On certification to the Superior Court, Appellate Division.
For affirmance -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. For reversal -- None.
[115 NJ Page 629] In Zupo v. CNA Insurance Co., 98 N.J. 30 (1984), we adopted the principle that when an automobile liability-insurance carrier has made payments of personal injury protection (PIP) benefits
in connection with a compensable injury and is chargeable with knowledge at the time of its last payment that the injury will probably require additional treatment in the future, then the "two years after payment" provision of N.J.S.A. 39:6A-13.1 will not bar an action brought within a reasonable time after rejection of a prompt claim for payment of additional medical expenses for such treatment. Id. at 31-32. A restriction on the foregoing principle was that it embraced only "a severely limited class of causally-related medical conditions, namely, those whose insidious nature is such that their recurrence after an extended period of apparent cure is probable." Id. at 33.
The issue on this appeal, here on certification granted, 108 N.J. 586 (1987), is whether the trial court, affirmed by the Appellate Division in an unreported opinion, correctly held that the circumstances of this case brought the PIP claim within the holding of Zupo, thereby rendering it "timely" despite the "two years after payment" bar. We affirm.
In September 1974, plaintiff Jeffrey Rahnefeld, then eighteen, was severely injured when, as a pedestrian, he was struck by an automobile and sustained injuries that included fractures of both legs. Because he was a resident member of his parents' household, Jeffrey was an additional insured under his father's automobile liability-insurance policy with defendant, Security Insurance Company of Hartford (Security), and as such was entitled to PIP benefits. Security paid the medical expenses for Jeffrey's two-months stay in a hospital and for treatment by physicians, including Dr. Ciccone, an orthopedic surgeon, who treated Jeffrey on nine occasions after the hospitalization. During the ninth such visit, on November 9, 1977, Dr. Ciccone made a notation of Jeffrey's condition: "[g]ood gait, no return of sensation or dorsiflexion of the left foot, the foot was cold, the left knee unstable." According to Jeffrey's
mother, plaintiff Helen Rahnefeld (henceforth reference in this opinion to "plaintiff" indicates plaintiff Jeffrey), Dr. Ciccone told Jeffrey that "there was nothing more he could do for him right now, but that in the future he would need the brace or this corrective shoe and * * * he did not recommend anything in the way of surgery, additional." Dr. Ciccone advised Jeffrey to continue exercising and to come back one year later.
It was not until more than five years thereafter, on April 1, 1984, that Jeffrey returned to Dr. Ciccone. He complained that the pain in his right leg had "slowly worsened," that it "[s]tarted in one area" and the area "increased in size." He related his discomfort to "over walking or exercising." Not satisfied with Dr. Ciccone's examination, Jeffrey consulted Dr. Marvin P. Rosenberg, an orthopedic specialist, on June 21, 1984. Dr. Rosenberg took x-rays and performed an examination, on the basis of which he concluded, according to his certification, that Jeffrey had sustained "serious, permanent injuries which included comminuted fractures involving the articulating surfaces of the knee joints; serious compression of the popliteal artery and branches; severe trauma to the left tibial nerve; and other injuries * * *." In Dr. Rosenberg's opinion, given "with reasonable medical certainty," Jeffrey's injuries, particularly those involving the tibial plateau within the knee, were such that deterioration would follow and "future treatment would of necessity be required."
When the bills for the examinations by Dr. Ciccone and Dr. Rosenberg were submitted for payment, Security rejected them inasmuch as the charges had been incurred more than two years after the last previous treatment or payment. Security relied on the statute-of-limitations provision of the New Jersey Reparation Reform Act (No Fault Act), found in 39:6A-13.1(a), which reads:
Every action for the payment of benefits set forth in sections 4 and 10 of this act, except an action by a decedent's estate, shall be commenced not later than 2 years after the injured person or survivor suffers a loss or incurs an expense and either knows ...