximately fifty occasions. Four months after the accident, Dr. Wolkoff noted in a progress report that, although Heluk seemed to be improving, in that the bouts of pain occurred less frequently, she still experienced a significant amount of pain and discomfort while performing certain activities, including prolonged sitting, caring for her nephew and sexual activity. Due to Heluk's pain, she was referred to Dr. Lu, an anesthesiologist, for epidural blocks.

Dr. Wolkoff referred Heluk to David Weiss, D.O., an orthopedist. Dr. Weiss reviewed the MRI and noted that there was no mention of degenerative disease. The report showed a disc herniation at L5/S1 with an annular tear causing indentation of the thecal sac. Dr. Weiss opined that when there is a tear, a chemical reaction results, causing the pain that Heluk was experiencing. Dr. Weiss had Heluk fitted for a lumbar orthosis, a back brace. Dr. Weiss opined that the disc injury was permanent and was caused by the February 15, 2001 accident. He gave the following reasons for his opinion: there was no history of back pain; Heluk's symptoms are directly related to the time following the car accident; the MRI "doesn't show any dis[c] space narrowing [or] any mention of disc desiccation [which are] things that you look at as an orthopedist or as a physician in terms of making a judgment that there's a pre-existing [injury];" and the MRI and EMG have objectified many of her complaints regarding numbness, pain and stiffness.

Dr. Weiss recommended that Heluk see a neurologist and undergo an EMG. The EMG showed a "mild subacute radiculopathy." According to Dr. Weiss

[this] means that she's perceiving the pain radiating down the leg. She has radicular symptoms. In other words, the pain is coming from a central area which is her back, going down the leg. What [he has] done now is . . . objecti[fy] her complaints . . us[ing] an EMG.

In addition to the two motor vehicle accidents prior to this one, in which she did not sustain any injuries nor experience any pain or discomfort, Heluk was also involved in a subsequent accident in March 2004. In the March 2004 accident, she suffered an aggravation of the disc injury in her lower back.

At the end of Heluk's case, Clark moved for judgment, arguing that there was no Polk analysis. Judge Stroumtsos, the trial judge, denied the motion. He concluded that a Polk analysis was not necessary for a subsequent accident. He barred any reference to injuries which may have been caused as a result of the March 2004 accident in considering damages.

Defense expert, Douglas Chalmers, M.D., opined that Heluk's injuries resulted from long-standing degenerative process. He disagrees with the finding of the radiologist that Heluk suffered from an annular tear, stating that injuries seem degenerative. According to Dr. Chalmers, "the study in my review did not reveal any residuals of acute abnormalities at all that might have been related to the accident in question." Dr. Chalmers describes the results of the EMG as "unremarkable." Also, Dr. Chalmers stated that tests for the "cervical as well as lower back were normal."

On appeal, Clark contends that her pretrial motion for summary judgment based on the verbal threshold was erroneously denied by Judge Waugh. She argues that Heluk failed to meet the verbal threshold. We disagree.

The standard of review when determining whether a directed verdict was proper at the trial level, under R. 4:40-1, is the same as that which governs the trial courts in ruling on a motion for a directed verdict or a motion for summary judgment. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 533 (1995). The standard enunciated in the Brill case is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 536. If, in giving the most favorable inferences to the non-moving party, reasonable minds could differ, then the issue must go to the jury and the directed verdict was properly denied. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

The subject accident occurred after the effective date of the Automobile Insurance Cost Reduction Act (AICRA) of 1998, N.J.S.A. 39:6A-8. The statute bars recovery unless the plaintiff's injuries come within one of six categories, one of which requires that plaintiff suffer "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8. A permanent injury is one in which "the body part or organ, or both, has not healed to function normally and will not heal to function normally with further treatment." Ibid.

The Supreme Court held, in interpreting AICRA, that all injuries must be proven by objective, credible evidence, and not solely subjective complaints. DiProspero v. Penn, 183 N.J. 477, 489 (2005); Oswin v. Shaw, 129 N.J. 290, 318-19 (1992). However, the second prong of the Oswin test, that the injury has a serious life impact, did not survive the enactment of AICRA. DiProspero, 183 N.J. at 506; Serrano v. Serrano, 183 N.J. 508, 517 (2005). DiProspero and Serrano have pipeline retroactivity. Beltran v. Delima, 379 N.J. Super. 169, 176-77 (App. Div. 2005).

Here, Dr. Wolkoff and Dr. Weiss testified that Heluk suffered a permanent injury, a disc herniation, as a result of the February 15, 2001 accident. A disc herniation, such as the one described in this case, has been held to be an example of a serious, permanent injury that satisfies the verbal threshold. See Martin v. Chhabra, 374 N.J. Super. 387, 393 (App. Div. 2004) (holding that a disc herniation satisfied the first prong of the Oswin test.)

From our review of the record, we conclude that the pre-trial motion for summary judgment was properly denied by Judge Waugh. The experts opinion, buttressed by the objective evidence shown in the MRI and EMG studies, created a factual issue for the jury to resolve.

Clark also contends that because Heluk suffered injuries to her lower back in the subject accident as well as the March 2004 accident, Heluk had a duty to present evidence so that a comparative analysis, pursuant to Polk v. Daconceicao, could be done by the jury. Clark argues that this failure requires reversal. We disagree.

The necessity of providing a comparative analysis to pre-AICRA cases, when there is a pre-existing injury affecting the same body part, is well-settled. Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). However, as we pointed out in Hardison v. King, 381 N.J. Super. 129, 133 (App. Div. 2005), there appears to be a developing controversy surrounding the continuing viability of Polk in the wake of the Supreme Court's recent elimination of the serious impact, second prong requirement of Oswin, supra, 129 N.J. at 318. See DiProspero, supra, 183 N.J. at 506; Serrano v. Serrano, 183 N.J. 508, 517-18, (2005). In Davidson v. Slater, 381 N.J. Super. 22, 27-29 (App. Div. 2005), certif. granted, 186 N.J. 243 (2006), a panel of this court held that the Polk comparative analysis requirement did not survive AICRA. In Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005), another panel applied Polk in a post-AICRA case. The issue is pending resolution by the Supreme Court.

Here, we need not decide whether or not a Polk analysis is necessary because there is no prior injury, only a subsequent one. According to Polk, any allegation that an injury is an aggravation of a pre-existing condition "must be based upon a comparative analysis of plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue." Ibid. This would entail an evaluation of objective medical evidence prior to and after the accident. Ibid. Furthermore, there must be a "discussion [in which] the expert claims a cause-and-effect relationship between the patient's subjective complaints and a traumatic event." Ibid.

The Polk standard was applied more broadly after our decision in Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.), certif. denied, 180 N.J. 457 (2004), which held that a Polk analysis is required "to differentiate a subsequent injury to a body party that was previously injured whether aggravation of the prior injury is alleged or not." Ibid. Therefore, whenever there is a previous injury to the same body part, a Polk analysis is required. Ibid. However, as stated above, these holdings apply to situations where there is a prior injury to the injury sustained in the subject accident.

In Sherry v. Buonsonti, 287 N.J. Super. 518, 521-523 (App. Div.), certif. denied, 144 N.J. 588 (1996), a pre-AICRA case, there is a suggestion that a subsequent injury may require a Polk analysis. In Sherry, plaintiff sued for soft-tissue injuries sustained in an auto accident. Plaintiff was again injured in a second accident only three months thereafter. In that case, there was no objective testing done between the two accidents. The defendant had moved for summary judgment for failure to meet the verbal threshold, but was denied. The matter went to trial and plaintiff recovered a substantial judgment. Because this case dealt with only a soft-tissue injury, we held that the evidence was insufficient to meet the verbal threshold and that the award shocked the judicial conscience. In dicta, we observed that "there was no comparative analysis which would attribute plaintiff's present condition to either or both of the two accidents as required by Polk v. Daconceicao, 268 N.J. Super 568 (App. Div. 1993)." Id. at 522. However, we did not need to make that observation because the injury alleged did not meet the threshold, regardless of which accident caused the injury. The statement in Sherry that a Polk analysis was necessary was specific to the facts of that case. The accidents were so close in time, and there was no evidence from the time between the two accidents to indicate which accident caused the injury.

Here, the situation is clearly distinguishable on the facts. First, the accidents in this case were more than three years apart. Second and more importantly, there was ample evidence to establish Heluk's physical condition following the subject accident.

 
Affirmed.

268 N.J. Super. 568, 575 (App. Div. 1993).

(continued)

(continued)

12

A-1985-04T1

June 12, 2006