MILAGROS CRUZ v. MINAL B. MANKAD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1985-05T51985-05T5

MILAGROS CRUZ,

Plaintiff-Appellant,

vs.

MINAL B. MANKAD and BHANATKUM

M. MANKAD,

Defendants-Respondents.

____________________________________

 

Argued October 12, 2006 - Decided December 6, 2006

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-9136-04.

David J. Ades argued the cause for appellant.

Eric Christopher Landman argued the cause for respondents (Sherman & Viscomi, attorneys; Mr. Landman, on the brief).

PER CURIAM

Plaintiff Milagros Cruz appeals from the November 4, 2005 order granting summary judgment, dismissing her appeal for failure to present objective evidence of permanent injury within the meaning of the Automobile Insurance Cost Reduction Act (AICRA). N.J.S.A. 39:6A-1.1 to -35. We now reverse.

The pertinent facts are not in dispute. On January 29, 2003, plaintiff was struck by a motor vehicle operated by defendant Minal B. Mankad and owned by Bhanatkum M. Mankad as she loaded groceries into the trunk of a car. The impact briefly left plaintiff pinned between the two cars. She was transported via ambulance to J.F.K. Hospital emergency room where x-rays of the left knee revealed: "[N]o effusion detected. There is no fracture or dislocation noted. There is a small posterior osteophyte at the inferior patella. No other significant degenerative changes are noted. Impression: Early degenerative changes. No osseous trauma evident." A February 19, 2003 MRI of the left knee revealed a joint effusion throughout, which the radiologist indicated could be attributed to a contusion. Plaintiff was diagnosed with a left knee contusion and discharged with instructions to ice and to follow up with her primary care physician. Three days later, plaintiff was treated by her primary care physician, Dr. Arthur Miller of Highland Park Family Practice. Plaintiff treated with Dr. Miller until March 2003, at which time Dr. Miller's records indicated plaintiff's knee was "doing better" and plaintiff's fourteen visits to physical therapy had helped, but that there was grinding under the patella and "crepitation in [the] knee with pain."

Dr. Miller referred plaintiff to Edison-Metuchen Orthopedic Group where she was first evaluated on July 9, 2003 by Dr. Walter Urs for problems in her "back, left trochanteric area, and left knee." Her follow-up evaluation on July 11, 2003 revealed that although she had been given a corticosteroid injection and Bextra, there was no improvement in her symptoms. Dr. Urs also reported that plaintiff suffered post-traumatic chondromalacia patella of the left knee, left trochanteric bursitis, and lumbar strain. He injected her left hip with Depo-Medol and Lidocaine and gave her Mobic. Plaintiff received an additional corticosteroid injection in her left knee on September 8, 2003, and was prescribed Mobic and physical therapy.

An MRI of the lumbar spine taken on November 29, 2003 revealed "marked levoscoliosis[;] [d]isc desiccation at L3-4, L2-3, and L1-2[;] [and] [n]o evidence of focal herniation or spinal canal stenosis."

Plaintiff visited Dr. Urs again on October 20, 2003, and he reported that there was a "good deal of grinding" in the left knee. He prescribed a Synvisc injection, but it was denied by the PIP carrier on November 12, 2003. Dr. Urs wrote to the PIP carrier requesting that they reconsider because plaintiff's injuries were causally related to the accident of January 29, 2003, and were medically necessary as the knee problems persisted despite medication, physical therapy, and cortisone injections. The PIP carrier renewed its denial on January 12, 2004.

Plaintiff also saw Dr. David Idank of Edison-Metuchen Orthopedic Group, who prescribed Darvocet N-100, to be taken as needed, and also prescribed a cortisone injection to the sacroiliac region, which was administered on October 18, 2003. Dr. Idank reported on October 28, 2003, that the injection provided only three days of partial relief for plaintiff's back pain and recommended an MRI of the lumbar spine.

Plaintiff also visited a chiropractor, Dr. Norman Decker, in September of 2004 in another attempt to obtain relief, but according to her deposition, the treatments were not effective.

In early 2005, plaintiff retained Dr. Stephen J. Swartz as her expert. He reviewed plaintiff's treatment records, examined plaintiff, and certified that she suffered a permanent injury that would not be cured with further medical treatment. In his report, he found that plaintiff "sustained trauma to the posterior lateral portion of her left knee directly causing her to have a patellafemoral syndrome, an iliotibial band syndrome, left trochanteric bursitis, and a chronic left sacroilitis." Dr. Swartz also concluded that "her patellofemoral syndrome is directly related to the accident and is not degenerative in nature." Referring to the significance of the x-ray taken the day of the accident, Dr. Swartz opined:

Although [plaintiff's] x-rays . . . showed a posterior osteophyte and although this x-ray was read as consistent with degenerative arthritis, the posterior osteophyte is not significant. [Plaintiff] had no symptoms of knee pain and has no evidence for generalized arthritis. [Plaintiff] has no pain in her right knee and no significant crepitation on the right knee as well. In someone with degenerative arthritis, it would be expected that she would have symmetric joint involvement.

Dr. Swartz diagnosed "crepitation with anterior knee pain." Defendants, as part of their summary judgment motion, argued that plaintiff was required to submit a Certification of Permanency from a treating physician, which plaintiff had not done, thus entitling defendants to summary judgment on that basis alone. In response, plaintiff submitted a Certification of Permanency from her treating physician, Dr. Walter Urs. Dr. Urs' certification stated that based upon his review of "medical test results" and his treatment of plaintiff, he concluded that she suffered a permanent injury, describing it as "post traumatic degenerative joint disease left knee, related to accident and permanent."

In granting summary judgment to defendants, the motion judge found no objective medical evidence of a permanent injury to plaintiff's back. He did, however, find objective evidence of a pre-existing arthritic condition in plaintiff's knee based upon the January 29, 2003 x-ray and the February 19, 2003 MRI. Beyond degenerative arthritic changes, the judge concluded that the record revealed plaintiff's remaining injuries were attributed to a contusion, which he found was not a permanent injury under AICRA.

Our analysis begins with a reiteration of the basic principles of appellate review. The standard of review of a trial court's grant of summary judgment is the same as that employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied,

154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue as to any material fact challenged. R. 4:46-2(c). The ultimate question in a summary judgment motion is whether, upon a review of the pleadings, deposition testimony and other competent evidence presented, in a light most favorable to the non-moving party, a rational fact-finder could resolve the alleged disputed issue in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff asserts that the record contains objective evidence that her knee and back injuries were traumatically induced, are permanent, and will not improve with further medical treatment; therefore, she has crossed the verbal threshold and the judge erred in granting summary judgment to defendants. We agree.

In reviewing the evidence and deciding the motion, the motion judge was obliged to accord to plaintiff the benefit of all favorable inferences. Ibid. The judge did not do this. Instead, he decided that the x-ray report was indicative of a generalized pre-existing degenerative condition. In making this finding, the judge took on the role of fact-finder, thereby intruding into the jury's role. Shelcusky v. Garjulio, 172 N.J. 185, 200 (2002).

The record shows that Drs. Miller, Urs and Swartz all reported crepitus in plaintiff's knee, described in their reports as grinding, crunching, or clicking in the joint. While we agree that plaintiff's diagnostic testimony was limited to an x-ray and two MRIs, diagnostic testing is but one form of objective clinical evidence which AICRA establishes as a method to establish the existence of a permanent injury. In determining the necessary information that must be included in the certification of a licensed physician under the AICRA, the statute provides:

The certification shall be based on and refer to objective clinical evidence, which may include medical testing, except that any such testing shall be performed in accordance with medical protocols pursuant to subsection a. of section 4 of P.L. 1972, c. 70 (C.39:6A-a) and the use of valid diagnostic tests administered in accordance with section 12 of P.L. 1998, c. 21 (C.39:6A-4.7). Such testing may not be experimental in nature or dependent entirely upon subjective patient response.

[N.J.S.A. 39:6A-8(a).]

We are satisfied, when viewed in the light most favorable to plaintiff, Brill, supra, 142 N.J. at 540, a reasonable jury could conclude from plaintiff's proofs that plaintiff sustained permanent injuries to her left knee causally related to the accident of January 29, 2003.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-1985-05T5

December 6, 2006