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Pace v. Kuchinsky

February 04, 2002

LOUIS PACE AND DIANE PACE, HIS WIFE, PLAINTIFFS-APPELLANTS
v.
PAUL S. KUCHINSKY, JOHN KUCHINSKY, DEFENDANTS-RESPONDENTS, AND STATE FARM INSURANCE COMPANIES, JOHN DOES 1 THROUGH 5 (GENDER NEUTRAL FICTITIOUS NAMES) AND ABC CORPORATION 1 THROUGH 5 (FICTITIOUS NAMES), DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Union County, L-1912- 98.

Before Judges Stern, Eichen and Lintner.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 27, 2001

On March 26, 1998 plaintiff, Louis Pace, and his wife Diane *fn1 filed a complaint for injuries he allegedly sustained on March 29, 1996, when the vehicle he was operating was struck in the rear by a vehicle operated by defendant Paul Kuchinsky and owned by defendant John Kuchinsky. He appeals from an order of the Law Division determining that the injuries to his lumbar spine were temporary in nature, and barring damages for lumbar injuries that accrued after April 16, 1999, as not being causally related to the March 29 accident. We conclude that the Law Division judge erred in applying the holding in Habick v. Liberty Mutual Fire Ins. Co., 320 N.J. Super. 244, certif. denied, 161 N.J. 149 (1999), to the circumstances of this case, and reverse.

We combine the relevant facts and procedural history. Plaintiff alleges that he sustained both cervical and lumbar injuries as a result of the accident. Plaintiffs also named his insurer, State Farm Insurance Companies (State Farm), as a defendant alleging that it failed to provide Personal Injury Protection (PIP) benefits afforded by the policy of insurance issued to plaintiff. State Farm filed its answer in October 1999. Sometime in January 1999, counsel for State Farm contacted plaintiff's counsel and advised that State Farm had paid all plaintiff's medical bills to date and that there was no reason to continue maintenance of the PIP action. Accordingly, on May 5, 1999, after confirming that there were no medical bills outstanding, plaintiff's attorney dismissed the claims against State Farm without prejudice.

After the accident, plaintiff was treated extensively by several doctors. He received emergency treatment at Overlook Hospital on the day of the accident and thereafter was treated by Dr. Julie Kawut, a chiropractor, who saw him for his head, neck and back complaints approximately ninety-eight times between April 1, 1996 and January 28, 1998. An MRI, performed on January 20, 1997, revealed cervical disc herniations at the C5-C6 and C6- C7 levels. On January 31, 1997, he consulted with Dr. Michael Sanaman, a neurologist, concerning his neck, head and shoulder complaints. Sanaman reported that the cervical herniations were a result of the automobile accident. A year later, on January 23, 1998, he was examined by another neurologist, Dr. Nazar Haidri, who found that plaintiff suffered from:

(1) post-concussion syndrome

(2) post-traumatic headaches, dizziness and blurring of vision

(3) chronic cervical dorsal and lumbar sprain

(4) symptoms consistent with bilateral cervical and left lumbar radiculopathy

(5) findings consistent with bilateral carpal tunnel syndrome and neuropathy at both elbows

(6) meralgia paresthetica left side

Haidri ordered various diagnostic tests, including an MRI of the lumbar spine and a consult with a neurosurgeon.

On February 4, 1998, Dr. Daniel Schlusselberg reported to Haidri that the MRI of plaintiff's lumbosacral spine revealed, among other things, multi-level degenerative disc disease. On April 13, 1998, Dr. Arthur Gilman, a neurosurgeon, reported to Haidri that plaintiff's previous MRI studies "demonstrated a small central disc herniation at C5-C6 without significant impingement upon the thecal sac or nerve root exit," as well as "congenital and acquired lumbar stenosis" at L3-L4 and L4-L5 levels with "broad based disc bulge[s]" at L3-L4 and L4-L5. In view of plaintiff's active lifestyle, Dr. Gilman advised that surgery for plaintiff's lumbar discomfort, while possibly relieving the symptoms, might worsen his back discomfort. He further indicated that, if plaintiff's symptoms continued or worsened, surgery might be reconsidered.

On May 11, 1998, following an examination, neurosurgeon Dr. John Knightly confirmed the existence of the cervical herniations and lumbar disc bulges found on the MRI studies and advised that the chronic pain suffered by plaintiff was of "questionable etiology." He recommended against surgical intervention and suggested a physiatrist be consulted. Plaintiff was then seen by Dr. Peter Won, a physiatrist, who found disc protrusions at C5-C6 and C6-C7, as well as disc protrusions and herniations at multiple levels of the lumbar spine. He concluded that "the mechanism of the injury appears to be due to whiplash injury related to [the] motor vehicle accident," and recommended stretching and aerobic exercises.

In August 1998, plaintiff came under the care of physiatrist Dr. Douglas Ashendorf. According to Dr. Ashendorf, at the time plaintiff came under his care, his office practice required that plaintiff execute an assignment of benefits as a condition of treatment. On August 7, 1998, plaintiff executed the assignment of benefits form, authorizing direct payment of health insurance benefits to Dr. Ashendorf. Plaintiff commenced a regime of physical therapy treatments with Dr. Ashendorf. On April 9, 1999, State Farm's claim representative wrote a letter to plaintiff, copied to plaintiff's counsel, stating the following:

Dear LouisRe: Physiatry

You recently attended an Independent Medical Examination (IME). Attached is a copy of the report.

In the doctor's opinion, no further treatment is necessary as a result of your March 29, 1996 accident. We will be unable to consider any further expenses after 4/16/99.

This decision has been based upon the information we have received to date. If you have any additional information or if your medical condition should change, please notify us immediately. (Emphasis added)

Pursuant to the assignment of benefits, Dr. Ashendorf filed a PIP arbitration claim seeking payment of his outstanding bill in the amount of $9651.24 from State Farm. On October 1, 1999, in support of his claim, Ashendorf's counsel submitted several of the doctor's progress notes and a January 7, 1999 report from Dr. Steven G. Dorsky, who examined plaintiff at Ashendorf's request three days earlier and found essentially that plaintiff's primary complaints of low back pain were secondary to the accident, as was his additional neck pain. Dorsky concluded that plaintiff had "obvious spondylolisthesis and should continue with rehabilitation as well as under your care." Ashendorf also submitted a report of a CT scan performed on February 2, 1999, pursuant to a referral by Dr. Dorsky, which showed essentially L3-L4 bulging of the disc annulus with focal disc protrusion and degenerative facet joint ...


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