ROBERT KROMKA et al. v. VALERIE L. MANKOFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3554-04T13554-04T1

ROBERT KROMKA and his wife

MICHELLE KROMKA,

Plaintiffs-Appellants,

v.

VALERIE L. MANKOFF,

Defendants-Respondents,

and

STATE FARM INDEMNITY and STATE

FARM INSURANCE COMPANY,

Defendants.

________________________________________________________________

 

Argued March 7, 2006 - Decided April 25, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2198-01.

Lane M. Ferdinand argued the cause for appellants.

Edward J. Rebenack argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; John C. Simons, of counsel and on the brief).

PER CURIAM

Plaintiff, Robert Kromka, appeals from a summary judgment dismissing his motor vehicle personal injury complaint for failure to satisfy the limitation on lawsuit threshold. See N.J.S.A. 39:6A-8a. Plaintiff argues on appeal that the motion judge applied the incorrect standard in determining whether plaintiff's psychological disorder meets the requirements of the limitation on lawsuit threshold. We reject plaintiff's argument and affirm.

The accident occurred on September 27, 1999. Plaintiff was treated at a local emergency room, where he was diagnosed with contusions to the head and back and a cervical sprain. The emergency room record did not reflect a diagnosis of concussion. Plaintiff underwent a subsequent course of treatment, including by Dr. Walter G. Husar, a neurologist. Plaintiff's complaints of symptoms included forgetfulness, loss of concentration, anxiety, depression, and restlessness. Plaintiff underwent an MRI, CT scan, EEG, and Brainstem Auditory Evoked Potential Test, all of which yielded negative results. Husar diagnosed plaintiff with post-concussion syndrome. He acknowledged in his deposition testimony, however, that his conclusion that plaintiff suffered from any cognitive deficits were based only upon history, and not upon any objective testing.

Nearly three years after the accident, plaintiff's attorney referred plaintiff to Andrew Brown, III, Ph.D., a neuropsychologist, for an evaluation. Brown saw plaintiff on one occasion, July 24, 2002. In his report, Brown noted that the purpose of the referral was occasioned by plaintiff's persistent complaints of memory loss, and he was asked to assess the current status of plaintiff's brain-behavior functioning. Brown took a history from plaintiff and reviewed Husar's reports and the reports of the diagnostic tests that we mentioned.

Brown administered a series of psychological tests. He concluded that plaintiff "will experience considerable difficulty executing vocational tasks that require efficient visual spatial integrity and executive mental and motor controls. His liabilities render him vulnerable to occupational hazards if placed in work settings that require processing demands which have been attenuated." Brown opined "that to a reasonable degree of Psychological probability, Mr. Kromka's defects are due to his September 27, 1999 automobile accident."

In granting defendant's summary judgment motion, Judge Steven F. Smith, Jr. noted that all of the diagnostic tests were negative for any physical injuries, and that Husar acknowledged at his deposition that plaintiff had no memory or cognitive problems evidenced by any objective testing. Thus, plaintiff's claim that he suffered a qualifying injury was limited to his claim of psychological injury. This, in turn, would rise or fall on Brown's report.

Judge Smith analyzed Brown's report this way:

The evaluation actually is the usual battery of psychological tests that are referred to on Page 3 of his report, which is in Exhibit G of the plaintiff's submission: the Wexler Adult Intelligence Scale and Memory Scale, the Controlled Digit Span Subtest (phonetic), the Wisconsin Card Sorting Test, Tests of Dynamic Motor Praxis, Raven Colored Progressive Matrixes Ray Complex Figure Trail Making A & B (phonetic), Wide Range Achievement Test, California Verbal Learning Test, and Bentonly Left Body Part Orientation (phonetic).

As a result of his analysis of these tests, he opines that Mr. Kromka is in the high average, or superior range of IQ, but notes that there is a 13-point discrepancy between his verbal and his performance IQ scores.

And he finds on the -- on Page 7 of his report -- actually on Page 8, that Mr. Kromka makes [spatial] placement and size errors while drawing complex figures. And that there is greater involvement of his right cortical hemisphere.

Other testing suggests that the integrity of executive controls are compromised and consistent with his self-report of tendency to forget the purpose of entering a room. And he thinks that these liabilities will render him vulnerable to occupational hazards, if placed in work settings that require processing demands, which have been attenuated.

He does not comment on Mr. Kromka's ability to do landscaping, which has been his life-long profession, and how these supposed deficiencies might impact on that.

The -- Dr. Brown's findings, while buttressed by an array of psychological terminology, sometimes called psycho-babble, hardly reflects any objective testing of the type that would be required to overcome the verbal threshold. These are subjective tests, subject to the plaintiff's ability to -- to an extent, control the results.

And even the conclusions made by Dr. Brown are difficult to understand given the plaintiff's relatively high IQ, his lack of objective medical findings, and the profession which he has pursued in his adult life. And the motion is denied.

When evaluating a summary judgment motion, the evidence must be viewed in the light most favorable to the non-moving party, together with all favorable inferences. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36 (1995). Our review is de novo, and we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We are satisfied from our review of the record that plaintiff failed to provide competent objective medical evidence from which a jury could reasonably find that he suffered a permanent psychological injury caused by the accident of September 27, 1999.

Psychological injury may constitute a qualifying injury under N.J.S.A. 39:6A-8a. See Granowitz v. Vanvickle, 264 N.J. Super. 440, 445 (Law Div. 1993) (finding psychological injuries compensable under the prior no fault statute). Nevertheless, the injury must be established by credible objective medical evidence. Id. at 449. In Saunderlin v. E.I. Dupont Co., 102 N.J. 402 (1986), our Supreme Court set forth the guidelines for determining whether psychological injuries satisfy the "demonstrable objective medical evidence" standard prescribed by N.J.S.A. 34:15-36 for workers' compensation claims. That standard is sufficiently similar to the "objective medical evidence" standard governing proof in limitation on lawsuit cases, see DiProspero v. Penn, 183 N.J. 477, 495 (2005) (holding that the Legislature adopted the "objective medical evidence" standard of Oswin v. Shaw, 129 N.J. 290 (1992), by requiring in N.J.S.A. 39:6A-8a "objective clinical evidence"), that we adopt its use in this context.

When dealing with a psychological or psychiatric injury, objective medical evidence is viewed more broadly than when dealing with physical injury. Saunderlin, supra, 102 N.J. at 411-14. To fit within this paradigm, the "diagnostic criteria" of mental disorders as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association, must be followed. Id. at 413. "These diagnostic criteria typically include not only physical manifestations observable independently of the patient's statement but also descriptions of states of mind discoverable only through that statement." Ibid. By following the DSM framework, which includes consideration of both manifestations of physical symptoms and descriptions of the patient's state of mind, objective medical evidence, as conceived by the profession of psychiatry, will be presented. Id. at 415. Such evidence might suffice to interpose a professional psychiatric judgment between the subjective statement of the claimant and the ability to recover non-economic loss, within the parameters set by the Legislature. Id. at 415-16.

However, the component of such "objective" psychological or psychiatric evidence that consists of subjective statements by the patient must include a professional analysis of those statements. Id. at 416. The mere "parroting" of the patient's statement will never be sufficient. Ibid. Courts will rely to some extent "upon the psychiatrist's professionalism in deploying the clinical method to insure that his or her analysis meaningfully exceeds parroting the subjective statement of the patient." Ibid. The clinical method requires the psychiatrist (or in this case the psychologist) "to assimilate information from a wide variety of sources, to evaluate each fact, to discount some, to emphasize others, and to ignore still others." Id. at 416 n.11. Combined with personal observations of the patient, the psychiatrist (or psychologist) then "puts everything together, and arrives at a conclusion." Ibid. The practitioner must explain what information was accepted and what was rejected, what information was given great weight and what was minimized, and explain why the clinical material was evaluated in a particular way. Id. at 416-17 (citing Diamond and Louisell, "The Psychiatrist as an Expert Witness: Some Ruminations and Speculations," 63 mich. l. rev. 1335, 1354 (1965)).

We first note that the evaluator here was a psychologist, not a psychiatrist. Nevertheless, for purposes of our analysis, we do not discount the substance or quality of Brown's evaluation and report on that basis. See id. at 411 n.6 (leaving open the question of whether evidence of psychiatric disability must be given by psychiatrists as distinguished from psychologists). We consider some of the same factors considered by the Court in Saunderlin, namely that plaintiff did not see a psychiatrist or psychologist until referred by his attorney to Brown nearly three years after the accident. Id. at 418. The evaluation was clearly to assist in the litigation. Ibid. Further, plaintiff saw Brown only once, and received no medication or treatment as a result of that visit. Ibid.

Brown did not render a diagnosis under the DSM, and his analysis did not employ the clinical method required by Saunderlin. His opinion is nothing more than a net opinion. It does not constitute objective medical evidence in the expanded form permitted for proving psychological injuries.

Affirmed.

 

Plaintiff's wife, Michelle Kromka, also sued per quod.

In light of our disposition, we need not address plaintiff's other argument, that the motion judge erred in declining to bar the reports and testimony of defendant's accident reconstructionist and biomechanical expert.

The defense caused plaintiff to submit to an evaluation by a neuropsychologist, David M. Mahalick, Ph.D., whose negative report was part of the motion record. However, in light of the summary judgment standard, plaintiff's evidence must be viewed in its most favorable light, and neither Judge Smith nor we have considered Mahalick's report.

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A-3554-04T1

April 25, 2006