On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-817-00.
Before Judges Pressler, Ciancia and Parker.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Respondent Oscar Pizolli did not file a brief.
This personal injury negligence case raises a novel issue respecting the application of the statutory collateral source rule, N.J.S.A. 2A:15-97. Plaintiff Betty L. Woodger is receiving social security disability benefits on account of her disability caused or contributed to by the negligence of defendants Christ Hospital and Oscar Pizolli. In plaintiff's negligence action against these defendants, the jury awarded her $100,000 as compensation for past lost income, $96,000 as compensation for future lost income, and $100,000 for pain and suffering. Although plaintiff does not challenge the necessity of considering her social security disability benefits as a collateral source under N.J.S.A. 2A:15-97, she asserts that she is entitled to a credit against the deduction of those benefits from her jury award for the contributions she has made for social security during her working life, some $60,000. The trial judge disagreed, and plaintiff appeals that ruling, among others. While we agree with the trial judge that plaintiff is not entitled to a credit for all the contributions she has made over her working life, we have concluded, for reasons of statutory interpretation and consideration of equity, that she is entitled to a credit for the maximum social security contributions due from a taxpayer for the same period for which her disability payments have been deducted as collateral source payments.
This is how the issue arises. In 1996 plaintiff, complaining of left knee pain, was diagnosed as suffering from patellofemoral disease. It is a progressive condition caused by a malalignment of the patella and the patella tendon which causes the bones above and below the kneecap to rub against each other, resulting in degeneration and arthritic changes of the knee. In 1997 plaintiff was diagnosed as having the same condition in her right knee. She was prescribed a regimen of physical therapy involving the use of a Kinetron machine and had nineteen sessions at the Christ Hospital Therapy Department prior to June 1998, when she underwent an arthroscopic repair of a torn lateral meniscus in her right knee. In July 1998, the first time after the surgery that she used the Kinetron machine, she injured her right knee, and she alleges that she sustained the injury because of the negligent instructions given to her by defendant Pizolli, the physical therapist, respecting the use of the machine.
Plaintiff brought this action against the hospital and Pizolli alleging that because of Pizolli's negligence, she has lost significant mobility and is required on a permanent basis to use a cane or walker. Plaintiff is a registered nurse, and although she had previously held administrative nursing positions, at the time of the injury, because of staff restructuring, she was employed as a floor nurse. She claimed that she was no longer able to work and in November 1999 she was awarded social security disability benefits. The jury determined the liability claim against defendants and reached the compensatory damages verdict we have described. Plaintiff appeals both from the jury verdict and from the judgment thereafter entered by the trial court by which the verdict was molded in accordance with the collateral source statute and to award prejudgment interest.
Before addressing the molded judgment which raises the collateral source issue, we consider briefly plaintiff's challenges to the verdict, which we reject substantially for the reasons cogently and articulately stated by the trial judge in denying her motion for new trial or additur. See R. 2:11-3(e)(1)(C). We add only these comments. Plaintiff argues that the trial judge erred by instructing the jury that if it found that plaintiff's present physical condition was attributable both to the injury she sustained on the Kinetron machine and to her pre-existing medical condition, it could not award damages attributable solely to the pre-existing condition. The full charge as given accorded with Model Jury Charge 6.11G,"Aggravation of a Pre-existing Illness," and was clearly a correct statement of the law. Plaintiff does not suggest otherwise. Rather, her argument is that the proofs were insufficient to sustain the charge because, she claims, the surgery she had in June 1998 resolved her pre-existing condition. The fact of the matter is, however, that there was ample expert testimony, both by her medical expert and defendant's, to permit the jury to find that the pre-existing condition was permanent, progressive and degenerative, only alleviated by the surgery, and that at most, the July 1998 event exacerbated the condition and accelerated its progress.
The main thrust of the additur motion was plaintiff's contention that the jury's future loss of income award was against the weight of the evidence because it only compensated her for two years of future loss of income although she was only 56 years old at the time of trial. As the trial judge pointed out, however, there was evidence from the defense that because of her progressive patella disease, plaintiff would have been able to work only for two years more or so even if the July 1998 injury had not occurred. In sum, the trial judge was satisfied that the jury's damages verdict was supported in all respects by the proofs and was not disproportionate to the injury sustained. Based on our review of the record, we agree. We are satisfied that the verdict was fair when viewed against the record and was hardly so insufficient as to shock the conscience of the court or engender a sense of wrongness. See, e.g., Mahoney v. Podolnick, 168 N.J. 202, 229-230 (2001); Carey v. Lovett, 132 N.J. 44, 68 (1993); Baxter v. Fairmount Food, 74 N.J. 588, 598-599 (1977).
We come now to the collateral source problem. To begin with, because the disability decision of the Social Security Administration was, by its terms, reviewable in five years, the judge regarded any benefits payable beyond that time as uncertain and speculative. He therefore limited the collateral-source deduction to benefits plaintiff had received between November 1999 and the date of the molded judgment, July 2002, plus the benefits she would thereafter receive up to November 2004. As to future benefits, he directed that they be subject to a cost of living increase of 2.5 percent commencing January 2003 and that the total amount of future benefits thus calculated be discounted to present value by use of a 4.3 percent discount rate, the rate testified to by plaintiff's economic expert. He also required the deduction of plaintiff's income tax payments attributable to her receipt of social security benefits. The figure arrived at by the attorneys using this formula was a total collateral-source deduction of $87,724.25. Plaintiff does not dispute the calculation or any of the included elements thereof, and we agree that, as far as it went, the formula arrived at by the trial judge was impeccable. The dispute is only whether the contributions made by plaintiff to social security over her working life, a total of nearly $60,000, should also have been credited to her.
Neither our research nor that of the parties has disclosed any reported opinion in any jurisdiction addressing the question of whether, in the application of the collateral source rule, the plaintiff is entitled to credit for contributions previously made although many jurisdictions deem social security benefits to constitute a deductible collateral source. We approach the issue, therefore, by considering the policy and purpose of the collateral source rule and the nature of social security disability benefits in that context.
The collateral source rule, N.J.S.A. 2A:15-97, enacted in 1987, provides in full as follows:
In any civil action brought for personal injury or death, except actions brought pursuant to the provisions of P.L. 1972, c. 70 (C. 39:6A-1 et seq.), if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiff's family on behalf of the plaintiff ...