 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Puso v. Kenyon3/10/1994
92), which articulated two standards for determining whether an injury meets the statutory threshold, one objective and the other partially subjective and partially objective. Polk v. Daconceicao, 268 N.J. Super. 568, 575, 634 A.2d 135 (App. Div. 1993). Under the objective standard, plaintiff must establish her claim by "objective, credible medical evidence." Subjective complaints of pain alone will be insufficient to provide this proof. Oswin v. Shaw, supra, 129 N.J. at 319-20. As noted in Oswin, the treating physician's report must be scrutinized for "objective proof of . . . injury and consequent disability." Ibid. Even limitations in range of motion are insufficient "unless the restricted mobility is verified by physical examination and observation." Id. at 320. The "parroting" of statutory words by the physician as to medical Conclusions is not of assistance to the court in analyzing whether a plaintiff has carried her burden of proof. Ibid.
Were the plaintiff's claim limited to her soft tissue cervical and lumbar injuries, we would have little difficulty in concluding that the trial court was correct in granting summary judgment based on the failure to establish sufficient proof of the objective standard required by Oswin v. Shaw, id. Although plaintiff's brief on appeal argued to the contrary, plaintiff abandoned her arguments on this crucial issue at oral argument and advised the court that she would not attempt to persuade the court that the trial court had improperly construed Oswin v. Shaw, supra. Plaintiff, however, asserted that summary judgment was improvidently granted due to the presence of the permanent scar on her calf behind her right knee.
The presence of this scar was addressed by the motion Judge. The evidence considered consisted of a report of Dr. Gregory E. Rauscher, Chairman of Plastic Surgery at the University of Medicine and Dentistry of New Jersey. Dr. Rauscher saw the plaintiff on four occasions: initially on September 13, 1989; on September 21, 1989, when her sutures were removed; on October 10, 1989; and on August 27, 1990 for a final evaluation. As noted during the final evaluation:
The patient had a permanent scar behind the right knee which measured 5 cm. transversely and varied in width from a minimum of 3 mm. to a maximum of 2 cm. By means of elective excision, revision it is quite likely that improvement in this scar can be obtained. Undoubtedly, the patient will require a splint for 2-3 weeks to prevent any excessive knee movement.
We note that Dr. Rauscher did not opine as to the anticipated degree of improvement of the scar which excision might provide. As of the date of the motion for summary judgment, excision had not been performed.
The motion Judge concluded:
The medical reports submitted in connection with the motion, viewed in light of Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992), are not sufficient to establish a genuine issue of material fact. The reports refer to contusions, bruises, scrapes and a 5 cm. laceration which apparently resulted in a 5 cm. scar behind her knee. Although the subjects of objective medical findings, these injuries do not, as a matter of law, constitute any of the nine types of injuries described in N.J.S.A. 39:6A-8.
The verbal threshold, N.J.S.A. 39:6A-8a, is established in New Jersey's no-fault and automobile insurance statute, the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to-35, originally enacted in 1972. As originally enacted, the statute permitted lawsuits for non-economic losses only where the insured had sustained an inj
Page 1 2 3 4 5 6 7 New Jersey Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|