On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication November 8, 1996.
Before Judges Kestin and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D.
The opinion of the court was delivered by: Humphreys
The opinion of the court was delivered by Humphreys, J.A.D.
Plaintiff brought suit for injuries sustained in an automobile accident in 1993. She alleges the defendants did not maintain the road in a safe condition. Summary judgment was granted to the defendants on the ground that plaintiff's injuries were not permanent within the meaning of N.J.S.A. 59:9-2(d). Plaintiff appeals. She contends that she sustained a permanent loss of bodily function.
The primary issue is whether plaintiff's alleged temporomandibular joint ("TMJ") injury meets the statutory standard. TMJ has been described as pain affecting the head, jaw and face which is believed to result when the temporomandibular joint (jaw joints) and the muscles and ligaments that control and support them do not work together correctly. See American Medical Association, Encyclopedia of Medicine 969 (Charles B. Clayman ed. 1989). One cause may be displacement of the joint as a result of jaw, head or neck injuries. Ibid. After careful consideration of the record and the arguments of counsel, we conclude that plaintiff has established a material question of fact as to whether she has sustained a permanent loss of bodily function within the meaning of N.J.S.A. 59:9-2(d). Accordingly, we reverse the grant of summary judgment.
In an action against a public entity or a public employee, the plaintiff must meet the threshold requirements of N.J.S.A. 59:9-2(d) in order to recover damages for pain and suffering. The statute provides:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.
The motion Judge said that "it was a very close call" but the plaintiff's medical doctor had not presented any "objective reasons" why the injury was permanent. The Judge said "there is no permanency in, as it relates to the statute or the cases interpreting the statute. It is still the same kind of subjective pain no matter what Dr. Rutkowski gave me in his little addition to his original report, it comes out the same."
Plaintiff's certification, submitted in 1995, in opposition to the summary judgment motion supports her claim of a permanent injury. The accident occurred two years earlier. Plaintiff states in her certification that she continues to suffer from constant headaches, daily dizziness lasting up to thirty minutes, total loss of taste and smell, acute pains in her skull with a warm sensation which follows most of the time, facial twitching on her left side when she experiences headaches, ringing in her ears off and on, pressure in her jaw bone when she bites something for the first time on that particular day accompanied by an intense pain in the back of the jawbone. She experiences headaches and feels pressure on the left side of her face which causes her left eye to feel as if it is being pushed out. She feels pain where her neck meets her shoulder on the right side. She is being treated with painful cortisone injections. Further, she has numbness in both wrists and elbow and has pain in her lower back and buttocks extending down to both legs. She must eat only soft foods. She cannot bend, cannot walk longer than twenty minutes, and cannot tolerate sitting or standing for a long time. Grocery shopping and doing the laundry are painful because of the lifting required and she must avoid sweeping and mopping at home. When she worked last, she was unable to work longer than four hours a day.
Plaintiff's medical reports support plaintiff's claim of a permanent injury. Dr. Rutkowski, a dentist, concluded in a report in October 1993 that plaintiff sustained permanent injuries to the craniomandibular articulation and the attendant musculature and ligaments (both craniomandibular and craniocervical) and that the injuries would lead to further degenerative changes of the craniomandibular articulation and further impairment of mandibular function. He recommended certain treatment. He concluded she would be limited to softer semi-solid food intake which would result in a "total body impairment rating of 5-19 percent impairment, as established in the Guidelines for the Evaluation of Permanent Impairment, American Medical Association, Fourth Edition."
He further found that this "compromise of the masticatory system conditioned by these injuries also dictates certain lifestyle modifications: (1) no hard or chewy foods; (2) no gum chewing; (3) no excessive talking; (4) no singing; (5) mouth not to be opened wide; (6) during yawning, mandibular opening to be controlled; (7) restriction of all procedures that will require excessive jaw movements."
Dr. Rutkowski's Conclusions were buttressed by various medical tests he conducted. Dr. Rutkowski submitted an additional report, dated August 31, 1995, in which he stated:
The following are additional objective findings on Joyce Mack substantiating the injuries sustained in the above referenced accident.
Computerized Mandibular Scan is used to objectively measure and record movements of the jaw in three dimensions. The ability to track the movements of the jaw allows for a very precise determination of the correct jaw to skull relationship. It is also useful in calculating rest position, neuromuscular position of the mandible and for assessing velocity of the mandible during normal movements. Because of its precise accuracy, computerized mandibular scan allows the clinician to objectively measure those movements which were heretofore ...