KENNETH LOWE v. CONTINENTAL INSURANCE COMPANY OF NEW JERSEY AND/OR ALLSTATE INSURANCE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6124-04T26124-04T2

KENNETH LOWE,

Plaintiff-Appellant,

v.

CONTINENTAL INSURANCE COMPANY OF

NEW JERSEY AND/OR ALLSTATE INSURANCE

COMPANY,

Defendants-Respondents.

____________________________________

 

Argued August 8, 2006 - Decided August 18, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey,

Law Division, Cumberland County, Docket No. L-1002-03.

Daniel E. Rosner argued the cause for appellant

(Adam L. Brent, on the brief).

Theresa Garcia argued the cause for respondent Encompass Insurance (Hoagland, Longo, Moran, Dunst &

Doukas, attorneys; Frank J. Caruso, Of counsel and on

the brief).

PER CURIAM

This is a "limitation on lawsuit" threshold case in which plaintiff, Kenneth Lowe, appeals from a summary judgment dismissing his uninsured motorist complaint for personal injuries. The judge concluded, based on the motion papers, that plaintiff's proofs did not establish a Polk comparative analysis deemed necessary because of both pre-existing and subsequent injuries. We disagree 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 June 11, 2000, plaintiff was driving a car that was rear-ended by a vehicle operated by an uninsured driver. Plaintiff sought emergency room treatment, complaining of neck pain radiating into his upper right arm. He was discharged the same day.

Thereafter, plaintiff treated with Dr. James Panaia for the next seventeen months. An MRI of plaintiff's cervical spine on October 10, 2000, revealed four disc herniations, three of which impinged on the cord with moderate spinal canal stenosis. An upper extremity EMG on November 15, 2000, revealed bilateral cervical radiculopathy localized to the bilateral C-7 and right C-6 nerve roots, and right carpal tunnel syndrome. Dr. Panaia concluded that the disc herniations and radiculopathy were the direct result of the June 11, 2000 accident and were permanent injuries that would not heal to function normally even with further treatment.

Dr. Seth Jaffe, an orthopedic surgeon to whom plaintiff was referred on August 10, 2000, also related plaintiff's symptoms to the June 11, 2000 car accident, as did Dr. Barry Korn, a pain management specialist who administered plaintiff a series of trigger point injections, and Dr. Alexander Pendino, plaintiff's neurologist. According to plaintiff, he continued to suffer significant neck pain at the time of his involvement in another car accident on December 13, 2001, wherein he reinjured his neck and back, this time sustaining a new cervical disc herniation at C3-4 and, according to Dr. Laurence Barr, an aggravation of chronic traumatic cervical sprain and strain. In his report comparing these injuries, Dr. Panaia concludes:

based upon reviewing the medical records and the patient's subjective complaints and objective findings it is my opinion that Kenneth Lowe incurred 50% cervical spine injury from the 2000 accident and he incurred a 50% exacerbation of the pre-existing injury to the cervical spine as a result of the December 13, 2001 motor vehicle crash.

Prior to the June 11, 2000 car accident at issue here, plaintiff suffered minor injuries to his neck and back in a series of accidents dating back to 1982. In a March 30, 1982 car accident, plaintiff sustained soft tissue injuries with normal x-rays, no neurological findings, and no radicular symptoms in his lower or upper extremities. In a work-related incident on October 21, 1993, plaintiff suffered a mild lumbar strain and sprain, and x-rays were negative. Another worksite incident in 1999 resulted in a minor hip injury for which plaintiff experienced no restrictions or limitations. Dr. Korn confirmed that plaintiff had completely healed from these injuries before his June 11, 2000 accident.

In granting summary judgment for defendant, Encompass Insurance Company, the motion judge found that plaintiff failed to present the necessary expert analysis to distinguish injuries sustained in the June 11, 2000 car accident from injuries he sustained in both prior and subsequent accidents. He concluded summarily:

First of all, Polk requires that an expert supply supporting objective data and discussion, and so the issue is whether or not this report that comes in rather late in the game . . . after the discovery end date

. . . .

[A]nd not because it's unsigned or undated -- let's just assume that it's dated and signed -- that it is not a sufficient analysis under Polk. It doesn't really have the objective data and discussion and it's not complete, and I just think it is inadequate.

Accordingly, I am granting the summary judgment, based on that one factor alone.

We disagree. There was no need for a Polk analysis in this case.

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).

Indisputably, the objective medical evidence here, including the MRI test and EMG evaluation, along with the physicians' physical examinations and resulting findings, establish that plaintiff sustained multiple cervical disc herniations and correlating nerve damage and radiculopathy in the cervical spine as a direct result of the June 11, 2000 car accident, and that these injuries qualify as permanent. N.J.S.A. 39:6A-8a. We reject defendant's contention, which was not pressed at oral argument before us, that there was insufficient proof of permanency for a jury's consideration.

As for the distinctiveness of plaintiff's 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, 186 N.J. 243 (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").

Even assuming otherwise, we are nevertheless satisfied that no Polk analysis was required in this case. The medical proofs demonstrate that none of these previous injuries were permanent or involved disc or nerve damage and, in fact, all had completely healed by the June 11, 2000 accident. See Loftus-Smith v. Henry, 286 N.J. Super. 477, 491 (App. Div. 1996); Foti v. Johnson, 269 N.J. Super. 198, 203 (App. Div. 1993). As to the subsequent car accident on December 13, 2001, the medical proof demonstrates that plaintiff sustained a new disc herniation, not present in previous diagnostic studies, thus rendering plaintiff's June 11, 2000 injuries sufficiently distinct and distinguishable from those post-accident to establish, at the very least, a genuine issue of material fact concerning their nature and extent, as well as causation. See Lucky, supra, 380 N.J. Super. at 573. Thus, 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 defendant's motion for summary judgment. Foti, supra, 169 N.J. Super. at 203. Of course, causation remains a question of fact for the jury to decide.

And finally, assuming both Polk's continuing viability and the need for such a comparative analysis in this case, we further conclude that Dr. Panaia's letter report, albeit belated and somewhat cursory, satisfies the requirement.

Reversed and remanded for trial.

 

Improperly pled as Continental Insurance Company of New Jersey and/or Allstate Insurance Company.

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

On February 5, 2006, plaintiff had injured his shoulder when he slipped and fell on ice, but no further injury to his neck or back was noted at the time.

(continued)

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A-6124-04T2

August 18, 2006