MICHELE ELITCHKO v. ARTHUR J. TOMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4535-04T34535-04T3

MICHELE ELITCHKO,

Plaintiff-Appellant,

v.

ARTHUR J. TOMAN,

Defendant-Respondent.

_______________________________

 

Submitted November 28, 2005 - Decided January 26, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5515-03.

Shebell & Shebell, attorneys for appellant (Danielle S. Chandonnet, on the brief).

Craig M. Terkowitz, attorneys for respondent (Andrew M. Horun, on the brief).

PER CURIAM

Plaintiff, Michelle Elitchko, appeals from an order of summary judgment of March 18, 2005, dismissing her complaint for personal injuries arising out of a motor vehicle accident that occurred on November 8, 2002, for failure to satisfy the "limitation on lawsuit" threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. The motion judge determined that plaintiff failed to demonstrate by objective, credible evidence that she sustained an injury fitting into one of the six threshold categories defined in the statute, and subjectively, that the injury had a serious impact on her life. See James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), applying the two-prong test of Oswin v. Shaw, 129 N.J. 290 (1992), to post-AICRA cases. If the issue before the court was limited to the "serious impact" prong of Oswin, we would reverse under the recent cases of Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005), DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). Under the recent Supreme Court cases, "an automobile accident victim who is subject to the threshold and sues for noneconomic damages has to satisfy only one of AICRA's six threshold categories, and does not have the additional requirement of proving a serious life impact." DiProspero, supra, 183 N.J. at 481. A plaintiff "has to prove only an injury defined in N.J.S.A. 39:6A-8[a], and does not have to clear the additional hurdle of proving a 'serious injury.'" Juarez, supra, 185 N.J. at 179 (quoting Serrano, supra, 183 N.J. at 510). In this matter, however, we still must determine whether the motion judge's decision concerning the objective prong is sustainable. Plaintiff argues that she presented sufficient proofs on the motion concerning the first prong of Oswin to withstand the motion for summary judgment. We agree and therefore reverse the judgment.

The accident in question occurred on November 8, 2002. Plaintiff was operating a motor vehicle and was stopped in a line of traffic when she was rear-ended by defendant. Plaintiff was taken to St. Peter's Hospital, and complained of pain in her head, neck, back and right leg. Five days later, plaintiff saw Dr. Glastein, an orthopedic surgeon. Glastein made a clinical diagnosis of cervical and lumbar radiculopathy.

On November 18, 2002, plaintiff underwent a magnetic resonance imaging (MRI) examination of both the lumbar and cervical areas of her spine. The lumbar MRI disclosed minor disc bulging at L4-5 and L5-S1 levels. The cervical MRI showed "[m]ild cervical disc [desiccation] with a tiny central ridge at C3-4, small central/left paracentral [herniation] at C4-5, and small central ridge/discs at C5-6 and C6-7." The cervical MRI also disclosed "[n]o significant canal or foraminal stenosis or cord compression." Dr. Glastein issued a report of May 31, 2003, causally connecting the cervical herniation and lumbar disc bulges disclosed on the MRI reports to the accident.

Plaintiff came under the care of Dr. Joseph Lombardi, an orthopedic surgeon. He reviewed the prior MRI reports and made an initial assessment of a cervical whiplash, right cervical radiculopathy and a herniation at the L5-S1 level. On April 21, 2003, after reviewing the cervical MRI report, he also diagnosed a herniation at C4-5. He recommended an electromyogram (EMG). An EMG was conducted and was positive for right side radiculopathy. He administered a cervical injection. He also recommended a myelogram and stated, that if positive, he would recommend surgery. Lastly, by his report of February 14, 2004, Dr. Lombardi opined that the injuries are related to the accident of November 8, 2002.

Prior to the accident in question, plaintiff suffered two other accidents. On November 5, 1994, she was involved in a car accident. She was diagnosed with cervical sprain/strain, right shoulder sprain/strain, and other injuries. Plaintiff denies that she received any treatment for those injuries. On October 1, 1999, she had a slip and fall where she was diagnosed with dorsal and lumbro sacral spine sprain/strain and a herniation at L4-5 with radiculopathy. She was continuing to experience low back pain and right leg pain leading up to the November 8, 2002, accident. Plaintiff was also involved in a subsequent automobile accident in October 2003, where she suffered injuries to her neck, back, right arm and right leg, the same areas involved in the accident in question. In her deposition, she testified that the injuries suffered in the present accident were aggravated by the October 2003 accident.

At the time of oral argument, plaintiff conceded that because she had suffered a prior injury to her lower back with radiculopathy in 1999 and still had residuals therefrom, that she was required to come forward with a Polk analysis, and did not. Plaintiff, however, argued that she did not need a Polk analysis for the cervical injury because, even though she had a mild strain/sprain in 1994, she never received any treatment and was symptom free at the time of the accident. Plaintiff also contended that she did not need a Polk analysis to differentiate the injury caused by the 2002 accident from the post-2003 accident notwithstanding that she admitted that she aggravated the same injury.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the truer of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiff claims a category six injury, "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). An injury is considered permanent under the statute "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Because no EMG report was presented to the motion judge, he concluded that plaintiff had not undergone any objective tests to confirm the diagnosis of cervical radiculopathy. Based on that, he determined that she did not suffer a qualifying injury, even though she had a cervical herniation, because there was insufficient objective evidence that the herniation had any effect upon her cervical cord. We determine from the record that if the motion judge had been aware that there was an EMG report confirming radiculopathy, he would have reached a different conclusion.

[O]ne of the problems I have is . . . there is no EMG study in here[,] and so with respect to the cervical injury[,] the only . . . thing that [is] in here is the MRI report[,] and the MRI report is pretty clear that there [is] no . . . foraminal encroachment of her cord . . . . If there were a positive EMG . . . showing that there was radiculopathy of the cervical spine that would be different.

It is plain to us that, viewing the evidence most favorably to the plaintiff, she provided ample, credible medical evidence of a qualifying injury caused by the November 8, 2002, accident.

Defendant argues that notwithstanding plaintiff presenting objective, credible evidence of an injury under the first prong of Oswin, plaintiff's appeal must be denied because she failed to come forward with a Polk analysis. Defendant contends that plaintiff was required to present a Polk analysis to distinguish the 2002 accident from the traumatic aggravation she suffered in October 2003. Under the pre-AICRA cases, plaintiff would have been required to come forward with a Polk analysis for a subsequent injury. Sherry v. Buonansonti, 287 N.J. Super. 518, 522 (App. Div.), certif. denied, 144 N.J. 588 (1996). Other panels of this court have held that the Polk requirement survived AICRA, and plaintiffs are still required to come forward with a Polk analysis to distinguish pre- and post-accident injuries. See Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005); Bennett v. Lugo, 368 N.J. Super. 466, 472 (App. Div. 2004); Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). However, a different panel of this court has recently disagreed, and held that the Polk analysis requirement did not survive AICRA. Davidson v. Slater, 381 N.J. Super. 22, 28 (App. Div. 2005). We concur with Judge Conley's decision in Davidson and conclude that the Polk analysis is a court-engrafted requirement, not one obligated by AICRA, and should not be imposed by the court for the same reasons that the court is prohibited from imposing the subjective prong of Oswin. See Juarez, supra, 185 N.J. at 179; DiProspero, supra, 183 at 505-06; Serrano, supra, 183 N.J. at 509-10. "The comparative analysis required by Polk is an element of causation." Davidson, supra, 381 N.J. Super. at 29. As in other personal injury cases, if there is a claim for aggravation of a pre-existing condition "some comparative analysis would be necessary to prove the aggravation, at . . . the time of a jury trial." Ibid. However, the comparative analysis is not required to defeat a summary judgment motion. Accordingly, we reverse and remand for trial.

 

The record below did not contain a separate EMG report. The EMG is referenced, however, on page 4 of Dr. Lombardi's report of February 14, 2004.

We note from plaintiff's exhibits on appeal that plaintiff underwent a myelogram at JFK Medical Center on September 28, 2004. The report disclosed: "At the C4-C5 level, . . . there is a left paracentral disk osteophyte complex causing thecal sac flattening without significant neural foraminal narrowing. At the C5-C6 level, there is a left central/paracentral disk osteophyte complex causing mass-effect upon the thecal sac with mild cord flattening. There is no significant neural foraminal narrowing. At the C6-C7 level, there is a central disk herniation causing thecal sac flattening without significant foraminal narrowing." The radiologist described his findings as "degenerative changes." The report, however, was not referenced by the motion judge, or by counsel at time of oral argument, nor is it referenced in the briefs, other than being contained in plaintiff's appendix. Accordingly, we do not ascribe any evidentiary significance to the report on this appeal.

Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993) (holding 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. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma.").

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A-4535-04T3

January 26, 2006