defendants move for summary judgment, contending that the plaintiff, Louise E. Clark, has failed to meet category nine of the verbal threshold, N.J.S.A. 39:6A-8(a) (disability for ninety days).
The plaintiff was injured in an automobile accident on December 13, 1991. Her doctor diagnosed her condition as a "post-traumatic injury" (sprain and strain) to the neck, chest, lower back, left calf and left knee. A consulting physician render a diagnosis of lumbar radiculopathy. The plaintiff contends that she meets
category nine of the verbal threshold*fn1 because she became disabled as a result of her injuries and was unable to work from December 19, 1991, to July 7, 1992.*fn2 The plaintiff has not submitted medical proofs to establish that her disability was caused by her injuries.
The no fault statute provides that the verbal threshold is met where there is:
a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment [category nine].
It is obvious that the plain language of the statute requires proof of a causal relationship between the "medically determined injury" and the claimant's disability. The defendants argue that this causal relationship must be proved by medical evidence and that the plaintiff's failure to produce such evidence requires this court to grant summary judgment in their favor.
The plaintiff disagrees, and argues that she is not required to submit medical proofs of causation. She contends that the fact that she certified that she lost time from work due to her injuries, coupled with the fact that her doctor has concluded that she had sustained an injury, is sufficient evidence for a jury determination on the question of whether the plaintiff has satisfied the category nine criteria of the no fault law. The issue, then, is whether medical evidence of causation is required under category nine of the verbal threshold.
Although there are no New Jersey cases on point, there are cases from other jurisdictions which have addressed this issue.
The New York case of Shiner v. Insetta, 137 Misc. 2d 1012, 525 N.Y.S. 2d 982 (App.Term.1987), stands for the proposition asserted by the plaintiff.
Defendants admit that plaintiff adduced evidence that she suffered medically determined injuries as a result of the motor vehicle accident. However, they contend that since there was no medical proof of disability during 90 of the first 180 days following the occurrence of the injury she failed to present a prima facie case. Appellants' essential argument is that the adjectival phrase "medically determined" as it appears in the statute modifies not only the injury but also the inability of plaintiff to perform customary daily activities for 90 of the first 180 days. Appellants argue that a contrary interpretation would open the floodgates to subjective claims of disability where a person injured in an ...