FLORINDA M. PEREIRA et al. v. MANUEL F. PEREIRA, Her Husband

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4574-04T34574-04T3

FLORINDA M. PEREIRA and

MANUEL F. PEREIRA, Her Husband,

Plaintiffs-Appellants,

v.

MICHELLE P. ROBERTS and

JOSEPH M. BRACHOCKI,

Defendants-Respondents.

__________________________________

 

Argued January 19, 2006 - Decided February 14, 2006

Before Judges Stern, Grall and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5419-03.

Louis David Balk argued the cause for appellants (Balk & Geddes, attorneys; Mr. Balk, of counsel; Mary M. Theroux, on the brief).

Kathy A. Kennedy argued the cause for respondent Michelle P. Roberts (Kramkowski, Lynes, Fabricant & Bressler, attorneys; Ms. Kennedy, of counsel and on the brief).

Matthew Toto argued the cause for respondent Joseph M. Brachocki (Ronca, McDonald & Hanley, attorneys; Mr. Toto, on the brief).

PER CURIAM

Plaintiff Florinda M. Pereira appeals from the grant of summary judgment under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35. She seeks to prove that she suffered permanent new injuries and permanent aggravations of pre-existing injuries. The motion judge found that plaintiff failed to present objective evidence of permanent injury and also failed to provide a comparative analysis of the residuals from a prior accident and the injuries suffered in the accidents here at issue as required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). We conclude that plaintiff presented sufficient objective clinical evidence as required by N.J.S.A. 39:6A-8(a) to survive a summary judgment motion. We also conclude that plaintiff presented adequate evidence of an aggravation under Polk.

Plaintiff was involved in three separate accidents, one in 1997, one on January 7, 2002, and one on October 17, 2002. In the 1997 accident she injured her neck, back, and right knee. MRIs performed on May 3, 1997, revealed mild bulging of the annuli at C4-C5 and C5-C6 and at the right posterior aspect of C6-C7 with straightening of the cervical curvature. There were also bulging annuli at T8-T9, L4-L5 and L5-S1. None of the bulging annuli compressed the spinal cord, the dura, or any nerve roots. The record does not disclose any other objective evidence of injury from the 1997 accident.

Following the January 7, 2002, motor vehicle accident, plaintiff treated initially with a chiropractor. He ordered a lumbar MRI which was performed on February 4, 2002. The radiologist found degenerative disc changes at T12-L1 and bilateral facet hypertrophy at L4-L5 and L5-S1. Plaintiff also underwent an MRI of the cervical spine on March 25, 2002. The radiologist interpreted that study as revealing slight posterior spondylitic ridging at C4-C5 and straightening of the cervical spine.

Plaintiff was seen by Dr. Nazar H. Haidri, a neurologist, on May 16, 2002. His office records reveal that she informed him that she injured her neck, back and right knee in 1997, that she had been under medical care for almost three years, and that she "had residual neck pain, left arm pain, and low-back pain, which was markedly aggravated by the accident of January 7, 2002." Dr. Haidri found positive Tinel's signs over the median nerve at both wrists. He ordered BAERs and EMG of both upper extremities and the right lower extremity, but the results are not in the record on appeal. However, those test results were discussed by plaintiff's chiropractor, who indicated that they "reveal[ed] positive findings compatible with bilateral carpal tunnel syndrome."

Plaintiff's medical treatment continued uninterrupted until the October 17, 2002, accident. As a result of this last accident, plaintiff claimed aggravations of prior injuries as well as new injuries. She continued under the care of her chiropractor and Dr. Haidri. Both found new signs and symptoms following the last accident.

On March 18, 2003, Dr. Haidri examined plaintiff and found decreased grip strength in both hands as well as decreased pinprick in median distribution of the right hand and ulnar distribution of the left hand. Tinel's sign was positive over the median nerve at both wrists and there was tenderness over both ulnar nerves at the elbow. Dr. Haidri ordered BAERs and EMG of both upper extremities and now the left lower extremity rather than the right. He continued to find the presence of lumbar paravertebral muscle spasm on June 6, 2003, and June 17, 2003, when the BAERs and EMG were performed. The NCV revealed a mild left lower lumbar L5 radiculopathy. It also confirmed bilateral carpal tunnel syndrome and revealed left ulnar neuropathy at the elbow. Plaintiff's chiropractor stated in his report that compared to the earlier studies the carpal tunnel syndrome had worsened.

In his final report of August 21, 2003, Dr. Haidri diagnosed post-concussion syndrome; post-traumatic headaches, dizziness, tinnitus, hearing loss, and neurosis; chronic cervical, dorsal and lumbar sprain; bilateral carpel tunnel syndrome; left ulnar neuropathy at the elbow, mild left lower lumbar L5 radiculopathy; degenerative disc disease at T12-L1; and bilateral facet hypertrophy at L4-L5 and L5-S1. He ascribed all of her symptoms and his diagnoses to the accident of October 17, 2002, but noted that she had pre-existing symptoms, including bilateral carpel tunnel syndrome, from the January 2002 accident that were aggravated by the second accident. He noted that new findings were the left ulnar neuropathy and the L5 radiculopathy. He opined that "[t]he injuries are permanent in nature."

In granting summary judgment on these proofs, the trial court's opinion was very brief:

I've looked at the motion papers and the medical report and I see no objective medical evidence of a permanent injury caused by . . . both accidents. . . . I need . . . an adequate Polk analysis to be able to distinguish the permanent injuries that are alleged for . . . for the '97 and the two 2002, but . . . there's been no objective medical evidence to show that there was a permanent injury caused by the two accidents in front of me. So, I'm going to grant your motions.

Plaintiff's right to recover damages is contingent upon proving that at least one of her injuries fell within one of the categories enumerated in N.J.S.A. 39:6A-8(a): "death," "dismemberment," "significant disfigurement or significant scarring," "displaced fractures," "loss of a fetus," and "permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." Plaintiff has provided the requisite certification from a licensed physician, who has opined that she has suffered permanent injuries that will not heal to function normally with further medical treatment as required by N.J.S.A. 39:6A-8(a). To prevail on a motion for summary judgment, defendant must show that the physician's opinion is not supported by objective clinical evidence. Plaintiff is no longer required to prove that the injuries she suffered have had a serious impact on her life. DiProspero v. Penn, 183 N.J. 477, 506 (2005). Because the categories of injuries under AICRA were considered by the Legislature to be serious per se, we no longer inquire if the permanent injury is "serious." Serrano v. Serrano, 183 N.J. 508, 517-19 (2005).

We cannot understand the basis of the trial court's conclusion that there was "no objective evidence." Clearly, that is not correct. There were multiple MRI studies on which plaintiff's physicians relied in opining that her pre-existing condition was worsened by the 2002 accidents. Carpal tunnel syndrome, a new injury insofar as the 1997 accident is concerned, was corroborated by nerve conduction studies after the January 2002 accident and was worse after the October 2002 accident. Palpable muscle spasm was noted on January 10, 2002, and thereafter which corroborated the corresponding limitations in range of motion. There were multiple positive orthopedic tests, which are objective clinical evidence on which physicians rely because they do not depend solely on the patient's subjective response. In addition, plaintiff has submitted the opinion of her treating physicians that she has suffered permanent injuries as a result of both 2002 accidents and Dr. Haidri has so certified. That is all that is required to pass a case over the AICRA threshold to trial by jury. We must then consider whether plaintiff is required to submit a Polk analysis in order to avoid summary judgment.

We have recently held that it is no longer correct to state that the Oswin paradigm governs under AICRA. Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, ___ N.J. ___ (2006). In light of DiProspero and Serrano, we observed that

it is doubtful whether Polk and its progeny continue to be viable in the context of a verbal threshold summary judgment . . . . The comparative analysis required by Polk is an element of causation. In that respect, N.J.S.A. 39:6A-8(a) 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 . . . .

Moreover, Polk involved a claim for aggravation of preexisting conditions. In that context, some comparative analysis would be necessary to prove the aggravation, at the least at the time of a jury trial. Here there is no such claim. To the extent Bennett v. Lugo, 368 N.J. Super. 466 (App. Div.), certif. denied, 180 N.J. 457 (2004), requires the analysis "whether aggravation of prior injury is alleged or not," id. at 473, we disagree.

[Id. at 29.]

In Hardison v. King, 381 N.J. Super. 129, 133 (App. Div. 2005) we pointed out that the "elimination of Oswin's second prong undercut most, if not all, of Polk's justification, to connect causally a plaintiff's complaints of serious impact to the subject accident rather than to prior accidents or conditions." Hardison claimed that his prior injuries had healed completely and he was asymptomatic, and thus he was not claiming an aggravation. We held that Polk should never have been extended to cases where the plaintiff did not claim an aggravation of a pre-existing injury or condition. Id. at 134-35.

 
Plaintiff here claims that some injuries from the 1997 accident were aggravated by the January 7, 2002, accident and that she also sustained new injuries in that accident. She also claims that some injuries from the 1997 accident and the January 2002 accident were aggravated by the October 17, 2002, accident and that she also sustained new injuries in the October 2002 accident as well. Dr. Haidri relied on the results of neurological testing which he ordered on May 16, 2002, and March 18, 2003, when he concluded that plaintiff suffered a new carpal tunnel injury from the January 2002 accident which was aggravated by the October 2002 accident. No more proof than this is required under Polk. In light of Davidson and Hardison, plaintiff is no longer required to provide any comparison where she does not claim an aggravation. With respect to aggravations other than carpal tunnel syndrome, plaintiff is required to prove same at trial through expert opinion based on objective clinical evidence. Otherwise, the issue of whether a pre-existing condition has been aggravated is a straight causation issue under our case law.

Reversed and remanded for trial.

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9

A-4574-04T3

February 14, 2006