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Hart v. Township of Willingboro


July 19, 2007


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-003171-05.

Per curiam.


Argued: June 27, 2007

Before Judges Skillman and King.

This is an appeal from an order for summary judgment granted on September 8, 2006 by Judge Hogan in this Title 59 case. The judge ruled that as a matter of law the plaintiff did not overcome the burden imposed upon her by the threshold for a personal injury recovery under N.J.S.A. 59:9-2d. We affirm substantially for the reasons expressed by Judge Hogan in his written opinion of September 8, 2006, with the following comments.

The statute requires that plaintiff shoulder the burden of proving "permanent loss of bodily function." N.J.S.A. 59:9-2d. As the judge correctly observed:

There is a two prong test that must be satisfied for the plaintiff to recover under N.J.S.A. §59:9-2(d). A plaintiff must show "(1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial." Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003) citing Gilhooley v. County of Union, 164 N.J. 533, 540-541 (2000) (citing Brooks v. Odom, 150 N.J. 395, 402-403 (1997)).

To recover under the Act for pain and suffering, plaintiff must prove by objective medical evidence that the injury is permanent and substantial. See Brooks, 150 N.J. at 406.

Our concern here, and doubtless the judge's concern, is the final medical report available to us from plaintiff's physician, dated December 15, 2004. The report states in full:

Dear Dr. Dorfner:

Sheila was seen on 12/3/04 for follow-up of the right ankle. She is a little over four months status post fracture of the distal fibula. Since her last visit with us three weeks ago, she has been wearing the air cast and notes significant improvement. She no longer has any swelling or pain. She stopped taking the Naprosyn.

She continues with home exercises. She is ambulating with the use of a cane.

Examination reveals no edema of the ankle. She has a full range of motion.

We recommend she try to wean herself off the air cast. She can start this while at work since her work consists mostly of sitting with occasional getting up and down. She will try this for the next week and then discontinue the air cast altogether after that. If she needs to use a cane, she can do that. We instructed Sheila that she may need to use Naprosyn p.r.n. and apply ice as she may experience some pain and swelling as she won't be using the air cast. We will see her in two months for follow-up.

Sincerely yours,

E. Michael Okin, M.D.

We have nothing further in the record. The defense had no independent exam. Counsel for plaintiff represented to us at oral argument that this report was all he could provide on the point of permanent and substantial injury and disability. We find nothing to support a claim of objective permanent injury or permanent and substantial loss of bodily function in this the "final report" for our evaluative purposes. Plaintiff showed "significant improvement" four months after her well aligned fracture of the distal fibula which did not invade the ankle mortise. Everything looked optimistic at this point.

Nothing here supports the permanent use of the "air cast" or of a cane. Nothing is known of the two month "follow-up" from the medical standpoint. The motion was decided about twenty-one months after this "final report." Absent more persuasive evidence, we must affirm. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).



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