SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3290-15T3

ANA L. PAZ,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent.

____________________________

Submitted April 4, 2017 – Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Docket No. L-0991-

14.

Ginarte, O'Dwyer, Gonzalez, Gallardo & 

Winograd, LLP, attorneys for appellant (Robert 

H. Baumgarten, of counsel and on the briefs).

Schwab, Haddix & Millman, attorneys for 

respondent (John N. Kaelin, III, of counsel 

and on the brief).

PER CURIAM

Plaintiff appeals from an order that granted summary judgment 

to the State of New Jersey, dismissing her personal injury claim 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

November 1, 2017
2 A-3290-15T3

on the ground that she lacked adequate proof she suffered a 

permanent and substantial injury to permit recovery under the Tort 

Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.

N.J.S.A. 59:9-2(d) bars recovery for pain and suffering from 

a public entity except for "cases of permanent loss of a bodily 

function, permanent disfigurement or dismemberment where the 

medical treatment expenses are in excess of $ 3,600.00." To 

recover pain and suffering damages under this provision, "[a]

plaintiff must show '(1) an objective permanent injury, and (2) a 

permanent loss of a bodily function that is substantial.'" Knowles 

v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329-30 (2003) (quoting 

Gilhooley v. Cty. of Union, 164 N.J. 533, 540-41 (2000) and citing 

Brooks v. Odom, 150 N.J. 395, 402-03 (1997)). Our review of the 

summary judgment order here requires us to "determine whether the 

evidence, 'viewed in the light most favorable to [plaintiff, is] 

sufficient to permit a rational factfinder' to find that 

plaintiff's injuries satisfy both prongs of the Brooks/Gilhooley

test." Id. at 329-30.

The evidence, viewed in the light most favorable to plaintiff, 

can be summarized as follows.1

 

1 The State also sought summary judgment on the ground that 

plaintiff failed to prove it had notice of the defective condition 

and its failure to repair the condition was not palpably 
3 A-3290-15T3

Plaintiff was employed by Parsons Corporation to inspect 

vehicles at the Rahway Motor Vehicle Commission facility. On 

March 21, 2012, she tripped and fell over a broken concrete 

sidewalk that abutted the inspection bays. 

Plaintiff sought medical attention the next day at U.S. 

HealthWorks, complaining of pain in her neck and shoulders. She 

reported having neck pain prior to her fall. X-rays taken of the 

lumbosacral spine, the cervical spine and the left shoulder were 

negative. She was diagnosed as having lumbar sprain and strain, 

cervical sprain, bilateral shoulder sprain and strain and rotator 

cuff syndrome.

On May 8, 2012, plaintiff underwent an MRI of the cervical 

spine without contrast administration. The report included the 

following findings:

At C6-C7 minimal bulging is seen mainly 

ventrally. Thecal sac remains centric. 

Neural foramina are patent. Facet joints are 

unremarkable. No abnormality is seen at C7-

T1 or T1-T2.

. . . .

Posterocentral subligamentous disc herniation

C4-C5 and C5-6 with mild effacement ventral 

space. No intrinsic cord abnormality or 

central or foranimal stenosis. Hemangioma T2

 

unreasonable. The trial court found a genuine issue of material 

fact as to this argument, precluding summary judgment. Because 

the State did not cross-appeal from that ruling, we need not 

discuss the facts relevant to that point.
4 A-3290-15T3

[(Emphasis added).]

A lumbar spine MRI on May 8, 2012, resulted in the following 

findings:

1. Disc bulge L4-L5 with facet prominence, 

thecal sac indentation, and bilateral 

foranimal narrowing.

2. Posterocentral disc herniation L5-S1

with thecal sac indentation.

[(Emphasis added).]

On September 25, 2012, plaintiff was admitted to Morristown 

Memorial Hospital, where she underwent an L4-5 microdiskectomy

performed by Dr. Richard S. Nachwalter. Upon admission, her 

chief complaint was right lower extremity pain that persisted 

despite physical therapy and medication. The report of her 

physical examination states, "She stands erect. She is able to 

lie down on the exam table. Her motor strength is 5/5 throughout 

both lower extremities. She has positive tension to the right, 

negative tension on the left." 

At her two-week follow-up visit, plaintiff reported "her leg 

pain [was] largely resolved" and she was "overall . . . quite 

pleased with her early results." A physical examination revealed 

her motor strength was "5/5 throughout both lower extremities." 

Dr. Nachwalter stated she was "doing very well" and that her 

prognosis was "good."
5 A-3290-15T3

At a follow-up visit one month later, plaintiff had "an 

overall sense of stiffness" and motor strength of "5/5 throughout 

both lower extremities." Dr. Nachwalter found her prognosis was 

good and enrolled her in physical therapy.

In his report of plaintiff's examination on December 12, 

2012, Dr. Nachwalter stated plaintiff had "more pain than [he] 

would expect." Plaintiff described persistent pain in her back,

as well as bilateral lower extremity pain, and bilateral knee 

pain, and had "exquisite tenderness to light tough of the skin 

throughout her lumbar spine." Dr. Nachwalter ordered "an MRI of 

the lumbar spine to rule out a recurrence." He still found 

plaintiff's prognosis was "good."

Following his last post-operative examination of plaintiff, 

Dr. Nachwalter noted she described "some persistent discomfort 

predominantly in her low back." He reported that plaintiff stood 

erect and ambulated without any assistive devices. Dr. Nachwalter 

stated plaintiff's motor strength was 5/5 through both lower 

extremities. His review of the lumbar spine MRI revealed "no 

significant herniations or stenosis" and no "significant neural 

compression." Dr. Nachwalter discharged plaintiff from care, 

stating, her prognosis was "good," and "[s]he has reached maximum 

medical benefit." She was released to return to work January 8, 

2013.
6 A-3290-15T3

Plaintiff remained employed by Parsons until 2014, 

approximately two years after her accident. Plaintiff has not had 

any treatment for her physical injuries since her last physical 

therapy visit in December 2012.

Plaintiff filed the instant complaint in March 2014.

Plaintiff's medical expert, Dr. Marvin E. Friedlander,

examined her in October 2015. At the time, plaintiff was only 

taking over-the-counter analgesics.

Dr. Friedlander noted the post-operation study demonstrated 

"a good surgical outcome." Dr. Friedlander agreed with the 

conclusions in the MRI reports relating to the MRI of the cervical 

spine and x-ray of the lumbar spine. Based upon his physical 

examination of plaintiff, Dr. Friedlander stated there appeared 

to be tenderness and muscle spasms in the lumbar spine and cervical 

region. He found "decreased range of motion in all directions in 

her neck," motor examination of "5/5 in all muscle groups, upper 

and lower extremities," "normal sensation to pin and touch 

throughout with some mild decrease in the L5 dermatome on the 

right only," reflexes that "were all 2/4 and symmetric," a normal 

gait and no abnormal reflexes.
7 A-3290-15T3

Dr. Friedlander found plaintiff's injuries to be causally 

related to the accident2 and listed "[d]iagnoses including cervical 

disc herniation, chronic neck pain, cervical neck pain, cervical 

radiculopathy, lumbar disc herniation, lumbar radiculopathy, 

chronic back pain, status post lumbar microdiskectomy and failed 

back syndrome." He opined "that the above-mentioned diagnoses are 

of permanent nature," that plaintiff would suffer with chronic 

pain on a permanent basis and that it was unlikely "there would 

be any significant improvement in plaintiff's functional 

abilities." He did not identify what, if any, "functional 

abilities" had been impaired by her injury.

At the time of her deposition, plaintiff had no medical 

restrictions due to her physical complaints and took either aspirin 

or Tylenol for pain. After her accident, she joined a gym because 

she wanted to walk on the treadmill but found it painful to do so 

and stated she intended to quit. She testified her ability to 

perform household tasks had been limited. She can cook, wash 

dishes and do some cleaning but her husband had taken over most 

of the cleaning chores. Her socializing was limited; she stated 

 

2 Plaintiff told Dr. Friedlander that she had no problems with 

her neck or back before the accident. At her deposition, however, 

plaintiff stated she suffered injuries to her neck and back in a 

motor vehicle accident in 1998. She was taken to the hospital by 

ambulance and underwent physical therapy for several weeks 

thereafter.
8 A-3290-15T3

she can no longer go dancing. In addition, although no physician 

had stated she was unable to work, plaintiff testified she was not 

working due to debilitating back pain and physical limitations. 

However, she did take a course in 2014 "to learn how to take care 

of elderly people." Her applications for permanent disability 

were denied by the Social Security Administration twice. Plaintiff 

was divorced from her third husband in April 2014 and married her 

fourth husband in October 2014. She continues to engage in 

relations with her husband although she stated it caused her pain 

to do so.

Neither Dr. Morris Horwitz, plaintiff's orthopedic expert for 

her workers compensation claim, nor Dr. Ana Miguel Komotar, a 

neurologist engaged to examine plaintiff regarding her workers 

compensation claim, reviewed the MRIs prior to reaching their 

conclusions. Based upon his review of MRI reports, other documents

and a physical examination, Dr. Horwitz found plaintiff sustained 

herniated discs at C4-5 and C5-6, that she was status post L4-5 

microdiskectomy, and concluded she suffered permanent impairments 

of 25% of her right leg and left leg and an orthopedic disability 

of 65% of partial total. Based upon her review of documents and 

a physical examination, Dr. Komotar diagnosed plaintiff with 

"Cervical radiculopathy, Herniated cervical discs C4 to C6, 

Lumbrosacral radiculopathy, Herniated discs L4 to S1 with nerve 
9 A-3290-15T3

root impingement requiring discectomy at L4-L5, Adjustment 

disorder with anxious features and depressed mood." Dr. Komotar 

concluded these diagnoses were causally related to the accident 

and that plaintiff suffered "a permanent neurological disability 

of 50% of partial total and a permanent neuropsychiatric disability 

of 35% of total."

At oral argument on the summary judgment motion, plaintiff's 

counsel stated she suffered a permanent loss of bodily function 

that is substantial by virtue of the limitations on her ability 

to bend, twist, walk, stand and sit. He argued she had permanent 

pain throughout her lumbar spine and that there was objective 

evidence of that. Relying upon the Supreme Court's decision in 

Brooks, supra, 150 N.J. at 402-03, the trial court found "the 

injuries complained of by [plaintiff] fail to establish that she 

sustained a permanent loss of bodily function that is substantial" 

and granted summary judgment to the State, dismissing plaintiff's 

claim for pain and suffering.

On appeal, plaintiff argues the trial court erred in failing 

to acknowledge that she suffered a permanent injury that is 

substantial. She states the uncontroverted evidence establishes 

that, as a result of the accident, plaintiff suffered cervical and 

lumbar disc herniations that required surgery, that she was out 

of work for substantial periods of time and is unemployed at 
10 A-3290-15T3

present. The State counters that plaintiff's proofs failed to 

vault the TCA's limitation on recovery for pain and suffering.

There is no per se rule to determine whether an injury is 

substantial and permanent. Knowles, supra, 176 N.J. at 331. "[I]t 

is the nature or degree of the ongoing impairment that determines 

whether a specific injury meets the threshold requirement under 

the Tort Claims Act." Ponte v. Overeem, 171 N.J. 46, 53 (2002) 

(citing Kahrar v. Borough of Wallington, 171 N.J. 3, 16 (2002)). 

In Knowles, the Court reviewed precedents applicable to our 

fact-sensitive analysis. Addressing the nature of injuries that 

fall within the exception to immunity, the Court stated:

First, we have recognized that "injuries 

causing blindness, disabling tremors, 

paralysis and loss of taste and smell" satisfy 

the threshold because they are inherently 

"objectively permanent and implicate the 

substantial loss of a bodily function (e.g., 

sight, smell, taste, and muscle control)."

Gilhooley, supra, 164 N.J. at 541 (citing 

Brooks, supra, 150 N.J. at 403). Second, we 

have held that when a plaintiff suffers an 

injury that permanently would render a bodily 

organ or limb substantially useless but for 

the ability of "modern medicine [to] supply

replacement parts to mimic the natural 

function," that injury meets the threshold. 

164 N.J. at 542-43. 

[Knowles, supra, 176 N.J. at 332.]

The Court then described the requisite proof an injury is 

permanent and substantial:
11 A-3290-15T3

[W]e have concluded that there must be a 

"physical manifestation of [a] claim that [an] 

injury . . . is permanent and substantial."

Ponte, supra, 171 N.J. at 54. An injury 

causing lingering pain, resulting in a 

lessened ability to perform certain tasks 

because of the pain, will not suffice because 

"[a] plaintiff may not recover under the Tort 

Claims Act for mere 'subjective feelings of 

discomfort.'" Gilhooley, supra, 164 N.J. at 

540 (quoting Brooks, supra, 150 N.J. at 403 

(citation omitted)). 

[Ibid.]

Finally, the Court noted "neither an absence of pain nor a 

plaintiff's ability to resume some of his or her normal activities 

is dispositive of whether he or she is entitled to pain and 

suffering damages under the TCA." Ibid.

Applying these principles here, it is at once evident that 

plaintiff's injuries are not of a character that are inherently 

"objectively permanent and implicate the substantial loss of a 

bodily function." See id. at 332. In addition, she did not suffer 

an injury that "permanently . . . render[ed] a bodily organ or 

limb substantially useless but for the ability of 'modern medicine 

[to] supply replacement parts to mimic the natural function.'" 

See ibid.

Plaintiff did, however, present evidence from two MRIs that 

revealed cervical disc herniation at C4-C5 and lumbar disc 

herniation at L5-S1. Following a physical examination after her
12 A-3290-15T3

L4-L5 microdiskectomy, Dr. Horwitz stated, "[t]he objective 

medical findings . . . have resulted in a permanent impairment of 

25% of the right leg, a permanent impairment of 25% of the left 

leg and an orthopedic disability of 65% of partial total." Viewing 

the evidence in the light most favorable to plaintiff, we conclude 

she suffered a permanent injury. We therefore turn to a factsensitive analysis to determine the remaining issue, whether, her

"injuries could constitute a 'permanent loss of a bodily function 

that is substantial' under the TCA." See Knowles, supra, 176 N.J.

at 333.

Gilhooley, Kahrar and Knowles provide examples of cases in 

which the plaintiff's injuries satisfied the statutory threshold. 

In all three cases, the plaintiff presented objective medical 

evidence linking an injured body part to the plaintiff's inability 

to perform certain bodily functions without extensive medical 

intervention.

In Gilhooley, supra, 164 N.J. at 533, the plaintiff suffered 

a fractured nose and fractured right patella. The "knee fracture 

resulted in the disruption of the extensor mechanism leaving her 

with a complete loss of quadriceps power." Id. at 536. The loss 

of quadriceps power "prohibit[ed] stair climbing, chair ascent and 

descent as well as any form of efficient walking." Ibid. 

Plaintiff underwent open reduction surgery, which required the 
13 A-3290-15T3

restructuring of her patella with the use of pins and a tension 

band wire. Ibid. She was hospitalized for five days and wore a 

leg brace for more than two months. Id. at 537. Despite the 

successful reconstructive surgery, the Court concluded the 

plaintiff satisfied the TCA threshold because her fractured 

patella was an objective permanent injury that caused her "to lose 

forever the normal use of her knee that, thereafter, could not 

function without permanent pins and wires to re-establish its 

integrity." Id. at 542.

The plaintiff in Kahrar underwent invasive surgery to repair 

a "massive tear" of the rotator cuff. 171 N.J. at 15. Despite 

successful surgery that alleviated plaintiff's pain, the 

reattached tendon was shortened in length, resulting in 

plaintiff's loss of approximately forty percent of the normal 

range of motion in her left arm. Id. at 16. The Court found that 

this reduction in normal function was both permanent and 

substantial, significantly impairing the plaintiff's ability to 

use her arm to complete normal tasks. Ibid.

In Knowles, supra, 176 N.J. at 333, the Court found the 

threshold was met by "objective medical evidence of a permanent 

injury that is directly responsible for the substantial loss of 

several bodily functions: the lack of feeling in his left leg and 

the inability to stand, sit, or walk comfortably for a substantial 
14 A-3290-15T3

amount of time, engage in athletics, and complete household 

chores." Id. at 333. 

In contrast, Brooks and Ponte provide examples of injuries 

that were not shown to constitute a permanent loss of a bodily 

function that is substantial under the TCA.

In Brooks, the Court found a plaintiff who experienced pain 

and had a permanent limitation of motion in her neck and back 

failed to sustain "a permanent loss of a bodily function" because 

she was able to function in her employment and as a homemaker. 

150 N.J. at 406. Noting "a plaintiff may not recover under the 

Tort Claims Act for mere 'subjective feelings of discomfort,'" 

Brooks, supra, 150 N.J. at 403 (quoting Ayers v. Township of 

Jackson, 106 N.J. 557, 571 (1987)), the Court stated that, in the 

absence of an objective impairment, such as a fracture, "a claim 

for permanent injury consisting of 'impairment of plaintiff's 

health and ability to participate in activities' merely iterates 

a claim for pain and suffering." Ibid. (citation omitted).

In Ponte, supra, 171 N.J. at 54, the Court held the plaintiff 

"ha[d] not demonstrated any physical manifestation of his claim 

that the injury to his knee is permanent and substantial." The 

Court observed the absence of "any evidence that plaintiff's range 

of motion is limited, his gait impaired or his ability to ambulate 

restricted." Ibid. While the plaintiff had cited one or two 
15 A-3290-15T3

instances of his knee "giving way," he failed to demonstrate "there 

is any permanent instability in the knee." Ibid. The record also 

failed to show plaintiff's knee injury continued to restrict him 

"in performing his work responsibilities, household chores, yard 

work, or in his weightlifting or biking activities." Ibid.

We acknowledge that plaintiff's ability to resume some 

"normal" activities and the fact she only required over-thecounter medication for pain do not alone bar her recovery for pain 

and suffering. Knowles, supra, 176 N.J. at 332. Still, applying 

the principles articulated in these cases, we conclude the proof 

of plaintiff's injuries more closely resembles the evidence that 

fell short of establishing the statutory threshold in Brooks and 

Ponte than the evidence in Gilhooley, Kahrar and Knowles. 

As the Court noted in Knowles, supra, 176 N.J. at 333, the 

plaintiffs in Brooks and Ponte "complained that their injuries 

left them unable to perform certain tasks without pain, but the 

injuries were not severe enough or verifiable enough to constitute 

a 'permanent loss of a bodily function.'" (Citation omitted). By 

all accounts, plaintiff enjoyed "a good surgical outcome" from her 

microdiskectomy and reported her leg pain was "largely resolved"

just two weeks after surgery. When he released her from care, Dr. 

Nachwalter stated she had "reached maximum medical benefit." She 

returned to work and remained employed for two years following the 
16 A-3290-15T3

accident. Since shortly after her surgery, she has "ambulated 

without any assistive devices." Although she complains of 

debilitating pain, there are no medical restrictions on her; she 

has not sought any treatment since December 2012 and she relies 

upon over-the-counter medications for pain relief. 

Although Dr. Friedlander found a "decreased range of motion 

in all directions in her neck," he did not identify the degree to 

which her range of motion was decreased or how that resulted in 

the substantial loss of any bodily function. Compare Kahrar, 

supra, 171 N.J. at 15. Dr. Friedlander stated plaintiff's 

functional abilities were unlikely to improve but his failure to 

identify what functional abilities were affected and to what degree 

precludes any assessment of "the nature or degree of the ongoing 

impairment." Ponte, supra, 171 N.J. at 53. 

Although it is not necessary for a plaintiff to prove a total 

permanent loss of use of a bodily function, "a mere limitation on 

a bodily function" will not suffice. Brooks, supra, 150 N.J. at 

406. Similarly, "[a]n injury causing lingering pain, resulting 

in a lessened ability to perform certain tasks because of the 

pain," is insufficient. Knowles, supra, 176 N.J. at 332. Even 

affording plaintiff all reasonable inferences from the evidence, 

her proof shows no more than continuing pain that has had some 
17 A-3290-15T3

limiting effect on her; it fails to demonstrate any reduction in 

normal function was both permanent and substantial.

Affirmed.