REBECCA ZICKLER, (NOW KNOWN AS FEGLEY) v. FREDERICK J. MILLER, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6517-03T56517-03T5

REBECCA ZICKLER, (NOW KNOWN AS

FEGLEY),

Plaintiff-Appellant,

v.

FREDERICK J. MILLER, JAMES G.

FEGLEY, JR., PAUL F. GROFFIE,

ANNETTE THURLO and JEAN GUILLAME,

Defendants-Respondents.

___________________________________

 

Argued March 27, 2006 - Decided April 20, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Burlington County, Docket No.

BUR-L-000177-02.

Harris C. Legome argued the cause for appellant

(Wallace & Legome, attorneys; Mr. Legome, on the brief).

Anthony Young argued the cause for respondent,

Frederick J. Miller (Parker, McCay, attorneys;

Stacy L. Moore, Jr., on the brief).

Michael J. Jubanyik argued the cause for respondent,

James G. Fegley (Law Office of Salvatore A. Alessi,

attorney; Mr. Jubanyik, on the brief).

No brief filed on behalf of respondent, Annette Turlo.

No brief filed on behalf of respondent, Jean Guillaume.

PER CURIAM

This is a "limitation on lawsuit" threshold case in which plaintiff, Rebecca Zickler, appeals from a summary judgment dismissing her personal injury, automobile negligence complaint. The judge concluded, based on the motion papers, that plaintiff's proofs did not establish a Polk comparative analysis deemed necessary because of a pre-existing condition. 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 April 19, 2000, plaintiff was a passenger in a car involved in a multi-vehicle accident. She was taken to the emergency room where she complained of pain and swelling of her left knee, which had directly struck the dashboard during the accident. She was diagnosed with a left knee sprain.

Plaintiff thereafter treated with Dr. Krasnick, an orthopedic surgeon, who had treated plaintiff for a prior injury to her left knee, as a result of a slip and fall on May 30, 1999, for which plaintiff successfully underwent an anterior cruciate ligament (ACL) reconstruction on December 20, 1999. In fact, by the time of the present accident, plaintiff's left knee condition was generally unremarkable; she was nearing complete recovery; and her anterior knee pain had all but subsided.

In any event, as a result of the present accident, Dr. Krasnick reevaluated plaintiff on April 20, 2000, and noted that she had sustained direct anterior trauma to her left knee. Objectively, she manifested an antalgic gait with diffuse tenderness about the patella, had a small effusion and could only flex from neutral to 60 . An MRI of May 24, 2000, revealed the ACL graft to be intact, but also showed that plaintiff suffered tears to the posterior horn of the medial meniscus and to the anterior horn of the lateral meniscus. Consequently, Dr. Krasnick performed arthroscopic surgery on June 16, 2000, to evaluate the extent of plaintiff's injuries. He found an extensive anterior horn tear of the lateral meniscus, and thus performed a partial lateral meniscectomy and joint debridement. In his post-operative report of December 4, 2000, Dr. Krasnick noted that there was a meniscal tear requiring a partial meniscectomy, palpable and audible progressive crepitus and progressive chondromalacia. He further compared this condition to plaintiff's post-1999 ACL surgery course which was unremarkable. According to Dr. Krasnick, plaintiff was progressing well when she suffered "a severe setback" due to the April 19, 2000 accident.

Plaintiff's recovery was not complete following the June 16, 2000 procedure. As of August 31, 2000, when she was first reevaluated following the surgery, plaintiff was still symptomatic with progressive pain and a physical examination revealed continued palpable crepitus. Because her symptoms increased, plaintiff underwent another operative procedure on July 30, 2001, her second surgery following the April 19, 2000 motor vehicle accident. At the time, Dr. Krasnick diagnosed chondromalacia, fibrous plicae, and minimal degenerative changes. The July 30, 2001 surgery consisted of joint debridement, removal of the plicae and chondroplasty.

In a June 14, 2002 report, Dr. Krasnick noted that plaintiff's chondromalacia had developed into frank arthrosis, and that her left knee condition had continued to deteriorate. He opined that plaintiff would eventually require a total knee reconstruction based on her progressive condition of arthrosis, which was, he concluded, directly caused by the April 19, 2000 motor vehicle accident.

Because of persistent and recurrent knee buckling, a third surgery was indicated. On November 15, 2002, Dr. Krasnick performed an arthroscopy and determined that plaintiff continued to suffer from chondromalacia and post-operative fibrosis. Based on this intervening surgery, Dr. Krasnick, in a report dated May 23, 2003, indicated that due to the injuries sustained in the April 19, 2000 car accident, plaintiff would eventually require a total knee replacement within ten to fifteen years. At that time, plaintiff suffered from mono compartmental arthrosis, which Dr. Krasnick hoped to alleviate first with a knee cap replacement.

Despite Dr. Krasnick's various reports establishing the April 19, 2000 motor vehicle accident as a causative factor, there was some conflicting proof as to the nature of plaintiff's pre-existing condition and the role that the 1999 slip and fall incident played in plaintiff's present knee condition. This was because an MRI performed on September 7, 1999, shortly after the slip and fall accident, was interpreted as suggesting plaintiff suffered three distinct injuries as a result thereof: (1) "a tear involving the posterior horn of the medial meniscus"; (2) "possibly a subtle tear involving the anterior horn of the lateral meniscus"; and (3) a tear "involving the anterior cruciate ligament [ACL] with some bruise." However, Dr. Hiro Pahlajani, who conducted the MRI, suggested "[c]linical correlation."

That occurred during the December 30, 1999 arthroscopic surgery, which involved the successful ACL reconstruction, but apparently no other procedure. Indeed, in his later report of December 4, 2000, Dr. Krasnick summarizes the surgical procedure to the ACL without mentioning any menisci tear in need of repair. The clear implication, of course, is that the menisci were intact at that time. Moreover, in subsequent reports of June 14, 2002, and May 23, 2003, Dr. Krasnick expressly concluded that plaintiff's follow-up surgical procedures were necessitated by left knee injuries sustained in the April 19, 2000 motor vehicle accident.

This confusion over the condition of plaintiff's menisci post-1999 incident no doubt explains the judge's summary judgment dismissal of plaintiff's complaint. She reasoned thusly:

As I started to rule earlier with regard to the injury to the left knee, I don't want to repeat myself, it's already reflected on the record that there has to be an objective evidence of an injury, it has to be causally connected to the motor vehicle accident. There's a claimed injury to the left knee; what specifically we have to look at. Prior to the motor vehicle accident plaintiff had already [a] . . . disrupted ACL, plaintiff claims a torn meniscus, but a tear of the medial meniscus and a tear of the lateral meniscus were reflected on the MRI which was prior to the motor vehicle accident.

There was a torn lateral and medial meniscus seen on the MRI after the motor vehicle accident, and there was a torn lateral meniscus seen in surgery after the motor vehicle accident. But the records reflect that these were seen in the MRI prior to the motor vehicle accident.

I'm not sure exactly what injury to the left knee is actually alleged to have occurred as a result of the motor vehicle accident, therefore. As I said the torn meniscus was shown on the MRI prior to the motor vehicle accident. And the claim of progressive chondromalacia can't proceed in and of itself.

. . . .

It's undisputed that the plaintiff has experienced left knee problems. And may indeed require knee replacement in the future. The question is whether her condition and her future surgery is causally related to this motor vehicle accident.

. . . .

I am not satisfied that there has been an appropriate Polk analysis so as to allow the claim to proceed forward. And I believe that [the] trier of fact would indeed be speculating based on the record that's before me what is supposed to be due to the motor vehicle accident and what is not supposed to be due to the motor vehicle accident. And that burden falls upon the plaintiff.

. . . .

We disagree. There was no need for a Polk analysis.

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 suggests that plaintiff sustained an injury to her left knee which "has not healed to function normally, and will not heal to function normally." N.J.S.A. 39:6A-8a. The question is whether sufficient evidence exists to further suggest that the qualifying injury was caused by the April 19, 2000 motor vehicle accident, rather than the 1999 slip and fall incident.

We are satisfied that the objective medical evidence here, including the May 24, 2000 MRI, the physician's examinations and surgical procedures, create, at the very least, a genuine issue of material fact as to the distinctness of plaintiff's left knee injuries. Consequently, no Polk comparative analysis was required in this case. According to Dr. Krasnick, plaintiff underwent successful ACL reconstruction from the 1999 fall and was recovering well from that injury. Prior to the subject accident, plaintiff was in no acute distress, had good motion, and her left knee was clinically stable. Whatever the nature and extent of her pre-existing condition then, plaintiff's left knee had been essentially functionally quiescent until the subject motor vehicle accident. Under these circumstances, no comparative analysis was necessary as plaintiff's proofs, even absent Dr. Krasnick's December 20, 1999 operative report, 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).

In fact, Dr. Krasnick's operative report of December 20, 1999, which was provided in discovery, but inexplicably not in opposition to defendants' summary judgment motion, determined that: "[b]oth menisci were found to be intact both to inspection and palpation. Medially and laterally there were no degenerative changes." The motion judge declined to consider this report, however, when later submitted by plaintiff in support of her motion for reconsideration, which was denied. We need not consider the propriety of the motion judge's decision in this regard because other evidence, independent of the December 20, 1999 operative report, raises at least a factual dispute that plaintiff's menisci were intact following the 1999 slip and fall accident.

(continued)

(continued)

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A-6517-03T5

April 20, 2006