On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2193-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically on October 31, 2007
Before Judges Stern and C.S. Fisher.
Plaintiff appeals from a judgment of September 19, 2006,*fn1 disposing of the matter as to all parties and specifically from an order of March 6, 2006, granting summary judgment against plaintiff William Evenson IV for failure to satisfy the verbal threshold. Plaintiff asserts that he submitted proof by "objective credible medical evidence" of a "swelling in conjunction with range of motion restrictions" and that "the motion judge committed reversible error in holding that the infant plaintiff did not suffer a permanent injury despite a finding of permanency by the treating physician." He claims to have developed juvenile arthritis "after he forcibly struck his lower extremities against the back of the front seat in the [vehicle] collision." The motion judge rendered a supplemental written opinion, dated November 20, 2006, pursuant to R. 2:5-1(b).
Specifically, plaintiff argues that the judge erred "when she concluded that plaintiff failed to adduce sufficient credible objective medical evidence" and "when she 'reversed' her initial finding that plaintiff suffered a permanent injury."
In granting summary judgment, the motion judge stated:
The court is satisfied that William Evenson IV's injuries are not permanent within the meaning of the statute. As stated, range of motion tests ordinarily do not suffice to establish a permanent injury.
See Oswin, supra at 320. Furthermore, no evidence, aside from plaintiff's subjective complaints of pain and morning stiffness following exercise, has been presented to show that his ankle will neither heal nor function normally in the future even with further medical treatment. The X-rays performed of the right ankle did not reveal any abnormalities. The fact that Dr.
Knowles [William's pediatrician who referred him to Dr. Yuriko Kimura, a pediatric rheumatologist] characterized his findings as objective does not make them so. No objective tests were performed.
The X-ray report from the hospital in December 2002 reflected "no evidence of osseous or articular abnormality." The diagnosis upon discharge was "sprained ankle." In July 2005 one of plaintiff's pediatricians, Dr. Kelly Knowles,*fn2 found "objective findings of notably marked decrease in the patient's ability to bend his great toe and second toe." He was "unable to raise his heel from the floor on the right side," suffered "joint pain, morning stiffness and decreased range of motion." As a result, Dr. Knowles believed William had contracted arthritis and referred him to Dr. Yukiko Kimura.
In August 2005, Dr. Kimura, a pediatric rheumatologist, diagnosed juvenile arthritis caused when plaintiff's feet struck the back of the front seat at the time of impact with defendant's vehicle. Dr. Kimura observed "swelling of his right knee and toes, and tenderness of his ankles with decreased range of motion" in August 2005. On January 16, 2006, Dr. Kimura again found "active swelling of his right knee and toes associated with pain and decreased range of motion."
As already noted, the motion judge concluded that plaintiff's injuries "are not permanent" because Oswin v. Shaw, 129 N.J. 290, 314 (1992), rejected a range of motion evaluation for purposes of finding permanency, and because no objective evidence "has been presented to show that [the] ankle will neither heal nor function normally in the future even with further medical treatment" and because X-rays "did not reveal any abnormalities".
There is merit to the judge's view. No X-ray, MRI or CAT scan provided objective evidence of arthritis or a permanent injury. However, Oswin, which includes swelling as "objective evidence," id. at 320,*fn3 and the January 18 and February 24, 2006 reports of Dr. Kimura, Chief of Pediatric Rheumatology at Children's Hospital at the Hackensack University Medical Center, present a factual dispute on permanency adequate to survive summary judgment.*fn4 Dr. Kimura's report also sufficiently ...