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Grussenmeyer v. Encompass Insurance Co.


June 5, 2007


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-5523-05.

Per curiam.


Submitted May 23, 2007

Before Judges Parker and Yannotti.

Plaintiff Paul G. Grussenmeyer, D.M.D., appeals from a judgment entered by Judge James F. Hyland on August 25, 2006, which dismissed his complaint following a bench trial. We affirm.

This action arises from a claim for personal injury protection benefits (PIP) asserted by plaintiff as assignee of his patient, Jason Miller (Miller), pursuant to an automobile insurance policy issued by defendant Encompass Insurance Co. Miller had been involved in an automobile accident on February 5, 2000, and was first treated by plaintiff on March 27, 2002, after having been referred by a neuro-psychiatrist. Plaintiff confirmed that Miller was insured by defendant, and Miller executed an assignment of his PIP benefits to plaintiff.

Plaintiff testified that he examined Miller and determined that he "had multiple muscular problems," and "[a] lot of active trigger points." Plaintiff disagnosed myalgia with trigger points; capsulitis and synovitis; later-stage recurrent disc displacement; and bruxism. Plaintiff opined that Miller's symptoms were related to the February 5, 2000 motor vehicle accident. Plaintiff made "a muscle deprogrammer appliance" for Miller's upper jaw "to relieve some of the functions of the muscles that were in spasm;" gave Miller some exercises to do at home; and used "marcaine" to numb "the real hot areas so that" plaintiff "could get in and manually break them down and stretch them out" in order to "increase the blood flow and let them start healing."

Plaintiff stated that Miller's flexibility and range of motion improved with treatment; however, Miller was involved in a second motor vehicle accident on August 15, 2002. Plaintiff said that second accident "threw [Miller] backwards for a while." Plaintiff treated Miller for the injuries arising from the second accident. Those treatments were approved and paid for by another insurer, Liberty Mutual. Plaintiff stated that he billed Miller about $11,000 for the treatment related to the first accident, and tendered the bills to defendant, which refused to pay them.

On cross-examination, plaintiff conceded that he had not reviewed the medical records concerning the treatment that Miller received from other physicians following the February 5, 2000 accident. Plaintiff explained on re-direct that he thought it was unnecessary to review those records, and he would not contact other physicians unless the patient could not "remember something, or is vague on something, or there is something germane [to] the case." Plaintiff said that the other physicians did not practice in the same field as he did. Plaintiff asserted that ordinarily he would not review the records of such treatment.

Steven Farrell (Farrell), a senior claims service adjuster for defendant, testified that Miller's policy required that he cooperate in the investigation of the claim, and appear for an independent medical dental examination (IME). Farrell said that three IMEs had been scheduled, and Miller did not appear for the exams. Farrell testified that Miller had been informed in writing that the claim could be denied if he failed to appear for the IME. By letter dated December 17, 2002, defendant informed Miller that his PIP benefits were terminated immediately.

The judge filed a letter opinion dated August 25, 2006, in which he concluded that plaintiff's complaint should be dismissed. The judge noted that Miller failed to appear for the scheduled IMEs on three separate dates. The judge stated that Miller "failed to adhere to his contractual responsibilities with his insurance company and was forewarned of the consequences of his lack of cooperation." The judge found that, by terminating benefits, defendant had "merely resorted to its remedy under the contract."

The judge additionally found that plaintiff had not shown by a preponderance of the evidence that the treatment he provided to Miller was medically necessary, nor had he shown that the treatment was causally related to the February 5, 2000 auto accident. The judge noted that Miller had visited an emergency room on February 8, 2002, and had been treated after the first accident by at least five physicians before he was treated by plaintiff. The judge refused to give any weight to plaintiff's testimony on medical necessity and causation, and stated that plaintiff chose not to review hospital reports and chose not to review medical reports which may have resulted in a different conclusion.

The Plaintiff cannot elect to ignore relevant medical records in reaching his decision and expect unquestioned acceptance [of his opinions].

The judge entered judgment for defendant on August 25, 2006, and dismissed the complaint.

In this appeal, plaintiff argues: 1) the judgment should be reversed because defendant did not present any evidence to challenge plaintiff's testimony; and 2) there was insufficient credible evidence before the trial court to support the judgment and the judge's decision was based in part on facts not in evidence. We are convinced that these contentions are entirely without merit. We therefore affirm substantially for the reasons stated by Judge Hyland in his letter opinion dated August 25, 2006. We add the following brief comments.

The scope of our review of findings of fact made by a judge following a bench trial is strictly limited. Such findings "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citing New Jersey Tpk. Auth. v. Sisselman, 106 N.J. Super. 358, 370 (App. Div.), certif. denied, 54 N.J. 565 (1969)). We will not disturb the judge's factual findings unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). We are satisfied that there is ample credible evidence in the record to support the judge's findings and conclusions in this matter.

As assignee of Miller's claim under the policy, plaintiff is subject to all of the defenses that are available against his assignor. Allstate Ins. Co. v. Lopez, 325 N.J. Super. 268, 277 (Law Div. 1999). Miller's policy required that he submit to a medical examination in connection with the claim for PIP benefits. The evidence established that on three separate occasions, Miller failed to appear for scheduled IMEs. Miller's failure to appear for the examinations fully justified the denial of plaintiff's claim for payment as Miller's assignee.

Plaintiff argues, however, that defendant unreasonably delayed in scheduling the IMEs. The record shows that plaintiff began to treat Miller on March 27, 2002, and the initial IME was scheduled for September 11, 2002. Plaintiff asserts that the delay was unreasonable because he was treating Miller and billing defendant for the treatment. However, the scheduling of the IME a few months after treatment began was not unreasonable. Furthermore, the fact that plaintiff continued to treat Miller and bill defendant did not obligate defendant to pay the claim.

The record shows that plaintiff was well aware defendant had not pre-certified the treatment. Plaintiff stated at trial that he was informed that pre-certification of the treatment was not required by Miller's policy. There is no evidence that defendant ever authorized the treatment or agreed to pay for it. Plaintiff nevertheless proceeded to treat Miller, thereby taking the risk that he would not be paid in the event that Miller failed to cooperate in defendant's investigation of the claim. As the judge stated in his opinion, plaintiff made a poor business decision, but "[d]efendant should not be caused to suffer the consequences" of that decision.



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