TERRY RIZZO et al. v. CHRISTINE KRAJEWSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2244-04T32244-04T3

TERRY RIZZO and LENA RIZZO,

Plaintiffs-Appellants,

v.

CHRISTINE KRAJEWSKI,

Defendant-Respondent.

_________________________________

 

Argued May 10, 2006 - Decided June 8, 2006

Before Judges Stern, Grall and King.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, MER-L-1191-03.

Thomas R. Smith argued the cause for appellants (Pellettieri, Rabstein and Altman, attorneys; Mr. Smith, on the brief).

Brenda F. Engel argued the cause for respondent (Backes & Hill, attorneys; Ms. Engel, on the brief).

PER CURIAM

In this case the plaintiff, Terry Rizzo, appeals claiming that the Law Division judge improperly granted summary judgment for the defendant on the issue of sufficiency of the evidence "of a permanent injury causally related to the accident" necessary to cross the "verbal threshold," N.J.S.A. 39:6A-8(a), contained in the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1 to -35. We conclude that the plaintiff made a sufficient showing to create a jury question on the causation and permanency issues, applying the principles set out in Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, 186 N.J. 243 (2006) (oral argument pending); see also Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002).

The claim was precipitated by an auto accident on May 20, 2001. Plaintiff Terry Rizzo was a front-seat passenger, allegedly suffering back and other injuries. His wife Lena sues derivatively. Plaintiff saw several physicians after the accident and ultimately relied on the certification of Paul M. Cooke, M.D., a Diplomate of the American Board of Physical Medicine and Rehabilitation, to satisfy the requirements of N.J.S.A. 39:6A-8(a), the "limitation on law suit option":

In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or board-certified licensed physician to whom the plaintiff was referred by the treating physician. The certification shall state, under penalty of perjury, that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence, which may include medical testing, except that any such testing shall be performed in accordance with medical protocols pursuant to subjection a. of section 4 of P.L. 1972, c. 70 (C. 39:6A-4) and the use of valid diagnostic tests administered in accordance with section 12 of P.L. 1998, c. 21 (C. 39:6A-4.7).

The certification stated in relevant part:

I, Paul M. Cooke, M.D. do hereby certify as follows:

1. I am a licensed physician practicing in the State of New Jersey.

2. I have provided medical treatment to Terry Rizzo for injuries suffered in a motor vehicle accident that occurred on May 20, 2001.

3. Based upon the examinations, which I conducted, the results of diagnostic testing, and the patient's clinical symptoms and complaints, it is my opinion that he has suffered injuries, which will be permanent in nature.

4. I make this Certification with the awareness that if any of the statements set forth herein are false that I am subject to fines and penalties as imposed by N.J.S.A. 39:6A-8.

*****

/s/___________________________

PAUL M. COOKE, M.D.

DATED: 8/17/02

In addition, Dr. Cooke and the plaintiff relied on two medical reports of Dr. Cooke dated February 13 and December 7, 2004. We conclude that these reports and the certification created a factual issue for a jury on whether plaintiff sustained "a permanent injury within a reasonable degree of medical probability," N.J.S.A. 39:6A-8(a), based on "objective clinical evidence" and "medical testing." Ibid.

In his February 13, 2004 report Dr. Cooke said in pertinent part in respect of the plaintiff's May 2001 accident:

Regarding Mr. Rizzo's lumbar spine symptoms, my clinical impression was that of left S1 radiculopathy secondary to lumbar spondylosis with exacerbating factor of motor vehicle trauma from an accident in May of 2001 with underlying predisposing factor of bilateral L4/5 laminectomies from 1976. I do feel that the symptomatic left S/1 radiculopathy which was documented on the EMG test was causally related to the motor vehicle accident of 5/20/01. He reported that he was in good spinal health after his 1976 laminectomy up until the time of the motor vehicle accident. He did not have significant nerve impingement on the CT scan on the left side, however, the EMG did show denervation potentials consistent with a chronic active left S1 radiculopathy. He did have some symptomatic improvement with conservative treatment measures including oral medications and exercise based physical therapy. However, he did not have complete resolution of his symptoms.

[emphasis added.]

In his follow-up report of December 7, 2004, Dr. Cooke stated:

When I originally saw Mr. Rizzo on 1/16/02, he reported to me that the pain came on approximately eight months prior to that secondary to the motor vehicle accident on 5/20/01. It is my impression that at the time just prior to the motor vehicle accident, he was not having any significant left low back and leg pain. This would be consistent with the natural history of a lumbar disc anular tear with associated muscle spasm that should resolve on its own in a few weeks with relative rest, which was prescribed. Statistically, given the favorable natural history of disc anular tears, the episode from 4/10/00 should have been well resolved by the year 2001, however there are some patients where symptoms from an anular tear do persist and become chronic.

At this point, I would not change my clinical impression from the original legal narrative, that of left S1 radiculopathy secondary to lumbar spondylosis with exacerbating factor of motor vehicle trauma from an accident in May of 2001, with underlying predisposing factor of bilateral L4/5 laminectomies from 1976. However, the Capital Health Systems documentation from April of 2000 does contradict the narrative statement that the patient reported to be in good spinal health after his 1976 laminectomy up until the time of the motor vehicle accident. I do feel it is likely that the emergency room visit was related to anular tear and muscle spasm which should resolve on its own, but that the more traumatic motor vehicle accident did result in a more significant condition for which he was treated in part by myself from 1/16/02 through 7/15/02.

The above is stated to a reasonable degree of medical certainty as a supplement to the narrative report from February 13th, 2004.

We think it quite obvious that Dr. Cooke's opinion on the extent, if any, of permanent injury and of causation to the May 20, 2001 subject auto accident may be vulnerable to a probing inquiry on cross-examination and to medical rebuttal evidence in view of the earlier 1976 history of low-back surgery, the interim episodes of exacerbations and aggravations both before and after the 2001 accident, and certain inconsistencies in the medical history. This, of course, is for the jury to evaluate. But in the certification, amplified by his reports, it appears to us that Dr. Cooke believes to the requisite medical certainty that plaintiff has some permanent low back disability attributable to the subject accident and stands willing to so testify. This is all the plaintiff needs to cross the "verbal threshold."

We fully adopt Judge Conley's analysis in Davidson, 381 N.J. Super. at 27, where she said:

In light of these facts, which we must accept for the purposes of the motion, Dr. Dorfner's opinion that plaintiff sustained permanent injury as a result of the August 2, 2001, accident should have been enough to vault the threshold set forth in N.J.S.A. 39:6A-8(a). In this respect, we now know that all a plaintiff need do to vault that 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." Serrano v. Serrano, 183 N.J. 508, 518, 874 A.2d 1058 (2005). Plaintiff need not show that the injury was "serious," ibid., or had caused "a serious life impact," DiProspero v. Penn, 183 N.J. 477, 506, 874 A.2d 1039 (2005).

[Davidson v. Slater, 381 N.J. Super. at 22.]

As to the so-called Polk comparative analysis, pertinent where there is a preexisting condition lurking, we also adopt Judge Conley's analysis where she said:

We now know that the statement in Ostasz v. Howard, supra, 357 N.J. Super. at 67, 813 A.2d 1258, that the "requirements and approaches" of Oswin v. Shaw, supra, 129 N.J. 290, 609 A.2d 415, "continue to govern the application of verbal threshold standards under AICRA," is not correct. DiProspero v. Penn, supra, 183 N.J. at 506, 874 A.2d 1039; Serrano v. Serrano, supra, 183 N.J. at 518, 874 A.2d 1058. In light of those decisions, it is doubtful whether Polk and its progeny continue to be viable in the context of a verbal threshold summary judgment motion. The Ostasz panel thought that Polk is distinct because "that case dealt exclusively with process as distinguished from substance." Ostasz v. Howard, supra, 357 N.J. Super. at 67, 813 A.2d 1258. We do not understand what that means. The comparative analysis required by Polk is an element of causation. In that respect, N.J.S.A. 39:6A-8(a) governs non-economic loss "as a result of bodily injury, arising out of the ownership, operation, maintenance or use" of a vehicle. In our view, the comparative analysis requirement of Polk and its progeny engrafts an additional element upon this causation aspect of the verbal threshold standard. We recognize that another panel apparently views Polk has having continued viability in the context of verbal threshold summary judgment motions. See Lucky v. Holland, 380 N.J. Super. 566, 883 A.2d 419 (App. Div. 2005). We do not agree.

Moreover, Polk involved a claim for aggravation of preexisting conditions. In that context, some comparative analysis would be necessary to prove the aggravation, at the least at the time of a jury trial. Here there is no such claim. To the extent Bennett v. Lugo, 368 N.J. Super. 466, 847 A.2d 14 (App. Div.), certif. denied, 180 N.J. 457, 852 A.2d 193 (2004), requires the analysis "whether aggravation of prior injury is alleged or not," id. at 473, 847 A.2d 14, we disagree.

In any event, while Dr. Dorfner does not, in his reports, compare the three accidents and their injuries, we are satisfied that a reasonable factfinder does not need him to opine that the August 2, 2001, accident uniquely caused a disc involvement that is permanent and distinct from the August 24, 1997, soft-tissue injuries and the January 12, 2003, soft-tissue injuries. Whether a jury will agree is not for us to say.

[Id. at 28-30.]

Differential causation and the extent of plaintiff's injury and disability from the May 2001 accident must be tested in the crucible of a jury trial in view of Dr. Cooke's certified claims and detailed explanation. We repeat Judge Conley's valediction in Davidson: "Whether a jury will agree is not for us to say." Id. at 30.

 
Reversed.

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

(continued)

(continued)

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A-2244-04T3

June 8, 2006