JESSE OLIVER v. KARL M. ROBERTS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6083-04T16083-04T1

JESSE OLIVER,

Plaintiff-Appellant,

v.

KARL M. ROBERTS,

Defendant-Respondent.

__________________________________________________________

 
Telephonically argued: February 14, 2006

Decided March 8, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, L-4140-02.

Sander Perl argued the cause for appellant

(Marc A. Futterweit, attorney; Mr. Perl, on

the brief).

Joseph J. McGlone argued the cause for respondent

(McElroy, Deutsch, Mulvaney & Carpenter, attorneys;

Mr. McGlone, of counsel; Mr. McGlone and Anthony J. Fredella, on the brief).

PER CURIAM

Plaintiff, Jesse Oliver, sued defendant, Karl M. Roberts, for personal injuries allegedly sustained in a motor vehicle accident on January 23, 2001. On June 10, 2005, Roberts obtained summary judgment on the ground that the verbal threshold provisions of N.J.S.A. 39:6A-8a precluded Oliver's suit. The motion was granted for two reasons: (1) Oliver's alleged failure to provide a comparative analysis of the injuries he sustained in this accident with injuries he sustained in prior accidents; and (2) Oliver's failure to prove that his injuries had a serious impact on his life. The motion was granted before the Supreme Court ruled that proof of serious impact is not required under the statute. DiProspero v. Penn, 183 N.J. 477, 506 (2005). Oliver appeals and we reverse and remand for trial.

I In or about 1965, Oliver was involved in a motor vehicle accident that injured his neck and back. He could not recall his treating physician, but he sued and the case was settled for several thousand dollars. In either 1972 or 1973, he was involved in another motor vehicle accident that resulted in injuries to his neck, left shoulder, left elbow, left knee and jaw. He was given emergency medical treatment at a hospital and a couple of months of physical therapy. He settled that case for about $8,000. In the mid-1980s, he injured his back at work. He was given emergency medical treatment at a hospital, received chiropractic treatment for about three months, and was out of work for six months. His present attorney was unable to obtain medical records for any of those accidents.

In 1995, Oliver was involved in another motor vehicle accident, injuring his neck, right shoulder, both knees, right forearm and low back. Oliver described the back pain as "constant and severe." Dr. Kazan, Oliver's chiropractor, said that the "lumbar spine appeared flattened secondary to muscle spasm." Oliver received physical therapy for eight months, filed suit, and settled for about $11,000. In a report dated March 28, 1996, Dr. Kazan concluded that Oliver

continue[s] to suffer from injuries to the cervical and lumbar spine, specifically Disc injuries at C3-C4, C4-C5 and C5-C6 levels. This is directly attributable to the accident dated on 02/04/95. Based on my clinical experience with similar conditions, there is a high medical probability that this patient will suffer similar relapses in the future which may necessitate additional treatment.

Those conclusions were based in part on an MRI performed on April 7, 1995. The MRI revealed "[a]t the C3-4 intervertebral level . . . a prominent central protrusion of disc material causing slight indentation on the anterior portion of the cervical cord and suggests either a prominent bulge or central herniation;" and "[a]t the C4-5 level there is . . . posterior protrusion [of] both hard and soft discs, with a similar finding seen at the C5-6 intervertebral level." The "impression" was "1. CENTRAL DISC PROTRUSION AT THE C3-4 LEVEL REPRESENTING EITHER A PROMINENT BULGE OR CENTRAL HERNIATION;"
and "2. POSTERIOR PROTRUSION OF HARD AND SOFT DISC MATERIAL AT THE C4-5 AND C5-6 LEVELS, WHICH IS PRESUMABLY COMBINATION OF DISC BULGING AND POSTERIOR BONY DEGENERATION RIDGING." Oliver also appears to have received treatment from Dr. Richard Oliver for this accident. Dr. Oliver received reports from Dr. J. Lee Berger, M.D., an orthopedist, indicating that plaintiff had suffered from cervical and lumbosacral strains, as well as injuries to his left shoulder and left knee.

On the date of the subject accident, January 23, 2001, Oliver told the police he did not need medical assistance. But a week later, on January 31, 2001, he sought treatment from Dr. Rachel Patoshnick. He complained of persistent neck pain radiating from his left shoulder, hand-tingling and numbness, insomnia, flashbacks, and left mandibular pain. Dr. Patoshnick diagnosed various injuries and opined that Oliver needed an "MRI of cervical spine to rule out herniated disc and/or traumatic syrinx and EMG/NCS of one lower extremity to rule out generalized peripheral neuropathy . . . ." However, she also noted that Oliver refused and the tests were "not authorized by insurance company."

About a year and a half later, on June 28, 2002, Oliver sought treatment from Dr. Oliver for low back pain. The doctor ordered an MRI of Oliver's lumber spine, which indicated "[l]arge disc herniation at L3-4 which along with degenerative facet disease and ligamentum flavum hypertrophy results in moderate to severe central stenosis;" "[s]mall disc herniations at the L4-5 and L5-S1 levels;" "[m]oderate to severe neural foraminal narrowing bilaterally at the L5-S1 level secondary to degenerative facet disease and disc bulge;" and "[m]oderate to severe right sided neural foraminal narrowing at the L4-5 level secondary to the disc bulge and degenerative fact disease." Dr. Sanjiv Parikh treated Oliver with a series of three epidural block injections during September and October 2002.

Oliver next sought treatment from Dr. Sri Kantha, M.D., on January 20, 2003. After reviewing the MRI ordered by Dr. Oliver and examining the patient, Dr. Kantha concluded that plaintiff had herniated discs in his back and other lumbar injuries and that he suffered from cervical sprain and radiculopathy. He proposed "endoscopic lumbar discectomy and thermodiscoplasty with laser and Ellman bipolar radiofrequency probe at L3-4, L4-5 and L5-S1 levels." The operation was performed on February 28, 2003.

During follow-up visits, Oliver complained to Dr. Kantha of continued "right-sided neck pain and pain radiating down the right arm." An MRI of the cervical spine was done on May 6, 2003. It revealed herniated discs at C3-4 and C4-5 with pressure "being exerted on the ventral aspect of the spinal cord" and related findings. In May, 2003, Dr. Kantha used epidural and facet joint injections, and on August 28, 2003, Dr. Kantha performed another endoscopic cervical discectomy. The post-operative diagnosis was "cervical disc herniation at C-3-4, C4-5, C5-6 level," "traumatic cervical sprain," and "cervical radiculopathy." Oliver was still under treatment by Dr. Kantha when the motion for summary judgment was filed.

Dr. Kantha initially opined that Oliver's lumbar and cervical disc herniations were due entirely to the accident of January 23, 2001. However, shortly before the summary judgment hearing, Oliver's attorney was able to obtain medical records from Dr. Oliver, Dr. Kazan, and the 1995 MRI ordered by Dr. Kazan, the findings of which are listed above. Dr. Kantha reviewed those materials and reached the following conclusions:

Mr. Oliver underwent a cervical MRI following the 1995 accident. There was reportedly some lesser disc pathology at the C3-C4 levels [C4-5 C5-6 - Disc bulge] present in that study compared to the MRI done 5/6/03. Therefore within a reasonable degree of medical probability, my opinion on causal relationship with respect to the patient's cervical spine injuries is that 50% of the patient's current condition is attributable to the accident of 1/23/01 and 50% is attributable to a pre-existing condition, which was apparently asymptomatic prior to the 1/23/01 accident according to the patient.

With respect to causal relationship pertaining to Mr. Oliver's low back injury, it appears that the injuries diagnosed as a result of the 1995 accident (exact date 2/4/95) were lumbar sprain/strain along with a clinical diagnosis by his treating chiropractor of lumbar radiculitis. However, no lumbar MRI was done following the 1995 accident according to the records provided to me. There is also no mention of complaints of low back pain in the records available for my review from Dr. Oliver between 2/15/95 and 1/25/01. Based on the additional records furnished to me, with a reasonable degree of medical probability my opinion of causal relationship with respect to my patient's lumber spine injuries is that 80% of the patient's current condition is attributable to the accident of 1/23/01 and 20% of his current condition is attributable to a pre-existing condition, which was apparently asymptomatic immediately prior to the 1/23/01 accident according to the patient.

The judge granted defendant's motion for summary judgment, reasoning as follows:

I think that . . . the cases tell us that the medical condition has to be established by expert testimony. And the only way the expert testimony gets to the jury is if the expert is able to compare the old with the new. If the expert can't compare the old with the new in a reasonable manner, then plaintiff has failed his burden of proof -- is prevented, I should say, from bringing that testimony forward, from which you can make the arguments that you would make, that this was an asymptomatic person or an eggshell plaintiff.

I . . . don't think the cases give us that much latitude. I considered the possibility of letting the case go forward on the cervical without the lumbar, but then I think we have other problems. When he talks about his consequent limitations, I don't think it it's going to be possible for the plaintiff to say they relate only to my neck, and not to my back. And if he says that, that would be unfair to the defendant to prevent them from talking about his other injuries, to show that they're really related to the back and not to the neck.

I think we've got to go back to the Polk [Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993)] requirement. It's not met in this case because the physician is unable to tell us what the previous condition was in its fullest respect because he just doesn't have all the information. It's the plaintiff who suffers because of this, and I think it made it into an unfair result for him. But I think the cases are clear that it will be more unfair to put defendant in a position where he has no way to really defend himself against the charges the plaintiff is bringing when the plaintiff doesn't fully satisfy his burden of proof in terms of this analysis.

Regretfully, I'm going to grant the motion. Plaintiff's counsel did everything he could do to meet the requirements, but I don't think it's sufficient . . . .

II

As noted above, the Supreme Court, in an opinion rendered after the judge decided this case, held that proof of serious impact is not required under the verbal threshold statute. DiProspero, supra, 183 N.J. at 506. Therefore, we are obliged to reject the judge's reliance on that concept as a basis for the summary judgment.

The judge's other reason for granting the motion was that plaintiff had failed to provide the comparative analysis required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), because his expert did not have sufficient specific information respecting the injuries suffered by plaintiff in the accidents that occurred before the 1995 accident. But Polk does not require that the expert must have all medical records relating to prior accidents. Rather it requires the 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.

[Id. at 575.]

The judge in the instant case assumed incorrectly that Polk requires that all prior medical records relating to the area of injury be considered. But, as is clear from the above quote, Polk only requires that the present injury be compared to the prior residuals. In this case, the prior residuals relating to the cervical spine were clearly established by the 1995 MRI, and that is so even if the MRI findings reflected injuries occurring before 1995. Since plaintiff's expert compared the 1995 cervical MRI with the cervical MRI taken after the 2001 accident, the comparison fully satisfied the requirements of Polk as to the cervical injuries. And since plaintiff met the requirements of Polk, we need not consider whether it is still the law. Compare Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005), with Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). Plaintiff has provided adequate, objective evidence that his cervical injuries are permanent, therefore, he is entitled to "sue for noneconomic loss causally related to all injuries sustained in [the 2001] automobile accident." Puso v. Kenyon, 272 N.J. Super. 280, 293 (App. Div. 1994).

Defendant argues on appeal that the judge erred in permitting plaintiff to submit the comparative analysis on the day of the argument on the motion for summary judgment, contending that action was inconsistent with best practices. But this argument was not presented to the judge. Defense counsel's only comments on the last minute delivery of the 1995 MRI were these:

MR. TRAMONTOZZI: Judge, I am just receiving the undated physician's certification. It has a fax marking that would indicate that it was faxed to somebody at 7:48 this morning. I did have an opportunity to review it in court, however.

. . .

THE COURT: Before you go on to the back.

What's your position about that, the analysis thus far? If that's all there was in the case, would that be satisfactory to you?

MR. TRAMONTOZZI: No, judge.

THE COURT: And if not, tell me why not.

. . .

MR. TRAMONTOZZI: No judge. Even assuming the certification had been timely served and not ten days before the trial date we have here, this does not satisfy Polk.

. . .

THE COURT: Why is your client prejudiced if we have an MRI from '95? What's the problem with that?

MR. TRAMONTOZZI: Because I don't have any records regarding the prior accident.

Although defense counsel also mentioned that his "doctor should have had the opportunity" to review all the prior records, he did not ask for additional time to accomplish that purpose. Nor did he ever actually object to the last minute provision of the 1995 MRI and the plaintiff's expert's comparison of that MRI with the later MRIs.

We are not obliged to consider an issue not raised below. Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 391 (1997). Moreover, the judge's decision to consider the plaintiff's expert's comparative analysis despite its last minute delivery fell well within his discretion. Casinelli v. Manglapus, 181 N.J. 354, 365 (2004).

Reversed and remanded for trial.

 

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A-6083-04T1

March 8, 2006