A jury may decide whether a Pennsylvania woman may recover non-economic damages in a limited tort automobile accident case where she did not visit her primary care doctor until six weeks after the accident and declined to mention the back and neck pain for which she is claiming a serious injury.

The plaintiff’s chiropractor, however, who saw the plaintiff a week before she visited her primary doctor, reported the woman complained of back and neck pain that prevents her from doing daily activities and standing for extended periods of time — enough to advance her case, a Lawrence County judge has ruled.

The chiropractor also indicated in a report that a CT scan revealed an “old healed fracture” in her spine, but said it was not caused by the accident.

The chiropractor’s opinion was apparently key in preserving her claim.

On the basis of the chiropractor’s report, Court of Common Pleas President Judge Dominick Motto, writing in Dengler v. Marsh, decided reasonable minds could differ as to whether plaintiff Kimberly J. Dengler suffered a “serious injury” in the accident — the threshold for collecting non-economic damages when one has limited tort coverage.

However, Motto blocked plaintiff Dengler from pursuing a claim of serious disfigurement against the defendant tortfeasor, Amy L. Marsh, ruling that Dengler failed to demonstrate she suffered permanent disfigurement as a result of a 3-centimeter cut on her forehead.

It was that injury, according to the opinion, that compelled Dengler to visit the emergency room in the first place, some hours after the April 17, 2009, accident.

Calling the scars “barely discernable,” Motto said it was the court’s analysis of pictures taken 20 months after the collision that led to the court’s ruling on that issue.

Motto granted in part and denied in part Marsh’s motion for summary judgment.

An attorney for Marsh said the defense would “absolutely” be playing up the fact that Dengler went to the hospital because of the cut to her forehead, above anything else.

But, because of her chiropractor’s report, the court granted Dengler the chance to tell a jury how the car accident left her seriously impaired with regard to her neck and back.

“Here, [Dengler] has produced a medical report referencing complaints of being unable to clean her house without increasing pain and being unable to stand or walk for any period of time without having to sit down,” Motto said, devoting the bulk of a 15-page opinion to that issue.

The Pennsylvania statute on the subject, 75 Pa.C.S.A. Section 1705(d), says a person with limited tort coverage is precluded from recovering non-economic loss unless that person can prove he or she sustained a serious injury. That type of injury has been defined as one resulting in “death, serious impairment of bodily function or permanent disfigurement.”

That statute faces traditional summary judgment review, thanks to the Pennsylvania Supreme Court’s ruling in Washington v. Baxter in 1998.

According to Motto, the Supreme Court, in granting a defendant’s motion for summary judgment, set forth a two-part test as to whether serious impairment has occurred.

First, the court should identify what body function was impaired, followed by a judgment on whether the impairment was serious.

“The focus is not on the injury itself, but how the injury affects a particular body function,” Motto said.

Several factors assist the court on the second prong, including extent of impairment, the particular body function, the duration of impairment, and the treatment required.

If reasonable minds could differ on that test, the case goes to a jury, Motto said, citing Washington.

The Dengler case is factually distinguishable from Washington, Motto said, because the Washington plaintiff could not show his injuries from an underlying car accident had more than little or no impact on his personal activities.

Dengler’s chiropractor, David Hosaflook, said the plaintiff could not clean her house or walk any distance without her pain increasing. He added she could not identify any trauma to her back other than from her car accident.

Motto noted it was not the court’s job at the summary judgment stage to assess the credibility of the expert or the plaintiff herself.

Dengler went to the emergency room to seek treatment for the cut on her forehead, but also told hospital staffers she was experiencing neck and shoulder pain. An X-ray scan at that time revealed no fracture, but the radiology report noted Dengler suffered from a chronic degenerative condition affecting the vertebrae in the neck.

Despite being advised to go see her primary care doctor within three days, her next trip was to Hosaflook’s office, according to Motto, five weeks after the accident. A few months later, a CT scan of her spine revealed an “old healed fracture” of the spinous process of L5. Hosaflook opined the fracture took place before the accident.

Motto said Hosaflook’s medical records show Dengler complained of a “dull ache” in her neck and back and reported her pain level as “moderate.”

About a week after seeing Hosaflook, but more than two months before the CT scan revealed the old healed fracture, Dengler visited her primary care doctor.

According to the opinion, Dengler did not tell her physician that she was suffering any neck or back pain and the doctor noted she appeared healthy with no signs of acute distress.

Dengler has pled the neck and back pain she had initially noticed did subside a few days after the accident, but resurfaced some weeks later and was “progressively worsening.”

Attorneys Lisa R. Whisler and Richard E. Rush of Thomson, Rhodes & Cowie represent Marsh.

The attorneys noted it was not completely clear whether Dengler was blaming the accident for the fracture, in spite of her chiropractor’s report, if she was claiming the accident exacerbated the injury, or caused a new one altogether.

The attorneys said it was noteworthy that Dengler declined to see her primary care doctor, against the recommendations of the emergency room, until six weeks after the accident.

Whisler also pointed out the hospital records indicate Dengler has a degenerative condition in her spine.

New Castle, Pa., attorney Carmen F. Lamancusa represents Dengler and did not return a call requesting comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 16-page opinion in Dengler v. Marsh, PICS No. 12-1964, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •