May 21, 2009
ARACELI ZUNIGA AND ANTONIO TAPIA,*FN1 PLAINTIFFS-APPELLANTS,
PATERSON BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4498-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 4, 2009
Before Judges R. B. Coleman and Sabatino.
Plaintiffs appeal a summary judgment order dismissing their lawsuit against defendant Paterson Board of Education, a public entity, for failure to satisfy the verbal threshold of the Tort Claims Act ("TCA"), N.J.S.A. 59:9-2(d). We affirm.
These are the pertinent facts. On October 29, 2003, after dropping off her daughter at Paterson Public School Number 19, plaintiff Araceli Zuniga*fn2 fell down on stairs inside the school. Plaintiff contends that the stairs were in a dangerous condition at the time of her fall. Although plaintiff injured herself as a result of the fall, she did not seek immediate medical attention and instead went to her job as a banquet waitress. She went home from work early because she was not feeling well. On the day of the accident, plaintiff was thirty-seven years old.
The following day, October 30, plaintiff went to the emergency room of a local hospital, complaining of back and hip pain and dizziness. The hospital staff took x-rays of plaintiff's pelvis, which showed no fractures. She was given a prescription for a pain killer and was discharged that same day.
About a week after the accident, plaintiff began obtaining treatment at a center for pain management and physical medicine.
She reported complaints of, among other things, neck pain radiating into her left arm, left wrist and hand pain, upper back and mid-back pain and stiffness, low back pain radiating into her right leg, numbness and tingling, headaches, and difficulty walking and bending. She was treated on several occasions by a chiropractor at the center, Dr. David Formanella. Plaintiff also had consultations with a neurologist, a physiatrist, and a pain management physician. The latter specialist administered three epidural injections in plaintiff's neck, which gave her some improvement but not complete relief.
An MRI conducted in February 2004 revealed that disc bulges appeared at plaintiff's C3-4 and C4-5 vertebrae levels. The MRI also showed what the attending radiologist described as "a disc osteophyte complex (defined as a soft and hard disc herniation) noted at the C5-6 level."
Plaintiff discontinued her chiropractic treatment with Dr. Fontanella in June 2004, after about seven months of visits. That same month, she resumed her work as a banquet waitress. Plaintiff has not had any medical or chiropractic treatment relating to this accident in the ensuing period of more than four years.
After his final session with plaintiff, Dr. Fontanella prepared a narrative report dated July 20, 2004. His report noted that plaintiff was still reporting symptoms of neck pain, lower back pain, upper back and mid-back stiffness, and numbness and tingling. With respect to the cervical spine, Dr. Fontanella found in his final examination of plaintiff "a mild amount of muscle spasm and hypertonicity," "mildly decreased" range of motion, and no weakness in the upper extremities. With respect to the lumbar spine, Dr. Fontanella likewise noted "a mild amount of muscle spasm and hypertonicity" and no weakness. The range of motion of plaintiff's lumbar spine was "within normal limits," although she reported pain in lumbar extension and in lateral flexion.
Relying on the abnormalities shown in the MRI study and his own examinations, Dr. Fontanella opined that plaintiff sustained injuries to her cervical, thoracic and lumbar spines "as a direct result of the slip and fall accident on October 29, 2003." The chiropractor further opined that these injuries are permanent, and that plaintiff "will continue to have difficulty with neck and low back pain." Dr. Fontanella suggested "further evaluation with EMG/NCV studies of [plaintiff's] upper and lower limbs if radiating symptoms worsen." No such follow-up studies have been undertaken.
Plaintiff sued defendant for pain and suffering damages under the TCA, alleging that it is liable for the alleged dangerous condition of the school steps. Plaintiff makes no claim to recover lost wages.
The case was inadvertently dismissed administratively by the trial court in November 2006. Evidently, the dismissal occurred after plaintiff had moved for an inspection of the school property or, in the alternative, an order striking defendant's answer and affirmative defenses. Although defendant agreed to the property inspection and the motion judge extended discovery through February 2007, the case was nonetheless removed in error from the active trial list. After the docketing error was spotted, the case was restored to the active calendar in May 2008.
Shortly after the case was restored to the active list, defendant moved for summary judgment, relying in part upon the TCA verbal threshold, N.J.S.A. 59:9-2(d).*fn3 In opposition to the motion, plaintiff mainly relied upon her chiropractor's narrative report from June 2004. Plaintiff also tendered a certification of her own. In that certification, plaintiff stated that she was continuing to experience neck pain radiating into her left arm, with numbness and tingling. She further alleged that she had quit her job as a banquet waitress "a couple of months ago to get lighter work." She stated that she had begun employment as a cashier at a fast-food restaurant, where she could make comparable pay by "just working the [cash] register." Plaintiff also claimed difficulty in doing household chores.
Plaintiff neither sought nor submitted an updated medical or chiropractic evaluation. She did not move to reopen discovery for that purpose. Nor, apparently, did she update her prior discovery responses to include the more recent information set forth in her motion certification.
After considering these proofs concerning plaintiff's alleged injuries, the trial court granted defendant's motion for summary judgment under N.J.S.A. 59:9-2(d). The motion judge concluded that plaintiff had not demonstrated "a permanent loss of a bodily function" of sufficient severity to permit the recovery of pain and suffering damages from a public entity.
In his oral ruling, the motion judge acknowledged that plaintiff apparently had sustained "some disk pathology," had undergone "some epidurals", and had missed about seven months of work. Even so, the judge noted that plaintiff had returned to work as a waitress more than four years before the motion hearing, "basically doing the same job, and [performing] the same duties that she had prior to the injury." The judge recognized that plaintiff had only recently changed jobs, had not seen a doctor in over four years, and that that she had no "medical correlation" verifying that her job change was causally related to injuries from this accident. These various factors led the judge to conclude that the accident, despite its initial effects upon plaintiff, had not produced "a significant impact on her life."
Plaintiff now appeals, arguing that the judge erred in dismissing her complaint under the TCA verbal threshold. In evaluating her arguments, we view the record in a light most favorable to her, according all reasonable inferences. R. 4:46; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (applying the same standard for summary judgment, de novo, on appeal).
"To recover under the [TCA] 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." Brooks v. Odom, 150 N.J. 395, 402-03 (1997). Moreover, "the Legislature intended that a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Id. at 406; see also Gilhooley v. County of Union, 164 N.J. 533 (2000). Consequently, in Brooks, supra, the Supreme Court reinstated the trial court's dismissal of a plaintiff's claims under N.J.S.A. 59:9-2(d) because the plaintiff could still function in both her employment and as a homemaker. Ibid. The Court reached that conclusion even though plaintiff still was experiencing post-accident pain and had permanent restrictions of her motion in her neck and back. Ibid.
Plaintiff stresses that in Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324 (2002), the Court found that a plaintiff surmounted the TCA verbal threshold where he was diagnosed after an accident with central disc herniation at L4-5. However, the plaintiff had also presented "objective medical evidence of a permanent nature that is directly responsible for the substantial loss of several bodily functions." Id. at 333. These lost functions identified by the plaintiff included the lack of feeling in his left leg, the inability to sit, stand or walk comfortably for a substantial amount of time, and an inability to engage in athletics or complete household chores. Ibid. Although the plaintiff was able to continue working as a school teacher, described by the Court as a "fairly sedentary job," ibid., he "nonetheless presented evidence of a substantial inability to perform many of the functions he previously enjoyed." Id. at 334. More specifically, the plaintiff could not sit for more than thirty minutes or stand more than fifteen to thirty minutes without pain, and could not walk more than a quarter mile. Id. at 328. There is no indication in the Court's opinion in Knowles of a four-year gap of medical treatment comparable to the instant case.
Here, there is no dispute that plaintiff satisfied the minimum $3600 monetary outlay in medical expenses required under N.J.S.A. 59:9-2(d). Additionally, the defense does not appear to challenge plaintiff's potential fulfillment at trial of the so-called first prong of Brooks, i.e., a permanent injury caused by the accident. The critical problem for plaintiff is satisfaction of the so-called second prong of Brooks, i.e., a medically-corroborated injury that is "substantial."
We agree with defendant that this case resembles, in several key respects, the circumstances we addressed in Heenan v. Greene, 355 N.J. Super. 162 (App. Div. 2002). In Heenan, as in this case, plaintiff was diagnosed after the subject accident with a disc herniation, confirmed by an MRI. Id. at 163. Although the accident prompted her to change to a less strenuous job, plaintiff did not miss a day of work. Id. at 164. She was able to do household chores, albeit with interruptions, and she resumed playing sports, albeit with a need for frequent breaks. Ibid. We found those injuries did not surmount the TCA verbal threshold because plaintiff's limitations on movement were not substantial. Id. at 167; see also Newsham v. Cumberland Reg. High School, 351 N.J. Super. 186 (App. Div. 2002) (similarly finding that the TCA verbal threshold was not vaulted where plaintiff's fractured thoracic vertebrae were well healed, and where plaintiff, within two years of the accident, was able "to perform well in school and work while attending school").
We are mindful that plaintiff, in the present case, did miss about seven months of work after the accident, back in 2003-04. We also recognize her claim that when she returned to work as a waitress, her tasks became more difficult to perform due to neck and back pain. We also take into account plaintiff's certification attesting that she quit her job as a waitress in 2008 to take a less strenuous job as a cashier, despite the fact that the certification contains some facts that had not been supplied to defense counsel during the discovery period.
We discern no error in the motion judge's summary judgment ruling. Plaintiff had not been treated by a physician or chiropractor for over four years. She worked steadily, although with reported pain, as a waitress during that same four-year span. Dr. Fontanella's July 2004 report imposed no work restrictions. As the motion judge aptly noted, there is no medical corroboration that plaintiff's injuries made her unfit to continue working at the banquet facility. Her injuries simply do not rise to the level of severity depicted in Knowles, supra.
The trial court's summary judgment order of September 26, 2008, is consequently affirmed.