MARY HERNANDEZ v. EDWIN PEREZ, JACQUELINE PEREZ FICTITIOUS NAME et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5830-04T35830-04T3

MARY HERNANDEZ,

Plaintiff-Appellant,

v.

EDWIN PEREZ, JACQUELINE PEREZ

FICTITIOUS NAME and LIBERTY

MUTUAL INSURANCE COMPANY,

Defendants-Respondents.

___________________________________

 

Submitted February 27, 2006 - Decided March 20, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New

Jersey, Law Division, Passaic County, Docket

No. PAS-L-5151-03.

Andrew F. Garruto, attorney for appellant.

Romando, Tucker, Zirul, Nik & She, attorneys

for respondents, Edwin and Jacqueline Perez (John P. Gillespie, on the brief).

No brief filed on behalf of respondent, Liberty

Mutual Insurance Company.

PER CURIAM

This is a "limitation on lawsuit" threshold case in which plaintiff, Mary Hernandez, appeals from a summary judgment dismissing her personal injury, automobile negligence complaint against defendants, Edwin and Jacqueline Perez. The judge concluded, based on the motion papers, that plaintiff's proofs did not establish either an objective permanent injury or a Polk comparative analysis deemed necessary because of a pre-existing condition. We disagree on both issues and consequently remand for trial.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. On December 8, 2001, the vehicle that plaintiff was operating was rear-ended by a car driven by defendant, Edwin Perez, and owned by defendant, Jacqueline Perez. Following emergency room treatment, plaintiff, a forty-seven year old woman, commenced treatment with Dr. Kenneth Gross, a chiropractic physician, for injuries to her lower back. Treatment continued for eight months and included MRI and EMG/NCV evaluations, both of which were positive. The MRI of plaintiff's lumbar spine disclosed a bulging disc at L5-S1 with straightening of the lumbar lordotic curve, suggestive of muscle spasm. The EMG/NCV of the lower extremities revealed a left-sided L5-S1 radiculopathy. Dr. Gross opined that plaintiff's injuries were permanent and causally related to the December 8, 2001 automobile accident.

Plaintiff was involved in an earlier vehicular accident, in 1998 or 1999, while a passenger in a bus that slid on ice. As a result, she treated with a chiropractor for a few months for a mid-back condition. According to plaintiff, however, the symptoms resolved a couple of months after that accident and she was experiencing no pain at the time of the present incident. Dr. Gross confirmed the fact that plaintiff's present condition was not symptomatically present in whole or in part prior to the subject collision.

In granting summary judgment for defendants, the motion judge found both no objective evidence of a qualifying injury and the need for a Polk comparative analysis, which was missing. We disagree.

The Automobile Insurance Cost Reduction Act (AICRA),

L. 1998, c. 21, 11, which was effective for all automobile insurance policies issued on or after March 22, 1999, amended the verbal threshold lawsuit limitations contained in N.J.S.A. 39:6A-8a to permit claims for non-economic loss for soft-tissue injuries only when the injured party "has sustained a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." Ibid. Moreover, "[a]n injury shall be considered permanent 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. Thus, to overcome the "limitation on lawsuit" threshold, plaintiff must submit "objective credible [medical] evidence" of "a permanent injury." Serrano v. Serrano, 183 N.J. 508, 514, 519 (2005). Plaintiff need not show that the injury was serious, id. at 518; or had caused "a serious life impact." DiProspero v. Penn, 183 N.J. 477, 506 (2005).

We are satisfied that the objective medical evidence here, including the MRI test and EMG/NCV evaluation, along with the physician's physical examinations and resulting findings, raise a genuine issue of material fact as to whether the December 8, 2001 automobile accident caused injuries to plaintiff's lower back which have "not healed to function normally and will not heal to function normally." N.J.S.A. 39:6A-8a. See also Serrano, supra, 183 N.J. at 509, 511; Oswin v. Shaw, 129 N.J. 290, 320 (1992); Bennett v. Lugo, 368 N.J. Super. 466, 474, 476 (App. Div.), certif. denied, 180 N.J. 457 (2004); Moreno v. Greenfield, 272 N.J. Super. 456, 463 (App. Div. 1994); Arencibia v. Rosas, 270 N.J. Super. 339, 347 (App. Div. 1994); Cineas v. Mammone, 270 N.J. Super. 200, 211 (App. Div. 1994); Dabal v. Sodoro, 260 N.J. Super. 397, 401 (App. Div. 1992).

As for the distinctness of plaintiff's recent injuries, Polk's requirement of a comparative analysis has no continuing viability in the context of a "limitation on lawsuit" threshold summary judgment motion. See Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) ("[T]he comparative analysis requirement of Polk and its progeny engrafts an additional element upon [the] causation aspect of the verbal threshold standard."), certif. granted, ___ N.J. ___ (Jan. 19, 2006); Hardison v. King, 381 N.J. Super. 129, 133 (App. Div. 2005) ("The elimination of Oswin's second prong undercut most, if not all, of Polk's justification, to connect causally a plaintiff's complaints of serious impact to the subject accident rather than to prior accidents or conditions."). But see Lucky v. Holland, 380 N.J. Super. 566, 573 (App. Div. 2005) (stating that plaintiff must "provide an adequate Polk analysis with respect to her . . . injury"). In any event, we are further satisfied that no such analysis was required in this case. According to the undisputed medical evidence, whatever the mature and extent of her pre-existing condition, plaintiff's physical condition had been functionally quiescent until this accident. She had no episodes of pain or other problems until then. Under these circumstances, no comparative analysis was necessary as plaintiff's proofs, without more, meet "the desideratum of an objectively-based medical opinion that the disability is fairly attributable to the injury suffered in the accident" at issue, sufficient at least to withstand defendants' motion for summary judgment. Foti v. Johnson, 269 N.J. Super. 198, 203 (App. Div. 1993). Of course, causation remains a question of fact for the jury to decide.

 
Reversed and remanded for trial.

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

(continued)

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A-5830-04T3

March 20, 2006