MICHAEL DIEMER et al. v. KIMBERLY DIEMER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1993-04T11993-04T1

MICHAEL DIEMER and

KIMBERLY DIEMER,

Plaintiffs-Appellants,

v.

BRUCE F. PLATH, JR. and

LAURA L. PLATH,

Defendants-Respondents.

__________________________________________

 

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

Before Judges A. A. Rodr guez and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-3693-03.

Kenneth W. Thomas argued the cause for appellants (Lanza & Lanza, attorneys; Mr. Thomas, of counsel and on the brief).

Randi S. Greenberg argued the cause for respondents (Rubin & Weissman, attorneys; Miriam R. Rubin, on the brief).

PER CURIAM

Michael Diemer and his wife Kimberly Diemer (collectively "plaintiffs"), appeal from the following: (1) the denial of their motion to preclude defendants Bruce F. Plath, Jr. and Laura L. Plath from raising the limitation on lawsuit threshold set by N.J.S.A. 39:6A-8a (the threshold) as a defense; and (2) the dismissal of the complaint for failure to meet the threshold. This case is governed by The Automobile Insurance Cost Reduction Act (AICRA) N.J.S.A. 39:6A-8. We reverse.

Michael, a thirty-five year old man, was injured on September 3, 2002. The Plymouth Neon he was operating was coming to a complete stop at a traffic light on South Washington Avenue in Piscataway when it was rear-ended by a Chevrolet Montero operated by Bruce and owned by Laura. The impact of the collision forced the Neon into the vehicle in front of it. As a result of the first impact, Michael's body was forced forward, his head struck the rear view mirror and his knees struck the steering wheel and dashboard.

Four years before the subject accident, Michael had sustained a work related injury while trying to lift a forty-pound box of paint. Following the work accident, Paul P. Vessa, M.D. diagnosed "lumbar disc herniations at L4-L5, right lumbar radiculopathy status post previous lateral disc herniations at L5-S1." Michael received two epidural injections for pain and eventually underwent a laminectomy in July 2000 to treat the herniated disks. After the laminectomy, Michael attended physical therapy for six weeks. He was out of work for ten weeks.

Paramedics responded to the scene of the subject accident and transported Michael to the emergency room of Robert Wood Johnson Hospital. There, his head lacerations were sutured. X-rays of his back were negative. Michael was discharged with instructions to see a neurologist, Youn K. Oh, M.D.

Dr. Oh examined Michael and administered CAT scan and MRI studies. The CAT scan results were normal. The MRI disclosed "disc herniations between L3-L4, L4-L5 anterolateral to the right of the midline compressing to the thecal sac." Dr. Oh prepared a report, dated February 18, 2003 that notes Michael's prior injury, but did not distinguish it from the recent injury. Dr. Oh opined that Michael had "manifested exacerbated lumbar radiculopathy resulting in painful restricted motion of the lower back with radiating pain to the right leg," and that "this symptom may recur with underlying problems with radiculopathy." Dr. Oh's report notes that Diemer presented a history that "he had [a] previous herniated disc of the lower back for which he was operated a few years [earlier]."

David Weiss, D.O., an orthopedist, examined Michael, who complained of "intermittent low back pain and stiffness . . . numbness and tingling in . . . right lower extremity to the ankle intermittently." Dr. Weiss opined that Michael suffered from the following: "chronic post traumatic lumbo-sacral strain and sprain; herniated nucleus pulposus L3-L4, L4-L5, right lumbar radiculitis; aggravation of the pre-existing lumbar pathology; and right lumbar myofascial pain syndrome." Dr. Weiss concluded that Michael had made "satisfactory recovery and was tolerating his daily activities with no restrictions" following the work-related injury and surgery. He also concluded that the "restrictions in activities of daily living following the [subject] accident would be considered a permanent disability in and of itself using the AMA Guidelines, Fifth Edition." He adds that "His visualized pain level involving his lumbar spine at that time was only mild in nature." He further noted that, "[I]t is apparent that this claimant certainly has accelerated and aggravated his underlying lumbar conditions, as well as sustaining a new two level disc herniation."

Plaintiffs sued defendants for compensatory and per quod damages. Defendants answered, raising nineteen separate defenses, including failure to state a cause of action, lack of jurisdiction, statute of limitations, etc. However, defendants did not raise the threshold as a separate defense. Plaintiffs moved for summary judgment on liability and the judge granted this motion.

Plaintiffs also moved to preclude defendants from raising the threshold as an affirmative defense. Plaintiffs argued that defendants waived this defense by not pleading it the Answer. The judge denied this motion, concluding that the threshold is not an affirmative defense. The judge also granted defendants' summary judgment motion finding that Michael's injuries did not meet the threshold. The judge applied the Oswin standard and found that Michael's injury met the first prong because the MRI showed a disc herniation. However, the judge found that Michael had not satisfied the second prong of the Oswin test because there was no proper Polk analysis comparing Michael's residuals prior to the accident to the injuries suffered in the subject accident. The judge stated:

Dr. Oh simply does not distinguish between the alleged injuries suffered in relation to [Michael's] September 3, 2002 motor vehicle accident, and those suffered as early as 2000. The failure to distinguish between [Michael's] various injuries mandates a finding that his proofs are insufficient to overcome the verbal threshold, as required in Polk.

On appeal, plaintiffs contend that the injuries sustained by Michael satisfy the verbal threshold. We agree. In Polk, we held that "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 with the injuries suffered in the automobile accident at issue." Id. at 575. We have expanded this view by holding that the analysis is not limited to those situations in which an aggravation of a pre-existing injury is alleged. Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.), certif. denied, 180 N.J. 457 (2004). In Bennett, we stated, "[a] Polk analysis is required to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not." Ibid. (citing Sherry v. Buonansonti, 287 N.J. Super. 518, 521-23 (App. Div.), certif. denied, 144 N.J. 588 (1996)).

Therefore, the necessity of providing a comparative analysis in pre-AICRA cases when there is a pre-existing injury affecting the same body part is well-settled. 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 viability of Polk's requirement with respect to AICRA cases] in the wake of the Supreme Court's recent elimination of the serious impact, second prong requirement of Oswin." See DiProspero v. Penn, 183 N.J. 477, 506, (2005), Serrano v. Serrano, 183 N.J. 508, 517-18, (2005). In Lucky v. Holland, 380 N.J. Super. 566, (App. Div. 2005), another panel applied Polk in a post-AICRA case. 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. There, the court said, "[A]ll a plaintiff need do to vault the threshold is to prove by 'objective clinical evidence, supported by a physician certification, under penalty of perjury, an injury caused by the subject accident fitting into one of the six statutorily defined threshold categories.'" Id. at 27 (citations omitted). By virtue of the certification granted in Davidson, the issue is pending resolution by the Supreme Court.

Here, we need not decide whether or not a Polk analysis is necessary because we are satisfied that, viewing plaintiffs' evidence in the most favorable light, they have vaulted the threshold as discussed in Davidson, supra. We note that Dr. Weiss's report distinguishes the two accidents, pointing out that Michael's pain has increased since the first accident and the disc herniation diagnosis. Defendants argue that this report is flawed because it does not make note of the June 2000 or the April 2002 MRI films and did not review the records from the prior accident. That is a deficiency that goes to the weight of Dr. Weiss's opinion. However, we must accept the opinion as true for purposes of the motion. Brill v. Guardian Life Ins., 142 N.J. 520 (1995).

Although Dr. Weiss's report does not go into the analysis in depth, his report does differentiate and explain the two injuries. This is sufficient to survive the motion.

Given our conclusion that the judge should have denied defendants' summary judgment motion, we need not address plaintiffs' other contentions, i.e. that: (1) the judge erred by determining that defendants' failure to raise the threshold as an affirmative defense did not preclude it as a defense pursuant to R. 4:5-4.; or (2) the doctrines of equitable estoppel, waiver and laches preclude defendants from raising the threshold as a defense.

Reversed and remanded to the Law Division for trial.

 

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

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

(continued)

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A-1993-04T1

May 12, 2006