CYNTHIA G. BRIMMER v. FELIX MELENDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6282-03T56282-03T5

CYNTHIA G. BRIMMER,

Plaintiff-Appellant,

v.

FELIX MELENDEZ,

Defendant-Respondent.

 

Argued November 15, 2005 - Decided January 19, 2006

Before Judges Kestin, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Mercer County, Law Division, Docket No. L-2016-01.

Dennis S. Brotman argued the cause for appellant (Fox Rothschild, attorneys; Mr. Brotman, on the brief).

Gregory J. Giordano argued the cause for respondent (Lenox, Socey, Wilgus, Formidoni, Brown, Giordano & Casey, attorneys; Jennifer E. Troast, on the brief).

PER CURIAM

Plaintiff Cynthia Brimmer appeals from the order of March 19, 2004, granting summary judgment in favor of defendant Felix Melendez, the order of June 9, 2004, denying her motion for reconsideration, and the order of June 25, 2004, denying her motion for relief from judgment. We reverse and remand.

The following facts are relevant to the issues advanced on appeal. On October 24, 1999, plaintiff was involved in an automobile accident with defendant. She asserts that defendant failed to stop at a red light and that he struck the driver's side of her vehicle, which then spun around and hit a nearby garage. According to plaintiff, although she was wearing a seat belt, she was thrown about violently by the force of the collision and struck her head on the windshield. She was treated at an emergency room and released.

Plaintiff asserts that she sustained injuries to her neck and back and that she suffered a brain injury with resulting cognitive impairment. Following the accident, plaintiff pursued a course of treatment related to her neck and back complaints that included extensive use of pain medications and injections administered by Dr. Das, an anesthesiologist and pain management specialist. When that conservative course of treatment failed to resolve her complaints, plaintiff underwent lumbar spinal surgery performed in November 2003 by Dr. Chimenti. In addition to the foregoing treatment, plaintiff was also evaluated and treated for symptoms relating to her head injury. She was diagnosed by Dr. Pendino as suffering from post-concussive syndrome with persistent cognitive symptomatology and her condition was described as falling within the mild to profound range for post-traumatic cognitive deficits.

At the time of the accident, however, plaintiff was being treated for a variety of conditions that complicated the evaluation and treatment of her injuries. She had undergone surgery on her cervical spine in 1990 and had developed significant complaints of pain, including pain in her lower extremities. Prior to the accident in 1999, she had been diagnosed with reflex sympathetic dystrophy and fibromyalgia. Moreover, the report of an MRI study performed in October 1997 revealed that plaintiff then had disc degeneration at L4-L5 and a bulging disc at L5-S1. Dr. Das had been treating plaintiff for her complaints relating to many of these conditions prior to the time of the accident in 1999. In addition, plaintiff had been receiving Social Security Disability payments and she had been treated for a bi-polar condition prior to the 1999 motor vehicle accident as well.

Defendant moved for summary judgment, arguing that all of plaintiff's injuries were merely aggravations of conditions for which she had been treated prior to the accident and that plaintiff had failed to provide a comparative analysis in compliance with the dictates of Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). In response, plaintiff produced a report by Dr. Das which noted the significant differences in plaintiff's ability to function before and after the accident. He described the severity of the deterioration in her level of functioning that had resulted from the accident. He noted that her condition had been controlled conservatively prior to the 1999 accident. He then concluded that the accident had caused her to deteriorate to the point where she was required to undergo spinal surgery. In addition, plaintiff produced a report from Dr. Chimenti, the surgeon, describing the reasons for the spinal fusion surgery he had performed. Finally, plaintiff produced a report from Dr. Churak relating to his neuropsychological evaluation and evidencing the traumatic brain injury plaintiff had sustained.

The motion judge concluded that the proffered reports were not sufficient to meet the Polk standard. She noted that the comparison provided by Dr. Das included opinions about plaintiff's level of functioning that the judge believed were inconsistent with certain notations in his office chart. She therefore concluded that his opinion was an insufficient comparison for Polk purposes. She also rejected the report of Dr. Churak, the psychologist, concerning diminished cognitive functioning. Although Dr. Churak attributed plaintiff's condition to the closed head injury she suffered in the accident, the motion judge disagreed. She commented that plaintiff had not completed high school which, in her view, equated with a pre-existing intellectual impairment that the expert had not considered. She therefore granted defendant's motion for summary judgment.

Plaintiff subsequently filed both a motion for reconsideration and a motion for relief from judgment. Each of these motions was supported by additional, more extensive comparative reports, as a part of plaintiff's continuing effort to comply with Polk. Both motions, however, were denied on the grounds that neither met the requisite standard for relief. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

On appeal, plaintiff urges us to hold that Polk has not survived the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, as another appellate part has recently concluded. See Davidson v. Slater, 381 N.J. Super. 22, 28-29 (App. Div. 2005). In the alternative, plaintiff argues that the motion judge erred in her understanding of plaintiff's claimed injuries and in her interpretation of the sufficiency of the experts' reports for purposes of the Polk test.

We need not address in great detail the growing controversy among the appellate parts concerning the continuing viability of the Polk requirement. Compare Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003); Beltran v. DeLima, 379 N.J. Super. 169, 177-78 (App. Div. 2005) and Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005) with Davidson v. Slater, supra. Rather, our review of the record in this appeal compels us to echo the observation we have already made that "we need not enter the fray completely as, in this case, we are not dealing with the aggravation of a prior injury or condition." Hardison v. King, 381 N.J. Super. 129, 134 (App. Div. 2005).

We reach this conclusion by first considering plaintiff's allegations as to her closed head injury. There is no question but that plaintiff had a long-standing diagnosis of bi-polar disorder for which she had been treated before this accident. There is, however, nothing in the record that suggests that her post-accident diagnosis of a severe cognitive impairment by Dr. Churak, the neuropsychiatric expert, was in any sense an aggravation of her earlier condition. More to the point, there is nothing to support the judge's apparent conclusion that plaintiff had a pre-existing cognitive impairment merely because plaintiff did not graduate from high school. Regardless of whether Polk remains viable or not, there is nothing in the record to support the finding that the injury to plaintiff's brain attributed to the accident in which she struck her head on the windshield is merely an aggravation or exacerbation of a prior condition. Rather, the record reflects that the cognitive impairment is an entirely different condition from the pre-existing psychiatric disorder. We therefore conclude that the motion judge erred in her analysis as it related to plaintiff's head injury.

Although our decision concerning this injury would support reversal as to all issues, see Puso v. Kenyon, 272 N.J. Super. 280, 293-94 (App. Div. 1994), we conclude that the judge's analysis as to the orthopedic and neurological injuries was also flawed. To the extent that these injuries required a Polk analysis at all, the expert opinion provided by Dr. Das was sufficient. In light of the fact that he had served as plaintiff's treating physician throughout her lengthy course of treatment both prior and subsequent to this accident, he was well able to offer an opinion concerning the comparison of her condition before and after the events in question. While a jury might or might not agree with his assertions or his opinions, the comparative opinion he provided in his report adequately performed the Polk analysis. The judge's decision to rely on her contrary view of notations she found in the doctor's medical records rather than to consider the opinions he expressed in the report was inappropriate under the circumstances. See Moreno v. Greenfield, 272 N.J. Super. 456, 463 (App. Div. 1994).

 
Reversed and remanded.

This argument was not included in plaintiff's brief on appeal, but was raised as a part of the oral argument in light of recent decisions.

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A-6282-03T5

January 19, 2006