On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4646-03.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2005
Before Judges Kestin,*fn1 Lefelt and R. B. Coleman.
Plaintiff, Wilbert Bernard Hardison, appeals from the motion judge's summary judgment dismissing his automobile negligence complaint under N.J.S.A. 39:6A-8(a), the limitation on lawsuit threshold, because plaintiff failed to comply with the comparative analysis required in Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). Plaintiff argues the Polk analysis was not required because his permanent injuries were solely caused by the subject automobile accident and he did not assert aggravation of the minor injuries he suffered approximately nine and ten years ago. We agree and reverse and remand.
Here are the facts from plaintiff's perspective. The most recent accident occurred on June 3, 2002, when plaintiff was rear-ended by defendants. Plaintiff sustained a whiplash injury to the neck and low back when his left leg hit the dashboard and his head hit the steering wheel. He briefly lost consciousness and was taken to Rahway Hospital for emergency treatment.
Plaintiff had two prior automobile accidents between 1991 and 1993. In the first, plaintiff was "broadsided" by a van resulting in injuries to his head, neck, and back. Plaintiff stated that he underwent physical therapy and "no one ever mentioned" any herniations or bulges in his neck or back from that accident.
In 1993, plaintiff was involved in another automobile accident when he was hit "hard" from the rear. Plaintiff injured his neck and back and was examined at Pitt Memorial Hospital immediately thereafter. He testified in depositions that he was treated by his family doctor for this accident, may have had an MRI, and did receive physical therapy.
After the most recent June 3, 2002 rear end collision, which rendered his vehicle inoperable, plaintiff was treated in the emergency room of Rahway Hospital. X-rays of the lumbrosacral and cervical spine were taken and were normal except "[m]arginal osteophytes [were] seen at C4-5 and C5-6." Plaintiff was given a soft collar, motrin for pain and inflammation, and released with instructions.
After being released from the hospital, plaintiff was treated by Dr. Lipovsky with physical therapy three times a week and a course of oral analgesics for pain. Because the pain persisted in the cervical and lumbar spine, Dr. Lipovsky ordered magnetic resonance image (MRI) scans, electromyogram (EMG) tests, and nerve conduction studies (NCS) of plaintiff's cervical and lumbar paraspinals and upper and lower extremities.
Dr. Brownstein, a board certified radiologist, determined that the MRI of the cervical and lumbar spines revealed "a focal disc herniation, with adjacent spondylitic change," at C4-5 and a "broad-based protruded disc herniation noted posteriorly" at L5-S1. The NCS and EMG tests revealed findings consistent with cervical radiculopathy.
Dr. Lipovsky recommended that plaintiff continue with home therapy and consult with a pain management specialist and neurosurgeon. In accordance with these instructions, plaintiff saw Dr. Fersel, a pain management specialist. Dr. Fersel began treating plaintiff with lumbar epidural steroid injections to reduce pain.
In July 2004, plaintiff was examined by defendant's expert, Dr. Bercik. Dr. Bercik interpreted the MRI study as showing disk bulging at L5-S1 and disk space desiccation and bulging at all levels, C2-3 through C6-7. Dr. Bercik also reported that plaintiff had disclosed that though he had previously injured his neck and back in prior motor vehicle accidents, "he ...