Judges Opinions, — September 5, 2023 13:16 — 0 Comments

Luz Rosario Duran v. Pedro Santana Garcia

Luz Rosario Duran v. Pedro Santana Garcia

 

Civil Action-Law-Motor Vehicle Accident-Injuries-Insurance Coverage-Limited Tort-Recovery Permitted-Serious Injury-Summary Judgment-Issue of Fact-Discretion of the Jury

 

A Complaint was filed alleging that Luz Rosario Duran (“Plaintiff”) experienced back pain following a motor vehicle accident whereby the vehicle in which she was riding as a passenger was struck in the rear by a vehicle operated by Pedro Santana Garcia (“Defendant”).  At the time of the accident, the vehicle in which Plaintiff was traveling as a passenger was covered by limited tort coverage.  Defendant filed a Motion for Partial Summary Judgement seeking to preclude Plaintiff from recovering damages for noneconomic loss.

 

  1. The Pennsylvania Motor Vehicle Financial Responsibility Act (“MVFRA”), Title 75 Pa.C.S. § 1701 et seq., requires all citizens to maintain automobile insurance when operating a vehicle on the roadways.

 

  1. To reduce the cost of automobile insurance coverage, motorists may procure cheaper insurance by electing a limited tort option whereby the limited tort elector is prevented from seeking certain types of damages in an accident unless he or she sustained a serious injury.

 

  1. Serious injury is defined by Title 75 Pa.C.S. § 1702 as a personal injury resulting in death, serious impairment of bodily function or permanent, serious disfigurement.

 

  1. The salient question is not whether a plaintiff has been injured, but, rather, whether a plaintiff has suffered a serious injury such that a bodily function seriously has been impaired.

 

  1. In making this determination, the court must consider the extent of the impairment, the type of bodily function impacted, the duration of the impairment and the treatment needed to address the impairment.

 

  1. An impairment of bodily function need not be permanent to be considered serious.

 

  1. Whether or not a person is able to perform his or her chosen profession is a relevant factor in considering whether an injury is serious.

 

  1. The question of whether a serious injury occurred is fact specific and should be left to the discretion of the jury whenever possible.

 

  1. In reviewing the record in the light most favorable to Plaintiff and resolving all doubts regarding the existence of a material fact against Defendant, the case will be allowed to proceed to the jury for a determination of whether Plaintiff suffered serious injury as contemplated by § 1702 of the MVFRA.

 

L.C.C.C.P. No. 2015-01333, Opinion by Bradford H. Charles, Judge, November 11, 2022.

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

 

                                                         :

LUZ ROSARIO DURAN,                  :

                   Plaintiff                         : 

                                                          :                                                                                                                           :        NO. 2015-01333

  1. :       

                                                          :       

PEDRO SANTANA GARCIA,          :                                                                                     Defendant                     :

ORDER OF COURT

 

 

AND NOW, this 11th day of November, 2022, in accordance with the attached Opinion, the DEFENDANT’s Motion for Partial Summary Judgment is DENIED.  The question of whether the PLAINTIFF suffered a “serious injury” as defined in the Motor Vehicle Financial Responsibility Act will be submitted to a jury at the time of trial.

In light of the age of this case, we will sua sponte schedule a Status Conference to be conducted in the near future.  The Lebanon County Court Administrator is directed to coordinate with counsel to schedule this Status Conference.   We advise both counsel that the intent of this Court is to move the above-referenced matter forward to a trial as promptly as possible.

 

 

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/pmd

cc:     Court Administration (order only)

Jason J. Schibinger, Esq.

George Eager, Esq.

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

 

LUZ ROSARIO DURAN,                  :

                   Plaintiff                         : 

                                                          :                                                                                                                           :        NO. 2015-01333

  1. :       

                                                          :       

PEDRO SANTANA GARCIA,          :                                                                                     Defendant                     :

APPEARANCES

 

 

JASON J. SCHIBINGER, ESQ.                For Plaintiff

 

GEORGE EAGER, ESQ.                           For Defendant 

 

 

 

 

OPINION BY CHARLES, J.,  November 11, 2022

 

“The question of whether a plaintiff has suffered a “serious injury” for purposes of Pennsylvania’s Limited Tort law “should be made by the jury in all but the clearest of cases.”” Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998).  Even though we have significant doubt about whether the Plaintiff in this case has suffered “serious injury”, we will honor the above language of our Commonwealth’s highest Court and we will send the question of “serious injury” to a Lebanon County jury for its analysis and assessment.

 

  1. FACTS

We have received medical records that are nearly 1-foot thick.[1]  Our recitation of facts will be based primarily upon our review of these medical records.  For the most part, the parties are in agreement with respect to the nature and extent of treatment received by PLAINTIFF.  The parties differ as it relates to the subjective impact of PLAINTIFF’s medical issues and with respect to whether all of PLAINTIFF’s problems relate to the accident that is the subject of this dispute.  As we discuss the factual background of this case, we will attempt to highlight whether and to what extent the parties disagree about the underlying facts.

At roughly noon on August 4, 2013, Plaintiff Luz Rosario Duran (hereafter PLAINTIFF) was a passenger in a 2001 Dodge Caravan operated by Rafael Duran-Guzman.  As PLAINTIFF’s vehicle was stopped in the southbound lane of traffic on North Seventh Street in the City of Lebanon, it was rear-ended by a Toyota Tacoma truck operated by Pedro Santana Garcia (hereafter DEFENDANT).  The accident was described in the Pa. EMS Report as “very minor”; it was not significant enough to cause airbag deployment.  At the time of the accident, PLAINTIFF was subject to the Limited Tort Option that she had selected on her automobile insurance policy.

Following the accident, PLAINTIFF was transported to the Lebanon Good Samaritan Hospital via ambulance.  She reported that her neck and back hurt.  PLAINTIFF was diagnosed by Emergency Room staff as having suffered a cervical muscle strain and a lumbar muscle strain.  X-ray films taken at the hospital revealed no evidence of traumatic injury to her spine.  She was released and given instructions: “You can go back to normal daily activities if they don’t make the pain worse.”

Several days after the accident, PLAINTIFF went to her primary care physician Dr. Lillybeth Acosta.  PLAINTIFF was prescribed physical therapy for her complaints of back pain.  The initial physical therapy evaluation report revealed that PLAINTIFF was able to “independently manage her full time job”, but she was unable to “do anything at home.”  The report also mentioned that PLAINTIFF “is not participating in social activities such as music and dancing and has not been able to do the exercise she normally does in her home.”

Between August 14, 2013 and December 18, 2013, PLAINTIFF was scheduled for twenty-three (23) physical therapy appointments.  She attended fourteen (14).  On December 5, 2013, PLAINTIFF underwent and MRI, which revealed a disc bulge and neural foraminal narrowing at L4-L5 and L-5-S1.  We were unable to locate the actual MRI report within PLAINTIFF’s copious medical file.    PLAINTIFF characterizes the MRI findings as confirming her injury; DEFENDANT characterizes them as revealing “some evidence of degenerative changes in the lower spine.”

In January of 2014, PLAINTIFF was again referred for a course of physical therapy.  Between January and May of 2014, PLAINTIFF was scheduled for twenty-two (22) physical therapy appointments.  She missed roughly half of these appointments.  On May 17, 2014, PLAINTIFF’s physical therapist discharged her.  The therapist’s discharge summary evaluated the reasons for PLAINTIFF’s lack of improvement as “non-compliance” and “poor attendance”.  Moreover, the same report revealed that PLAINTIFF referred to her pain level as minimal (2 on a 1-10 scale).

At some point in 2014, PLAINTIFF saw orthopedic physician Dr. David Overholt.  Dr. Overholt referred PLAINTIFF to Dr. Daniel M. Lorenzo, a pain relief specialist.  Dr. Lorenzo saw PLAINTIFF for the first time on March 27, 2014.  He determined that she had “limited lumbar range of motion, tenderness to palpation of the lower lumbar spine and pain upon flexion, extension and rotation.”  Dr. Lorenzo performed facet joint injection procedures on April 25, 2014 and May 23, 2014.  He then performed a right-side radio frequency ablation on September 9, 2014, and a left-side radio frequency ablation on October 10, 2014.  Those procedures reportedly resulted in a “50% decrease in pain.”  On June 18, 2015, Dr. Lorenzo wrote in a report:

 

 

“Given her response to injections and radio frequency neuroablation treatments, I believe that she has a good prognosis.  These procedures may need to be repeated in the future.  At this point, I feel she has reached maximum medical improvement.”

 

That having been said, Dr. Lorenzo also opined in his letter that PLAINTIFF’s pain “is related to the motor vehicle accident.”

The record reveals very little between Dr. Lorenzo’s letter in June of 2015 and 2018.[2]  On November 4, 2017, PLAINTIFF presented again at the Good Samaritan Hospital Emergency Room reporting that she was involved in another motor vehicle accident.  She complained of pain in her back.  Once again, x-rays did not reveal any broken bones.  Once again, PLAINTIFF was referred to physical therapy.  She attended a total of five (5) physical therapy sessions until she was discharged on February 2, 2018. An assessment note at the time of discharge indicated poor attendance and poor improvement.

On November 1, 2018, PLAINTIFF underwent a functional capacity test.  That test revealed chronic bilateral low back pain.  The report also stated:

 

“Functional testing revealed that the client is presently functioning in the below sedentary work category of work defined and outlined in the Dictionary of Occupational Titles.  This conclusion cannot be trusted due to poor effort and unreliable testing and unreliable subjective reports…Physical effort and reliability of pain and disability report findings were found to be non-reliable.  The results of this FCE were determined to be an invalid indicator of the client’s current physical abilities.”

 

The PLAINTIFF did complete aquatic therapy following her functional capacity test.  The last report of aquatic therapy is dated June 25, 2019.  The PLAINTIFF reported at the time of discharge that she was generally feeling better, but she still suffered pain ranging between 1 and 3 on a scale of 1 to 10.  Very little in the way of medical treatment for low back problems is documented following June 25, 2019.

In terms of functioning, PLAINTIFF alleges that she suffered “significant limitations”.  In her brief, PLAINTIFF points to the following:

  1. Plaintiff stopped working overtime due to her pain from the accident, as she could not tolerate working the same amount of hours she did prior to the accident. (Exhibit C, pages 11 and 14).

 

  1. Plaintiff missed about 10 days of work due to pain in her back and feet from the accident. (Exhibit C, pages 12-13).

 

  1. Her back pain has continued since the accident, despite treatment. (Exhibit C, pages 23-24 and 32-33).

 

  1. She only had temporary relief from her pain as a result of the injection from Dr. Lorenzo. (Exhibit C, page 25).

 

  1. She has pain when she sits, and was experiencing pain at a level 8 out of 10 during the June 23, 202 deposition. (Exhibit C, page 33).

 

  1. She can no longer run, or Dance as a result of her injuries from the accident. (Exhibit C, pages 36-37).

 

  1. She cannot lift heavy things, she cannot exercise, play sports or run with her children. (Exhibit C, page 39).

 

  1. Her children and husband help her with her household activities, as she is limited in what she can lift due to her pain from the accident. (Exhibit C, pages 39-40).

 

  1. She cannot drive far, she cannot stand in one place for long (no more than 25 to 30 minutes), she cannot sit longer than 45 minutes, she cannot sleep long, all due to her pain from the accident. (Exhibit C, pages 40-42).

 

  1. She does not visit friends, she cannot do all of the home chores she used to perform, she is limited in her ability to be intimate with her husband and she is limited in the types of jobs she can perform, due to her injuries from the accident. (Exhibit C, pages 445-27).

(PLAINTIFF’s brief at pages 12-13)

 

DEFENDANT responds that PLAINTIFF “has lost no more than ten (10) days of work from her job…” as a result of the accident.  (DEFENDANT’s brief at Section III).

PLAINTIFF claims that there are “genuine issues of material fact as to whether Plaintiff suffered a “serious injury” and the matter should be submitted to the jury to decide the same.”  DEFENDANT responds by stating:

“Plaintiff has suffered nothing more than a mild neck or back strain.  There is no objective proof that she suffered any type of serious injury.  If she is in fact inflicted with any pain at all, it is most likely resulting from the degenerative condition of her lower back.  Her self-reports must be viewed with some skepticism in view of her failure to avail herself of the opportunity for treatment and rehabilitation.”

(DEFENDANT’s brief at Section III).

 

DEFENDANT filed a Motion for Partial Summary Judgment seeking to preclude PLAINTIFF from recovering damages for non-economic loss.  By September, both sides had submitted legal briefs in support of their respective positions.  Today, we render a decision regarding the DEFENDANT’s Motion for Summary Judgment.

 

  1. DISCUSSION

Pennsylvania’s Motor Vehicle Financial Responsibility Act (MVFRA) required all Pennsylvania citizens to maintain automobile insurance when operating a vehicle on the roadways of this Commonwealth.  See, 75 Pa.C.S.A. §1701 et seq.  In an effort to reduce costs of automobile insurance, the Legislature created a scheme by which motorists could procure cheaper insurance by electing a “Limited Tort” option pursuant to which the Limited Tort elector would be prevented from seeking certain types of damages unless he/she suffered a “serious injury”.  See, e.g., 75 Pa.C.S.A. §1705.  The term “serious injury” was defined in the Act as :

“A personal injury resulting in death, serious impairment of bodily function or permanent, serious disfigurement.”

75 Pa.C.S.A. §1702.

 

 

As could probably be predicted, copious litigation ensued after the MVFRA that was aimed at further refining the meaning of “serious injury”.  As could also be fairly predicted, the precedent emerging about this question has been consistent in language but not entirely reconcilable in application.  Because of this, we will cite and briefly discuss some of the cases that impct the issue before us now.

Both sides agree that the leading Pennsylvania case regarding a definition of “serious injury” under the MVFRA is Washington v. Baxter, 719 A.2d 733 (Pa. 1998).  In Washington, the Plaintiff suffered a cervical strain and an injury to his right foot that was initially diagnosed as “mild”.  He missed several weeks of work following the accident.  Thereafter, he was treated with injections.  Although he indicated that he was able to perform his “normal job responsibilities”, the Plaintiff indicated that he suffered consistent pain and he was limited in performing certain tasks as a result of that pain.

The Pennsylvania Supreme Court noted that the MVFRA was silent as to whether a judge or a jury should make the determination of whether a serious injury existed.  After reviewing Legislative history information, the Court concluded:

“Upon review, we conclude that the Legislative history does not support the view that the threshold determination of whether a serious injury has been sustained is to be made by the trial judge.  In fact, we find that the Legislature, by following the Michigan model, indicated that the traditional summary judgment standard was to be followed and that the threshold determination was not to be made routinely by a trial court judge in matters such as the one before us now, but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained. “

Id at page 740.

 

Even using that standard, the Supreme Court in Washington determined that the injury suffered by Washington was not serious.  The Court stated: “Although the evidence, when taken in the light most favorable to the Appellant, does show that he was injured in the accident, the impairment resulting from that injury is clearly de minimus.” Id at page 741.

Since Washington, dozens of cases have made their way to Pennsylvania’s Appellate Courts regarding the definition of “serious injury”.  The ultimate results of those cases are sometimes difficult to reconcile.  However, certain guiding principles are clear:

  • The salient question is not whether the Plaintiff has been injured, but rather whether the Plaintiff “has suffered a serious injury such that a bodily function has been seriously impaired.” McGree v. Muldowney, 750 A.2d 912 (Pa. Super. 2000);
  • The focus when determining serious injury is not upon the nature of the injury itself, but upon how the injury affects a bodily function. Long v. Mejia, 896 A.2d 596 (Pa. Super. 2006); Robinson v. Upole, 750 A.2d 339 (Pa. Super., 2000);
  • Courts must consider the extent of the impairment, the type of bodily function impacted, the duration of the impairment and the treatment needed to address the impairment. Cadena v. Latch, 78 A.3d 636 (Pa. Super. 2013); Long, supra; Robinson, supra;
  • An impairment of a bodily function need not be permanent to be considered serious. Cadena v. Latch, supra.
  • Whether or not an individual can perform his or her chosen profession is a relevant factor when considering whether an injury is “serious”. Vetter v. Miller, 157 A.3d 943 (Pa. Super. 2017).

 

Within the umbrella of the language outlined above, different fact patterns have yielded disparate results in the Courts of this Commonwealth.  For example, in Murray v. McCann, 658 A.2d 404 (Pa. Super. 1995), a plaintiff who suffered persistent pain but was able to work through that pain in order to complete her “daily activities” was deemed to have suffered a “minor impairment” rather than a “serious impairment”.  In contrast, a plaintiff who suffered a kneecap injury that caused problems with kneeling, squatting, climbing stairs or walking for more than fifteen minutes was entitled to a jury trial on the issue of whether he suffered “serious injury”. See, Oravic v. Sprigg, 29 Pa. D&C 4th 97 (1996).  Similarly, in Graham v. Campo, 990 A.2d 9 (Pa. Super. 2010), a plaintiff who suffered a lumbar strain that caused “nerve root injury” was deemed to have suffered a serious injury due largely to her subjective complaints about how the pain affected her functioning.  Reading these cases and others convinced us that the question of whether a “serious injury” occurred is fact-specific and should be left whenever possible to the discretion of a jury.

In this case, as articulated at the outset of this Opinion, we have significant doubt about whether Plaintiff suffered “serious injury”.  The initial trauma she suffered following the accident was relatively minimal.    Her treatment has not even been consistent, and it was interrupted by another motor vehicle accident.  Most poignantly, the Plaintiff herself did not follow through with all of the treatment recommendations prescribed by her own doctors, and this speaks volumes about whether the Plaintiff herself believed that she had been seriously injured.

Against the above are complaints from the Plaintiff that are largely subjective in nature.  Included among these complaints are claims by the Plaintiff that she suffered a significant and ongoing degradation of normal activity.  In addition, PLAINTIFF has undergone numerous treatment modalities, including physical therapy, injections and nerve ablations.  Moreover, her treating doctor has stated that she has attained “maximum medical improvement”, and that strongly implies that she has not been cured of ongoing pain.

As we view the above, we are reminded that this case has come before us via a Motion for Summary Judgment.  Our role at this point in time is not to determine whether one party or the other is more likely to prevail at trial.  Our exclusive focus must be upon whether a “genuine issue of any material fact” exists.  See, Pa.R.C.P. 1035.2.  In rendering this decision, we must view the record in the light most favorable to the PLAINTIFF, and all doubts as to the existence of a genuine issue of material fact must be resolved against the DEFENDANT.  Dean v. Commonwealth of Pennsylvania, Dep’t of Transp., 751 A.2d 1130, 1132 (Pa. 2000), citing P.J.S. v. Pennsylvania State Ethics Comm’n, 723 A.2d 174, 176 (Pa. 1999).  Moreover, Summary Judgment can only be granted in cases that are “clear and free from doubt.” Hayward v. Medical Center of Beaver County, 608 A.2d 1040, 1042 (Pa. 1992).

While this case presents what is admittedly a close call, we will err on the side of caution by allowing a jury to decide the issue of whether PLAINTIFF suffered “serious injury”.  It will be the job of the jury to observe and listen to the PLAINTIFF’s subjective complaints of impairment and then measure those complaints with or against all of the other more objective evidence that is presented.  Ultimately, in accordance with Washington, it will be for a jury to determine whether the PLAINTIFF suffered “serious injury” as defined in the MVFRA.

An Order to send this matter forward to trial will be entered simultaneous with this Opinion.

 

[1] Many of these records relate to medical conditions that have nothing to do with the accident, including but not limited to gall bladder problems, cardio-vascular issues, gynecological issues and diabetes for which the PLAINTIFF sought and received treatment at the WellSpan Good Samaritan Hospital Emergency Room.

[2] Dr. Lorenzo’s records reveal that PLAINTIFF had an office visit on May 24, 2016 as a result of back problems.  No other visits were noted regarding back problems in the records between 2015 and 2018.

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