Permanency

Plaintiff, Monica Vargas-Aguacondo, was injured in a motor vehicle accident with a Union County police car driven by defendant David Eckenrode.  Plaintiff, age 60, injured her left shoulder and back in the accident.  The issue in Vargas-Aguacondo v. Eckenrode & County of Union, 2022 N.J. Super. Unpub. LEXIS 682 (App. Div. Apr. 25, 2022), was whether plaintiff had met the permanency threshold under the Tort Claims Act so as to be able to pursue her claim against the County of Union.

Liability for the accident was not at issue.  Rather, the issue was whether the plaintiff had met the permanency threshold as set forth in the Tort Claims Act, N.J.S.A. 59:9-2(d), to be able to pursue a claim against a public entity.  Pursuant to that statutory provision, which is similar to the verbal threshold under New Jersey Motor Vehicle law, no damages shall be awarded against a public entity or a public employee for pain and suffering except “in cases of permanent loss of bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.”

The plaintiff was employed at the time of the accident but, thereafter, missed work for about 6 months.  She complained of right shoulder pain, low back pain and worsening right knee pain.  She received chiropractic treatment and claimed that the accident caused her to “suffer severe injuries to her neck, back, and right shoulder including a full thickness tear of her rotator cuff.”  When her preliminary treatments failed to alleviate her right shoulder pain, she underwent arthroscopic surgery.  Her doctor performed a right shoulder arthroscopy, bursectomy, acromioplasty, repair of a supraspinatus tendon tear, debridement of a labral tear, synovectomy, and the excision of a distal clavicle on plaintiff.  She thereafter received physical therapy for about one year.

She sued the defendant driver and the County of Union for her personal injuries.  By the time she answered interrogatories, she was no longer receiving medical treatment.  She testified in her deposition that she was unable to carry grocery bags, and needed assistance with reaching up to shelves and taking out heavy trash and continued to experience back and right shoulder pain.

The plaintiff underwent an orthopedic IME by Dr. Kevin Aurori.  Dr. Aurori reviewed her medical records and issued a report wherein he noted that plaintiff’s then current pain of right shoulder pain was aggravated by movement.  She expressed pain localized to the outer aspect of her right elbow and forearm and intermittent pain on the front of her right knee and low back pain.  He determined that her condition relative to her right shoulder was causally related to her motor vehicle accident.  Her complaints of right elbow pain were attributable to a lateral epicondylitis which was not causally related to the accident.  He found that she was at maximum medical improvement as to her right shoulder, mid back and right knee and did not recommend any additional treatment. 

The defense had a medical examination performed by Dr. Howard Peckar.  He noted that she reported no neck or back pain or numbness or tingling in her extremities.  He did note that she had a current complaint of pain in her right shoulder when she tried to lift her arm up.  He found that she was status-post arthroscopic surgery of the right shoulder for tendinosis and senescent tearing of the rotator cuff.  He found that the above diagnosis and injuries were not causally related to the subject auto accident.  He opined that the findings were consistent with her age.  He found no evidence of injury to her neck and back and no deficits.

The defendants filed a motion for summary judgment seeking a dismissal of the plaintiff’s complaint on the ground that the plaintiff had not shown a permanent substantial loss of a bodily function pursuant to N.J.S.A. 59:9-2(d).  Further, the defendants argue that there was no objective evidence of such a loss of a bodily function.  The defendants relied upon Dr. Peckar’s expert report which showed no causal connection between the accident and her injuries.

The plaintiff opposed the motion, contending she had satisfied the permanency threshold by submitting sufficient objective medical evidence of her injuries.  She also argued that these injuries had a significant impact on her life and she can no longer take part in several of the activities she had enjoyed prior to the accident.

The trial court judge granted the defendant’s summary judgment motion.  He found that plaintiff had failed to present an objective impairment manifesting permanent loss of substantial bodily function.  Here it was more akin to “an impairment of plaintiff’s health and ability to participate in activities.”  Further, he noted Dr. Peckar’s report which attributed her impairment to an overuse type injury, common with the aging process.  He also noted that she had stopped medical treatment. 

This appeal ensued.  The plaintiff argued that the trial court judge overlooked the severity of plaintiff’s limitations and complaints and how her injuries had permanently affected her life and amounted to substantial loss of bodily function.  Plaintiff also argued that the trial court judge relied too heavily on Dr. Peckar’s finding, notwithstanding Dr. Aurori’s report which determined that her right shoulder injury was determined to be causally related to the motor vehicle accident.

To pursue a claim against a public entity for a permanent injury, there is a two- step process.  The first step is for the plaintiff to present objective medical evidence of a permanent bodily injury.  The second prong is to be able to prove that the permanent loss of a bodily function is substantial.  The Court pointed out that “substantial” must be interpreted within the context of the case.  Injuries such as “blindness, disabling tremors, paralysis and loss of taste or smell” meet both prongs.  Also injuries such as a fractured patella which impeded the plaintiff’s ability to climb stairs, stand from and sit on a chair and walk efficiently have been found to meet the substantial requirement.  Also, the loss of feeling in an extremity or when the injury permanently rendered a limb or bodily organ substantially useless but for the ability of modern medicine to supply replacement parts to mimic the natural functioning.

The Appellate Division noted that it is the plaintiff’s reduced ability that makes her injury “substantial” and not the discomfort she suffers when performing certain tasks.  An injury causing lingering pain, resulting in a lessened ability to perform certain tasks, because of the pain, would not suffice.  Further, the Court pointed out that “neither an absence of pain nor a plaintiff’s ability to resume [some of her] normal activities is dispositive of whether [she] is entitled to pain and suffering damages under the TCA.”

The Appellate Division pointed out that even a herniated disc may not be sufficient to meet the permanency requirement.  In a prior case in which a herniated disc restricted some neck movement but the plaintiff had returned to teaching although, in a different capacity without missing any work and continued to play sports and perform household chores with taking appropriate breaks, was found by the Court not to meet the substantiality requirement. 

Here, the Appellate Division agreed with the trial court judge’s assessment.  The Court noted that the judge “correctly pointed out that plaintiff’s medical proofsdid not establish a permanent injury.”   Dr. Peckar’s report, which was issued three years after the accident stated that plaintiff’s injury did not present any objective impairment manifesting permanent loss of a substantial bodily function.  Dr. Peckar’s opinion refuted the existence of a permanent injury sufficient to vaultthe Tort Claims Act threshold. 

The Appellate Division noted that plaintiff had no medical restriction imposed on her ability to perform her daily activities.  Neither Dr. Aurori’s nor Dr. Peckar’s reports attributed any permanent restriction to the accident.  Her limitations if any, were predominantly attributed to her age.

Plaintiff argued that her right shoulder injury, which required surgical intervention, has caused her pain, discomfort when performing some household tasks, and limited ability to put on clothing, household chores, and care for her grandchildren and park her car.  The Appellate Division pointed out that it was “undisputed that plaintiff remains able to perform her daily activities and routine tasks.”  Rather, her complaints were subjective feelings of discomfort and they were not “substantial” as required by the statute. 

Thus, the Appellate Division agreed with the motion judge that there was no objective evidence that plaintiff’s injuries were permanent and substantial and that summary judgment was properly granted to defendants.  Therefore, the Appellate Division affirmed the trial court’s dismissal of the lawsuit. 

Plaintiff Abigail Perdomo claimed to have suffered a lumbar injury causing two disc bulges at L4-5 and L5-S1 in a December 2010 automobile accident. Thereafter, in November 2013, plaintiff was again in an automobile accident and testing showed that she had the same two bulging discs. In Perdomo v. Orgacki, 2018 N.J. Super. Unpub. LEXIS 1013 (App. Div. May 1, 2018), the case involving the second accident, the issue was whether the report of her chiropractor, who treated her for both accidents, was a net opinion due to his failure to adequately explain how the second accident caused “more” permanency.

The plaintiff underwent an MRI after the 2010 accident, which showed that she suffered lumbar disc bulges as L4-5 and L5-S1, which were attributable to that accident.  Plaintiff’s treating chiropractor, Dr. Wayne Petermann, issued a report opining that the 2010 accident caused her to suffer a permanent injury.

Three years later, after being involved in another automobile accident, that plaintiff had another MRI which had the same finding.  Dr. Petermann again treated plaintiff and issued a report that acknowledged his prior diagnosis of plaintiff’s low back injury “with some degree of permanency” from the 2010 accident and, then relying on the MRI results following the second accident, opined that plaintiff “suffered a further permanent partial impairment of her lower back that is [seventy percent] attributable to” her 2013 accident.

After discovery was completed, the defendant filed a motion for summary judgment, arguing that plaintiff, who was subject to the verbal threshold under N.J.S.A. 39:6A-8(a)(requiring a permanent injury as one of the basis to pursue a pain and suffering claim in an automobile accident), “failed to establish credible objective medical evidence that she sustained a permanent injury because of the accident.”  As an alternative argument, the defendant claimed that Dr. Petermann’s expert report should be barred as a “net opinion.”

Although the motion judge declined to dismiss the plaintiff’s complaint, he did determine that Dr. Petermann’s report was a net opinion and, hence, barred his report. The trial court judge noted that the doctor did no objective diagnostic testing, nor did he explain how he arrived at a 70 percent permanent injury that he concluded was caused by the 2013 accident. Also, the judge pointed out that the doctor stated that was his conclusion “until additional evidence or medical records become available,” which the judge interpreted to mean that the doctor had not reviewed anything upon which he based this opinion.

The Appellate Division recited the well-established rules concerning the basis of an expert opinion, that they must be “grounded in ‘facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.” The net opinion rule bars “admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” The experts must “give the why and wherefore of their opinions, not mere conclusion[s].”

The Appellate Division agreed with the trial court judge that Dr. Petermann’s report was a net opinion. His opinion was not supported by his examination of the plaintiff. Dr. Petermann tried to overcome his prior opinion that plaintiff suffered a permanent back injury from the 2010 accident by opining that her back was 70% permanently injured from the 2013 accident. However, he failed to explain the basis of that opinion. His report did not include the “why and wherefore” necessary to substantiate his opinion.

Further, the Court agreed that the plaintiff failed to affirmatively plead that her prior injury was aggravated by the subsequent accident. Even if she had, the Court found that she failed to submit proof of an aggravation. Based upon prior case law (Polk v. Daconceicao), an aggravation of a pre-existing injury or condition “must be based upon … an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma.”

Even if an aggravation is not alleged, a Polk analysis is required to differentiate a subsequent injury to a body part that was previously injured. The plaintiff would need to submit comparative medical evidence “to isolate the physician’s diagnosis of the injury or injuries that are allegedly permanent as a result of the subject accident.”

Because the plaintiff failed to submit such proofs, the Appellate Division agreed with the motion judge’s ruling that Dr. Petermann’s opinion was inadmissible because it was a net opinion. Accordingly, it affirmed the motion judge’s ruling barring Dr. Petermann’s report.