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Puso v. Kenyon

Decided: March 10, 1994.


On appeal from the Superior Court, Law Division, Hudson County.

Before Judges Pressler, Dreier and Kleiner.


The opinion of the court was delivered by

KLEINER, J.S.C. (temporarily assigned).

This is a verbal threshold case in which plaintiff, Jean Puso, appeals from a summary judgment dismissing her personal injury automobile negligence complaint against defendant, Sook Y. Choi. The motion Judge concluded, after oral argument, that plaintiff, who sustained soft tissue injuries and a scar five centimeters in length behind her knee on the right calf, had failed to make an adequate showing of objective criteria as to the soft tissue injury to warrant a jury trial and that plaintiff's scar did not constitute "significant disfigurement" within the purview of N.J.S.A. 39:6A-8a as a matter of law.

Plaintiff is a twenty-eight year old bookkeeper and the owner of an automobile registered in New Jersey. On September 9, 1989, she was a passenger on a motorcycle owned and operated by defendant, John Kenyon, which was involved in a collision with an automobile owned and operated by defendant, Choi. Plaintiff's complaint for non-economic loss asserted against Kenyon is not affected by this opinion.

Plaintiff came under the care of her treating physician, Dr. Frank J. Noonan, on September 15, 1989, complaining of limitation of motion as to her cervical and lumbar spine. Her physician noted that plaintiff had sustained a laceration on the right calf which had been surgically repaired by sutures in a hospital emergency room after the collision and had been evaluated by Dr. Gregory E. Rauscher, a plastic surgeon, on September 13, 1989.

The initial orthopedic-type examination revealed "tenderness and muscle spasm of the paravertebral muscles of the lumbar spine. There was tenderness of the cervical spine, there was tenderness and hematoma of the right hip."

Dr. Noonan requested x-rays of the cervical and thoracic spine and of the right hip, which were all negative for fracture. His concluding diagnosis was "cervical sprain, thoracic sprain, post concussion syndrome and a large wide-shaped laceration about three inches long . . . transversely on the right calf."

Plaintiff continued to see her treating physician quite frequently until May 30, 1990.*fn1 Although she was not released from Dr. Noonan's care, she did not return for any additional treatment or evaluation and did not submit any other proof of treatment subsequent to that date. We infer that plaintiff, in fact, received no additional treatment after May 30, 1990.

Dr. Noonan's report of June 11, 1990 indicates:

Based upon the history of this case, my examination and tests performed upon the patient, together with the patient's present complaints, I have concluded that the patient has suffered a permanent consequential limitation of use of a bodily member.

I have concluded that the patient has suffered a permanent significant limitation of use of body function or system of the neck and lower back.

The only facts utilized by the treating doctor as the basis of this Conclusion are the following:

In my last examination of the patient, the patient complained of pain in the neck and the lower back. My examination of the patient showed she still lacked 10 degrees of flexion of the cervical spine and 10 degrees of extension. She lacked 5 degrees of rotation right and 15 degrees of rotation left. Motion studies of the lumbar spine revealed that she had a 15 degree loss of flexion and 10 degree loss of extension. She lacked 10 degrees of rotation right and 10 degrees of rotation left.

The seminal case analyzing N.J.S.A. 39:6A-8a is Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992), 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.*fn2

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 ...

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