On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3026-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Yannotti.
In this verbal threshold appeal, plaintiffs challenge the Law Division's dismissal of their complaint on summary judgment. The judge granted summary judgment because plaintiff Dianne Andriolo*fn1 failed to provide a comparative analysis, pursuant to Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), of the injuries she sustained in a 2003 motor vehicle accident with the injuries she sustained in a 1993 motor vehicle accident. Because we conclude that no comparative analysis was necessary, we reverse.
On January 19, 2003, plaintiff's vehicle was stopped in traffic when defendant Jaclyn Castaldo drove a vehicle into the rear end of plaintiff's vehicle. After experiencing pain in her low back and right thigh, plaintiff began treatment with Dr. Gregory Quille, a chiropractor, on January 22, 2003. She complained of lumbar spine pain, right lower extremity involvement, cervicothoracic spine pain, and headaches. Dr. Quille made an initial diagnosis of: 1) lumbar spine sprain/strain; 2) lumbosacral spine strain; 3) radicular syndrome lower limb; 4) muscle spasm; 5) thoracic spine pain; 6) cervicothoracic spine strain; and 7) headaches. In his initial report, Dr. Quille noted that plaintiff was "last treated in this facility for MVA related injuries 10/93 through 5/94."
Dr. Quille treated plaintiff for lumbar spine pain on fourteen occasions between February 11, 2003 and February 4, 2004, when he discharged her. His discharge diagnosis was: 1) lumbar spine sprain/strain; 2) L3-L4 disc syndrome; and 3) "radiculopathy right." In his February 4, 2004 prognosis, Dr. Quille wrote that "results of findings from this office and results of tests and findings from other facilities indicate [plaintiff's] injuries to be directly related to an 01/19/03 motor vehicle accident. These injuries are significant, limiting and have caused permanent loss of use and function to the lumbar spine." On February 19, 2004, Dr. Quille certified that it was his opinion that "within a reasonable degree of medical probability, [plaintiff] has sustained permanent injury that has not healed to function normally with further treatment."
An x-ray of plaintiff's lumbar spine on January, 31, 2003, showed "[s]light rotary scoliosis of the lumbar spine." A subsequent MRI of her lumbar spine disclosed an "annular disc bulge at L3-4."
On April 22, 2003, plaintiff was examined by a neurologist, Dr. Alexander Pendino, who opined that plaintiff had "[p]osttraumatic lumbar pain secondary to MVA" and "[e]tiology multifactorial including lumbar myofascitis and lumbar facet syndrome." In a follow-up evaluation, Dr. Pendino listed the following impressions: "1) Recalcitrant lumbar pain. The etiology is secondary to lumbar myofascitis, facet syndrome and rule out lumbosacral radiculopathy; 2) L3-L4 disc bulge / multilevel foraminal stenosis by MRI."
On June 24, 2003, plaintiff underwent an EMG, which showed "electrodiagnostic evidence of right S1 radiculopathy." After the EMG, Dr. Pendino diagnosed: "1) Lumbar myofascitis; 2) Lumbar facet syndrome; 3) Right S1 radiculopathy by EMG; 4) L3-L4 disc bulge / multilevel foraminal stenosis by MRI."
An orthopedic surgeon, Dr. David Lamb, evaluated plaintiff on August 4, 2003 and on November 5, 2003. He diagnosed plaintiff with "left sided lumbar sciatica."
Plaintiff was served with Form A Uniform Interrogatories. Question nine stated: "If a previous injury . . . is claimed to have been aggravated, . . . specify in detail the nature of each and the name and present address of each health care provider, if any, who ever provided treatment for the condition." Plaintiff responded:
Yes, approximately 10 years ago (1995 or so), I was involved in an automobile accident in which I was driving a vehicle . . . when I was impacted by a driver that ran ...