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Polk v. Daconceicao

Decided: December 7, 1993.


On appeal from the Superior Court, Law Division, Essex County.

Pressler, Dreier and Kleiner. The opinion of the Court was delivered by Kleiner, J.s.c. (temporarily assigned).


Plaintiff Douglas Polk filed suit for damages allegedly sustained in a motor vehicle accident on April 6, 1990 involving the defendant. On September 11, 1992, the motion Judge granted defendant Manuel B. Daconceicao summary judgment on the ground that the verbal threshold provisions of N.J.S.A. 39:6A-8a precluded Polk's suit.

On appeal, Polk argues that he suffered a lumbosacral strain and sprain and aggravated a pre-existing permanent hip injury and a right hip arthritic condition which places his injury within type six, seven or eight as statutorily described in N.J.S.A. 39:6A-8a. He contends that the motion Judge erred in evaluating both the medical proofs and the evidence demonstrating the significant impact these injuries had upon his life. See Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992); Dabal v. Sodora, 260 N.J. Super. 397, 616 A.2d 1297 (App.Div.1992). We disagree with these contentions, and accordingly we affirm.

Permeating the evaluation of the proofs submitted is the fact that just prior to the date of the accident, plaintiff was fifty-seven year old, weighed 390 pounds, was permanently disabled and was unemployed and unemployable. Admittedly, these facts evoke sympathy. Nevertheless, our objective evaluation of the record

convinces us that the motion Judge properly granted summary judgment.

Plaintiff was evaluated on the date of the accident in the emergency ward of the Irvington General Hospital. On arrival at the hospital, he was ambulatory with the assistance of his own crutches. He complained of pain to the right neck and right rib area in the mid-back. He gave a medical history of having sustained a right hip injury six years previously and of right hip arthritis. A radiology report revealed:

Right rib cage; no evidence of fracture or intrinsic bony abnormalities. Conclusion, radiographically normal ribs. Cervical spine, no evidence of fracture or subluxation. Intervertebral disc space narrowing is seen from C4 through C7. Associated mild anterior osteophytosis is noted. Conclusion: No evidence of fracture or subluxation. Mild spondylosis deformans from C4 through C7 as discussed above.

Based on this initial evaluation, plaintiff's condition was described as "stable," he was released to the care of his personal physician and was given a prescription for a muscle relaxant. He was ambulatory, with the assistance of his own crutches on leaving the hospital.

Three days later, on April 9, 1990, plaintiff consulted his personal physician, Dr. Alexandra E. Rubin, complaining of headaches and pain in the neck and lower back. His doctor noted that plaintiff ambulated with two axillary crutches.

The examination revealed the following pertinent data:

Examination of the cervical spine revealed 20-25 degrees limitation of rotation, painful extension, pain on palpation of the spine. The paracervical and upper trapezius muscles were very tender. Range of motion in the shoulder was not limited, but internal rotation was painful. Examination of the lumbo-sacral spine revealed limitation of forward flexion to 75-80 degrees; some limitation of lateral bending; pain and tenderness or palpation over the spine and paravertebrally. Range of motion in the right joint was limited, forward and backward elevation, abduction and rotation. Straight leg raising test was positive at 60 degrees on the left.

Diagnosis: Cervical Sprain/Strain. Lumbo-Sacral Sprain/Strain. Pre-Existing:

OA, Obesity.

As a result of this examination, plaintiff was given another prescription for a muscle relaxant and a course of physical therapy was begun.

Plaintiff continued to see this physician and on June 4, 1990, Dr. Rubin noted:

The patient stated he did not have pain in the neck. There was full range of motion in the cervical spine and mild tenderness of the paracervical and upper trapezius muscles. Range of motion in the lumbo-sacral spine was limited. Forward flexion and lateral bending were painful. The paraspinal muscles were tender. Physical therapy was continued . . . .

On each of his next three office visits, plaintiff's complaints continued to diminish. On July 16, 1990, he was given a T.E.N.S. unit instead of ultrasound. The records reflect: "He was still making very slow progress. Low back pain was milder, but he continued to complain of stiffness. Palpation of the lower lumbar and sacral spine was painful. The patient was given oral anti-inflammatory analgetics."

The final treatment occurred on August 1, 1990. The physician's notes state:

On discharge: The patient still experienced intermittent low back pain, that increased on movements, in bad weather and stiffness. He stated that it was more difficult for him to walk with his crutches. There was pain on ...

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