ALICE HOFFMAN v. SYDNEY A. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3715-03T42111-04T1

ALICE HOFFMAN &

ROBERT HOFFMAN,

Plaintiff-Appellants,

v.

SYDNEY A. SMITH,

Defendant-Respondent.

_____________________________

 

Argued December 21, 2005 - Decided January 30, 2006

Before Judges Conley and Lihotz.

On appeal from Superior Court of New

Jersey, Law Division, Cumberland County, Docket No. L-246-03.

David W. Burns argued the cause for appellants (Segal & Burns attorneys; Mr. Burns, on the brief).

Francis X. Ryan argued the cause for respondent (Green, Lundgren & Ryan, attorneys; Mr. Ryan and Alexa J. Nasta, on the brief).

PER CURIAM

The trial court dismissed plaintiffs' auto negligence action, after granting defendant's motion for summary judgment, based upon a finding that plaintiffs' expert failed to perform a Polk comparative analysis of a pre-existing lower back condition and further, because the proofs regarding plaintiff's soft-tissue injury failed to evidence an objective, permanent injury under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. We find Polk is inapposite and the evidence before the trial judge was sufficient to create a genuine issue of material fact which should not have been resolved by summary judgment.

A moving party is entitled to summary judgment only if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we apply the standard articulated by the Supreme Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520:

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Id. at 540.]

Viewed most favorably for plaintiffs, the facts in the motion record reveal the following. On September 13, 2001, while driving her vehicle traveling eastbound on Route 40, plaintiff Alice Hoffman approached the intersection of Routes 40 and 50 in Hamilton Township. Defendant, who was traveling southbound on Route 50, made a left turn in front of plaintiff's vehicle, crossing into her path of travel. The vehicles collided.

Plaintiff, who was sixty years old at the time of the accident, began experiencing symptoms several days after the accident and commenced treatment with Dr. Russell C. Doyle, a state licensed chiropractic physician of Millville Chiropractic Center, on September 21, 2001.

In his November 14, 2002 report, Dr. Doyle described the course of plaintiff's treatment, related her progress, and offered his opinion as to her injuries and prognosis:

In the standing position there were palpable muscle

spasms in the cervical, thoracic, and lumbar spine.

Lumbar range of motion was tested and revealed

restriction in all planes of motion to 75% of normal.

The patient did complain of radiating pain down the

right lower extremity. Cervical spine range of motion

was tested and was restricted to 70% of normal. There

was a positive right and left shoulder depression

test. Muscle stretch reflexes for the upper extremity

were +2 bilaterally.

RADIOGRAPHIC REVIEW

X-rays taken in my office were taken in the standing position. The anterior posterior full spine view reveals multiple levels of vertebral misalignment. Cervical spine sectional views reveal degenerative changes at the levels of C5 and C6. Lumbar spine sectional views reveal degenerative changes at the L5 level.

DIAGNOSIS

Having had the opportunity to evaluate this patient through history, physical examination,

as well as radiographic examination it is my

opinion that she suffers from the following injuries:

1. Acute traumatic cervical sprain/strain.

2. Acute traumatic lumbar sprain/strain.

3. Paraspinal muscle spasms.

4. Left traumatic cephalgia.

TREATMENT

Spinal manipulation was used to improve

the normal kinetic movement of the spine. . . . Adjunctive physiotherapy consisting of electrical muscle stimulation was also utilized to help decrease

muscle spasms. [Plaintiff] was given orthopedic pillows...[and] also instructed to do cryotherapy

at home to help reduce[] localized edema.

. . .

It is my opinion that the injuries that [plaintiff] sustained are a direct result of

the motor vehicle accident of September 13, 2001.

. . .

[Plaintiff] has responded appropriately to treatment with a decrease in symptomatology and increase in spinal function. However, she has

had numerous exacerbations from non-traumatic incidents. These incidents could be as routine

as standing in the kitchen cooking dinner. . . .

Physical examinations during her course of

treatment have shown a significant improvement

in the cervical spine with a restoration of range

of motion and dramatic decrease in pain. However,

the patient's lumbar spine and right sacroiliac

joint continue to be unstable and cause pain and exacerbations due to routine activities of daily living. Based upon my evaluation and treatment of

this patient over her course of care, it is my

opinion she does have permanent injury sustained to the lumbar spine and sacroiliac

joint on the right side and that her activities

of daily living will continue to have to be

curtailed in an attempt to avoid exacerbations

of her injuries.

Dr. Doyle's subsequent reports show plaintiff continued in his care through October 20, 2004, treating for pain, muscle spasms, and "limited spinal function . . . affecting her [l]umbar [s]pine and her [r]ight [s]acroiliac [j]oint." He opined "her [l]umbar [s]pine [i]njuries including the bulging discs, are a permanent result of the motor vehicle accident on September 13, 2001."

Dr. Doyle referred plaintiff to Ronald L. Brody, M.D. for a medical evaluation of her injuries. Dr. Brody's report, after his examination of plaintiff on April 16, 2002, stated his impression of plaintiff's symptomatology as:

(1) Chronic cervical strain and sprain.

(2) Chronic lumbosacral strain and sprain.

(3) Myofascitis. (4) Lumbosacral radic-

ulopathy. (5) Right sacroiliitis. (6)

Exacerbated depression. (7) Tension headaches.

As a result of this examination, Dr. Brody recommended continuation of chiropractic care along with additional tests and treatment including: an EMG and nerve conduction study of the lower extremities, a TENS unit, steroid injections for the right sacroiliac joint as well as to the cervical and lumbosacral paraspinal muscles, high voltage electrogalvanic stimulation and deep muscle massage to the cervical and lumbosacral regions, ultrasound to the right SI joint, myofascial release techniques, physical therapy, counseling for support and to learn relaxation techniques, the use of a lumbar seat and cervical pillow, whirlpool therapy, the use of exercise, stretching and instruction on neck and back conservation and proper body mechanics.

A second opinion was sought from Lawrence I. Barr, D.O. of Garden State Orthopaedics. Dr. Barr examined plaintiff on November 19, 2002, noting her history included, among other medical issues, a prior work related injury in her left arm and a low back sprain that had occurred "many years ago." His review of the x-rays showed "advanced degenerative disc disease at L5-S1." The examination of plaintiff's lumbosacral spine revealed "midline tenderness through the entire lumbar spine and (restriction) to 70% to 75% of normal in forward flexion, extension, side bending and rotation." Dr. Barr concluded plaintiff sustained "injuries as a result of the accident of September 13, 2001" including: "Posttraumatic lumbosacral sprain and strain with superimposed degenerative dis[c] disease at L5-S1, with right lower radicular symptoms; rule out herniated dis[c]." He recommended continuation of chiropractic

treatment, use of nonsteroidal anti-inflammatory medications, and an MRI study of plaintiff's lumbar spine.

After a follow-up examination on April 15, 2003, Marc L. Kahn, M.D., also of Garden State Orthopaedics, reported his "[e]xamination of the lumbar spine reveal[ed] midline tenderness and right paravertebral muscle tenderness. There [was] right sacroiliac joint tenderness[]" and "mild protective spasm on the right-hand side. The patient lack[ed] 2 inches of toe touch." Dr. Kahn's impressions were: "1) Chronic posttraumatic lumbosacral sprain and strain. 2) Aggravation of preexisting degenerative disease. 3) Chronic pain syndrome. 4) Chronic myofascitis. 5) Chronic lumbar facet syndrome." Dr. Kahn concluded plaintiff "will have permanent symptomatic residuals as the result of the motor vehicle accident. . . ."

An MRI study, completed on May 8, 2003, verified "[m]ild bulging annulus at L4-5, L3-4 and L2-3, best demonstrated on sagittal, T2 weighted sequences" and "[m]ild to moderate degenerative, mid to lower lumbar spinal stenosis."

In the course of the lawsuit discovery it was learned that plaintiff had been treated on April 23, 1998, for right menisci tears after a fall and in December 1996 saw Stephen Soloway, M.D. FACP, FACR for "severe right hip and leg pain." Dr. Soloway also provided an "emergency consultation" on March 16, 2001, because plaintiff was experiencing "severe lower back pain." At that time, Dr. Soloway listed his impression as "[l]eft presacral bursitis." A follow-up office note from March 21, 2001 explained X-rays showed "severe facet arthritis" resulting in the conclusion that plaintiff has "spinal stenosis and/or combined arthropathy from facet arthritis."

Having reviewed the medical evidence after oral argument the trial judge entered the following findings:

There are a number of issues that strike me, and the one predominat[e] issue concerning the Polk analysis has to do with the report of Dr. Soloway, who had seen this plaintiff six months prior to the accident, and this all has to do with whether or not

a Polk analysis is needed and whether the absence of a Polk analysis is fatal to the plaintiff's claim. There is no Polk

analysis giving the Court the qualita-

tive and comparative analysis of the pre-accident condition versus the post-accident condition. And the question is, is it necessary?

Dr. Soloway saw the plaintiff on March 16th, 2001, so that's six months before the subject accident. Dr. Soloway is a doctor who practices concerning arthritis and rheumatology, according to his letterhead. The plaintiff was referred to him by her family doctor.

Dr. Soloway's report says, she presents today on an emergent basis for an evaluation of severe low-back pain that began recently. So I quipped to [plaintiffs'] counsel, it's all in the reading, but emergent basis, severe low-back pain. I think the emphasis needs to be on those descriptive terms, and it suggests that this is a significant event, with significant symptomatology. He's talking about putting needles in her back. She wants no parts of it. So this is not some muscle spasm or ache or pain of no moment. This appears to be, based on Dr. Soloway's report, to be a significant episode, and it's just six months before the accident. And what he tells us is that he finds severe left presacral trigger point, he diagnoses bursitis, and he wants to rule out other things.

He then sees her on March 21st, 2001. Again, the history is given as severe lower back pain. The patient continues to complain of severe pain. X-rays showed severe facet arthritis. Again, the descriptive, severe. It is unlikely that this patient has anything other than spinal stenosis and/or combined arthropathy from facet arthritis.

Under those circumstances, with these kinds of severe symptoms, and this kind of a diagnosis, so close in proximity prior to the happening of the accident, I do think that the Polk analysis is necessary. There needs to be an apportionment of what is attributable to the prior condition. I mean, this is a situation where you have a prior condition that's aggravated. It is a degenerative condition of considerable magnitude. And then the accident happens. So it's more in the vein of the classic aggravation of a preexisting condition situation, and so the Polk analysis is needed.

On the injury, which is being attributed to the accident, what you see in the medical reports is a consistent finding of spasm but, interestingly, the diagnosis that's repeated throughout is sprain and strain. Cervical sprain and strain, lumbar. So that it appears that this is not the type of injury that, under the current status of the Verbal Threshold Law, is contemplated as being actionable under the threshold.

There is an MRI of the lumbar region which was dated May 8th, 2003, and this is interesting in that it shows, again, going back to the nature of the preexisting condition, this MRI report talks about desiccation of all lumbar disks. Well, clearly, you're talking about degeneration there which ties into what Dr. Soloway found.

This MRI report goes on to say

there is severe loss of stature of the

L5-S1 disk space. Mild bulging annulus is seen at L4-5, 3-4, and 2-3. There is mild lateral degenerative spinal stenosis at L5, S-1. So, again, this MRI is meaningful, in my view, for two reasons: One is it supports this -- the existence of a preexisting condition, the degeneration, which was symptomatic; and, also, for telling us that there is a bulge, as differentiated from a herniation, or bulges, as differentiated from herniations.

Even Dr. Kahn, in his April 15th, 2003, report talks about the patient is no longer having any radicular symptoms down her lower extremities. He does make findings of spasm and he gives a diagnosis of strain and sprain. He lists as an impression aggravation of preexisting degenerative disease.

Again, Dr. Barr, lumbar strain and sprain.

So I'm not seeing anything that would tell me that the injury, in and of itself, as per Serrano, satisfies the threshold. It's a bulge. There's no demonstration that it's impinging on the fecal sac or there is no positive EMG.

The point needs to be made, as well, that there are a number -- many of reported cases where there are bulges with positive EMGs that were found not be sufficient. And, in this case, we have no EMG and no evidence of any impingement, and we do have the very well documented preexisting degeneration.

So, on the basis of the nature and extent of the injury itself, it's insufficient to satisfy the verbal threshold.

On the issue of the Polk analysis, the absence of it is fatal. The nature and extent of the impact on the plaintiff's life style, I think, needs not, under these circumstances, be addressed, because, as I said, the Polk analysis being absent from the equation is fatal.

The order granting summary judgment was principally bottomed on plaintiff's failure to submit a Polk analysis, which the trial judge found to be "fatal" to plaintiff's pursuit of a claim under AICRA. We disagree. Subsequent to the trial court's dismissal of plaintiffs' case, this panel reviewed the viability of Polk, particularly in light of the Supreme Court's decisions DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). We held:

In light of those decisions, it is doubtful

whether Polk and its progeny continue to be

viable in the context of a verbal threshold

summary judgment motion. The Ostasz panel

thought that Polk is distinct because "that

case dealt exclusively with process as

distinguished from substance." Ostasz v. Howard,

[]357 N.J. Super. [65,] 67 [(App. Div. 2003)].

We do not understand what that means. The

comparative analysis required by Polk is an

element of causation. In that respect,

N.J.S.A. 39:6A-8a governs non-economic loss

"as a result of bodily injury, arising out of

the ownership, operation, maintenance or use"

of a vehicle. In our view, the comparative

analysis requirement of Polk and its progeny

engrafts an additional element upon this

causation aspect of the verbal threshold standard. We recognize that another panel

apparently views Polk [as] having continued

viability in the context of verbal threshold

summary judgment motions. See Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005). We do not agree.

[Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) (parallel citations omitted).]

It is for the factfinder, who will assess the evidence including evidence of an alleged preexisting injury. Plaintiff argues she was asymptomatic at the time of the accident. Her claims are not for aggravation but for the actual injuries suffered as a direct result of the accident. Even if Polk is found to remain viable when addressing the aggravation of pre-existing injuries, no basis to extend Polk to this situation is presented. Hardison v. King, 381 N.J. Super. 120, 134 (App. Div. 2005).
We remain convinced plaintiff need only prove she suffered injuries satisfying one of the six statutorily defined threshold categories in AICRA to proceed in her suit for pain and suffering damages. Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 333-34 (2005); Serrano, supra, 183 N.J. at 509 (2005); DiProspero, supra, 183 N.J. at 480-82. While the plaintiff's doctors' reports do not specifically contain a comparison of her prior medical conditions and her current injuries, this issue as well as whether the factual disputes about the nature and extent of her injuries resulting from the accident, will be left for the jury's determination. "[A] reasonable factfinder does not need [the doctors] to opine" that the September 13, 2001 accident caused injuries permanent and distinct from plaintiff's preexisting pain. Davidson, supra, 381 N.J. Super. at 29.

In support of her complaint, plaintiff submitted the certification of Dr. Doyle, a "licensed treating physician", Afram v. Heller, 380 N.J. Super. 545, 551 (App. Div. 2005), confirming the injuries suffered were directly caused by the accident and were permanent. He stated:

In my opinion, to a reasonable degree of medical

probability, as a result of the accident of September

13, 2001, [plaintiff] did suffer permanent injuries to

the following areas: lumbar spine and right shoulder

joint. Her injured body parts and organs have not

healed to function normally and will not heal to function normally with further medical treatment.

I base this opinion in part on objective clinical evidence which. . .include[s] [a] physical exam including palpation and X-ray.

For the purposes of the motion, the accepted objective, credible medical evidence of injury is evidenced by muscle spasms in the right lumbar area, persisting two years after the accident, radiological diagnostics including an MRI documenting three bulging discs, range of motion limitation stated in the reports after examination by Drs. Doyle, Brody, Barr and Kahn, coupled with the facts stated in plaintiff's deposition testimony, sufficiently show the September 13, 2001 accident caused injury to plaintiff's back, and that injury is permanent as defined by the statute because her discs have "not healed to function normally and will not heal to function normally." No evidence supports a finding that plaintiff's bulging discs are functioning normally or that they will retreat to their former position. Thus, viewed most favorably to plaintiffs, the evidence in the motion record supports a finding of a permanent soft tissue injury as defined by AICRA, which is all that is necessary to satisfy the threshold.

We find plaintiff has raised at least an arguable issue respecting the objective criterion for permanent injury, in view of the expert findings of three bulging discs and significant limitation of motion prominent among the general panoply of other supporting objective findings. Consequently, since a genuine and material factual question was raised by plaintiff respecting her meeting of the verbal threshold, the grant of defendant's summary judgment motion was in error.

Reversed and remanded for further proceedings consistent with this opinion.

 

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

(continued)

(continued)

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A-2111-04T1

January 30, 2006