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Zoraida Ramos v. Allstate New Jersey Insurance Company

March 31, 2011

ZORAIDA RAMOS, PLAINTIFF-APPELLANT,
v.
ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1519-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 8, 2011 -- Decided

Before Judges Yannotti and Skillman.

Plaintiff Zoraida Ramos appeals from an order entered by the Law Division on December 22, 2009, dismissing her complaint against defendant Allstate New Jersey Insurance Company (Allstate) because it was filed beyond the time required by N.J.S.A. 39:6A-13.1(a). We affirm.

On November 4, 2004, plaintiff was injured in an automobile accident. She was covered under an automobile insurance policy issued by Allstate, which provided personal injury protection (PIP) benefits. Thereafter, Allstate paid for certain chiropractic and pain management treatment that plaintiff received. On November 7, 2006, Allstate made the last payment to plaintiff's treating medical providers.

In May 2007, Dr. Lawrence I. Barr, D.O. (Barr), evaluated Ramos's right shoulder and issued a report dated May 22, 2007, in which he stated that plaintiff was suffering from "impingement syndrome" of the right shoulder with a "full thickness rotator cuff tear[.]" Barr said that conservative treatment had failed and plaintiff would be scheduled for arthroscopic rotator cuff repair.

By letter dated June 1, 2007, Auto Injury Solutions (AIS), Allstate's representative, informed Barr and plaintiff that the procedure had not been certified for payment because an MRI indicated that there "clearly" was a pre-existing "shoulder pathology." In its letter, AIS also stated that there was no indication of a causal relationship between plaintiff's shoulder injury and the November 4, 2004, auto accident, nor was there any "documentation of conservative care."

Furthermore, at Allstate's request, Dr. Todd M. Lipschultz (Lipschultz), reviewed plaintiff's medical records and performed a physical examination. In a report dated June 18, 2007, Lipschultz noted that plaintiff had been involved in two prior motor vehicle accidents and had been diagnosed with cervical disc herniations as well as right carpal tunnel syndrome and right cubital tunnel syndrome. He noted that plaintiff had reported that she had a prior injury to her right shoulder.

Lipschultz additionally stated that there was nothing in the medical records indicating that plaintiff had "continued symptomatology" in her right shoulder since the accident. He wrote that the results of the MRI and the physical examination were consistent "with an impingement syndrome with degenerative arthritis[.]" Lipschultz also wrote that there was no indication that plaintiff had "been through a good course of conservative care for her right shoulder" which would consist of oral anti-inflammatory medication, physical therapy, and "attempts at cortisone injections[.]"

Lipshultz further stated that plaintiff appeared to be "at maximum medical improvement" with regard to the injuries sustained in the November 4, 2004, accident. He noted that his exam revealed that the neck and back were "benign," and plaintiff had full cervical and lumbosacral range of motion. Although plaintiff had reported "complaints of neurogenic findings" in her upper right extremity, this condition apparently had been documented prior to the November 4, 2004, accident.

Lipschultz also wrote that plaintiff's right shoulder was symptomatic and she had signs of "impingement syndrome." Lipschultz observed that this condition might have been aggravated "for a period of time by the accident." He stated, however, that it appeared that plaintiff "had been symptomatic in her right shoulder prior to the accident[.]" Lipschultz wrote that while Ramos has had "intermittent symptoms since the accident," this could be the result of the arthritic process.

On June 21, 2007, Barr performed the arthroscopic procedure on plaintiff's right shoulder to repair the torn rotator cuff. After a follow-up examination, Barr said that plaintiff would require continued "aggressive therapy" on the shoulder in the form of pain management. Thereafter, plaintiff requested that Allstate authorize additional treatment and consultations for her right shoulder.

On July 25, 2007, AIS informed plaintiff and her attorney that such treatment would not be approved. In January 2008, in response to another request for additional treatment and consultations, AIS again told plaintiff and her attorney that it could not confirm that the treatment was medically necessary and, therefore, would not recommend payment of the medical expenses for pain management. After a further examination by ...


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