Perun v. Utica Mutual Insurance

655 A.2d 99, 280 N.J. Super. 280, 1994 N.J. Super. LEXIS 598
CourtNew Jersey Superior Court Appellate Division
DecidedSeptember 13, 1994
StatusPublished

This text of 655 A.2d 99 (Perun v. Utica Mutual Insurance) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perun v. Utica Mutual Insurance, 655 A.2d 99, 280 N.J. Super. 280, 1994 N.J. Super. LEXIS 598 (N.J. Ct. App. 1994).

Opinion

SACHAR, J.S.C.

Angela Perun (Perun or plaintiff) brought suit against her PIP carrier for unpaid chiropractic bills and a declaratory judgment action for payment of an annual contract for weekly chiropractic maintenance, referred to as a “wellness program.” Based on a review of the facts of this case and the controlling case law of the State of New Jersey, her claims are denied.

Plaintiff was injured in an automobile accident on July 18,1986. Following the accident, she went to the emergency room. While x-rays of the cervical spine were negative for fracture, they showed marked degenerative changes at C4-5 and C5-6 and more moderate changes at C3-4.

Perun then saw Dr. Winell, an orthopedist, from July 24, 1986 through September 12, 1986, where she was treated for acute [283]*283cervical strain and contusion to the chest wall. An MRI of the cervical spine did not show a herniated disc but did demonstrate degenerative osteoarthritis. Her treatment consisted of bed rest and a course of physical therapy for ultrasound, electrical stimulation and range of motion exercises. She had physical therapy twenty-three times between July 24, 1986 and October 17, 1986. While plaintiff initially improved, she later complained that she was not any better and stated she had tingling and numbness in both arms and that the pain was no longer in her neck, but across her lower thorax posterially. As Dr. Winell concluded that she had plateaued orthopedically and was not improving, he referred her to a neurosurgeon for evaluation. She did not return to Dr. Winell and did not follow up with his referral.

Perun’s next medical treatment, after a hiatus of approximately eight months, was to a different orthopaedic surgeon, Dr. Michael Bercik. She saw him on June 8, June 22, July 1, August 5 and September 22, 1987, when she was initially discharged from treatment. She was treated with rest, medicine and physical therapy. Her physical therapy lasted for a few months. Perun testified that the physical therapy only offered her relief for a few hours, and that her physical therapy was an exercise in futility.

Perun did not return to Dr. Bercik but started treatment approximately seven months later with Dr. Joseph Frasco, a chiropractor, on October 1, 1988. During the course of treatment with the chiropractor she returned to Dr. Bercik on March 7,1988, for a reevaluation, but continued treatment with the chiropractor. The PIP carrier paid the chiropractic bills through February 1991, but not since then. Dr. Frasco initially saw her two to three times a week. He then saw her with less frequency, approximately twice a month. There were periods of time when she did not go at all. She had no treatment from November 21,1990 to January 24, 1991. She went four times from November 9, 1990 to February 1991. Her schedule was erratic in March 1991. There was no treatment from October 12, 1991 to August 16, 1992. There was [284]*284no treatment from March 1993 to January 1994. He treated her forty-four times and the charges totalled $2,075.

The initial treatment on October 1, 1988, consisted of spinal adjustment and ineterferential therapy. Rehabilitative exercises were then recommended and carried out after acute symptoms subsided to strengthen and support spinal structures.

Perun again returned to Dr. Bercik on March 18, 1994. He diagnosed her condition as (1) residual of cervical radiculitis and (2) residual of herniated lumbar disc. He found the conditions to be permanent and causally related to the accident of July 18,1986. Dr. Bercik testified that she did not return. He prescribed anti-inflammatory medication and he testified that he would have put her on a tens unit for one month had she returned. After the one month, he would have recommended that the tens unit be purchased. When questioned with respect to the treatment plaintiff was receiving from the chiropractor, Dr. Bercik testified that it would take four to six weeks to recover from a flare-up of severe pain. Dr. Bercik did not find weekly chiropractic treatments to be necessary. While he never recommends chiropractic treatment, he opined that ten treatments a year would be the maximum for severe flare-ups. Nor did Dr. Bercik find that plaintiffs condition would deteriorate without treatment.

Perun testified that she had taken the prescribed medication from Dr. Bercik on one occasion, but discontinued it. She lost no time from work but in the past had used a cane on occasion, and had also carried two individual brief cases, one in each hand, instead of one heavy briefcase, to avoid pain.

As of May 1994, she entered into an annual wellness contract with the chiropractor to be seen weekly. The cost is $1,020 which is said to be half the annual fee for weekly visits. Perun testified that the maintenance program prevents her from having the pain that she had previously been subject to and that the treatments make her feel better.

[285]*285It is clear that Perun was receiving more frequent therapy from when she was cut off at the end of February 1991, almost four and one-half years post-accident and continuing through until the time of the trial on June 2, 1994, which is almost eight years post-accident, than she received during the initial one and one-half years of the accident when she saw Dr. Winell and/or Dr. Bercik. She has lost no time from work. Since the doctor’s testimony and reports indicate some improvement, one would expect the injuries sustained to have led to either reduced or a cessation of treatment. In fact, it has been continuing on a regular basis and there is every indication that it will so continue throughout plaintiffs lifetime. Weekly visits under the wellness, contract of 52 weeks, when contrasted with the ten maximum that are necessary according to Dr. Bercik, shows the treatment to be grossly excessive.

Even before the wellness contract, the periodic and sometimes extended periods of absence from chiropractic care were occasioned by plaintiffs schedules that were unrelated to her physical condition.

According to chiropractor Frasco, the wellness program is a general maintenance program available to all persons who come to him, as most people suffer trauma of some sort in their life and benefit from such a program. The court finds that the treatment undertaken primarily addresses a general aging condition of plaintiff. The court finds no functional disabilities that prevent Perun from the active pursuit of her profession. The court further finds that Perun’s condition is not subject to deterioration without treatment, nor is her chiropractic treatment an alternative to an operation. The fact that one may temporarily feel better from continued chiropractic treatment, which includes massage, does not make the treatment necessary. In this case, the wellness program is a matter of personal choice for plaintiffs comfort, convenience and general feeling of well being.

Palliative medical care affords a temporary relief from pain only. It does not effect a cure or rehabilitation. After treatment to effectuate a cure or rehabilitation has ended and a [286]*286patient’s condition has plateaued, medical expenses for palliative treatment may continue, but only to the extent that such expenses are deemed reasonable and necessary.

As may be seen from the cases that follow, the fact that pain continues as a result of a permanent injury does not invariably make such costs “reasonable” or “necessary” medical expenses.

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Bluebook (online)
655 A.2d 99, 280 N.J. Super. 280, 1994 N.J. Super. LEXIS 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perun-v-utica-mutual-insurance-njsuperctappdiv-1994.