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Lucky v. Holland

October 12, 2005

DORIS LUCKY & WALTER LUCKY, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
MATTHEW HOLLAND & JACK HOLLAND, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-3733-03.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 13, 2005

Before Judges Coburn, Collester and Lisa.

Plaintiff, Doris Lucky,*fn1 appeals from a summary judgment dismissing her complaint for personal injuries arising out of a motor vehicle accident that occurred on May 24, 2001 for failure to satisfy the "limitation on lawsuit" threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a.*fn2 The judge found that plaintiff did not provide evidence sufficient to withstand summary judgment that she suffered a qualifying injury. The judge also found that plaintiff, who suffered a fall-down accident on May 11, 1996 in which some of the same body parts were injured as those affected by the May 24, 2001 motor vehicle accident, failed to provide a sufficient comparative analysis as required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), comparing her residual injuries prior to the present accident with those suffered in the present accident.*fn3 We reverse.

Following the motor vehicle accident of May 24, 2001, plaintiff was transported by ambulance to a hospital where she was treated in the emergency room and released. About two months later, she came under the care of Sall/Myers Medical Associates. She underwent a course of physical therapy for a period of four months and continued being treated and evaluated by physicians at Sall/Myers over the next several years. During that time, various diagnostic tests were performed.

Before discussing the injuries plaintiff suffered in the May 24, 2001 accident, we set forth the injuries suffered in her prior accident on May 11, 1996. As a result of a fall in a supermarket, plaintiff injured her lower back and right knee. She was treated for those injuries by Sall/Myers, who rendered a final diagnosis of traumatic lumbar spine syndrome resulting from bulging discs at L4-5 and L5-S1, and a right knee syndrome. A June 19, 1996 MRI revealed mild bulging at L4-5 and L5-S1. A July 29, 1996 MRI revealed joint effusion associated with a small popliteal cyst of the right knee. Sall/Myers opined in a January 5, 1998 report that both injuries were "permanent in nature."

In the May 24, 2001 accident, plaintiff suffered injuries to her cervical spine, dorsal spine, lumbar spine, left shoulder, left knee and right knee. Therefore, a Polk analysis is required only with respect to injuries to the right knee and lumbar spine. Loftus-Smith v. Henry, 286 N.J. Super. 477, 491 (App. Div. 1996). Because the other injuries were to body parts not affected by the May 11, 1996 accident, no Polk analysis is required. Of course, with respect to all of the injuries, plaintiff is required to establish her injuries by credible, objective medical evidence. Oswin v. Shaw, 129 N.J. 290, 314 (1992).

To establish a qualifying injury under AICRA, a plaintiff must demonstrate by credible, objective medical evidence that he or she suffered a permanent injury, as defined in N.J.S.A. 39:6A-8a, caused by the accident. In a report dated June 9, 2004, Dr. Theodora Maio described her examination of plaintiff on May 12, 2004 and described her review of all medical records and reports of diagnostic tests pertaining to plaintiff's injuries suffered on May 11, 1996 and May 24, 2001.

We need not describe the physical examination in detail, but note that Maio observed and reported multiple objective findings with respect to all of the affected areas. These included spasm and limitation of motion in the cervical area, limitation of motion and crepitus in the left shoulder, spasm and limitation of motion in the lumbodorsal area, limitation of motion and crepitus in the left knee, and limitation of motion and crepitus in the right knee. All reported limitation of motion findings were observed and verified by Maio's physical examination in conjunction with other objective clinical findings. See Oswin, supra, 129 N.J. at 320; Cineas v. Mammone, 270 N.J. Super. 200, 210-11 (App. Div. 1994).

Maio listed all of the diagnostic studies she reviewed. She reviewed the June 19, 1996 MRI, revealing mild disc bulging at L4-5 and L5-S1 with no evidence of herniation. She reviewed the January 5, 1998 report of Dr. Bruce Johnson, a Sall/Myers physician, regarding the 1996 injury. That report included reference to the July 29, 1996 MRI of the right knee and a description of the results of that study, namely joint effusion associated with a small poplital cyst, with no definite meniscal tear, significant ligamentous injury or osteochondral fracture.

With respect to the May 24, 2001 injury, Maio reviewed MRI studies of the lumbar spine (September 10, 2001 and September 17, 2003), cervical spine (September 10, 2001 and September 18, 2003), and left shoulder (October 16, 2001). She also reviewed x-rays of the cervical spine, lumbosacral spine and left shoulder (July 31, 2001), and electrodiagnostic studies of the lumbar spine (October 31, 2001). Maio also reviewed other reports and records, which are itemized in her report.

Based upon her physical examination of plaintiff and her review and analysis of all medical records and diagnostic studies pertaining to the prior and present ...


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