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Miskofsky v. Ohio Casualty Insurance Co.

Decided: October 31, 1984.

MARION MISKOFSKY, PLAINTIFF,
v.
THE OHIO CASUALTY INSURANCE COMPANY, DEFENDANT



Holston, J.s.c.

Holston

[203 NJSuper Page 403] This matter was tried before the court without a jury based on the mandate of Thomas P. Manetti v. Prudential Property and Casualty Insurance Company, 196 N.J. Super. 317 (App.Div.1984). That decision held that there is no right to a jury trial for personal injury protection (P.I.P.) benefits where the issue is what benefits, if any, are due.

The issues before the court are:

(a) Whether N.J.S.A. 39:6A-4(a) requires that before an insurance company is obligated to pay medical expenses incurred as a result of personal injuries proximately caused by an automobile accident, such benefits must be both reasonable and necessary.

(b) If they must be both reasonable and necessary, whether necessary medical expenses must be expenses intended to effect a cure of the injured party or include treatment, once a plateau of recovery has been reached by the injured party, which is only palliative in nature.

The facts are contained in various medical reports stipulated to by the parties. These facts are as follows:

On August 27, 1981, plaintiff, Marion Miskofsky, sustained injuries in an automobile accident. The nature of the injuries are not in dispute. They are soft tissue injuries to the neck, shoulders, right knee and right elbow. Plaintiff has been treated by Dr. Greenetz and Dr. Kaufman, an orthopedic specialist, as a result of these injuries. She received physical therapy, treatment in the nature of heat, massage, diathermy, infra-red, ultrasonics, medcosonlator, intermittent mechanized cervical traction, medicine in the nature of muscle relaxants, analgesics and anti-inflammatory agents and, on one occasion, osteopathic manipulation.

Plaintiff first saw Dr. Greenetz on September 1, 1981 and was treated by him approximately twice a week through April 1982. Thereafter, plaintiff continued to be treated by Dr. Greenetz, however, on a less frequent basis. Approximately October 1982, Dr. Greenetz ceased administering physical therapy treatments to the plaintiff.

On March 30, 1982, plaintiff first went to see Dr. Kaufman of the Regional Orthopedic Professional Association. At that time, plaintiff presented to Dr. Kaufman basically the same complaints with regard to her neck, shoulders and right knee. Dr. Kaufman ordered an x-ray of the entire knee which was

normal and advised plaintiff to continue under the care of Dr. Greenetz, advising Dr. Greenetz that they might have to consider the possibility of a derangement of the right knee. Dr. Kaufman next saw plaintiff on June 15, 1982 at which time, plaintiff again made complaints with regard to her right knee and at which time, Dr. Kaufman ordered an arthrogram of the right knee to be performed. That arthrogram was performed on June 16, 1982 and was "unremarkable." Thereafter, plaintiff continued to see Dr. Kaufman while still treating with Dr. Greenetz on the basis of at least once and sometimes twice a month through March 1983. During those visits, Dr. Kaufman continued to treat plaintiff on the basis of her subjective complaints making no objective findings of injury.

Dr. Kaufman sent plaintiff to the Washington Township Division of John F. Kennedy Hospital for physical therapy treatments to her neck and left shoulder. The physical therapy treatments continued through May 1984 on an "as needed" basis. It is unclear whether plaintiff resumed physical therapy treatments thereafter. There have been numerous breaks in plaintiff's treatment. Treatment ceased when plaintiff had no complaints and resumed when plaintiff again complained.

Dr. Kaufman noted at various times during the period of August 1982 through January 1984 that on examination, the range of motion for plaintiff's cervical spine was 65%-70% of normal and 1 for pain.

An E.M.G. was performed by Dr. Robert Terrnova, a neurologist, on June 30, 1982. The testing was performed on the left arm and the bi-lateral para-spinal muscles in the cervical region. The findings of Dr. Terrnova with regard to the E.M.G. were normal.

A CAT Scan was performed by Dr. Albert Marsh in Vineland. The CAT Scan was done with respect to the C5-6 disc. The findings of the CAT Scan were normal.

As a result of the medical treatment which plaintiff received for the various injuries sustained in the accident of August 27,

1981, plaintiff made a claim for medical expense benefits as well as income continuation benefits with defendant, The Ohio Casualty Insurance Company. The Ohio Casualty Insurance Company paid various bills including bills submitted by Dr. Greenetz, Elmer Hospital, Blackwood Pharmacy, Booth Radiology and Colonial Radiology.

On March 11, 1982, plaintiff, at the request of The Ohio Casualty Insurance Company, was examined by Dr. Richard Naftulin, orthopedic surgeon. In his report dated March 11, 1982, Dr. Naftulin sets forth the findings of his physical examination.

Dr. Naftulin indicates that the plaintiff, in her history, states she has continued pain and discomfort in the regions of her cervical spine, right shoulder, right knee and right elbow. The plaintiff admits she is improving under the care of Dr. Greenetz. His impression is that she has a resolved cervical strain and sprain with miofascitis and resolved contusions to the right shoulder, right elbow and right knee. He further concludes "Marion Miskofsky at this time does not have any evidence of permanent or partial disability." He feels that she has "reached a plateau in her recovery such that any continued physical therapy modalities or medical treatment is not needed."

As a result of that examination and the report received from Dr. Naftulin, The Ohio Casualty Insurance Company advised plaintiff's counsel and plaintiff's treating physician at the time, Dr. Greenetz, that they would not be honoring any further invoices incurred by plaintiff after March 11, 1982, the date of Dr. Naftulin's examination.

Plaintiff, as a result of the automobile accident on August 27, 1981 and the injuries sustained therein, instituted suit against the drivers of the vehicles involved. As a result of these personal injury claims, plaintiff was examined on November 4, 1982 by Dr. Gerald Packman, an orthopedic surgeon in Vineland, New Jersey. This examination was made at the request

of the insurance carrier of one of the defendants in the personal injury action. Dr. Packman's report is dated December 4, 1982. In that report, he sets forth his physical examination of plaintiff plus his findings. In his report, he notes subjective complaints as of the date of his examination on November 4, 1982 and the increased problem with the left shoulder and neck for which she had been prescribed therapy three times a week for three weeks. Although he indicated she is at full activity, he notes that by her own description, she does have some discomfort with some activities and that those discomforts sometimes awaken her at night. He concludes after examination, however, that plaintiff has reached a plateau in her recovery and that there ...


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