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

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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."
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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
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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