KAREN BAKER ANDERSON v. UNSATISFIED CLAIM AND JUDGMENT FUND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3971-04T53971-04T5

KAREN BAKER ANDERSON,

Plaintiff-Appellant,

v.

UNSATISFIED CLAIM and JUDGMENT

FUND,

Defendant-Respondent.

_______________________________________

 

Submitted October 26, 2005 - Decided November 17, 2005

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County

L-1703-03.

Cary & Icaza, attorneys for appellant

(Douglas D. Burgess, on the brief).

Hoagland, Longo, Moran, Dunst & Doukas,

attorneys for respondent (Joseph C.

Liguori, of counsel and on the brief).

PER CURIAM

Plaintiff Karen Baker Anderson was struck by a car driven by an uninsured motorist. She appeals from a grant of summary judgment in favor of defendant, Unsatisfied Claim and Judgment Fund (UCJF), on her complaint for non-economic losses resulting from injuries sustained in the accident. The trial judge found her medical evidence inadequate to establish an injury that meets one of the six standards established by N.J.S.A. 39:6A-8a and essential to recovery of non-economic damages pursuant to N.J.S.A. 39:6-70(n).

We consider the evidence in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On April 26, 2001, plaintiff was struck by a car driven by an uninsured motorist while crossing Main Street in Belleville. Plaintiff was treated at the Clara Maass Medical Center. An x-ray of her left knee revealed "a small avulsion fracture at the lateral corner of the lateral tibial plateau and a fracture to the base of the intercondyloid aminence." She was released with crutches and a referral for follow-up care.

Dr. Boiardo first saw plaintiff on May 14, 2001. She had persistent and severe pain and the range of motion of both her left and right knee was restricted. She also had pain in her right ankle and its range of motion was restricted. The doctor prescribed anti-inflammatory medication and ice treatment, gave plaintiff immobilizers for her knees and ordered MRI studies.

A report on an MRI of plaintiff's left knee dated May 23, 2001, indicated the following:

1. Separation of the medial collateral ligament from the periphery of the medial meniscus and from the femoral cortex. This can be seen with meniscocapsular separation.

2. Signal hyperintensity in the posterior horn of the medial meniscus, more compatible in appearance with degeneration than tear.

3. Evidence of a focal intrasubstance injury (intrasubstance tear versus tendinitis) involving the distal aspect of the patellar tendon.

4. Large zone of marrow edema in the proximal tibia, compatible with a non-displaced fracture and/or bone contusion. Correlation with plain radiographs is recommended.

5. Bone contusion versus non-displaced fracture involving the fibular head.

6. Large joint effusion.

A report on an MRI of plaintiff's right knee, also dated May 23, 2001, indicated the following:

Marrow hyperintensity, as seen on the Inversion recovery images, in the visualized proximal fibular shaft without evidence of associated soft tissue edema. This is non-specific. If this is post-traumatic in etiology, the possibility of a stress injury versus bone contusion should be considered. [The possibility of osteomyelitis was deemed less likely and bone tumor was not excluded.]

Plaintiff wore the knee immobilizer until mid-September 2001.

A year after her initial MRIs, on May 6, 2002, MRIs of plaintiff's right and left knee showed improvement; the fractures had healed, but areas of bone edema, consistent with trauma, to the left knee remained. The report on her left knee was as follows:

No joint effusion or popliteal cyst is present. Transaxial images demonstrate no chondromalacia of the patella. The joint space is intact. No fractures are identified. There are some focal areas of decreased signal intensity in the tibial plateau medially and laterally on the T1 sequences which shows increased signal intensity on T2 sequences consistent with patchy bone edema.

The anterior and posterior cruciate ligaments are normal without tear or disruption. The medial and lateral collateral ligaments are normal. The patella and quadriceps tendons are intact.

The signal intensity configuration of the anterior and posterior . . . of the medial and lateral meniscus are normal. No meniscal tear is identified.

IMPRESSION: There are some focal areas of bone edema in the medial tibial plateau which may be post-traumatic. The study is otherwise normal.

Dr. Ahmed E. Eleman, M.D. evaluated plaintiff on July 5, 2002. He found "slight swelling" of the left knee and a twenty- degree differential between the range of motion of the left and right knees. His clinical impression was "left knee internal derangement."

On July 19, 2002, Dr. Boiardo noted "marked improvement," but also noted continued complaints of left knee pain and indicated that the physical examination was "essentially unchanged." On September 3, 2003, Dr. Boiardo wrote:

We have a 36 year-old woman who as a direct cause and result of a motor vehicle accident as [a] pedestrian struck by a motor vehicle sustained injuries to both knees and the right ankle.

As a direct cause and result of this injury, this patient unfortunately sustained a nondisplaced left tibial plateau fracture, stress fracture of the right fibula on the right and an injury to the soft tissues of the right ankle.

As a direct cause and result of this injury, both knees were immobilized for a period of time followed by aggressive physical therapy.

As a direct cause and result of this injury, in all medical probability this patient will unfortunately realize a partial permanent disability and especially with respect to the left knee may realize surgical approach in the future.

In support of this litigation, Dr. Boiardo certified, within a reasonable degree of medical probability and under penalty of perjury, that plaintiff, his patient, sustained an injury to her left knee that "is permanent, has not healed to function normally and will not heal to function normally with further medical treatment."

In order to meet the threshold set in N.J.S.A. 39:6A-8(a), a plaintiff need only prove "by objective clinical evidence, supported by a physician certification, under penalty of perjury, an injury [caused by the subject accident] fitting into one of the six statutorily defined threshold categories." Serrano v. Serrano, 183 N.J. 508, 518 (2005). Plaintiff's evidence meets that standard.

Plaintiff asserts a "permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a). Specifically, her claim is that "[her left knee] . . . has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Her physician's certification attests to that qualifying injury. It is supported by an MRI and clinical evaluation that revealed objective evidence of the injury, bone edema and swelling of the left knee, accompanied by pain and limited range of motion more than one year after the accident. See McClelland v. Tucker, 273 N.J. Super. 410, 415-16 (App. Div. 1994).

Reversed and remanded for further proceedings.

 

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A-3971-04T5

November 17, 2005