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Elkins v. New Jersey Manufacturers Insurance Co.

Decided: December 12, 1990.


On appeal from the Superior Court, Law Division, Middlesex County.

O'Brien, Scalera and Keefe. The opinion of the court was delivered by Scalera, J.A.D.


This appeal requires us to further explain the circumstances under which personal injury protection (PIP) benefits in an automobile insurance policy are to be paid.

Plaintiff Carole Elkins was injured in an automobile accident on November 4, 1982, at which time defendant New Jersey Manufacturers Insurance Company (NJM) provided her with PIP benefits in her automobile liability policy. N.J.S.A. 39:6A-4. The evidence indicated that those injuries resulted in a loss of vision in her left eye. In addition to other doctors whose bills are not in question, soon after the accident she went to a chiropractor, Dr. Thomas Anthony Picone, for treatment of pain she experienced as a result of that vision problem. She still is being treated by Dr. Picone.

Plaintiff's complaints to her neck, eyes, temples and scalp apparently are correlated to driving and work activities. Plaintiff has no peripheral vision and she assertedly drives with one eye closed because of sensitivity to light, thereby requiring her to constantly turn her neck and body. She has two sons and is frequently required to drive her younger son to his many activities. She attends to her household bills and owns a tennis pro shop which requires her to engage in extensive office

duties. Performance of these various duties results in neck pain, due to the constant need to lean over to read, etc.

Dr. Picone has treated plaintiff continuously for over seven years. She goes to him whenever she feels it is necessary to relieve the pain. Some weeks she visits him five times and other weeks, only once or not at all. Dr. Picone's treatments do relieve her pain, but the extent and time period of such relief varies, apparently depending on her subsequent activity. She visits Dr. Picone when the pain begins in an attempt to alleviate it before it becomes severe. The intensity of the pain has become worse over the years. Prior to the automobile accident, she never experienced neck pain.

Dr. Picone testified on her behalf and corroborated his continuous treatment for those many years. Prior to April 5, 1988, his charges for chiropractic treatment had been duly paid by NJM. However, NJM ceased making payments to him after that time notwithstanding that Dr. Picone has continued to treat the plaintiff. He corroborated that plaintiff has no scheduled or standing appointment but calls him if she is in pain. Dr. Picone confirmed that her pain is exacerbated by driving, physical exertion and paperwork. In fact, when reading plaintiff is forced to keep one eye "severely tightly" closed to avoid double vision which in turn, causes spasms in her neck and scalp muscles. Moreover, her restricted field of vision requires her to turn her head at severe angles, thereby causing extensive strain on her musculature.

Treatments by Dr. Picone have varied and have included passive resistant isometric exercises, ice, moist heat, deep tissue massage, chiropractic adjustments, cervical collars, supportive bracing, cervical overhead traction, muscle stimulation, ultrasound and inferential currents. She has been given a theorosizer for use at home to perform exercises designed to rehabilitate the shoulder and neck muscles. Each treatment has provided plaintiff some relief from her pain, which can last for as long as several days or as short as several minutes. Dr.

Picone has noted no neurological complaints calling for diagnostic testing and has never recommended that plaintiff be examined by an orthopedist. He opined that plaintiff will require ongoing palliative and symptomatic pain relief. Regarding his fees, the charge for each visit varies between $30 and $45, depending upon the length of the visit and the type of therapy provided. He claimed that the treatments in dispute are both necessary and reasonable medical expenses and implied that, in light of her present conditions, they would continue indefinitely.

Dr. Roman George Kernitsky, an ophthalmologist, treated plaintiff for the eye injury on the day of the accident. He diagnosed a perforating injury to the cornea of the left eye and the lens inside the eye. He performed cataract surgery and made extensive surgical repairs. As a result, plaintiff needs very strong contact lens and her left eye is sensitive to indoor and outdoor light. He confirmed that plaintiff's lack of proper peripheral vision requires her to constantly turn her head. Therefore, he felt that chiropractic treatments are necessary and beneficial to relieve the consequent strain in her muscular system. He explained that the only possible permanent treatment for the plaintiff is a ...

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