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Paul v. Ohio Casualty Insurance Co.

Decided: October 5, 1984.

MAYOR H. PAUL, ET AL., PLAINTIFF-APPELLANT,
v.
OHIO CASUALTY INSURANCE COMPANY, ET AL. DEFENDANT-RESPONDENT. OHIO CASUALTY INSURANCE COMPANY, PLAINTIFF-RESPONDENT, V. MAYOR H. PAUL, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Cumberland County.

The opinion of the court was delivered by Petrella, J.A.D.

Petrella

This appeal by Mayor H. Paul in his dispute with Ohio Casualty Insurance Co. (Ohio Casualty) involves the interpretation of the term "medical expenses" in the personal injury protection (PIP) provisions of the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1, et seq. (the "No-Fault Law"). The trial judge concluded that 24 hour a day attendant care and the services of a health care coordinator for plaintiff, a quadriplegic with "Locked-In Syndrome," were not "medical expenses" under N.J.S.A. 39:6A-4 and N.J.S.A. 39:6A-2e and ruled in favor of defendant insuror. We reverse.

Mayor H. Paul, then a 23 year old teacher, was injured in an automobile accident on Route 206 in Springfield Township on January 11, 1975. As a result of that accident Paul received a brain stem injury which rendered him a quadriplegic with what is known as "Locked-In Syndrome." Although similar to spinal cord injuries where there is resultant quadriplegia, the victim of "Locked-In Syndrome" generally maintains cognitive abilities, but is unable to speak or hold his head erect and is unable to respond rapidly if at all. The usual spinal cord patient generally has loss of motion and sensation below the injury but needs no training in speech or communication skills. The "Locked-In Syndrome" patient has similar loss of movement but retains sensation. Without development and training, the "Locked-In

Syndrome" patient cannot communicate or develop the means to do so. Shortly after the accident Ohio Casualty, Paul's automobile insurance carrier, began paying him PIP benefits. These payments eventually included payments for attendant care which the insurer continued paying until it instituted a declaratory judgment action.

In April 1982 Ohio Casualty filed a complaint in the Chancery Division*fn1 against Paul and his parents seeking a declaratory judgment that it was not required to pay for Paul's full-time attendant care or his health care coordinator. Paul counterclaimed in that action for a declaration that Ohio Casualty was obligated to pay not only for those services, but for the payment of essential service benefits including a professional psychologist, physical therapist and speech therapist.

Paul had previously filed a negligence action in the Law Division seeking damages against a number of defendants for his personal injuries arising out of the accident. After Ohio Casualty instituted its suit, Paul filed a supplemental complaint in that Law Division action seeking essentially the same relief against Ohio Casualty as he sought in his counterclaim in the Chancery Division. The Chancery Division action was transferred and consolidated with the pending Law Division action. The personal injury claims in the Law Division were settled and trial was held solely on the remaining declaratory judgment aspects of the litigation. At the end of Paul's case in a non-jury trial the trial judge granted Ohio Casualty's motion for involuntary dismissal as a matter of law and denied Paul's claim for entitlement to payment of the health care coordinator and attendants based on Ohio Casualty's argument that such services did not fit within the definition of medical expenses

under N.J.S.A. 39:6A-2e. The judge concluded that attendant care and the services of a coordinator should not be considered treatment within the terms of that statute. Ohio Casualty then rested and the judge entered judgment in favor of Paul on the essential services claims. The judge ruled that psychotherapy, speech therapy and the physical therapy rendered to Paul were necessary medical expenses and that the charges for them were reasonable and that their need continued until there was contrary proof. That determination is not the subject of any appeal.

Paul appealed from the judgment in favor of Ohio Casualty as to the health care coordinator and attendant care. No cross appeal was filed by Ohio Casualty on the ruling on the essential services claims.

The record of the four-day trial regarding Paul's claims for payment of expenses under the PIP provisions of the Ohio Casualty policy contains additional facts that we refer to hereinafter. After the accident Paul had spent a number of months in various rehabilitation institutions. Upon discharge from Kim Institute, Paul went to live in his parent's home in late 1975 under the supervision of a rehabilitation team which included an around-the-clock nursing staff, a speech therapist and a physical therapist.

Significant progress was made in Paul's rehabilitation so that he was able to eat by mouth instead of having to use a stomach tube. He was also able to reduce some of his drooling, attain some control over bowel and bladder functions and gain some muscle control. As the years passed the virtually daily visits from his attending physician declined in frequency because various medical conditions common to the profoundly disabled, i.e., respiratory and skin infections, cleared up and did not reoccur.

In late 1980 Paul's father's health deteriorated, making it physically difficult for his father and psychologically difficult

for Paul to remain in his parent's house and receive ...


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