On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-86-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
Plaintiff Mohamed A. Osman was injured in a collision between the taxicab he was driving and the ambulance driven by defendant Richard D. Thomas. Plaintiff appeals from an order granting the motion filed by defendants Thomas and Absecon VFW Volunteer Ambulance Squad to dismiss plaintiffs' complaint*fn1 for failure to satisfy the requirements of N.J.S.A. 59:9-2(d). We hold that plaintiff has submitted sufficient evidence to present a question of fact whether his injuries amount to a permanent loss of a bodily function that is substantial. We, therefore, reverse and remand for further proceedings.
The collision occurred on December 13, 2008. Following the accident, plaintiff complained of low right-side back pain, as well as right shoulder and arm pain and numbness. Approximately six weeks later, an MRI of the cervical region revealed a "mild, broad herniation centrally at C4-5 and combined lesions to the left at C5-6." The radiologist also noted that the C4-5 herniation was associated with impingement of the thecal sac, and a smaller combined lesion to the left at C6-7 "with mild impingement on the left side of the thecal sac." In addition, the radiologist observed degenerative changes scattered through the lower cervical region.
An MRI of the thoracic region taken the same day revealed small left-sided herniations with impingement on the left side of the thecal sac at T2-3 and T3-4. An MRI of the lumbosacral spine demonstrated mild disc herniation and loss of height at the L4-5 and L5-S1 levels. Specifically, the radiologist observed at the L4-5 level a left lateral annular tear and associated disc protrusion with associated narrowing of the left lateral recess and mild to moderate narrowing of the proximal left neural foramen. At L5-S1, the radiologist reported disc protrusion eccentric to the left with associated narrowing of the left lateral recess and possible contact on the descending left S1 nerve root.
Plaintiff sought treatment from December 15, 2008 and January 6, 2009, from a medical doctor. He was referred to an orthopedist in February 2009, who referred plaintiff to a pain management specialist. In July 2009, plaintiff received a lumbar epidural injection. Due to continued complaints of neck and back pain, plaintiff consulted a neurosurgeon on November 16, 2010. Dr. Andrew Glass, the neurosurgeon, confirmed the diagnosis of multiple cervical, thoracic and lumbar herniations. Dr. Glass opined that the injuries to his neck and back are permanent, are caused by the December 13, 2008 motor vehicle accident, and will probably require spinal operative intervention. Between January and July, 2009, plaintiff also sought chiropractic care and physical therapy, which provided no lasting relief to the pain and numbness. At times, plaintiff also took prescribed medication to address leg pain.
In his December 2010 deposition, plaintiff outlined his ongoing complaints, including daily low back pain, constant right leg pain and numbness, neck pain at least two times a week, and pain in his right arm with numbness into his fingers. He testified that the pain prevented exercising at a gym and he could not cook or stand for long periods of time. Furthermore, driving a taxicab caused significant discomfort. He reported that he worked up to sixty-five hours a week before the accident but only twenty to forty hours a week after the accident.
During oral argument, the motion judge commented that plaintiff adduced sufficient evidence to surmount the verbal threshold if this case was governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35, but not enough evidence to satisfy the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, threshold. In his supplemental written opinion, the judge acknowledged that plaintiff produced objective evidence of injury but did "not prove that he suffered a permanent loss of a bodily function." On appeal, plaintiff argues that the motion judge overlooked his argument that the TCA does not apply to this case because defendant Thomas is a paid emergency medical technician. He also contends he produced objective medical evidence of a substantial injury to a bodily function which permits the issue of liability to be resolved by a jury.
N.J.S.A. 59:9-2d provides that a person seeking damages for pain and suffering due to the negligence of a public entity or public employee must expend at least $3600 for medical treatment and must have suffered "permanent loss of bodily function." In Brooks v. Odom, 150 N.J. 395, 406 (1997), the Court held that the Legislature intended to prevent recovery for injuries that caused "a mere limitation of a bodily function . . . ." The Court explained that "we believe that the Legislature intended that a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Ibid. While "[a] total permanent loss of use would qualify[,]" the Court allowed that lesser injuries would suffice, as long as the impairment was permanent and substantial. Ibid. The plaintiff in Brooks did not satisfy this standard because she submitted evidence of soft tissue injuries to her neck and back that caused limitation of motion but did not impair her ability to work or maintain her home. Ibid.
In Gilhooley v. County of Union, 164 N.J. 533 (2000), the Court reiterated the two prong standard articulated in Brooks. Justice Long wrote:
Recapping, in Brooks we clarified that in order to vault the pain and suffering threshold under the [TCA], a plaintiff must satisfy a two-pronged standard by proving
(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is ...