SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
MOHAMED A. OSMAN and SHARON
OSMAN, h/w,
vs.
RICHARD D. THOMAS, individually
and as agent, servant, and/or
employee of ABSECON VFW
VOLUNTEER AMBULANCE SQUAD,
individually,
__________________________________
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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).
PER CURIAM
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.
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[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.
