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Bennett v. Lugo

April 27, 2004


On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3737-02.

Before Judges King, Lintner and Lisa.

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


Submitted March 24, 2004

Plaintiff appeals from an order for summary judgment dismissing his complaint for personal injuries arising out of a motor vehicle accident for failure to satisfy the verbal threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Plaintiff's claim is based upon an alleged serious permanent low back injury caused by the motor vehicle accident. Plaintiff had suffered several injuries to his low back prior to this accident. Therefore, to survive summary judgment, it was incumbent upon plaintiff to present a comparative analysis, based upon medical records prior to this accident with objective medical evidence after this accident, in order to compare plaintiff's residual injuries prior to the accident with those suffered in the accident. Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). The motion judge concluded that plaintiff did not submit a sufficient Polk analysis and therefore did not overcome the threshold. Ibid. On appeal, plaintiff contends the findings of the motion judge were inadequate and plaintiff's medical proofs provided the required Polk analysis and created a jury issue that plaintiff suffered a serious permanent injury as a result of the current motor vehicle accident, which was sufficiently differentiated from any residuals resulting from his prior injuries to that same body part, and that his injury caused a serious impact on his life. We agree with plaintiff and reverse.

The current accident occurred at about 11:00 p.m. on December 16, 2000. Plaintiff was the operator of his vehicle.

He was proceeding at about 5 m.p.h. through a controlled intersection on the green light. The vehicle operated by defendant, William Lugo, approached the intersection from plaintiff's left side, attempted to stop on the wet roadway because he had the red light, but hydroplaned into the intersection, colliding with plaintiff's driver's side front fender. We are unable to determine from the record the speed of Lugo's vehicle. We do know that plaintiff's vehicle was inoperable after the collision and was removed from the scene.

At the accident scene, plaintiff expressed"a minor complaint of a neck injury," and he was taken by ambulance to the Cooper Hospital emergency room in Camden. There he reported neck and back pain. The diagnosis was a trapezius strain. Plaintiff was released for follow-up with his personal physician.

Plaintiff began a course of treatment with his personal physician, Dr. Harvey Benn, who ordered various diagnostic studies, including MRIs that were performed on December 20, 2000 and December 27, 2000. An EMG and nerve conduction studies were performed on February 27, 2001. Benn initiated a course of physical therapy and referred plaintiff to various specialists for consultations and treatment.

We digress from the current chronology of events to mention plaintiff's prior injuries and treatment involving his low back. In 1987, while in the military, plaintiff injured his back while lifting a"tank starter," weighing approximately sixty pounds. Plaintiff believes he suffered a herniated lumbar disc at that time. He continued on light duty until being discharged from the military in 1989. He was awarded a 20% disability benefit as a result of that condition.

On March 28, 1990, while working as a security guard, plaintiff was in a stationary trailer, which was struck by a vehicle being pursued by the police in a high speed chase. The vehicle actually penetrated the trailer. Plaintiff was thrown about inside the trailer. He underwent a course of treatment, culminating in surgical intervention on January 7, 1992. The surgery consisted of an L5-S1 laminectomy and discectomy. It was confirmed at that time that plaintiff had suffered a herniated nucleus pulposus.

Then, while still undergoing a course of physical therapy, on November 12, 1992, plaintiff was riding a bicycle when he was struck by a motor vehicle. He was thrown from the bicycle and aggravated his back injury. He continued on his course of physical therapy and was released from treatment in or about 1993. Both parties agree that no further diagnostic testing was performed after 1992 and prior to the current motor vehicle accident of December 16, 2000.

Plaintiff was thirty-six years old at the time of the current accident. Plaintiff is a graduate of high school and a technical institute, and he attended a truck driving training program. From 1994 to 1998, plaintiff held several jobs, with some gaps in between them. For the two-year period immediately preceding the current accident, plaintiff held three truck driving jobs, with only a three-month interruption between February and May 2000. He quit his most recent job with National Freight only three days before the accident, because his status was going to be changed from driving local jobs, where he went home each night, to long hauls all over the country, where he would be away from home for ten to fifteen days at a time.

Plaintiff contends he would have sought, and believes he would have obtained, another truck driving job soon after leaving National Freight, but has been unable to do so because of his injuries. While working for National Freight, plaintiff was a driver, and was not required to load or unload cargo. He did light lifting, but was not required to lift anything over fifty pounds while working for National Freight.

Plaintiff contends that during the time preceding the current accident, he experienced"light lower back pain," which he had since the time of his military disability. Since the accident, he contends he has suffered severe pain, shooting and radiating into his lower extremities. Plaintiff contends he had not experienced this kind of pain since prior to his 1992 surgery. Plaintiff contends he has been prevented from obtaining employment. In his deposition testimony, plaintiff explained it this way:

Prior to the accident I had a job. I had a full-time job. I would climb in and out of my truck, no problem. Drive for like I said, eight or ten hour -- ten or twelve hour working days, come back. I didn't have any pain. You know, I could get back up ...

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