On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-959-00.
Before Judges Skillman, Cuff and Lefelt.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we consider whether the presence of a herniated cervical disc with radiculitis satisfies the Tort Claims Act threshold to pursue a claim for pain and suffering. The motion judge found that the injury was not substantial and dismissed plaintiffs' complaint against the municipal defendants. *fn1 We affirm.
On June 12, 1998, the motor vehicle occupied by plaintiff Maureen Heenan was struck by a truck driven by defendant Ralph T. Greene, III, after the truck was struck by a motor vehicle driven by defendant Suzanne Raggio. Plaintiff was taken by ambulance to the hospital where she received treatment in the emergency room for facial lacerations, contusions, and complaints of pain in her left wrist, knee and head. Following examination and several diagnostic tests, plaintiff was discharged. On June 15, 1998, she consulted her personal physician. At that time, she complained of headaches, difficulty sleeping, low back pain, left shoulder pain, left arm pain, left leg pain, dizziness and fatigue. Dr. Biggiani diagnosed several conditions including acute sprain/strain of the cervico-thoracic soft tissues, acute sprain/strain of the lumbar soft tissue, left shoulder sprain/strain, cervical disc syndrome with radicular sensation, post-traumatic cervico- cranial syndrome, and post-traumatic myofascitis.
An MRI of the lumbar spine revealed degenerative disc changes at L4-L5 and L5-S1. An MRI of the cervical spine revealed a disc herniation at C5-C6. A May 26, 1999 nerve conduction study and needle EMG of the bilateral lower extremities was normal. A June 23, 1999 nerve conduction study and EMG of the upper extremities revealed left C6 radiculitis. Between June 15, 1998 and July 1999, plaintiff received conservative treatment including physiotherapy and spinal manipulations.
Plaintiff is a special education teacher. She lost no time from work; however, she testified that she was required to transfer to the resource room because she was unable to physically restrain a student. She has lost no pay, benefits or opportunities for advancement. Plaintiff was physically active before the accident. She played competitive indoor soccer several times a week and had just participated in her first 5K run. Plaintiff remains physically active after the accident. In her deposition, plaintiff testified that she does interval training which she defined as walking for five minutes, running for two minutes, walking for five minutes, and running for two minutes. She related she can still play sports but needs frequent breaks. Plaintiff also reported that she can no longer perform household tasks in an uninterrupted fashion.
Plaintiff contends she has provided objective medical evidence of injury and this injury is substantial because her cervical function is substantially restricted. Defendants Greene and the Township concede plaintiff has presented objective evidence of injury but argue the injury is not serious enough to satisfy the statutory threshold.
Plaintiffs' claim against defendants Greene and the Township is governed by the New Jersey Tort Claims Act, specifically N.J.S.A. 59:9-2d. Subsection d 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 $3,600.00.
It is undisputed that plaintiff meets the monetary threshold.
In Brooks v. Odom, 150 N.J. 395 (1997), the Court considered whether permanent soft tissue injuries affecting plaintiff's neck and low back satisfied the statutory requirement of permanent loss of a bodily function. The Court held that "a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Id. at 406. While the Court acknowledged that plaintiff's injuries were permanent, it held that her injuries were not substantial because she had returned to work and could function as a homemaker. Ibid.
Recently, the Court has addressed the same issue in two cases: Gilhooley v. County of Union, 164 N.J. 533 (2000), and Kahrar v. Borough of Wallington, 171 N.J. 3 (2002). *fn2 In Gilhooley, the plaintiff slipped and fell on a wet floor in a public building. 164 N.J. at 536. As a result of the fall, plaintiff fractured her nose and right patella. Ibid. The knee fracture left plaintiff with a complete loss of quadriceps power. Ibid. She was required to undergo a surgical reconstruction of the knee. Ibid. Although she made a good recovery and returned to work, she regained function of her knee and right leg through the insertion of wires and pins which are permanent in nature. Id. at 536-37. The Court held that plaintiff's injury satisfied the statutory threshold of a "permanent loss of a bodily function." Id. at 542. The Court reasoned that plaintiff had lost forever the normal use of her knee. Furthermore, her knee could not function without the internal fixation devices. Id. at 542. Going beyond the specific case presented by plaintiff, the Court stated
We are satisfied 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. As is the case with dismemberment and disfigurement, when pins, wires, mechanisms and devices are required to make the plaintiff normal, the statutory standard is met. The fact that a physician has jury-rigged the knee to function with pins and wires in no way inhibits the characterization of that injury as the permanent loss of a bodily function. The same would be true of a plaintiff 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. We conclude that ...