GEORGE E. ROGERS, III v. ELIZABETH PUMA et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5112-04T55112-04T5

GEORGE E. ROGERS, III,

Plaintiff-Appellant,

v.

ELIZABETH PUMA and DENISE PUMA,

Defendants-Respondents.

________________________________________________________________

 

Argued February 28, 2006 - Decided March 21, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2940-03.

Steven L. Kessel argued the cause for appellant (Drazin & Warshaw, attorneys; Mr. Kessel, on the brief).

Johnna L. Hutnick argued the cause for respondents (Sweeney & Sheehan, attorneys; Ms. Hutnick, on the brief).

PER CURIAM

Plaintiff, George E. Rogers, III, 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 he presented sufficient evidence from which a jury could find that he suffered a qualifying permanent injury caused by the accident. We agree and reverse and remand for trial.

Following the motor vehicle accident on April 9, 2002, plaintiff was taken to a local emergency room, where he complained of injuries to his neck, back, right shoulder and right knee. X-rays of his right shoulder were negative, and x-rays of his cervical and lumbar spine revealed only degenerative changes. Plaintiff was released with a diagnosis of cervical and lumbar strain and contusions of the right shoulder and right knee. Ultimately, over a course of further treatment, evaluation, and diagnostic testing, the injuries to the neck, back, and right shoulder failed to exhibit evidence of permanent injury. However, plaintiff asserts a permanent injury to his right knee, caused by the accident.

In 1997, plaintiff was diagnosed with myotonic dystrophy, a form of muscular dystrophy. In 1997 or 1998, because of his increasing weakness, plaintiff retired and was placed on social security disability status. Plaintiff was born on December 12, 1959. Thus, he was less than forty years old when placed on disability and was forty-two years old at the time of the accident.

Because of his muscular dystrophy, plaintiff was continually under a physician's care during the several years preceding the accident. He never complained of any pain or other symptoms related to his right knee prior to the accident. A significant component of the treatment for his muscular dystrophy consisted of regular and extensive walking for exercise, which was credited with keeping his disease fairly well under control. He was able to walk long distances without any complaints.

After the accident, plaintiff experienced constant pain in his right knee, accompanied by swelling, clicking, and other symptoms. As a result, he was unable to continue his walking exercise program. He contends this has accelerated the progression of his muscular dystrophy.

An MRI of plaintiff's right knee conducted on April 20, 2002, eleven days after the accident, revealed a tear of the medial meniscus, prepatellar bursitis, patellar tendinitis, osseous edema within the inferior aspect of the patella, and chondromalacia of the patella. A subsequent MRI, conducted on November 13, 2003, revealed the continued presence of a mild chondromalacia of the patella. The other conditions noted on the previous MRI had resolved.

Dr. Vladimir Berkovich was plaintiff's primary treating physician since 1998, and he continued treating him after the 2002 accident. In his report of February 3, 2005, Berkovich described the swelling and tenderness on palpation associated with plaintiff's right knee, as well as an audible click on extension. He also confirmed that between 1998 and the time of the accident plaintiff "never complained of knee pain. In fact, walking was reported as [plaintiff's] main form of exercise." Based upon his clinical evaluation and his review of the April 20, 2002 MRI report, Berkovich opined that plaintiff suffered a permanent injury to his right knee.

Plaintiff also came under the care of an orthopedic physician, Dr. Harry Bade, III, whom he saw on September 5, 2003 and November 21, 2003. After his initial visit, Bade's diagnosis included "[c]hondromalacia patella exacerbated by motor vehicle accident." Bade had reviewed the MRI report of April 20, 2002. He ordered a follow-up MRI, which was performed on November 13, 2003, and he personally reviewed the MRI films taken on that date. Based upon his clinical evaluation of plaintiff and his review of those films, Bade opined in his November 21, 2003 report:

Today I personally reviewed the MRI films. I do agree with [the report that plaintiff has] mild chondromalacia patella. This is an irregularity of the undersurface involving the patella articular cartilage. Also there is a degree of osseous edema or increased signal involving the inferior anterior patella and to a lesser degree in the soft tissues anterior to the inferior patella. These findings are all consistent with his trauma. They also show improvement from his previous MRI. Again this is very consistent with his trauma.

Bade's diagnoses were:

1. Posttraumatic patella pain right knee.

2. Contusion patella right knee improving.

3. Contusion right patella bone as a result

of the motor vehicle accident improving.

4. Chondromalacia patella exacerbated or

caused by motor vehicle accident.

5. Inferior pole of the patella tendinosis

improving.

6. Posttraumatic prepatellar bursal

hypertrophy improving.

7. Intrameniscal signal involving the

medial meniscus without surface wear.

[Emphasis added.]

Bade concluded that plaintiff "will have permanent symptoms involving his right knee as a result of the trauma."

The defense caused plaintiff to be examined by Dr. Robert Warren, an orthopedic physician, on February 3, 2005. Warren reviewed in detail all of plaintiff's medical treatment records and diagnostic tests. His diagnosis included "[c]ontusion of the right patella with exacerbation of pre-existent chondromalacia." He stated, "I would causally relate to the motor vehicle accident of April 9, 2002, a cervical strain, a contusion of the face and chest, and a contusion and exacerbation of pre-existent chondromalacia of the right patella." In Warren's view, the chondromalacia was the result of exacerbation because the thinning of the cartilage revealed by the first MRI, taken less than two weeks after the injury, could not have been completely the result of the accident. Nevertheless, Warren concluded that plaintiff suffered a permanent injury to his right knee as a result of the accident, stating that "the partial contribution to the chondromalacia with the exacerbation caused by the impact will likely add to continued symptoms in the right patella area indefinitely."

Confronted with this medical evidence, the motion judge was of the view that plaintiff was alleging the aggravation of a pre-existing condition and failed to provide the comparative analysis required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). The judge stated:

Based on the Court's review of the record, the Court's satisfied that, at least as of November 2003, the objective medical evidence indicated only mild chondromalacia, exacerbated by the accident. The Court's not satisfied that there's anything in the record which would satisfy the Polk requirement for a comparative analysis based on the objective medical evidence of the plaintiff's condition pre-accident/post-accident.

. . . .

Although the knee problems reported by Dr. McElroy [plaintiff's treating chiropractor], in his 2003 report, involving chondromalacia patella, indicating that they were either exacerbated or caused by the accident, makes that statement, he does not make any comparisons with the knee before and after the accident.

. . . .

The Court's, therefore, satisfied that the record fails to meet the standards established by the Court in Polk.

When evaluating a summary judgment motion, the evidence must be viewed most favorably 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). Applying this standard, we are satisfied that plaintiff provided sufficient evidence from which a jury could reasonably find that he suffered a permanent injury caused by the accident of April 9, 2002.

All of the medical evidence provided, including the report of the defense examiner, established that the motor vehicle accident either initially caused plaintiff's chondromalacia or exacerbated a pre-existing chondromalacia. In either event, the effect of the accident on plaintiff's right knee is permanent. In the context of this case, whether this was a new injury or the aggravation of a pre-existing condition is not dispositive.

We need not decide in this case whether a Polk analysis continues to be required under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Compare Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) (concluding a comparative analysis is no longer required), certif. granted, 2006 N.J. LEXIS 101 (Jan. 17, 2006), with Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003) (concluding a comparative analysis is still required). First, viewing the evidence most favorably to plaintiff, the jury could find that the chondromalacia was a new injury. But more significantly, even if a Polk analysis continues to be required, the motion judge construed the Polk requirement too narrowly. Polk requires an expert to make

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. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.

[Polk v. Daconceicao, supra, 268 N.J. Super. at 575.]

Under the factual complex presented here, plaintiff had no residuals prior to the accident. Because plaintiff never complained of any knee problems, although he was under constant treatment for his muscular dystrophy, no MRI, x-ray, or other objective tests were ever performed on his knee before the accident. The medical experts in this case did indeed evaluate plaintiff's medical records prior to the accident and compare them with the objective medical evidence (including two MRIs) that existed after the accident. As we have stated, the medical records prior to the accident simply contained no evidence of any problem with plaintiff's right knee, which verifies that the knee was completely asymptomatic prior to the accident. In these circumstances, to require a comparative analysis of objective tests results pre- and post-accident would be to require the impossible.

Plaintiff has provided adequate, objective evidence that his right knee injury is permanent, and therefore he is entitled to "sue for noneconomic loss causally related to all injuries sustained in [the 2002] automobile accident." Puso v. Kenyon, 272 N.J. Super. 280, 293 (App. Div. 1994). Whether plaintiff can prove that his asserted inability to conduct his walking exercise program as a result of his knee injury has proximately caused an accelerated deterioration of his muscular dystrophy condition is a factual issue to be decided by the jury.

 
Reversed and remanded.

(continued)

(continued)

9

A-5112-04T5

March 21, 2006