ANA L. PAZ VS. STATE OF NEW JERSEY (L-0991-14, UNION COUNTY AND STATEWIDE) ( 2017 )


Menu:
  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3290-15T3
    ANA L. PAZ,
    Plaintiff-Appellant,
    v.
    STATE OF NEW JERSEY,
    Defendant-Respondent.
    ____________________________
    Submitted April 4, 2017 – Decided November 1, 2017
    Before Judges Messano and Suter.
    On appeal from Superior Court of New Jersey,
    Law Division, Union County, Docket No. L-0991-
    14.
    Ginarte,   O'Dwyer,   Gonzalez,   Gallardo   &
    Winograd, LLP, attorneys for appellant (Robert
    H. Baumgarten, of counsel and on the briefs).
    Schwab, Haddix & Millman, attorneys for
    respondent (John N. Kaelin, III, of counsel
    and on the brief).
    PER CURIAM
    Plaintiff appeals from an order that granted summary judgment
    to the State of New Jersey, dismissing her personal injury claim
    on the ground that she lacked adequate proof she suffered a
    permanent and substantial injury to permit recovery under the Tort
    Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.         We affirm.
    N.J.S.A. 59:9-2(d) bars recovery for pain and suffering from
    a public entity except for "cases of permanent loss of a bodily
    function,    permanent   disfigurement     or   dismemberment   where   the
    medical treatment expenses are in excess of $ 3,600.00."                  To
    recover pain and suffering damages under this provision, "[a]
    plaintiff must show '(1) an objective permanent injury, and (2) a
    permanent loss of a bodily function that is substantial.'" Knowles
    v. Mantua Twp. Soccer Ass'n, 
    176 N.J. 324
    , 329-30 (2003) (quoting
    Gilhooley v. Cty. of Union, 
    164 N.J. 533
    , 540-41 (2000) and citing
    Brooks v. Odom, 
    150 N.J. 395
    , 402-03 (1997)).          Our review of the
    summary judgment order here requires us to "determine whether the
    evidence, 'viewed in the light most favorable to [plaintiff, is]
    sufficient    to   permit   a   rational    factfinder'   to    find    that
    plaintiff's injuries satisfy both prongs of the Brooks/Gilhooley
    test."   
    Id. at 329-30.
    The evidence, viewed in the light most favorable to plaintiff,
    can be summarized as follows.1
    1
    The State also sought summary judgment on the ground that
    plaintiff failed to prove it had notice of the defective condition
    and its failure to repair the condition was not palpably
    2                              A-3290-15T3
    Plaintiff was employed by Parsons Corporation to inspect
    vehicles at the Rahway Motor Vehicle Commission facility.          On
    March 21, 2012, she tripped and fell over a broken concrete
    sidewalk that abutted the inspection bays.
    Plaintiff sought medical attention the next day at U.S.
    HealthWorks, complaining of pain in her neck and shoulders.      She
    reported having neck pain prior to her fall.   X-rays taken of the
    lumbosacral spine, the cervical spine and the left shoulder were
    negative.    She was diagnosed as having lumbar sprain and strain,
    cervical sprain, bilateral shoulder sprain and strain and rotator
    cuff syndrome.
    On May 8, 2012, plaintiff underwent an MRI of the cervical
    spine without contrast administration.     The report included the
    following findings:
    At C6-C7 minimal bulging is seen mainly
    ventrally.    Thecal sac remains centric.
    Neural foramina are patent. Facet joints are
    unremarkable. No abnormality is seen at C7-
    T1 or T1-T2.
    . . . .
    Posterocentral subligamentous disc herniation
    C4-C5 and C5-6 with mild effacement ventral
    space.    No intrinsic cord abnormality or
    central or foranimal stenosis. Hemangioma T2
    unreasonable. The trial court found a genuine issue of material
    fact as to this argument, precluding summary judgment. Because
    the State did not cross-appeal from that ruling, we need not
    discuss the facts relevant to that point.
    3                         A-3290-15T3
    [(Emphasis added).]
    A lumbar spine MRI on May 8, 2012, resulted in the following
    findings:
    1.   Disc bulge L4-L5 with facet prominence,
    thecal   sac   indentation,  and   bilateral
    foranimal narrowing.
    2.   Posterocentral disc herniation        L5-S1
    with thecal sac indentation.
    [(Emphasis added).]
    On September 25, 2012, plaintiff was admitted to Morristown
    Memorial Hospital, where she underwent an L4-5 microdiskectomy
    performed by Dr. Richard S.       Nachwalter.     Upon admission, her
    chief complaint was right lower extremity pain that persisted
    despite physical therapy and medication.           The report of her
    physical examination states, "She stands erect.        She is able to
    lie down on the exam table.   Her motor strength is 5/5 throughout
    both lower extremities.    She has positive tension to the right,
    negative tension on the left."
    At her two-week follow-up visit, plaintiff reported "her leg
    pain [was] largely resolved" and she was "overall . . . quite
    pleased with her early results."       A physical examination revealed
    her motor strength was "5/5 throughout both lower extremities."
    Dr. Nachwalter stated she was "doing very well" and that her
    prognosis was "good."
    4                           A-3290-15T3
    At a follow-up visit one month later, plaintiff had "an
    overall sense of stiffness" and motor strength of "5/5 throughout
    both lower extremities."    Dr. Nachwalter found her prognosis was
    good and enrolled her in physical therapy.
    In his report of plaintiff's examination on December 12,
    2012, Dr. Nachwalter stated plaintiff had "more pain than [he]
    would expect."    Plaintiff described persistent pain in her back,
    as well as bilateral lower extremity pain, and bilateral knee
    pain, and had "exquisite tenderness to light tough of the skin
    throughout her lumbar spine."     Dr. Nachwalter ordered "an MRI of
    the lumbar spine to rule out a recurrence."          He still found
    plaintiff's prognosis was "good."
    Following his last post-operative examination of plaintiff,
    Dr. Nachwalter noted she described "some persistent discomfort
    predominantly in her low back."    He reported that plaintiff stood
    erect and ambulated without any assistive devices.    Dr. Nachwalter
    stated plaintiff's motor strength was 5/5 through both lower
    extremities.     His review of the lumbar spine MRI revealed "no
    significant herniations or stenosis" and no "significant neural
    compression."     Dr. Nachwalter discharged plaintiff from care,
    stating, her prognosis was "good," and "[s]he has reached maximum
    medical benefit."    She was released to return to work January 8,
    2013.
    5                          A-3290-15T3
    Plaintiff     remained   employed     by    Parsons       until     2014,
    approximately two years after her accident.         Plaintiff has not had
    any treatment for her physical injuries since her last physical
    therapy visit in December 2012.
    Plaintiff filed the instant complaint in March 2014.
    Plaintiff's    medical   expert,    Dr.    Marvin    E.   Friedlander,
    examined her in October 2015.       At the time, plaintiff was only
    taking over-the-counter analgesics.
    Dr. Friedlander noted the post-operation study demonstrated
    "a good surgical outcome."         Dr. Friedlander agreed with the
    conclusions in the MRI reports relating to the MRI of the cervical
    spine and x-ray of the lumbar spine.             Based upon his physical
    examination of plaintiff, Dr. Friedlander stated there appeared
    to be tenderness and muscle spasms in the lumbar spine and cervical
    region.   He found "decreased range of motion in all directions in
    her neck," motor examination of "5/5 in all muscle groups, upper
    and   lower   extremities,"    "normal    sensation   to    pin   and     touch
    throughout with some mild decrease in the L5 dermatome on the
    right only," reflexes that "were all 2/4 and symmetric," a normal
    gait and no abnormal reflexes.
    6                                   A-3290-15T3
    Dr. Friedlander found plaintiff's injuries to be causally
    related to the accident2 and listed "[d]iagnoses including cervical
    disc herniation, chronic neck pain, cervical neck pain, cervical
    radiculopathy,    lumbar       disc   herniation,      lumbar   radiculopathy,
    chronic back pain, status post lumbar microdiskectomy and failed
    back syndrome."       He opined "that the above-mentioned diagnoses are
    of permanent nature," that plaintiff would suffer with chronic
    pain on a permanent basis and that it was unlikely "there would
    be   any   significant        improvement      in   plaintiff's      functional
    abilities."      He    did    not   identify   what,    if   any,   "functional
    abilities" had been impaired by her injury.
    At the time of her deposition, plaintiff had no medical
    restrictions due to her physical complaints and took either aspirin
    or Tylenol for pain.         After her accident, she joined a gym because
    she wanted to walk on the treadmill but found it painful to do so
    and stated she intended to quit.            She testified her ability to
    perform household tasks had been limited.                She can cook, wash
    dishes and do some cleaning but her husband had taken over most
    of the cleaning chores.         Her socializing was limited; she stated
    2
    Plaintiff told Dr. Friedlander that she had no problems with
    her neck or back before the accident. At her deposition, however,
    plaintiff stated she suffered injuries to her neck and back in a
    motor vehicle accident in 1998. She was taken to the hospital by
    ambulance and underwent physical therapy for several weeks
    thereafter.
    7                               A-3290-15T3
    she can no longer go dancing.         In addition, although no physician
    had stated she was unable to work, plaintiff testified she was not
    working due to debilitating back pain and physical limitations.
    However, she did take a course in 2014 "to learn how to take care
    of elderly people."       Her applications for permanent disability
    were denied by the Social Security Administration twice. Plaintiff
    was divorced from her third husband in April 2014 and married her
    fourth husband in October 2014.             She continues to engage in
    relations with her husband although she stated it caused her pain
    to do so.
    Neither Dr. Morris Horwitz, plaintiff's orthopedic expert for
    her workers compensation claim, nor Dr. Ana Miguel Komotar, a
    neurologist engaged to examine plaintiff regarding her workers
    compensation claim, reviewed the MRIs prior to reaching their
    conclusions. Based upon his review of MRI reports, other documents
    and a physical examination, Dr. Horwitz found plaintiff sustained
    herniated discs at C4-5 and C5-6, that she was status post L4-5
    microdiskectomy, and concluded she suffered permanent impairments
    of 25% of her right leg and left leg and an orthopedic disability
    of 65% of partial total.        Based upon her review of documents and
    a   physical    examination,    Dr.   Komotar   diagnosed   plaintiff     with
    "Cervical      radiculopathy,   Herniated   cervical   discs    C4   to    C6,
    Lumbrosacral radiculopathy, Herniated discs L4 to S1 with nerve
    8                             A-3290-15T3
    root    impingement   requiring   discectomy   at   L4-L5,    Adjustment
    disorder with anxious features and depressed mood."          Dr. Komotar
    concluded these diagnoses were causally related to the accident
    and that plaintiff suffered "a permanent neurological disability
    of 50% of partial total and a permanent neuropsychiatric disability
    of 35% of total."
    At oral argument on the summary judgment motion, plaintiff's
    counsel stated she suffered a permanent loss of bodily function
    that is substantial by virtue of the limitations on her ability
    to bend, twist, walk, stand and sit.     He argued she had permanent
    pain throughout her lumbar spine and that there was objective
    evidence of that.     Relying upon the Supreme Court's decision in
    
    Brooks, supra
    , 150 N.J. at 402-03, the trial court found "the
    injuries complained of by [plaintiff] fail to establish that she
    sustained a permanent loss of bodily function that is substantial"
    and granted summary judgment to the State, dismissing plaintiff's
    claim for pain and suffering.
    On appeal, plaintiff argues the trial court erred in failing
    to acknowledge that she suffered a permanent injury that is
    substantial.    She states the uncontroverted evidence establishes
    that, as a result of the accident, plaintiff suffered cervical and
    lumbar disc herniations that required surgery, that she was out
    of work for substantial periods of time and is unemployed at
    9                             A-3290-15T3
    present.   The State counters that plaintiff's proofs failed to
    vault the TCA's limitation on recovery for pain and suffering.
    There is no per se rule to determine whether an injury is
    substantial and permanent. 
    Knowles, supra
    , 176 N.J. at 331. "[I]t
    is the nature or degree of the ongoing impairment that determines
    whether a specific injury meets the threshold requirement under
    the Tort Claims Act."    Ponte v. Overeem, 
    171 N.J. 46
    , 53 (2002)
    (citing Kahrar v. Borough of Wallington, 
    171 N.J. 3
    , 16 (2002)).
    In Knowles, the Court reviewed precedents applicable to our
    fact-sensitive analysis.     Addressing the nature of injuries that
    fall within the exception to immunity, the Court stated:
    First, we have recognized that "injuries
    causing    blindness,    disabling    tremors,
    paralysis and loss of taste and smell" satisfy
    the threshold because they are inherently
    "objectively permanent and implicate the
    substantial loss of a bodily function (e.g.,
    sight, smell, taste, and muscle control)."
    
    Gilhooley, supra
    , 164 N.J. at 541 (citing
    
    Brooks, supra
    , 150 N.J. at 403). Second, we
    have held that when a plaintiff suffers an
    injury that permanently would render a bodily
    organ or limb substantially useless but for
    the ability of "modern medicine [to] supply
    replacement parts to mimic the natural
    function," that injury meets the 
    threshold. 164 N.J. at 542-43
    .
    [
    Knowles, supra
    , 176 N.J. at 332.]
    The Court then described the requisite proof an injury is
    permanent and substantial:
    10                         A-3290-15T3
    [W]e have concluded that there must be a
    "physical manifestation of [a] claim that [an]
    injury . . . is permanent and substantial."
    
    Ponte, supra
    , 171 N.J. at 54.       An injury
    causing lingering pain, resulting in a
    lessened ability to perform certain tasks
    because of the pain, will not suffice because
    "[a] plaintiff may not recover under the Tort
    Claims Act for mere 'subjective feelings of
    discomfort.'" 
    Gilhooley, supra
    , 164 N.J. at
    540 (quoting 
    Brooks, supra
    , 150 N.J. at 403
    (citation omitted)).
    [Ibid.]
    Finally, the Court noted "neither an absence of pain nor a
    plaintiff's ability to resume some of his or her normal activities
    is dispositive of whether he or she is entitled to pain and
    suffering damages under the TCA."        
    Ibid. Applying these principles
    here, it is at once evident that
    plaintiff's injuries are not of a character that are inherently
    "objectively permanent and implicate the substantial loss of a
    bodily function."      See 
    id. at 332.
      In addition, she did not suffer
    an injury that "permanently . . . render[ed] a bodily organ or
    limb substantially useless but for the ability of 'modern medicine
    [to] supply replacement parts to mimic the natural function.'"
    See 
    ibid. Plaintiff did, however,
    present evidence from two MRIs that
    revealed    cervical    disc   herniation   at   C4-C5   and   lumbar   disc
    herniation at L5-S1.      Following a physical examination after her
    11                              A-3290-15T3
    L4-L5   microdiskectomy,     Dr.   Horwitz       stated,   "[t]he   objective
    medical findings . . . have resulted in a permanent impairment of
    25% of the right leg, a permanent impairment of 25% of the left
    leg and an orthopedic disability of 65% of partial total." Viewing
    the evidence in the light most favorable to plaintiff, we conclude
    she suffered a permanent injury.              We therefore turn to a fact-
    sensitive analysis to determine the remaining issue, whether, her
    "injuries could constitute a 'permanent loss of a bodily function
    that is substantial' under the TCA."           See 
    Knowles, supra
    , 176 N.J.
    at 333.
    Gilhooley, Kahrar and Knowles provide examples of cases in
    which the plaintiff's injuries satisfied the statutory threshold.
    In all three cases, the plaintiff presented objective medical
    evidence linking an injured body part to the plaintiff's inability
    to perform certain bodily functions without extensive medical
    intervention.
    In 
    Gilhooley, supra
    , 164 N.J. at 533, the plaintiff suffered
    a fractured nose and fractured right patella.              The "knee fracture
    resulted in the disruption of the extensor mechanism leaving her
    with a complete loss of quadriceps power."            
    Id. at 536.
         The loss
    of quadriceps power "prohibit[ed] stair climbing, chair ascent and
    descent   as   well   as   any   form    of   efficient    walking."      
    Ibid. Plaintiff underwent open
    reduction surgery, which required the
    12                              A-3290-15T3
    restructuring of her patella with the use of pins and a tension
    band wire.    
    Ibid. She was hospitalized
    for five days and wore a
    leg brace for more than two months.                  
    Id. at 537.
         Despite the
    successful    reconstructive          surgery,      the     Court   concluded     the
    plaintiff    satisfied       the    TCA   threshold       because   her    fractured
    patella was an objective permanent injury that caused her "to lose
    forever the normal use of her knee that, thereafter, could not
    function without permanent pins and wires to re-establish its
    integrity."    
    Id. at 542.
    The plaintiff in Kahrar underwent invasive surgery to repair
    a "massive tear" of the rotator 
    cuff. 171 N.J. at 15
    .      Despite
    successful    surgery        that     alleviated        plaintiff's       pain,   the
    reattached    tendon        was     shortened      in     length,   resulting       in
    plaintiff's loss of approximately forty percent of the normal
    range of motion in her left arm.               
    Id. at 16.
       The Court found that
    this    reduction     in    normal     function      was     both   permanent     and
    substantial, significantly impairing the plaintiff's ability to
    use her arm to complete normal tasks.               Ibid.
    In 
    Knowles, supra
    , 176 N.J. at 333, the Court found the
    threshold was met by "objective medical evidence of a permanent
    injury that is directly responsible for the substantial loss of
    several bodily functions: the lack of feeling in his left leg and
    the inability to stand, sit, or walk comfortably for a substantial
    13                                 A-3290-15T3
    amount   of    time,   engage   in   athletics,   and   complete   household
    chores."      
    Id. at 333.
    In contrast, Brooks and Ponte provide examples of injuries
    that were not shown to constitute a permanent loss of a bodily
    function that is substantial under the TCA.
    In Brooks, the Court found a plaintiff who experienced pain
    and had a permanent limitation of motion in her neck and back
    failed to sustain "a permanent loss of a bodily function" because
    she was able to function in her employment and as a 
    homemaker. 150 N.J. at 406
    .       Noting "a plaintiff may not recover under the
    Tort Claims Act for mere 'subjective feelings of discomfort,'"
    
    Brooks, supra
    , 150 N.J. at 403 (quoting Ayers v. Township of
    Jackson, 
    106 N.J. 557
    , 571 (1987)), the Court stated that, in the
    absence of an objective impairment, such as a fracture, "a claim
    for permanent injury consisting of 'impairment of plaintiff's
    health and ability to participate in activities' merely iterates
    a claim for pain and suffering."           
    Ibid. (citation omitted). In
    Ponte, supra
    , 171 N.J. at 54, the Court held the plaintiff
    "ha[d] not demonstrated any physical manifestation of his claim
    that the injury to his knee is permanent and substantial."                The
    Court observed the absence of "any evidence that plaintiff's range
    of motion is limited, his gait impaired or his ability to ambulate
    restricted."      
    Ibid. While the plaintiff
    had cited one or two
    14                             A-3290-15T3
    instances of his knee "giving way," he failed to demonstrate "there
    is any permanent instability in the knee."     
    Ibid. The record also
    failed to show plaintiff's knee injury continued to restrict him
    "in performing his work responsibilities, household chores, yard
    work, or in his weightlifting or biking activities."         
    Ibid. We acknowledge that
      plaintiff's   ability   to   resume   some
    "normal" activities and the fact she only required over-the-
    counter medication for pain do not alone bar her recovery for pain
    and suffering.   
    Knowles, supra
    , 176 N.J. at 332.      Still, applying
    the principles articulated in these cases, we conclude the proof
    of plaintiff's injuries more closely resembles the evidence that
    fell short of establishing the statutory threshold in Brooks and
    Ponte than the evidence in Gilhooley, Kahrar and Knowles.
    As the Court noted in 
    Knowles, supra
    , 176 N.J. at 333, the
    plaintiffs in Brooks and Ponte "complained that their injuries
    left them unable to perform certain tasks without pain, but the
    injuries were not severe enough or verifiable enough to constitute
    a 'permanent loss of a bodily function.'"     (Citation omitted).       By
    all accounts, plaintiff enjoyed "a good surgical outcome" from her
    microdiskectomy and reported her leg pain was "largely resolved"
    just two weeks after surgery.    When he released her from care, Dr.
    Nachwalter stated she had "reached maximum medical benefit."          She
    returned to work and remained employed for two years following the
    15                             A-3290-15T3
    accident.       Since shortly after her surgery, she has "ambulated
    without    any    assistive    devices."        Although    she   complains    of
    debilitating pain, there are no medical restrictions on her; she
    has not sought any treatment since December 2012 and she relies
    upon over-the-counter medications for pain relief.
    Although Dr. Friedlander found a "decreased range of motion
    in all directions in her neck," he did not identify the degree to
    which her range of motion was decreased or how that resulted in
    the substantial loss of any bodily function.                  Compare 
    Kahrar, supra
    ,    171    N.J.   at   15.     Dr.     Friedlander   stated   plaintiff's
    functional abilities were unlikely to improve but his failure to
    identify what functional abilities were affected and to what degree
    precludes any assessment of "the nature or degree of the ongoing
    impairment."      
    Ponte, supra
    , 171 N.J. at 53.
    Although it is not necessary for a plaintiff to prove a total
    permanent loss of use of a bodily function, "a mere limitation on
    a bodily function" will not suffice.              
    Brooks, supra
    , 150 N.J. at
    406.     Similarly, "[a]n injury causing lingering pain, resulting
    in a lessened ability to perform certain tasks because of the
    pain," is insufficient.            
    Knowles, supra
    , 176 N.J. at 332.         Even
    affording plaintiff all reasonable inferences from the evidence,
    her proof shows no more than continuing pain that has had some
    16                              A-3290-15T3
    limiting effect on her; it fails to demonstrate any reduction in
    normal function was both permanent and substantial.
    Affirmed.
    17                         A-3290-15T3
    

Document Info

Docket Number: A-3290-15T3

Filed Date: 11/1/2017

Precedential Status: Non-Precedential

Modified Date: 11/2/2017