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NOT FOR PUBLICATION WITHOUT THE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
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