SHANNON MONAGHAN v. MIKHALL ROSENBERG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5613-04T35613-04T3

SHANNON MONAGHAN,

Plaintiff-Appellant,

v.

MIKHALL ROSENBERG,

Defendant-Respondent.

_________________________________________

 

Argued March 20, 2006 - Decided May 9, 2006

Before Judges C.S. Fisher and Humphreys.

On appeal from the Superior Court of New

Jersey, Law Division, Civil Part,

Middlesex County, Docket No. L-716-04.

Patricia M. Love, argued the cause for appellant.

(Hendricks & Hendricks, attorneys; Ms. Love,

on the brief).

Frank A. Matturri, Jr. argued the cause for respondent (Sherman & Viscomi, attorneys; Mr.

Matturi, on the brief).

PER CURIAM

Summary judgment was entered for the defendant on the ground that plaintiff had not met the requirements of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8. The motion judge found that plaintiff had not: 1) shown that her injury had a serious impact upon her life; and 2) met the comparative analysis requirement, set forth in Polk v. Daconceicao, 268 N.J. Super 568, 575 (App. Div. 1993), in cases in which plaintiffs had pre-existing medical conditions or had been in prior accidents.

We find that a serious impact on plaintiff's life is no longer required; plaintiff has presented a jury question on whether she has met the AICRA requirement of a permanent injury; plaintiff has also met the Polk requirements. We reverse and remand.

I

Plaintiffs need no longer prove that the injuries have had a serious impact upon their life in order to surmount the AICRA threshold. DiProspero v. Penn, 183 N.J. 477 (2005); Serrano v. Serrano, 183 N.J. 505 (2005). Plaintiffs must, however, prove that their injuries are permanent. Defendant contends that plaintiff's injuries are not permanent.

AICRA provides that an 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." N.J.S.A. 39:6A-8.

The motion judge did not render an opinion on permanency. We have reviewed the record and will exercise our original jurisdiction to resolve the issue. See R. 2:10-5.

II

In accordance with summary judgment principles, all legitimate inferences from the evidence must be given to the party opposing the motion. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Amer., 142 N.J. 520 (1995). The evidence so construed is as follows. The accident in this case occurred on December 12, 2002. Plaintiff filed a certification of permanency in accordance with the AICRA requirements. See N.J.S.A. 39:6A-4(a) and 8(a); N.J.S.A. 39:4-7. Dr. Tiedrich, a medical doctor, stated in his certification that plaintiff had sustained the following injuries as a result of the accident: "Chronic secondary fibromyositis and myofascitis of the cervical dorsal and lumbosacral spine acute C3-4 & C4-5 HNP." The diagnosis, the doctor said, was made as a result of his physical examination and observation of the plaintiff and MRI scans of the cervical spine on December 20, 2002. The doctor concluded that as a result of the accident plaintiff had sustained a permanent injury to her body parts within a reasonable degree of medical probability, i.e. her body parts have "not healed to function normally and will not heal to function normally with further treatment."

An MRI was taken a few months prior to the accident in this case. The impression of the radiologist was: "Straightening of the cervical lordosis with reversal at C3 over C4 associated with bulging annulus fibrosus encroaching upon subarachnoid space."

Eight days after this accident, another MRI was taken. The impression of the radiologist was:

Tiny right foraminal disc herniation

C3-4. Small central disc herniations C4-5. No compromise of neural structures is noted. There is only minimal impression upon the thecal sac at both levels.

A legitimate inference from the change shown by the second MRI is that the present accident caused two herniations. A jury can reasonably find that a herniated disc is a permanent injury. Bennett v. Lugo, 368 N.J. Super. 466, 477 (App. Div.) certif. denied, 180 N.J. 457 (2004). Plaintiff does not have to prove that the injury was serious. See DiProspero supra, 183 N.J. at 497-98; Serrano, supra, 183 N.J. at 510; Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). Thus, a jury question has been presented as to permanency.

III

Plaintiff sustained neck and back injuries in previous accidents. In Polk, supra, 268 N.J. Super. at 568, the court said:

A diagnosis of aggravation of a pre- existing injury or condition must be

based upon a comparative analysis of

the plaintiff's residuals prior to the

accident with the injuries suffered in

the automobile accident at issue. This

must encompass an evaluation of the

medical records of the patient prior to

the trauma with the objective medical

evidence existent post trauma. Without

a comparative analysis, the conclusion

that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold

of N.J.S.A. 39:6A-8a.

In Bennett v. Lugo, supra, 368 N.J. Super. at 472, the court said: "comparative analysis is required whenever previous injury to the same body part is involved.... Thus plaintiff is required to submit a sufficient analysis."

Whether the Polk and Bennett requirements are still viable in the light of DiProspero and Serrano will likely be determined by the Supreme Court when it reviews Davidson v. Slater, 381 N.J. Super. 22, (App. Div.) certif. granted, ___ N.J.___ (2006); See also Ostasz v. Howard, 357 N.J. Super. 65 (App. Div. 2004); (Polk comparative analysis still required after enactment of AICRA); Lucky v. Holland, 380 N.J. Super. 566, 573 (App. Div. 2005); (Polk comparative analysis still required after enactment of AICRA); Hardison v. King, 381 N.J. Super. 129, 133-37, (App. Div. 2005) (whether a Polk comparative analysis is required depends on whether facts presented call into question "whether any reasonable jury could find that a plaintiff sustained a permanent injury resulting from the subject auto accident.")

We need not state our view of the viability of Polk because we conclude that regardless of whether Polk survives, plaintiff has met the Polk requirements. Plaintiff's treating medical doctor was aware of the prior accident or accidents. The doctor concluded that after the present accident, plaintiff had "significant exacerbation of her neck symptomatology as well as pain radiating down to the left shoulder and left arm area." The doctor also referred to the new MRI as different from the previous MRI and that the new MRI "demonstrated disc herniations at C4-C5 level and C3-C4 level."

The purpose of the Polk requirement is to enable the trier of fact to have a sufficient factual basis to decide what causative effect, if any, the injuries in the prior accident may have had on the injuries plaintiff alleges were sustained in the accident in suit. See Davidson, supra, 381 N.J. Super. at 29. Here the difference in the MRI's when coupled with the treating doctor's opinion provided a sufficient factual basis for the trier of fact to assess the causative effect of any prior accidents. Hence, the Polk requirements have been met.

The proofs in this case present jury questions. Consequently, the defendant's motion for summary judgment should have been denied.

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

_________________________

 

(continued)

(continued)

7

A-5613-04T3

May 9, 2006