Kahrar v. Borough of Wallington ( 2002 )

The opinion of the Court was delivered by

STEIN, J.

The issue on appeal is whether plaintiff, Sharon Kahrar, has satisfied the threshold for awarding pain and suffering damages under the Tort Claims Act, N.J.S.A. 59:9 — 2d, based on a torn rotator cuff that was surgically repaired. The Appellate Division affirmed the dismissal of plaintiffs cause of action, concluding that plaintiffs shoulder injury did not constitute a “permanent loss of a bodily function” that was “substantial,” the standard adopted by this Court in Brooks v. Odom, 150 N.J. 395, 406, 696 A2d 619 (1997). We hold that on the facts in this record the shoulder injury satisfies the statutory threshold requirement.

I

On June 28,1997 at approximately 12:00 p.m., plaintiff, then 51-years-old, drove to a market in Wallington, New Jersey. Before entering the market, plaintiff decided to throw out some trash from her vehicle into a trash receptacle located across the street. Holding the trash in front of her body with both hands, plaintiff proceeded across the street without using the designated crosswalk. As she walked across the street, her right foot entered a hole in the middle of the street, causing her to fall forward on her hands and knees.

Plaintiffs foot had entered an opening seven-and-a half inches in diameter in a water valve-box area that was located two inches below the pavement’s surface. Ideally, that type of valve box would be covered with a lid that sits on the valve’s rim so as to be even with the pavement above. However, in this instance, the lid cover fit improperly.

Following her fall, plaintiff noticed that she had cuts and bruises on her hands and left knee. Despite her injuries, plaintiff managed to crawl over to the side of the road. After declining the assistance of a passerby and sitting on the side of the road for a few minutes, plaintiff again gathered her trash, threw it into the receptacle and proceeded to the market as planned.

Plaintiff later informed the police of the condition in the road. When plaintiff arrived home, her daughter applied ice to her right ankle. Plaintiffs left shoulder, knee and the palms of her hands were painful. During the day her ankle swelled, her left shoulder stiffened, and she experienced increased pain in that shoulder. However, plaintiff did not seek professional medical attention until the following morning when her husband drove her to a hospital emergency room and X-rays revealed a broken elbow and right ankle. Hospital personnel placed an ace bandage on her ankle and told her to schedule a follow-up visit with the emergency room physician, Dr. Eugene Coyle.

Plaintiff was examined by Dr. Coyle within a week of the accident. She met -with Dr. Coyle on a weekly basis and also received physical therapy three times a week. However, after three weeks of treatment plaintiff was still in pain. Dr. Coyle recommended that she see an orthopedist.

Plaintiff was seen by Dr. Gary Savatsky, an orthopedist, in July 1997. Dr. Savatsky took an MRI that revealed a massive tear of plaintiffs rotator cuff. Dr. Savatsky performed surgery in August 1997 to repair the torn rotator cuff. The operative record revealed that plaintiff

had a massive tear of the cuff with entire retraction of the proximal 90% of the supraspinatus[,] [one of the muscles that make up the rotator cuff]. Roughly two-thirds of the [top of the ball portion of the shoulder] was exposed. Only the posterior aspect of the supraspinatus remained intact. There was also delamination into the tendon itself which was thickened and inflamed____

The cuff tear was deemed too large to repair adequately with an arthroscopic assisted technique. Therefore, a traditional Neer skin incision was made from the coracoid to the anterolateral acromion. The skin and subcutaneous tissues were divided down. The deltoid was taken from the anterior acromion and then split distally for 3 cm. The coracoacromial ligament was divided. A formal Neer acromioplasty [surgical removal of the anterior portion of the acromion] was performed with the above noted findings.

Consistent with the operative record, plaintiff characterized the surgical intervention as one in which “the surgeon removed a portion of the bone in her shoulder and reattached the severed tendon to the shoulder. This procedure shortened the length of the tendon which reduced the function of the patient’s arm movement.”

Within three weeks of surgery, Dr. Savatsky noted that plaintiff was improving. Approximately two months after surgery, Dr. Savatsky observed that plaintiffs incision was well-healed and that there was no swelling in the shoulder, although she still had pain and achiness.

However, three months after surgery Dr. Savatsky also observed that she could rotate her shoulder only twenty-five degrees, and subsequent post-operative reports described significant limitation in the movement of plaintiffs left arm. Thus, Dr. Savatsky’s last and next-to-last reports — rendered 150 and 227 days after surgery — describes her forward flexion (raising of the arm forward and upward) as measuring 120 degrees, compared with 170 degrees for the right arm. Similarly, external rotation with the arm abducted (moving the arm horizontally with the elbow at the side, extending the hand sideways) measured forty-five degrees, compared with eighty degrees for the right arm. Finally, her ability to extend her arm behind 'her back was compromised because she was able to reach only the second of the five lumbar vertebra (lower back) with her left hand, but could extend her right arm higher to reach the eighth of the twelve thoracic vertebra (mid back).

Defendant’s expert’s observations also confirm the plaintiffs surgeon’s post-operative reports that plaintiffs loss of motion in her left arm is medically significant. The defense’s expert, Dr. Lawrence Livingston, examined plaintiff in July 1998, approximately one year after surgery. Dr. Livingston noted that

[t]here is only 90 degrees of abduction, 100 degrees of forward flexion as compared to 180 degrees of abduction and forward flexion of the opposite shoulder. There is approximately 45 degrees of external rotation of the left shoulder, 90 degrees of the right. Internal rotation is present to the belt line on the left side and present to the mid thoracic spine on the right side with about 6" loss of internal rotation, terminal position. There is mild weakness to the external rotation and abduction of the left shoulder. There is negative drop test. The biceps and triceps are normal. The deltoid was slightly atrophied but sensory was intact. The supra— and infrascapula fossae were non tender.

Significantly, Dr. Livingston noted that plaintiff had approximately forty percent loss of full motion in her left shoulder. Accordingly, both examining physicians agreed that plaintiff had sustained substantial motion loss in her left arm that apparently was attributable to weakness in the reattached tendon.

After surgery, plaintiff began a course of physical therapy that continued for about nine months. By the time she returned to her employment, she had missed approximately 100 days of work. Plaintiff sustained approximately $6,225 in lost wages and approximately $25,000 in medical bills.

Plaintiff returned to work as a secretary almost two months after her surgery and was noted to be performing her full duties without restrictions. Plaintiffs employment as a secretary includes typing on the computer and answering incoming telephone calls for a work force of twenty-two employees. She indicates that it takes her longer to perform her normal responsibilities and that she often requires the assistance of others to complete some of her duties.

Plaintiff, who is left hand dominant, indicates that she has had to compensate for the weakness and loss of mobility in her injured arm by using her right arm more, which often causes the right shoulder to swell. She especially experiences difficulty when performing normal household tasks, requiring her husband’s or her children’s assistance to clean, vacuum or move furniture. In addition to the difficulty in performing normal household tasks, plaintiff also states that she has difficulty driving, sleeping through the night without pain, reaching certain areas of her body and continuing her hobbies that include woodworking and furniture stripping.

Plaintiff and her husband filed suit under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, alleging that defendant was negligent in failing to repair and keep in good condition the surface of the roadway and failing to give any warning of the allegedly dangerous condition. Defendant filed a motion for summary judgment, claiming that plaintiffs injuries did not satisfy the threshold requirement of “permanent loss of a bodily function” set forth in N.J.S.A. 59:9-2d, and that the condition in the roadway was not a “dangerous condition,” pursuant to N.J.S.A. 59:4-2.

The trial court granted summary judgment for defendant on both grounds. The trial court observed that our decision in Brooks required, as a predicate to recovery for pain and suffering, an injury that prevents a plaintiff from performing any or most of the tasks performed at work and at home prior to the injury. The Appellate Division disagreed with the trial court’s determination on the issue of whether the recessed valve box was a dangerous condition, but affirmed the trial court’s determination that plaintiffs injury was not permanent. We granted plaintiffs petition for certification to consider whether plaintiffs shoulder injury constitutes a “permanent loss of a bodily function” that satisfies the Tort Claims Act’s threshold requirement. 167 N.J. 89, 769 A.2d 1052 (2001).

II

In Willis v. Department of Conservation & Economic Development, 55 N.J. 534, 540, 264 A.2d 34 (1970), this Court abrogated the doctrine of sovereign immunity for tort claims. In response, the Legislature adopted the Tort Claims Act in 1972, primarily to “re-establish immunity of public entities in New Jersey, on a basis more current and equitable than that which had obtained prior to Willis.” Harry A. Margolis & Robert Novaek, Claims Against Public Entities, Introduction, at ix (2001). What emerged is the general rule that public entities are immune from tort liability unless there is a specific statutory provision imposing liability. Collins v. Union County Jail, 150 N.J. 407, 413, 696 A2d 625 (1997). The Tort Claims Act further limits recovery for pain and suffering damages to cases involving “permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.” N.J.S.A. 59:9-2(d). The 1972 Attorney General’s Task Force on Governmental Immunity explained that

[t]he limitation on the recovery of damages ... reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances — cases involving permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of [$3,600] The limitation that pain and suffering may only be awarded when medical expenses exceed [$3,600] insures that such damages will not be awarded unless the loss is substantial.

[Comment, N.J.S.A. 59:9-2.]

The Court echoed that public policy in Collins, supra, 150 N.J. at 413, 696 A.2d 625, stating that

[w]hat emerges from the Task Force comments and the legislative expression is an intent that N.J.S.A. 59:9 — 2(d) should preclude recovery for pain and suffering based on subjective evidence or minor incidents. Where, however, there are aggravating circumstances such as the permanent loss of a bodily function, a permanent disfigurement, or dismemberment, and the medical expenses exceed [$3,600], recovery for pain and suffering may not be prohibited.

In Brooks, supra, 150 N.J. at 400, 696 A.2d 619, the Court elaborated on the “permanent loss of a bodily function” requirement under N.J.S.A. 59:9-2d. There, a New Jersey Transit bus struck the open door of the plaintiffs car, knocking her back into the car. The plaintiff arrived at the hospital complaining of pain in her neck, back and head. X-rays were taken, and she was prescribed medication, fitted for a cervical collar and discharged. The plaintiff subsequently sought treatment fi*om a physician who administered twelve heat treatments to her back. Finding those treatments ineffective, plaintiff then came under the care of a new doctor, complaining of headaches, dizziness, blurred vision, pain and stiffness in her neck, upper and lower back, and in her left shoulder; The plaintiff was diagnosed with “ ‘residual of post-traumatic myositis and fibromyositis of the cervicodorsal and lumbosacral region and post-traumatic headache syndrome.’ ” Id. at 399, 696 A.2d 619. Despite treatment with transcutaneous electrical nerve stimulation, the plaintiffs complaints of pain persisted.

The evidence in Brooks included X-rays of the plaintiffs back that revealed “small marginal spurs” and spinal curvature. An EMG indicated elevated muscle activities in her neck. Ibid. We also considered the plaintiffs persistent complaints of pain, muscle spasms and limited motion when performing household chores. We concluded that “[i]n reviewing the sufficiency of plaintiffs case, we accept that she experiences pain and that the limitation of motion in her neck and back is permanent.” Id. at 406, 696 A.2d 619. We also explained that a partial, as well as a total, permanent loss of a bodily function would satisfy the statutory standard provided that the loss of bodily function was substantial. Ibid. Nonetheless, we held that the plaintiffs complaint reflected essentially a subjective claim for pain and suffering that did not rise to the level of a substantial and permanent loss of a bodily function. The Court noted that plaintiff was able to function both in her employment and as a homemaker, and concluded that she did not have a permanent loss of a bodily function within the meaning contemplated by the Legislature.

We also reviewed the legislative history underlying the Tort Claims Act and concluded that the “Legislature intended a chary interpretation of a public entity’s exposure to liability.” Id. at 402, 696 A.2d 619. We stated that “[t]o recover under the Act for pain and suffering, a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not recoverable. Further, a plaintiff may not recover under the Tort Claims Act for mere ‘subjective feelings of discomfort.’ ” Id. at 402-03, 696 A.2d 619. The Court acknowledged, however, that certain types of permanent injury, such as “permanent loss of eyesight, taste and smell,” would satisfy the statutory standard. Id. at 403, 696 A.2d 619.

Cases under the No-Fault Act also were considered in our analysis. We stated that “[t]he No Fault Act manifests legislative recognition that something less than a ‘permanent loss of the use of a body organ, member, function or system’ would satisfy the verbal threshold.” 150 N.J. at 406, 696 A.2d 619. We clarified that in the ease of the Tort Claims Act, although the Legislature did not intend to require a total loss of a bodily function, it also did not intend that “a mere limitation on a bodily function would suffice.” Ibid.

A two-pronged test emerged from our decision in Brooks. To recover under the Tort Claims Act, a plaintiff must prove “(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.” Gilhooley v. County of Union, 164 N.J. 533, 541, 753 A.2d 1137 (2000).

Since our decision in Brooks, courts have attempted to apply correctly the substantiality requirement under the second-prong of Brooks. In Hammer v. Township of Livingston, 318 N.J.Super. 298, 723 A.2d 988 (1999), the Appellate Division ruled that a plaintiff whose fractures had healed did not demonstrate a permanent loss of a bodily function that was substantial. The sixty-four year old plaintiff was struck by a fire wagon and thrown into the air. She suffered severe lacerations to her knee, left elbow, right eye, nose and lip. She also sustained several fractures of her nose, elbow, and knee. Plaintiff underwent several operations, but her physician noted that within three months of the accident plaintiff was functioning well. Thereafter, plaintiff started to complain of pain in her right shoulder and was diagnosed with post-traumatic tendonitis. The court noted that plaintiffs gait was not limited by her injuries, and that plaintiff had acknowledged that her left fibula and left elbow had healed completely. On the issue of plaintiffs fractures, the court concluded that plaintiff had presented no objective medical evidence to satisfy the second prong of Brooks. Id. at 305, 723 A.2d 988. See also Dellisanti v. Harrison Hous. Auth., aff’d, 163 N.J. 61, 747 A.2d 275 (2000)(reaffirming need for objective credible evidence to satisfy the second prong of Brooks)

In comparison, in Gerber v. Springfield Board Of Education, 328 N.J.Super. 24, 744 A.2d 670, (2000), the Appellate Division ruled that a plaintiff diagnosed with nasal fractures had demonstrated a permanent loss of a bodily function that was substantial. There, plaintiff, a high school student, was attacked by a classmate. She sustained multiple nasal fractures and underwent surgery for a “ ‘closed reduction of nasal bone and septal fractures.’ ” Id. at 31, 744 A.2d 670. After surgery, the plaintiff still had difficulty breathing through her nose. Her physicians concluded that her injuries were permanent, her symptomology would worsen, and that there was no possibility that she would ever breathe normally again. Id. at 32, 744 A.2d 670. The court held that a “substantial loss of bodily function encompasses permanent and constant difficulty breathing.” Id. at 36, 744 A.2d 670.

More recently in Gilhooley, supra, 164 N.J. 533, 753 A.2d 1137, we addressed the Brooks two-prong test. In Gilhooley, the plaintiff was employed as a clinical social worker for the United States Department of Veterans Affairs. While working in that capacity, plaintiff slipped and fell on an exit ramp as she exited the Union County jail. Doctors diagnosed a fractured nose and fractured right patella. They informed plaintiff that her “knee fracture [had] resulted in the disruption of the extensor mechanism leaving her with a complete loss of quadriceps power.” Id. at 536, 753 A.2d 1137. Consequently, plaintiff underwent open reduction surgery, which required the restructuring of her patella with the use of pins and a tension band wire. Plaintiff remained in the hospital for five days and wore a leg brace for more than two months. The Appellate Division determined that because plaintiff had successful reconstructive surgery and had returned to work, her injury constituted only a temporary loss of a bodily function. Id. at 538, 753 A.2d 1137. We reversed, holding that plaintiffs fractured patella was an objective permanent injury that caused the plaintiff “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, 753 A.2d 1137. We also explained that “the Legislature intended to include within the notion of aggravated cases those involving permanent injury resulting in a permanent loss of normal bodily function even if modern medicine can supply replacement parts to mimic the natural function.” Ibid. Thus, we concluded that plaintiff had satisfied the Tort Claims Act threshold and reversed the grant of summary judgment for defendant.

Our dissenting colleagues’ reliance, post at 22-23, 791 A.2d 208-09), on this Court’s 4-3 disposition in Dellisanti v. Harrison Housing Authority, 163 N.J. 61, 747 A.2d 275 (2000), is misplaced. The Court divided in Dellisanti on the issue whether objective evidence in the record was sufficient to sustain a causal connection between the plaintiffs wrist fracture and her subjective complaints. No such issue is presented by this record, it being undisputed that plaintiffs loss of motion in her left shoulder resulted from the massive tear of her rotator cuff.

Ill

Defendant argues that plaintiff does not have a permanent loss of a bodily function that is substantial because, unlike an athlete who requires full use and rotation of the shoulder, a forty percent loss of full range of motion in plaintiffs shoulder is less significant. Defendant would, therefore, read our decision in Brooks and later cases as affording an advantage to non-sedentary plaintiffs. Defendant also would apply Brooks as a per se rule that would preclude a finding of permanent and substantial loss of a bodily function if the claimant still is able to function reasonably well at work and at home, irrespective of the nature or degree of permanent impairment.

Defendant’s view of the Tort Claims Act’s limitation on pain and suffering damages is flawed. The Brooks holding demonstrates that distinctions between sedentary and non-sedentary plaintiffs in applying the Tort Claims Act standard are inappropriate. Rather, the appropriate focus is on the degree of injury and impairment. Moreover, dicta in Brooks should not be understood to suggest that plaintiffs with permanent and substantial impairments who, nevertheless, can manage to perform adequately routine tasks at work and at home are barred from recovery. If the loss of bodily function is permanent and substantial, as in this case, a plaintiffs eligibility to recover pain and suffering damages will not be defeated merely because she can perform some routine functions almost as well as she could prior to her injury.

In Gilhooley, supra, 164 N.J. at 541, 753 A.2d 1137, we noted that a determination of whether a claimant has sustained injuries sufficient to satisfy the threshold under the Tort Claims Act is fact sensitive, and, therefore, not conducive to per se rules. Based on the facts in this record, we hold that plaintiffs shoulder injury has satisfied the Brooks standard.

Plaintiffs injury reflects a comparable degree of impairment to the injury described in our opinion in Gilhooley where we stated that a plaintiff who permanently lost the normal function of her knee, requiring the use of modern medicine to “supply replacement parts to mimic the natural function,” satisfied the pain and suffering threshold. Id. at 542, 753 A.2d 1137. We explained in Gilhooley that a claimant “whose vision is restored with a lens, one whose hearing is restored with a hearing aid, and one whose heart is operating efficiently with a pacemaker or implanted valve” would in no way “inhibitf ] the characterization of that injury as the permanent loss of a bodily function.” Id. at 543, 753 A.2d 1137.

Plaintiff had surgery to repair a “massive tear” of the rotator cuff. “The rotator cuff muscles work primarily to help prepare the arm for lifting and [for] movement activities.” They also help to “rotate and spin the arm around in its socket.” Rotator Cuff Revealed, Part 1: An Anatomical Review, <http://physicaltherapy.about.com> (visited December 17, 2001). The rotator cuff muscles are implicated whether the subject is throwing a ball, raising a window shade, or simply reaching behind his or her back. Id.

The record reveals the seriousness of plaintiffs rotator cuff tear, the invasiveness of the surgery and that the reattachment of the severed tendon shortened its length. Thus, despite the successful surgery that alleviated plaintiffs pain, her ability to use her arm to complete normal tasks has been significantly impaired because plaintiff has lost approximately forty percent of the normal range of motion in her left arm. That reduction in normal function appears to be both permanent and substantial. We cannot conceivably impute to the Legislature an intention to deprive plaintiffs who sustain permanent injuries of that quality, and that are so clearly susceptible to objective medical evaluation and confirmation, of the opportunity to recover pain and suffering damages from an otherwise responsible public entity defendant. We therefore find that plaintiff has adequately demonstrated a permanent and substantial loss of a bodily function.

IV

The judgment of the Appellate Division is reversed and the matter remanded for trial to the Law Division.