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Stribling v. New Jersey Manufacturer's Insurance Co.

June 26, 2008

LURETHA M. STRIBLING, PLAINTIFF-APPELLANT,
v.
NEW JERSEY MANUFACTURER'S INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-78-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2008

Before Judges Skillman and Yannotti.

Plaintiff Luretha M. Stribling appeals from an order entered by the trial court on June 8, 2007, which denied her motion for summary judgment and granted a cross-motion for summary judgment by defendant, New Jersey Manufacturer's Insurance Company (NJM). For the reasons that follow, we reverse.

I.

On December 28, 2002, plaintiff was involved in an automobile accident and sustained personal injuries for which she sought medical treatment. NJM, plaintiff's auto insurance carrier, paid for the medical care provided to plaintiff in the period from January 29, 2003 to June 13, 2003, in accordance with the personal injury protection (PIP) coverage in plaintiff's policy. On January 19, 2004, NJM made its last payment for the medical care related to the injuries sustained by plaintiff in the December 28, 2002 accident. That payment was for an MRI of plaintiff's cervical spine, which had been performed on March 26, 2003.

In September 2003, at NJM's request, plaintiff was examined by Dr. Menachem Y. Epstein, who stated in a report dated September 14, 2003, that his examination did not reveal any abnormal objective orthopedic findings. Dr. Epstein opined that plaintiff had sustained soft tissue injuries to her cervical and lumbar spine and her right knee in the December 28, 2002 accident. However, according to Dr. Epstein, plaintiff's injuries had resolved. Dr. Epstein opined that plaintiff was capable of performing the duties of her regular job and her daily activities. He further opined that plaintiff did not require any further orthopedic treatment, follow-up care, household help, ambulatory services, diagnostic tests, medical equipment, or other ancillary services.

Dr. Epstein submitted a supplemental report dated September 19, 2003, in which he noted that he had reviewed medical records pertaining to the care provided by plaintiff's treating physician, Dr. Daniel Richmond, and the records of the physical therapy provided to plaintiff at Kessler Rehabilitation Center. Dr. Epstein stated that these records did not change his "original diagnosis of resolved cervical spine soft tissue sprain, resolved lumbar spine soft tissue sprain, and resolved right knee soft tissue sprain."

Based on Dr. Epstein's findings, NJM informed plaintiff by letter dated October 23, 2003, that it would not authorize any further payment for medical expenses, income continuation, or essential service benefits. Plaintiff alleges, however, that she required additional treatment for the injuries sustained in the December 28, 2002 accident. In November 2004, plaintiff sought further treatment from Dr. Richmond. In February 2005, x-rays were performed of plaintiff's right shoulder and arm at St. Barnabas Medical Center. On April 15, 2005, at Dr. Richmond's request, an MRI was performed on plaintiff's right shoulder at St. Barnabas. According to Dr. Richmond, the MRI indicated that plaintiff had a partial tear of the rotator cuff in the right shoulder. The doctor recommended physical therapy and certain medications, as required.

In May 2005, plaintiff contacted NJM and asked the claims representative to reopen her PIP claim. NJM denied the request. On March 28, 2006, plaintiff filed a demand for dispute resolution against NJM, seeking reimbursement of: approximately $500 for treatment provided by Dr. Richmond in 2004-2005; $2,057.43 for diagnostic tests performed at St. Barnabas in the period from February 2005 to April 2005; $754 for services provided by Imaging Consultants of Essex in February and April 2005; and $250 for physical therapy services provided by Westfield Rehabilitation and Chiropractic. In addition, plaintiff sought a determination that NJM was required to pay the anticipated costs of shoulder surgery by Dr. Richmond, in an approximate amount of $12,000, and back surgery by Dr. Allen S. Glushakow, in the approximate amount of $11,000.

In response, NJM argued that plaintiff's demand for dispute resolution was barred by the statute of limitations, specifically N.J.S.A. 39:6A-13.1(a). NJM also argued that the claims were not ripe for adjudication because plaintiff never submitted the claims to NJM. NJM further maintained that, with the exception of the claim for the services provided by St. Barnabas, plaintiff had not provided the exact amount of the cost of the services or copies of the invoices. NJM alternatively asserted that if the St. Barnabas claim was deemed to be ripe for adjudication, it should be denied because plaintiff had not shown that the services were medically necessary.

The dispute resolution professional (DRP) rendered a determination in the matter on November 6, 2006. The DRP made the following findings:

The record does not contain precertification requests or denials for prospective treatment, and lacking such precertification requests, this DRP is without jurisdiction to consider those requests. That element of the claim is ...


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