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Puso v. Kenyon3/10/1994
kin, although possibly a shade darker and shiny and smooth as in the nature of scar tissue with no hair growing on it. The court also notes that in the surrounding calf area of the 66-year-old plaintiff were varicosities more noticeable and unsightly than the scar, which was just visible from 12 feet if one knew where to look. Neither scar was ever sutured; the leg scar healing naturally after application of cold compresses.
[Id. at 148.]
Judge Walsh concluded:
Applying the case law cited above to the facts at hand, the court holds that although plaintiff has suffered scarring which appears to be permanent in nature (although that is not decided as a fact), the court does not believe that it is of the significant nature needed to override the tort exemption of our No Fault Law. N.J.S.A. 39:6A-8. This court believes the words of the court in General Motors Corp. v. Shannon, supra, 155 A.2d at 238, are most descriptive of this court's attitude towards plaintiff's scars:
I can think of no form of activity, social, economic, or otherwise, in which the claimant might indulge, and be subject to embarrassment by the presence of [these] small scar .
[Id. at 150.]
In Oswin v. Shaw, supra, the court was not only obliged to determine definitions for the types of injury delineated in N.J.S.A. 39:6A-8a, but was also required to articulate the standard to be utilized in determining which injuries would be deemed to meet the tort threshold. "A plaintiff must show a nexus between the injury and the disability. The injury by itself does not fulfill the statutory requirement; rather, the resultant loss and disability are the key." Id. at 318.
The court did not articulate this standard for all of the exempt injuries, and in fact recognized that the definition borrowed from Licari v. Elliott, supra, had been developed in Licari only as to type eight and type nine injuries.
In the New Jersey statute, type one (death); type two (dismemberment); type four (fracture); and type five (loss of a fetus) need no definition. These types define themselves.
The need for definition arises only with type three (significant disfigurement); type six (permanent loss of use of a body organ, member, function or system); type seven (permanent consequential limitation of use of a body organ or member); type eight (significant limitation of use of a body function or system); and type nine (medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially usual and customary daily activities).
Oftentimes there is a substantial overlap between types six, seven and eight. This overlap is evident in the description of claimed injuries as discussed in Dabal v. Sodora, 260 N.J. Super. 397, 616 A.2d 1297 (App. Div. 1992); Phillips v. Phillips, 267 N.J. Super. 305, 631 A.2d 564 (App. Div. 1993); Polk v. Daconceicao, 268 N.J. Super. 568, 634 A.2d 135 (App. Div. 1993); Foti v. Johnson, 269 N.J. Super. 198 (App. Div. 1993). We are satisfied that the definition adopted by Oswin, which specifically applied to a type eight injury and utilized the Licari definition which itself applied to a type eight and nine injury, is the appropriate definition for use in evaluating type six and type seven injuries. The use of the word "significant" in type three (significant disfigurement), however, does require a different qualitative analysis.
The court conceives that every scar may be perceived subjectively by the scar victim
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