Dobrowsky v. Hanover Insurance Co. (In re Dobrowsky)

26 B.R. 319, 1982 Bankr. LEXIS 5243
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedDecember 20, 1982
DocketBankruptcy No. 81-04732G; Adversary No. 82-0259G
StatusPublished
Cited by2 cases

This text of 26 B.R. 319 (Dobrowsky v. Hanover Insurance Co. (In re Dobrowsky)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dobrowsky v. Hanover Insurance Co. (In re Dobrowsky), 26 B.R. 319, 1982 Bankr. LEXIS 5243 (Pa. 1982).

Opinion

[320]*320OPINION

EMIL P. GOLDHABER, Bankruptcy Judge:

The action before us, unique in a bankruptcy case, arises out of a claim for damages allegedly suffered by the husband-debtor (“the debtor”) as a result of an automobile accident. When his insurance company terminated the benefits he was receiving, the debtor commenced an adversary proceeding in this court against the company.

The issues before us are: (1) whether the debtor’s alleged post-concussion syndrome and the symptoms related thereto are causally related to an accident so as to warrant coverage under the debtor’s insurance policy; (2) whether the insurance company overpaid work loss benefits to the debtor between April 5, 1981, and May 19, 1981; (3) whether the debtor was entitled to any work loss benefits after May 19, 1981; and (4) whether the debtor’s claim for no-fault benefits was so excessive and fraudulent as to justify the awarding of attorney’s fees to the insurance company. We conclude that the debtor has not proven by unequivocal medical testimony that the alleged post-concussion syndrome was causally connected to the accident in question or that the physical therapy received after August 24, 1981, was for a condition caused by the accident. We further conclude that the debtor was entitled to work loss benefits for the injuries originally diagnosed after the accident up until May 19, 1981, but that the insurance company overpaid the debtor during that period in the amount of $148.62. In addition, we find that the debtor was not disabled after May 19,1981, and that, therefore, the debtor must return the $3,000.00 paid to him by the insurance company for work loss after May 19, 1981. Finally, we conclude that neither the insurance company nor the debtor are entitled to attorneys’ fees.

The facts of the instant case are as follows: 1 On November 17, 1981, Karl Heinz Dobrowsky (“the debtor”), individually and t/a the Alster Tool Company, together with his wife, filed a petition for reorganization under chapter 11 of the Bankruptcy Code. Prior thereto, on March 23, 1981, the debtor was involved in an automobile accident wherein he suffered personal injuries. At the time of said accident, the debtor was insured under an automobile insurance policy issued by The Hanover Insurance Company (“Hanover”), the defendant herein. Hanover paid all of the debtor’s medical expenses from March 23, 1981, until August 24, 1981, and furnished work loss benefits to the debtor from April 5, 1981, through August 21, 1981. However, on September 30, 1981, Hanover informed the debtor that it would no longer honor claims for no-fault benefits after August 19, 1981, because it had concluded that medical treatment was no longer necessary. Consequently, on February 5, 1982, the debtor filed the instant complaint to recover benefits under the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act (“the No-Fault Act”) alleging that: (1) he has had to continue medical treatment as a result of the March 23, 1981, accident and that, as a result of said treatment, he has incurred medical expenses in the amount of $5,252.00 for which Hanover is liable under the terms of the insurance policy and the No-Fault Act; and (2) he was unable to work, as a result of the aforesaid accident, through December 31, 1981, and that, therefore, he was entitled to work loss benefits from Hanover in the amount of $4,294.00.

It is well established under Pennsylvania law that when there is no obvious causal connection between the occurrence of the accident and the injury complained of, unequivocal medical testimony is necessary to establish the requisite causal relationship. The Superior Court of Pennsylvania has stated that:

“Where there is no obvious causal relationship, unequivocal medical testimony is [321]*321necessary to establish the causal connection” ... But where “the disability complained of is the natural and probable result of the injuries, the fact-finding body may be permitted to so find, even in the absence of expert opinion.” . .. The two must be “so closely connected and so readily apparent that a layman could diagnose (except by guessing) the causal connection.” ... (citations omitted) (emphasis in original).

McArdle v. Panzek, 262 Pa.Super. 88, 92, 396 A.2d 658, 660 (1978) citing Smith v. German, 434 Pa. 47, 50-51, 253 A.2d 107, 109 (1969). See also Florig v. Sears, Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957); Menarde v. Philadelphia Transp. Co., 376 Pa. 497, 103 A.2d 681 (1954); Anderson v. Baxter, 285 Pa. 443, 132 A. 358 (1926); Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977); Heffer v. GAF Corp., 29 Pa.Cmwlth. 365, 370 A.2d 1254 (1977). In Pagan v. Dewitt P. Henry Company, 27 Pa.Cmwlth. 495, 365 A.2d 463 (1976), the court held that “ ‘the medical witness must testify, not that the injury or condition might have, or even possibly did, come from the assigned cause, but that in his professional opinion the result in question did come from the assigned cause.’ ” Pagan, supra, 27 Pa.Cmwlth. at 497, 365 A.2d at 464 quoting Washko v. Ruckno, Inc., 180 Pa.Super. 606, 609, 121 A.2d 456, 457 (1956).

In the case sub judice, the debtor alleges that he developed a post-concussion syndrome six (6) months after the accident and that symptoms, including chronic fatigue, depression, loss of ambition, lack of sexual drive, clumsiness, loss of appetite and excessive sleep were all a result of the aforesaid syndrome. Hanover, on the other hand, contends that the abovementioned maladies of which the debtor complains are not, as required by Pennsylvania law under the present facts, unequivocally related to the automobile accident of March 23, 1981, and that, therefore, it was justified in cutting off the debtor’s no-fault benefits on August 24, 1981. Nevertheless, the debtor continued to seek medical treatment after August 24, 1981, and incurred medical expenses of $5,252.00 which sum, the debtor maintains, is recoverable from Hanover under the no-fault provisions of the insurance policy.

Shortly after the accident in question, the debtor was diagnosed by his treating physicians as suffering from a cervical strain and sprain and a right inguinal hernia. As to the debtor’s contention that he developed post-concussion syndrome as a result of the accident, we find it dispositive that the debtor’s own treating physicians, Dr. Harvey Lisgar and Dr. Gilbert Kasirsky, never diagnosed the debtor as having post-concussion syndrome despite the fact that they saw the debtor approximately sixty-seven (67) times between the date of accident and August 24, 1982. Drs. Lisgar and Kasirsky submitted three (3) attending physician’s reports to Hanover none of which indicated a diagnosis other than a cervical strain and sprain and a right inguinal hernia.

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Related

In Re Dobrowsky
735 F.2d 90 (Third Circuit, 1984)
Dobrowsky v. Hanover Insurance
735 F.2d 90 (Third Circuit, 1984)

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Bluebook (online)
26 B.R. 319, 1982 Bankr. LEXIS 5243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dobrowsky-v-hanover-insurance-co-in-re-dobrowsky-paeb-1982.