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Personal Injury Law

: Traumatic Brain Injury Law Blog

Court Finds Mild TBI Meets Tort-Claims Verbal Threshold

By Bruce Stern

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In order to recover non economic damages against a New Jersey public entity. a claimant must demonstrate that he/she has sustained a permanent loss of a bodily function which has been defined as requiring a claimant to show that he/she has sustained an objective permanent injury and a permanent loss of a bodily function that is substantial. Knowles v. Mantua Township. Soccer Ass.'n, 176 N.J. 324 (2003).

Temporary injuries no matter how painful or debilitating are not enough to meet this threshold nor are mere subjective feelings of discomfort. Brooks v. Odom, 150 N.J. 395 (1997). With regard to the substantial impact test, a claimant is not required to show a total loss, but the loss nevertheless must be substantial.

As readers familiar with this blog are well aware, with most mild traumatic brain injury cases, it is very difficult to establish objective proof of permanent injury. In most cases, traditional diagnostic testing such as EEG, CT scan, and MRI are usually negative, leaving neuropsychological testing as the only available objective tool to document the functional impairments and limitations from a mild traumatic brain injury.

Most recently, the New Jersey Appellate Division in a well written decision by Judges Sabatino and Harris found that the diagnosis of post concussive syndrome with persistent headaches, and cognitive behavioral and emotional changes met the tort claim's verbal threshold. See: DiMatties v. Somerdale Park School.

In this case, plaintiff, then eight years old and attending second grade at Somerdale Park School in Somerdale, New Jersey, slipped and fell on black ice. He was treated at the emergency room of a local hospital where he was released later that day with a diagnosis of 'slight concussion.' Shortly after the fall, plaintiff was subjected to a battery of examinations and tests all of which were interpreted as being normal. Plaintiff had x-rays of his lumbar spine, left shoulder and skull, an MRI of his cervical spine, a CT scan of his brain, an EEG of the brain, and a follow-up MRI of the brain.

Nevertheless, plaintiff was treated and evaluated by a neurologist who expressed the opinion that plaintiff suffered from a post concussive syndrome with persistent cephalalgia headaches and cognitive behavioral and emotional changes. Plaintiff was also seen by a psychologist who noted that plaintiff had potential difficulties which were probably due to persistent headaches as well as the head injury. The psychologist diagnosis was post concussion syndrome.

Two years later, plaintiff, still complaining of cognitive problems, was evaluated by David J. Massari, Ph.D. a neuropsychologist who administered a battery of neuropsychological tests. Dr. Massari noted that the variability of the testing was likely to be the residuals of plaintiff's closed head trauma.

Plaintiff continued to complain of persistent headaches together with behavioral and emotional changes which have continued for the past fourteen years. After eventually graduating from high school, plaintiff went to work at Pep Boys, but was ultimately fired for missing too much work due to his traumatically induced migraine headaches.

The trial court dismissed plaintiff's claim for noneconomic damages finding that plaintiff's injuries did not meet the requirements of the New Jersey Tort Claims Act.

On appeal, after viewing the long history of physical and cognitive complaints, the Appellate Division reversed, finding that plaintiff's injuries did have a substantial impact on his life. While the Court did not address the issue of objective medical evidence, a review of the facts in the case demonstrate that the only objective proof of injury that could have been found was the neuropsychological testing.

This decision will be of great value in representing plaintiff's who have sustained a mild traumatic brain injury.

Full post as published by Traumatic Brain Injury Law Blog on April 13, 2010 (boomark / email).