ZYGMUNT A. KNOCHOWSKI v. KRISTIE D. DELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4107-04T54107-04T5

ZYGMUNT A. KNOCHOWSKI,

Plaintiff-Appellant,

v.

KRISTIE D. DELL,

Defendant-Respondent,

and

GOLD KEY LEASE, INC.,

Defendant.

 

Submitted January 11, 2006 - Decided January 26, 2006

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-266-03.

Stark & Stark, attorneys for appellant (Denise M. Forrester, of counsel and on the brief).

Sherman & Viscomi, attorneys for respondent (John C. Raymond, on the brief).

PER CURIAM

In this verbal threshold appeal, plaintiff challenges the Law Division's dismissal of his complaint on summary judgment. We reverse.

On February 16, 2001, the forty-eight-year-old plaintiff was in an automobile accident when his vehicle was struck by defendant's. Plaintiff's vehicle was forced off the road and struck a utility pole before coming to an abrupt stop. Plaintiff was dazed, but did not lose consciousness. He experienced an immediate onset of mild neck and low back pain, but decided not to go to the emergency room.

Over the next five days, his symptoms became progressively worse; he experienced cervical and lumbar pain with radicular symptoms in both his upper and lower extremities. On his first visit to James Cassidy, D.C., on February 21, 2001, five days post-accident, plaintiff complained of headaches, dizziness, depression, nervousness, cold hands and feet, rapid heartbeat, and ringing in both ears. He had shooting pain and numbness in his upper and lower right extremities. He complained of pain in his neck, mid-back, low back, hip, and both hands. He reported right knee pain and swelling that interfered with his ability to walk, stand, and climb stairs. On September 28, 2001, Dr. Cassidy opined that plaintiff "sustained significant structural and neurological injuries to his cervical spine" as a direct result of the February 16, 2001 accident. The injuries presented "permanent symptomatology" and were "life altering."

Plaintiff had a prior medical history. When he was a teenager he fractured his left elbow. He sustained mild neck and low back injuries in a motor vehicle accident in 1976, and fractured his right wrist in 1990, falling on ice. He also had right knee surgery in 1997. Plaintiff explained to his doctor that as of the date of the accident in this case he was pain-free and "enjoying excellent spinal health."

Plaintiff continued to have radicular symptoms. An EMG on May 22, 2001 revealed a C5-6 radiculopathy on the right. An MRI on June 11, 2001 revealed a disc bulge at C5-6.

When examined by Eric M. Lipnack, D.O. on April 10, 2001, plaintiff continued to complain of back pain radiating into his right leg, numbness and tingling in his right arm, and a burning pain in his left arm. He also had cervical pain with radiation into both arms and numbness and tingling in his right shoulder. Dr. Lipnack's neurological examination revealed a weakness in plaintiff's right upper extremity. A sensory examination showed decreased pinprick and light touch in his right hand distribution, C6-7-8, and his right leg distribution at L4-L5. Dr. Lipnack rendered an opinion that plaintiff's medical disabilities were directly and causally related to the February 16, 2001 accident.

When the Law Division dismissed plaintiff's complaint, it relied on plaintiff's

extensive medical history predating the collision, including a fracture of his right wrist in 1990 that was surgically repaired, right knee surgery in 1997, mild neck and low back pain as a result of an automobile accident in 1976, possible valvular disease and 15 fractures throughout his lifetime related to his condition of osteogenesis imperfecta.

The court acknowledged the MRI that revealed disc bulges at C5-6, and the EMG test that revealed C5-6 radiculopathy. The judge also recognized that plaintiff's doctors opined that plaintiff's injuries were permanent and caused by the accident. Nevertheless, the judge set forth the following:

Here, plaintiff has produced multiple doctors' reports indicating permanency. Dr. Cassidy points to plaintiff's pain as well as spasms in the cervical spine, which correlate the disc bulge made visible on the MRI, as the basis for concluding that plaintiff's injuries are permanent. Likewise, Dr. Palmer considered plaintiff's medical records and his own observations while examining plaintiff in coming to his conclusion that plaintiff had suffered permanent injuries, a permanent injury to his left elbow in particular. Therefore, plaintiff has demonstrated permanency to the extent necessary to survive a summary judgment motion.

With regard to causation, the plaintiff must show a causal nexus between the injury and the disability; McClellan v. Tucker, 275 N.J. Super. 410 (Appellate Division 1994). Dr. Cassidy stated that plaintiff's cervical spine and upper extremity injuries were caused by the February 16th accident, although Dr. Cassidy has not given a basis for this conclusion. Dr. Lipnack made the same sort of conclusion of causation without describing a basis for that conclusion. Dr. Palmer concluded that plaintiff's left elbow injury was caused by the February 16th accident, but Dr. Palmer stated that his conclusion was based on the fact that plaintiff did not display his present mild ulnar axonopathy across the left elbow before the February 16th accident.

The scant explanations provided by the doctors on the plaintiff's behalf belie a major issue in plaintiff's case that goes largely unaddressed, that is, plaintiff's previous injuries. Where a plaintiff alleges aggravation of a preexisting injury, then the verbal threshold requires that a medical evaluation of the plaintiff's injuries alleged in the present action must be based on an analysis of the residual injuries predating the accident and the injuries suffered in the accident; Polk v. Daconceicao, 268 N.J. Super. 568 (Appellate Division 1993). In Polk, the court granted summary judgment against the plaintiff because he failed to provide proof that the injuries complained of did not exist before the accident.

Here, it is undenied that plaintiff suffered a number of injuries, including 15 fractures and neck and back injuries from a 1976 car accident, before the injuries from the instant accident. None of plaintiff['s] doctors present a comparative analysis per se. Some of the doctors' reports, however, do address plaintiff's previous injuries in the context of a causation analysis. Dr. Palmer concluded that plaintiff's mild ulnar axonopathy across the left elbow may "Certainly be caused by the motor vehicle accident in view of the fact that he did not have this prior to the accident." [S]imilarly, Dr. Cassidy noted plaintiff's extensive medical history, but concluded that the injuries complained of here were caused by the February 16th accident because, "On February 16th, 2001, he was pain free and enjoying excellent spinal health." While . . . these conclusions are conclusions made by the doctors after examining the plaintiff and addressing his past injuries, these are not the comparative causation analyses that the Polk court envisioned.

Plaintiff's automobile insurance had a limitation on lawsuit threshold pursuant to the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. A plaintiff subject to this limitation on lawsuit threshold may recover damages upon proof that his injuries "satisfy one of the six statutorily defined threshold categories in [AICRA] to sue for pain and suffering damages." Serrano v. Serrano, 183 N.J. 508, 509 (2005) (citing DiProspero v. Penn, 183 N.J. 477, 480-82 (2005)). Thus, so long as a plaintiff proves by objective medical evidence that he suffered a permanent injury, he is entitled to sue for pain and suffering. See Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005); N.J.S.A. 39:6A-8a.

Here, neurological testing confirmed Dr. Lipnack's clinical impression that plaintiff suffered from permanent C5-6 radiculopathy on his right side. The doctor also rendered the opinion that the condition was the result of the subject accident. Dr. Cassidy found permanent "life altering" disability as a result of the accident. This evidence is sufficient for plaintiff to survive the summary judgment motion.

We next address the references the Law Division made to the failure of the doctors to do a comparative analysis as required by Polk, supra, 268 N.J. Super. 568. First, Polk applies in situations where a plaintiff claims an aggravation to a prior injury. Id. at 575. Plaintiff does not make such a claim in this case. His argument is that the cervical injuries resulting in his C5-6 radiculopathy were directly caused by this accident, not by some prior injury. In other words, plaintiff is seeking compensation for a new injury, which has resulted in symptoms not present before the accident at issue; that he has sustained "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8a. For purposes of summary judgment, plaintiff's proofs support that claim.

Furthermore, this court has recently decided that subsequent to the Supreme Court's decisions in DiProspero, supra, and Serrano, supra, the comparative analysis required by Polk is no longer viable on a summary judgment motion. See Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005), where we said: "the comparative analysis required of Polk and its progeny engrafts an additional element upon this causation aspect of the verbal threshold standard." As such, this analysis is no longer tenable.

Reversed. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-4107-04T5

January 26, 2006