Waldinger, C. v. Wokulich, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTIANNA WALDINGER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRADLEY M. WOKULICH : No. 478 WDA 2022
Appeal from the Order Entered April 8, 2022,
in the Court of Common Pleas of Erie County,
Civil Division at No(s): 10201-2019.
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 15, 2023
Christianna Waldinger appeals from the order of partial summary
judgment in favor of Bradley M. Wokulich, which precluded Waldinger from
recovering any non-economic damages in this motor vehicle accident case.
The trial court concluded that Waldinger had limited tort coverage and she did
not suffer a serious injury as a matter of law. Upon review, we affirm in part
and reverse in part.
On March 28, 2018, Waldinger and Wokulich were in an automobile
accident in Erie, Pennsylvania. Waldinger filed a complaint alleging that
Wokulich caused the accident and that she suffered serious and permanent
injuries as a result. At the time of the accident, Waldinger was insured under
an insurance policy where she elected the "Limited Tort Option" under the
Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”). This
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election precluded her from recovering non-economic damages except in
limited circumstances.
After the close of discovery, Wokulich filed a motion for partial summary
judgment asserting that there were no genuine issues of material fact and
Waldinger did not suffer a serious injury, either a serious impairment of body
function or serious permanent disfigurement, as a result of the accident.
Wokulich claimed that Waldinger could not recover any non-economic
damages under the MVFRL and judgment on these claims should be entered
in his favor.
In deciding Wokulich’s motion, the trial court set forth the undisputed
facts as follows:
On September 23, 2019, [Waldinger] was deposed in this matter.
. . . [Waldinger] testified that immediately following the accident,
she had pain in her right knee, chest, and "her right hand and
wrist were extremely swollen and started to bruise."
[Waldinger] was taken to the hospital by the paramedics, where
she underwent a CAT scan and x-rays. [She] was "released after
a few hours," discharged with pain medication, instructed to ice
her wrist and knee, and anything else bruised, and return if she
exhibited any "concussion-type illness," such as dizziness or
bruising. She did not return to the hospital for any further
treatment. As a result of her injuries, [Waldinger] missed a total
of three (3) days of work.
[Waldinger] testified that after the accident, she received the
following medical treatment: an MRI at Tri-State Pain Institute
["Tri-State"]; treatment at Young Chiropractic from April through
August of 2018, and; treatment with Orthopedic & Sports Medicine
["Sports Medicine"] from June through October of 2018.
[Waldinger] underwent surgery on her right wrist in 2018 and has
a permanent two (2) inch scar on her wrist from the procedure.
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Additionally, [Waldinger] explained that she still has daily "chronic
pain" in her right hand and wrist and cannot lift more than five (5)
pounds. She testified that the pain generally begins in the
morning when she squeezes the shampoo bottle and continues
when she completes tasks such as pouring milk and using a round
brush on her hair. Additionally, [Waldinger] testified that her
hand "goes numb" when she is writing and/or typing at work all
day, her pain is aggravated when she kneels, and she suffers from
what she describes as [] "feeling like a pinched nerve" in her neck.
[Waldinger] also testified that she never requested, or needed,
accommodations to continue at her employment and that she did
not experience any negative impacts on any hobbies or activities
that she enjoyed prior to the accident.
[Waldinger] provided a report from Doctor D. Patrick Williams
["Dr. Williams"], who treated her at Sports Medicine. The report
reflects that Dr. Williams treated [Waldinger] for her knee and
wrist injury beginning on June 6, 2018. Dr. Williams reported
treating [her] wrist with injections to relieve her pain. When the
injections were unsuccessful, [Waldinger] underwent surgery to
"release the first dorsal compartment of her right wrist." The
surgery [on October 11, 2018] was successful and without
complication. On October 22, 2018, [Waldinger] represented that
her pain was "very well controlled" and that she was "having no
difficulty with her wrist." Furthermore, Dr. Williams described
“[Waldinger’s] prognosis of her knee and wrist as "excellent."
Finally, Dr. Williams opined, "[a]t this point, I do not think she will
need any further treatment regarding her wrist or knee."
Trial Court Opinion, 6/6/22, at 1-3 (citations omitted).
On January 19, 2022, the trial court granted Wokulich’s motion for
partial summary judgment dismissing Waldinger’s claims for non-economic
damages. Waldinger filed a motion for reconsideration, which the trial court
denied. Alternatively, Waldinger requested that the court dismiss her
remaining claim for economic damages with prejudice, so that she could take
an immediate appeal. Following argument, the court granted this request and
dismissed the case in its entirety.
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Waldinger filed this timely appeal. Waldinger and the trial court
complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Waldinger raises the following two issues:
I. Whether the trial court erred in granting Wokulich’s motion
for partial summary judgment where a genuine issue of
material fact existed as to the nature and extent of
Waldinger’s injuries, as well as whether she sustained a
serious impairment of a bodily function which should have
been determined by the trier of fact.
II. Whether the trial court erred in granting Wokulich’s motion
for partial summary judgment where a genuine issue of
material fact existed as to whether Waldinger sustained a
permanent disfigurement which should have been
determined by the trier of fact.
See Waldinger’s Brief at ii, 11, 24.
Waldinger claims that the trial court erred in granting Wokulich’s motion
for partial summary judgment. Specifically, Waldinger argues that the trial
court erred in finding that she did not sustain a serious injury as a result of
the accident, i.e., a “serious impairment of a body function” and/or “serious
permanent disfigurement,” as required under the MVFRL to recover non-
economic damages.
In her first issue, Waldinger claims that the trial court erred when it
concluded she did not sustain a serious impairment of body function.
According to Waldinger, the evidence established that she injured her neck,
right knee, right hand and wrist. She received treatment for these injuries
which included being seen at the emergency room after the accident,
chiropractic care, injections and surgical intervention. In 2020, two years
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after the accident, Waldinger received another injection for her wrist and had
an MRI which showed that she had recurrent tenosynovitis and a small tear of
her Triangular FibroCartilage Complex (“TFCC”).
Further, Waldinger maintains that her deposition testimony
demonstrated that these injuries seriously impaired her ability to perform
various daily activities. Waldinger explained that it is painful for her to
perform typical daily activities which involve feeling, lifting and using her
dominant hand. According to Waldinger, this evidence, when viewed in the
light most favorable to her as the non-moving party, which the trial court
failed to do, shows that reasonable minds could differ as to whether she
sustained a serious impairment of body function. Waldinger therefore
maintains that this determination should have been submitted to a fact finder
and summary judgment was improper. Waldinger’s Brief at 23-24.
The trial court concluded that, although Waldinger sustained injuries
from the accident, the medical evidence did not establish that her injuries
constituted a serious impairment of a body function. In reaching its decision,
the court relied on McGee v. Muldowney, 750 A.2d 912, 915 (Pa. Super.
2000); this precedent requires a plaintiff to present objective medical
evidence, and not just subjective complaints, to support the existence of a
serious impairment. Trial Court Opinion, 6/6/22, at 6. Because Waldinger did
not present such evidence, the court granted summary judgment in
Wokulich’s favor.
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Our standard of review regarding an order granting a motion for
summary judgment is well settled:
An appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion. But the
issue as to whether there are no genuine issues as to any material
fact presents a question of law, and therefore, on that question
our standard of review is de novo. This means we need not defer
to the determinations made by the trial court.
To the extent that an appellate court must resolve a question of
law, we shall review the grant of summary judgment in the
context of the entire record.
[I]n evaluating the trial court's decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered.... Lastly, we will view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Albert v. Sheeley's Drug Store, Inc., 234 A.3d 820, 822 (Pa. Super. 2020)
(internal citations, quotations, and brackets omitted). To withstand a motion
for summary judgment, a non-moving party “must adduce sufficient evidence
on an issue essential to his case and on which he bears the burden of proof
such that a jury could return a verdict in his favor. Failure to adduce this
evidence establishes that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Ertrel v. Patriot–
News Co., 674 A.2d 1038, 1042 (Pa. 1996).
In relevant part, the Pennsylvania MVFRL provides:
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(4) Limited tort alternative. — Each person who elects the limited
tort alternative remains eligible to seek compensation for
economic loss sustained in a motor vehicle accident as the
consequence of the fault of another person pursuant to the
applicable tort law. Unless the injury sustained is a serious
injury, each person who is bound by the limited tort
election shall be precluded from maintaining an action for
any noneconomic loss . . . .
75 Pa.C.S.A § 1705(d) (emphasis added). Although a plaintiff who has elected
the limited tort option can recover all medical and out-of-pocket expenses,
such a plaintiff cannot recover for pain and suffering or other non-economic
damages unless the plaintiff's injuries fall within the definition of “serious
injury.” See id. A “serious injury” is defined as “[a] personal injury resulting
in death, serious impairment of body function or permanent serious
disfigurement.” 75 Pa.C.S.A. § 1702.
Our Supreme Court has determined that the “serious impairment of
body function” threshold contains two inquiries:
a) What body function, if any, was impaired because of the injuries
sustained in a motor vehicle accident?
b) Was the impairment of the body function serious? The focus
of these inquiries is not on the injuries themselves, but on
how the injuries affected a particular body function.
Generally, medical testimony will be needed to establish
the existence, extent, and permanency of the impairment.
. . . In determining whether the impairment was serious, several
factors should be considered: the extent of the impairment, the
length of time the impairment lasted, the treatment required to
correct the impairment, and any other relevant factors. An
impairment need not be permanent to be serious.
Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998) (emphasis added).
“Further, evidence of how a particular injury affects a specific plaintiff,
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including how that injury negatively impacted the person's ability to perform
his or her chosen profession, is relevant in determining whether a plaintiff has
suffered a serious impairment of a body function.” Vetter v. Miller, 157 A.3d
943, 948 (Pa. Super. 2017).
The determination of whether a serious injury has been sustained
“should be made by the jury in all but the clearest of cases.” Washington,
719 A.2d at 740; Brown v. Trinidad, 111 A.3d 765, 770–71 (Pa. Super.
2015). However, summary judgment may be granted where a limited-tort
plaintiff only presents subjective allegations of a serious impairment without
objective medical evidence. McGee, 750 A.2d at 914 (stating that a plaintiff
must generally present “objective medical evidence as to the degree of any
impairment and extent of pain suffered.”).
Applying the analysis set forth in Washington to this case, we observe
that the evidence, when viewed in a light most favorable to Waldinger,
established she injured her right knee, neck, back, and, in particular, her right
hand and wrist as a result of the accident. These injuries affected her ability
to kneel, lift, squeeze, feel sensation in her hand, and use her dominant hand.
Further, in considering whether these impairments were serious, the
evidence demonstrated that, following the accident, Waldinger was treated at
the emergency room and released just a few hours later; she was directed to
ice her knee and wrist and return if the pain worsened or she suffered
concussion type symptoms. Although she did not return to the hospital, she
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was treated for her injuries for approximately 6 months which included
chiropractic care, injections and surgery.
Additionally, the evidence established that Waldinger missed 3 days of
work after the accident. Although Waldinger did not need any modifications
or accommodations to continue her employment, her hand goes numb when
she types and writes all day at work.
Further, Waldinger testified about how her injuries affect her. It is
painful for her to kneel. She suffers from what she described as a pinched
nerve in her neck. Most notably, Waldinger has chronic pain in her hand and
wrist which starts in the morning and continues through the day. It hurts
when she performs daily tasks such as squeezing the shampoo bottle, pouring
milk into her cereal, and using a brush on her hair. She cannot lift things
more than 5 pounds. The pain has persisted even after the surgery.
Arguably, based on her subjective complaints reasonable minds could
differ as to whether Waldinger’s impairment was serious. This is particularly
so given that Waldinger injured her dominant hand and needed surgery to
treat it. She continues to experience pain and is still unable to do various
daily activities. We are mindful that the need and ability to use one’s hand
and wrist is important and extensive in daily life.
Significantly, however, the objective medical evidence Waldinger
presented showed that she sustained injuries as a result of the accident, but
this evidence did not establish that she sustained a serious impairment of body
function. To support her case, Waldinger provided the expert report of Dr.
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Williams, who treated her for her hand/wrist and knee injuries, dated March
2020. Dr. Williams diagnosed Waldinger with a "small avulsion fracture of the
tibial tubercle with associated patellar tendinitis and right wrist de Quervain's
tenosynovitis." He initially treated her for pain with injections in her wrist,
which provided minimal relief. Ultimately, on October 11, 2018, Waldinger
had surgery on her right wrist without complication. When Dr. Williams saw
Waldinger after the surgery, Waldinger indicated that “[h]er pain was very
well controlled . . . and that she was having no difficulty with her wrist. . . . ”
“She was to follow up as needed.”
In his report, Dr. Williams opined that her prognosis for her injuries was
excellent. He further stated that when he saw Waldinger in October of 2018,
“she was doing very well in regard to her knee and wrist. At this point, I do
not think she will need any further diagnostic testing or treatment concerning
her wrist or knee.” Dr. Williams noted that his opinions were given based on
the fact that, as of the time of his report, he had not seen Waldinger since
October 2018.1
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1 Waldinger asserts that she had further follow up in June 2020 with a different
orthopedic group. However, Wokulich contends that this occurred after the
close of discovery and as such was never produced in a supplemental
discovery response. Although it was attached to Waldinger’s response in
opposition to Wokulich’s motion, Pennsylvania Rule of Civil Procedure 4007.4
places a party under a duty to amend a prior responsive pleading if that party
obtains information upon the basis of which he knows that the response,
though correct when made, is no longer true. Rule 4019 states that the court
may prohibit introduction of designated evidence at trial if a party fails to
make proper discovery or to obey an order of court respecting discovery. See
(Footnote Continued Next Page)
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Notably, Dr. Williams’ report did not indicate the extent of Waldinger’s
pain or the extent to which her injuries impacted her life following the
accident. Additionally, the report did not provide any information to support
Waldinger’s ongoing complaints and claims that her injuries continue to affect
her. Instead, Dr. Williams gave Waldinger a good prognosis without any need
for further treatment. Consequently, even when viewing the evidence in the
light most favorable to Waldinger, because the objective medical
evidence does not support Waldinger’s subjective claims, we conclude that
reasonable minds could not differ that she did not suffer a serious injury as a
result of the accident. Accordingly, the trial court did not error or abuse its
discretion in granting summary judgment on this issue in Wokulich’s favor.
In her second issue, Waldinger similarly claims that the trial court erred
when it concluded she did not suffer from a serious permanent disfigurement.
Waldinger argues that the evidence showed she has a two-inch scar on the
side of her wrist from the surgery. She testified that the scar has not faded
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Leahy v. McClain, 732 A.2d 619, 624 (Pa. Super. 1999). Given these
circumstances, the trial court did not consider this additional evidence. We
note that Rule 1035(b) allows a party to supplement the record to produce
evidence to overcome a motion for summary judgment. See Monroe v.
CBH20, LP., ___ A.3d ___, 2022 WL 17087072 at *13 (Pa. Super. November
21, 2022). However, Waldinger did not raise this as a specific error on appeal
and therefore any argument that we may properly consider this evidence is
waived.
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even after 4 years and is blatantly visible; she cannot cover the scar with
clothing all the time. Additionally, according to Waldinger, people have asked
her about the scar and that it is a “little bit” embarrassing. Waldinger
maintains that, viewing this evidence in the light most favorable to her as the
non-moving party, which the trial court failed to do, reasonable minds could
differ whether her scar is a serious permanent disfigurement. As such,
Waldinger contends that this issue should have been left for the fact finder to
decide rendering summary judgment improper. Waldinger’s Brief at 25.
The trial court concluded as a matter of law that the scar on Waldinger’s
wrist was not a serious permanent disfigurement. Although Waldinger had a
scar on her wrist, the court noted that Waldinger offered no evidence as to
how the scar affected her daily life; mere embarrassment is not enough.
Further, Waldinger did not seek any follow up medical treatment for her scar.
Consequently, the trial court granted Wokulich’s motion for summary
judgment. Trial Court Opinion, 6/6/22, at 7.
Initially, we observe that the MVFRL is silent as to what constitutes a
“serious permanent disfigurement.” Additionally, there is no appellate
authority defining this phrase as contemplated by the MVFRL. The dissenting
opinion in Holland ex rel. Holland v. Marcy, 817 A.2d 1082, 1096–97 (Pa.
Super. 2002), aff'd sub nom. Holland v. Marcy, 883 A.2d 449 (2005)
referenced by Levin v. Potts, III, 2019 WL 8438486 (Pa. Com. Pl. Sept. 17,
2019), on which the trial court relied, while offering some guidance, is not
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precedential.2 Therefore, before we can address whether Waldinger adduced
sufficient evidence to withstand summary judgment in this case, we must
consider the meaning of serious permanent disfigurement.
To do so, we first consider the dictionary definitions of the terms of
serious, permanent and disfigurement, “which offer adequate direction for
statutory interpretation consistent with the Statutory Construction Act.” See
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2 In Holland, the dissent considered whether a single scar on the plaintiff’s
forehead constituted a serious permanent disfigurement so that the recovery
of non-economic damages should be submitted to a jury. Noting the lack of
appellate authority, the court considered guidance from New Jersey caselaw
interpreting similar language in a New Jersey statute.
In Falcone v. Branker, 135 N.J.Super. 137, 342 A.2d 875(1975), the Superior Court of New Jersey employed a sound
analysis for determining when a scar constitutes permanent
serious disfigurement for purposes of its statutory equivalent to
the limited tort option of the MVFRL. The [c]ourt examined case
law regarding the definition of permanent serious disfigurement in
the workers' compensation area and concluded that to fall within
that definition, the scar must impair the symmetry or appearance
of the plaintiff such that he is unsightly, misshapen, imperfect, or
deformed in some manner. The Court also opined that a facial scar
that mars to such an extent as to attract attention would be a
serious disfigurement. According to the Falcone court, whether a
disfigurement fulfills the statutory definition is determined by the
following objective factors: the scar's appearance, coloration,
existence and size. It noted, however, that a scar that becomes
progressively less apparent with time would not be
permanent. See also Hammer v. Township of
Livingston, 318 N.J.Super. 298, 723 A.2d 988 (1999).
Holland, 817 A.2d at 1096-97. The dissent concluded that the plaintiff’s scar
was significant enough to create a jury question as to whether it concistuted
a permanent serious disfigurement. Id. at 1097.
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Zator v. Coachi, 939 A.2d 349 (Pa. Super. 2007). In relevant part, “serious”
is defined as “not trifling (not lacking in significance) . . . excessive or
impressive in quality, quantity, extent, or degree.”3 4 “Permanent” means
“continuing or enduring without fundamental or marked change (as in
permanent injuries).”5 “Disfigurement” is the act or instance of disfiguring . .
. something that disfigures, as a scar.”6 In turn, “disfigure” means “to mar
the appearance or beauty of; deform; deface . . . .”7 It also is defined as: “to
impair (as in beauty) by deep and persistent injuries.”8
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3 “Serious.” Merriam Webster.com. Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/serious. Accessed 17 Jan.
2023.
4 When considering the existence of a “serious impairment of body function,”
we have stated “[o]bviously, the word “serious” must be understood as
“significant” and “important”, involving an injury with consequences that are
more than just minor, mild or slight.” Dodson v. Elvey, 665 A.2d 1223, 1234
(Pa. Super. 1995), rev'd on other grounds, 720 A.2d 1050 (1998).
5 “Permanent.” Merriam Webster.com. Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/permanent. Accessed 17 Jan.
2023.
6 “Disfigurement.” Dictionary.com, https://ww.dictionary.com/disfigurement
Accessed 17 Jan. 2023.
7 “Disfigure.” Dictionary.com, https://www.dictionary.com/disfigure.
Accessed 17 Jan. 2023.
8 “Disfigure.” Merriam Webster.com. Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/disfigure. Accessed 17 Jan.
2023.
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Additionally, the Pennsylvania Workers’ Compensation Act, 77 P.S. § 1
et seq., offers some guidance. The Act provides for the award of benefits
where a claimant sustains a “serious and permanent disfigurement” resulting
from a work injury. 77 P.S. § 513(22). To recover, such disfigurement must
be of a “character to produce an unsightly appearance” and such recovery is
limited to a disfigurement of the head, neck or face.9 Id. We observe that
“unsightly” means “distasteful or unpleasant to look at.”10 Notably, when
considering whether a scar warrants compensation, it has been observed that:
[t]he “unsightly appearance” requirement has produced the
commonsense rule that not every mark or residual of an injury to
the head, neck or face will constitute disfigurement. The claimant
may well suffer some alteration . . . yet not be entitled to any
award at all.
***
The claimant must prove not merely that he or she has a scar or
other blemish, but that the complained-of mark is disfiguring.
Walker v. Workers' Comp. Appeal Bd. (Health Consultants), 42 A.3d
1231, 1236 (Pa. Commw. 2012) (quoting DAVID B. TORREY AND ANDREW E.
GREENBERG, WORKERS' COMPENSATION LAW AND PRACTICE § 7:42 (3d ed.
2008) (emphasis added). Personal examination of the claimant’s physical
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9 The MVFRL does not contain the same limiting language that a serious
permanent disfigurement must occur to the head, neck or fact.
10 “Unsightly.” Merriam Webster.com. Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/unsightly. Accessed 17 Jan.
2023.
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appearance rather than looking at a photograph is preferred; the accuracy of
a photograph depends on various factors such as lighting, camera quality, skill
of the photographer, focus etc. Walker, 42 A.3d at 1235–36 (citing Hastings
Indus. v. Com., W.C.A.B. (Hyatt), 611 A.2d 1187 (Pa. 1992)).
Based upon this guidance, we conclude that a “serious permanent
disfigurement” requires that one’s appearance, form or beauty be affected or
marred in a displeasing, harmful way which is significant and not minor and
will not change, go way or be diminished. We recognize that such a
determination can be very subjective. Consequently, taking from
Washington, we set forth a similar inquiry to apply.
What disfigurement, if any, resulted from the motor vehicle
accident?
Was the disfigurement permanent?
Was the disfigurement serious? In determining whether the
disfigurement is serious, several factors should be considered:
appearance, obviousness, size, shape, symmetry, coloration, and
any other relevant factors.
Applying the foregoing here, we first observe that the particular
disfigurement at issue is a scar. As noted above, a scar in and of itself is
disfiguring. Nevertheless, we recognize that not every scar is permanent or
serious.
Regarding the permanence of Waldinger’s scar, the evidence showed
that 4 years had passed since the accident and Waldinger’s scar remained
unchanged. As the trial court determined, this evidence was sufficient to
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establish that Waldinger’s scar was permanent. Although generally competent
medical evidence is required to support a factual finding that a disfigurement
is permanent, it is not necessary where circumstances permit the fact finder
to determine from his own observations whether the disfigurement is
permanent. EPurex Corp. v. Workmen's Comp. Appeal Bd., 445 A.2d
267, 269 (Pa. Commwlth. 1982), abrogated by Hastings, 611 A.2d at 1187.
Such circumstances may exist where a period of time has passed between the
occurrence of the injury and the examination of the disfigurement. Id.; but
cf. Workmen's Compensation Appeal Board v. Pizzo, 346 A.2d 588 (Pa.
Commw. 1975) (referee could not properly take judicial notice of the
permanence of an eye injury resulting in closing of right eyelid and
squinting). Thus, we agree with this conclusion even though no medical
evidence was presented to establish permanency.
As for whether Waldinger’s scar was serious, the evidence showed that
the scar was on Waldinger’s wrist and was two inches long. Considering the
relevant factors to determine if a disfigurement is serious, we disagree with
the trial court that this is the clearest of cases. Instead, we find that, when
viewing this evidence in the light most favorable to Waldinger, reasonable
minds could differ as to whether Waldinger’s scar is a serious disfigurement.
We base our conclusion on the size of the scar and its location. Two inches is
not so insignificant. The scar is in a prominent place on Waldinger’s body. As
Waldinger claimed, it cannot always be concealed. Further, we observe that
one’s hands are constantly in use and readily visible most of the time. These
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factors directly relate to the extent to which the scar detracts from Waldinger’s
appearance, which is the critical inquiry in a “serious permanent disfigurement
case.”
In granting summary judgment, the trial court did not consider the
effect Waldinger’s scar had on her appearance. Instead, it focused on the
impact Waldinger’s scar had on her life. Unlike the serious impairment of body
function analysis, this not the appropriate inquiry. Certainly, the impact a
disfigurement has on an individual, such as whether it is embarrassing or
creates self-esteem issues is relevant but, it is not the primary factor. Instead,
the inquiry is the effect on the person’s appearance.
Additionally, the trial court relied on Waldinger’s failure to offer medical
evidence showing that she sought any follow up treatment for her scar.
Although treatment of a disfigurement may be a relevant factor in determining
whether a disfigurement is serious, it is also not the primary consideration.
Again, the pertinent inquiry is how the injury affects the plaintiff’s appearance.
Unlike the serious impairment of a body function question, medical evidence
is not necessary to determine whether a scar impacts one’s appearance.
When viewing the evidence in the light most favorable to Waldinger, we
conclude that reasonable minds could differ as to whether her scar constitutes
a serious permanent disfigurement. As such, a jury question exists regarding
whether Waldinger sustained a serious permanent disfigurement and is
entitled to any non-economic damages arising from the accident.
Consequently, the trial court erred in granting summary judgment in favor of
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Wokulich on the question of serious disfigurement. We therefore reverse the
court’s order granting summary judgment on her claims for non-economic
damages.
Order reversed. Remanded for further proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
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