On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2773-00.
Before Judges Wefing, Collester and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal we are asked to decide whether a plaintiff seeking Personal Injury Protection (PIP) benefits under N.J.S.A. 39:6A-4 must prove that the treatment she received was causally related to a particular automobile accident when the insurer asserts a pre-existing injury or condition as a defense. We hold that a plaintiff seeking PIP benefits must prove, by a preponderance of the evidence, that the treatment for which she seeks reimbursement was proximately caused by the particular automobile accident triggering coverage under her insurance policy. Once that causal link is established, the PIP carrier is liable for the cost of the post-accident treatment, up to the coverage limits of the policy.
We gather the following facts from the evidence presented at trial.
On February 18, 1997, plaintiff Hassannah Bowe was driving her car on Route 21 when she swerved to avoid hitting another car that had unexpectedly entered her lane of traffic. She managed to maintain control of her vehicle without colliding with any other car or object on the road. In the course of undertaking this defensive maneuver, she claimed to have struck the left side of her head against the driver's side window. After the impact, she complained of headaches and vision problems. No police or emergency medical personnel responded to the scene.
Upon arriving home immediately after the accident, plaintiff's headache and vision problems worsened. Her fiancé recommended that she seek medical treatment. He drove her to the Clara Maass Medical Center emergency room where she was admitted for her head trauma. Plaintiff did not complain of back pain or leg pain. She was hospitalized for several days and was discharged without any reference to a back injury. Plaintiff returned to Clara Maass sometime thereafter, complaining that she"could not see at all." She was referred to the University of Medicine and Dentistry Hospital of New Jersey (UMDNJ) in Newark. There, she consulted with a neurologist and an ophthalmologist concerning her visual problems. Plaintiff's visual complaints were eventually diagnosed as probably due to hysterical blindness, without any apparent organic basis.
Despite an absence of any orthopedic complaints related to the February 1997 accident, six days after the accident, plaintiff visited a chiropractor she had been treating with in connection with a 1995 automobile accident. Plaintiff had last visited this chiropractor the day before the February 1997 accident. Her chief complaint to the chiropractor related to problems with her left arm. The chiropractor referred her to a neurologist. Although plaintiff did not have a complete recollection of the visit, the neurologist's records do not show that plaintiff complained of any pain or problems with her lower back.
On May 2, 1997, the chiropractor made a second referral, this time to a general practitioner whose office was located directly above his own. According to plaintiff, she was suffering from headaches and back pain. This physician's office notes do not reflect any mention of back pain during the initial visit. In July 1997, a magnetic resonance imaging (MRI) study of plaintiff's lumbar spine showed a disc herniation at L4-5. By this time, the general practitioner's office notes show that plaintiff was complaining of pain in her lower back.
When conventional pharmacological treatment proved unsuccessful, the general practitioner referred plaintiff to an anesthesiologist for pain management. This physician administered trigger point injections and also suggested acupuncture. This treatment did not significantly alleviate her symptoms.
In August 1997, plaintiff consulted with another neurologist. She complained of pain in her head, neck and back and a total numbness of her left upper extremity. This physician did not find any objective medical evidence of neurological problems and recommended that plaintiff take Elavil, an antidepressant medication which is also used for pain management.
On November 6, 1997, plaintiff saw Dr. William Vonroth, an orthopedic surgeon to whom she was referred by her attorney. According to Dr. Vonroth's office notes,*fn1 her"major complaint" at this time was"discomfort in the lower back, cervical region, and the symptoms [caused by] flexion extension." In the patient information intake sheet completed by plaintiff, she indicated the onset of back pain just two weeks prior to her visit. She attributed the pain, however, to the February 18, 1997 accident. Dr. Vonroth gave the following answers when questioned on this issue:
Q. And you accepted that history as accurate?
A. She wrote it on her information sheet, and I would, yes.
Q. Okay. So that was her own representation to you on what would be considered an intake form?
A. Yes. That would be her acute pain, not if she ever had back pain when she was younger, just the fact that this incident brought her to my office. She related to the 2/18/97 accident.
Q. Is that odd to you that there was no onset of back pain for how many months is that? Six months after the accident.
Q. Okay. Now do you have any information as to how this accident [February ...