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Wednesday, July 18, 2012


                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-4857-10T4

OSMAN, h/w,



RICHARD D. THOMAS, individually
and as agent, servant, and/or
employee of ABSECON VFW

May 24, 2012

Submitted:  May 9, 2012 - Decided:

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-86-10.

D'Arcy Johnson Day, P.C., attorneys for appellants (Steven K. Johnson, on the brief).

Richard M. Braslow, attorney for respondents (Jill Roth, on the brief).

            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[1] 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 on-going 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 substantial.

[Id. at 540-41.]

Gilhooley satisfied that threshold because her injury required a reconstruction of her knee that permitted her leg to function but not without devices and mechanisms implanted in her joint.  Id. at 542.
            Despite this guidance, the nature and extent of injury that satisfies the substantiality requirement has required further discussion.  In Kahrar v. Borough of Wallington, 171 N.J. 3, 15-16 (2002), the Court held that the plaintiff, who suffered a massive tear of her rotator cuff and emerged from surgery with a re-attached tendon that substantially restricted the mobility of that limb, satisfied the threshold.  Justice Stein remarked:
Thus, despite the successful surgery that alleviated plaintiff's pain, her ability to use her arm to complete normal tasks has been significantly impaired because plaintiff has lost approximately forty percent of the normal range of motion in her left arm.  That reduction in normal function appears to be both permanent and substantial.  We cannot conceivably impute to the Legislature an intention to deprive plaintiffs who sustain permanent injuries of that quality, and that are so clearly susceptible to objective medical evaluation and confirmation, of the opportunity to recover pain and suffering damages from an otherwise responsible public entity defendant.

[Id. at 16.]

            In Ponte v. Overeem, 171 N.J. 46, 53 (2002), the Court noted that Kahrar instructs that "the nature or degree of the ongoing impairment determines whether" the plaintiff has satisfied the TCA threshold.  In Ponte, the Court held that the plaintiff did not satisfy the threshold because there was no evidence of limitation of his range of motion or restricted ambulation or impairment of gait.  Id. at 54.  Furthermore, the record did not allow a finding of permanent instability of the injured knee or that the knee injury prevented him from pursuing his regular work and household activities.  Ibid. 
            Then, in Knowles v. Mantua Township Soccer Association, 176 N.J. 324, 331-33 (2002), the Court held that a man who produced objective medical evidence of lumbar herniation and radiculopathy associated with his herniated disc and who was forced to give up a second job satisfied the threshold.  The Court reiterated that whether a plaintiff's injury satisfies the threshold requires a fact-sensitive analysis measured by precedent.  Id. at 331.  It added that inability to work is not "a litmus test for recovery of pain and suffering damages under the TCA."  Id. at 333.  
            Ultimately, the Court determined that the injury suffered by Knowles was closer to Gilhooley and Kahrar than to Brooks and Ponte.  Id. at 332.  The Court noted that both the plaintiffs in Gilhooley and Kahrar "presented objective medical evidence linking an injured body part to the plaintiff's inability, without extensive medical intervention, to perform certain bodily functions."  Id. at 332-33.  By contrast, the injuries in Brooks and Ponte were either "not severe enough or verifiable enough."  Id. at 333.
            Finally, the Court reminded us that the summary judgment procedure should not be utilized to prevent a plaintiff from submitting his case to the jury, if he presents objective medical evidence of injury and a physician opines that the injury is permanent and has a substantial impact on a body system.  Id. at 335.  Relying on an opinion from this court, Justice Coleman stated, "'Where plaintiff's medical proofs support a claim of permanent injury that is based on objective evidence and not merely on subjective complaints, such evidence raises an issue for the jury, and removes the case from the realm of summary judgment.'" Ibid. (quoting Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35 (App. Div. 2000)).
            Applying these principles to this case, we conclude that plaintiff's alleged permanent loss of bodily function more closely resembles Knowles than Brooks and Ponte.  Plaintiff has submitted objective medical evidence of injury at the cervical, thoracic and lumbosacral areas of the spine.  At the cervical and lumbosacral levels, there is also evidence of neurological impairment in the nature of numbness, nerve impingement and radiating pain.  He has been forced to reduce his work almost in half.  A neurosurgeon has recommended surgical intervention but he is unable to afford this level of care.
            To be sure, there is evidence that he has not consistently sought or received medical care.  There is evidence that he may not have experienced any reduction in income.  In short, this is a close case, and the closeness of the case counsels that the issue of permanent injury of a substantial nature is one for resolution by a jury.  We, therefore, reverse the order granting defendants' motion for summary judgment and remand for trial.
            Prior to trial, however, the court must resolve the issue of whether defendant ambulance squad is subject to the TCA.  Plaintiff submitted evidence that defendant Thomas is not a volunteer but a paid employee.  We do not suggest that the employment by an entity of a person to perform functions previously performed by a volunteer strips a volunteer rescue squad of the benefits conferred by the TCA.  It is a fact-sensitive question.[2]  Having been raised by plaintiff, the issue cannot be ignored because it will have a substantial impact on the conduct of the trial.  As noted by the motion judge and conceded by defendants, plaintiff satisfies the AICRA verbal threshold.
            Reversed and remanded for further proceedings consistent with this opinion.

[1] Sharon Osman filed a per quod claim.  All references to plaintiff in this opinion are to Mohamed.
[2] Defendant submitted a certification to this court with additional information about the organization and funding of defendant ambulance squad.  As an appellate tribunal, we do not consider any issue not submitted to or resolved by the motion judge or any information not submitted to the motion judge.