MARY SMITH v. ENCOMPASS INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3162-04T23162-04T2

MARY SMITH,

Plaintiff-Appellant,

v.

ENCOMPASS INSURANCE COMPANY,

Defendant-Respondent.

 

Argued: February 1, 2006 - Decided March 1, 2006

Before Judges Stern, Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Number HUD-L-1833-03.

James W. Taylor, Jr. argued the cause for appellant.

Jeffrey J. Czuba argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Czuba, of counsel, on the brief).

PER CURIAM

Plaintiff Mary Smith sustained an orthopedic injury to her right knee as the result of being struck by an automobile driven by an insured of defendant Encompass Insurance Company on July 3, 2002. Plaintiff appeals from a judgment of the Law Division issued on January 20, 2005, after a non-jury trial conducted on September 22, 27, and 29, 2004, ruling that she was not entitled Personal Injury Protection (PIP) benefits from defendant for the costs of her care in an assisted living facility following resolution of that orthopedic injury. Plaintiff also appeals from an order entered on March 7, 2005, denying her motion for reconsideration.

On July 3, 2002, plaintiff, then age eighty-three, was living at the Berry Gardens Senior Citizen Complex in Jersey City. She lived there independently, able to perform the chores of daily living. Prior thereto, on April 21, 1994, plaintiff had granted a durable power of attorney to her niece, Patricia Jennings, which was only to take effect upon her disability.

On July 3, 2002, as she was walking along Danforth Avenue, and crossing Ocean Avenue, plaintiff was struck by a motor vehicle operated by Viola M. Murdter, defendant's insured. Following the accident, plaintiff was taken to Jersey City Medical Center, where she was diagnosed as having suffered abrasions to her left hand and arm, her right elbow and forehead, and a depressed medial tibial plateau fracture of the right knee. Plaintiff was admitted to the hospital where she remained until her discharge on July 15, 2002; a hinged brace and physical therapy was prescribed for her knee. From the hospital, plaintiff was transferred to Lincoln Park Renaissance Rehabilitation and Nursing Center, in Lincoln Park, where she received treatment and rehabilitation services for her knee injury.

Plaintiff did not own a New Jersey registered motor vehicle, nor live with a resident relative who owned a New Jersey insured motor vehicle. Accordingly, plaintiff applied for, and was granted, PIP benefits through defendant, Murdter's insurance carrier.

On October 8, 2002, plaintiff was medically ready for discharge, the orthopedic injury to her knee having been resolved. However, prior to discharge Dr. Erhan Kucuk, plaintiff's attending physician at Renaissance, requested a consultation to assess plaintiff's cognitive ability to care for herself and to make decisions regarding her future living plans. On October 11, 2002, Dr. Muhammed Elrafei, a geriatric psychiatrist, examined plaintiff and diagnosed her as suffering from mild dementia with minimal depression. In his testimony, Dr. Elrafei noted that plaintiff

had a recent decline in her . . . ability to care for herself while living in a senior citizen apartment in Jersey City. Her niece found her place filthy with one wooden chair and a newspaper covering her window, et cetera; that et cetera meant that the filthiness of the place and disorganization. She had apparent decline in cognitive functions and is ambivalent about any decisions regarding her health and placement.

Dr. Elrafei found that plaintiff's judgment was "partial" and that she was "aware of her difficulty in caring for herself and wants to defer decisions to somebody else[.]" Dr. Elrafei concluded that "cognitively she could be a danger to herself if she lives alone." At trial, Dr. Elrafei explained he reached this conclusion "[b]ecause with her dementia, compounded by the physical disability, I . . . thought . . . that [it] would not be safe to . . . send her out to society without a full support." Dr. Elrafei testified that without the orthopedic problems he "would have recommended to have a visiting nurse coming to . . . check her medication, to have either a family member or some agency from the community to visit regularly to . . . see that the place is in order and that she is well-nourished." Dr. Elrafei stated that plaintiff's dementia was not caused by the motor vehicle accident.

Based on the results of Dr. Elrafei's consultation, plaintiff acceded to recommendations of Dr. Kucuk and Dr. John Ambrose, who had been treating her for the orthopedic conditions, that she not return to her apartment and, instead, be admitted to the assisted living facility at Renaissance. In his progress notes dated October 28, 2002, Dr. Kucuk noted that the Renaissance facility was close to the home of plaintiff's niece, who resided in Lincoln Park, and that plaintiff "does not feel she can adequately care for herself any longer."

In a letter dated November 4, 2002, addressed "To Whom It May Concern," Dr. Philippe Chemaly, Jr. of Renaissance, plaintiff's therapist, stated:

Mary Smith has been under my supervision for physical and occupational therapy for a right Tibia plateau fracture for the past 32 months. She is ambulating 200 feet with a rolling walker with distant supervision and performs her activities of daily living with supervision.

However, she has displayed poor judgment and safety awareness with distractibility. She lives alone. I am concerned for her safety and thereby recommend long term care placement.

On December 13, 2002, at defendant's request, plaintiff was examined by Dr. Jeffrey F. Lakin, an orthopedic surgeon. Dr. Lakin issued a report on that date, finding that plaintiff's knee fracture had healed, no further treatment was required, and that "[o]rthopedically, the patient is stable and there is no reason why orthopedically she cannot carry out her activities of daily living and be as independent as she was prior to the motor vehicle accident."

During his testimony at trial, Dr. Lakin noted that Dr. Ambrose, plaintiff's orthopedist, had discharged her from his orthopedic care on October 24, 2002. Dr. Lakin explained that plaintiff's prognosis for her knee injury was good and that, "except for some occasional pain with weather changes . . . she can perform her activities as she had done prior to the motor vehicle accident."

By letter to plaintiff's counsel dated January 31, 2003, relying on Dr. Lakin's report, defendant stated, in pertinent part:

Please be advised, that since no further Orthopaedic treatment is indicated and your client's display of "poor judgment and safety awareness with distractibility" as per her therapist was not caused by this [motor vehicle accident], any and all medical benefits under our Insured's policy pursuant to treatment will be terminated effective 02/05/2003. Therefore, we can no longer authorize payment for any future orthopaedic treatment/rehab facility bills your client may incur.

Should a problem arise in the future requiring Orthopaedic treatment, it will be necessary for your client to be examined before we can authorize payment.

At the request of plaintiff's counsel, Dr. Ambrose issued a report concerning his treatment of plaintiff dated February 14, 2003. Dr. Ambrose stated that plaintiff had been discharged from his orthopedic care on October 24, 2002, but noted:

Mary Smith's right knee condition, which is a result of the depressed medical tibial plateau fracture sustained in the July 3, 2002 accident, has resulted in deformity and depression of the medial tibial plateau and post-traumatic arthritis of the right knee. This, combined with her progressive dementia and pre-existing osteoporosis/degenerative arthritis renders her incapable of independent living and in continued need for nursing home residency. The fracture of the medial tibial plateau is responsible for her impairments of her right knee, which, combined with advanced age, osteoporosis and dementia render her markedly impaired with respect to ambulation and activities of everyday living.

At trial, Dr. Ambrose testified consistent with this report. On cross-examination, Dr. Ambrose stated that plaintiff's cognitive ability had not been impaired by the motor vehicle accident.

On April 2, 2003, plaintiff filed a verified complaint in the Law Division against defendant seeking a judgment requiring defendant to pay, through its PIP policy benefits, for costs of the assisted living care for plaintiff at Renaissance as being causally related to the July 3, 2002 automobile accident, and reasonable and necessary. Upon completion of discovery, which was extended by court order, the matter was tried non-jury before Judge Lourdes Santiago on September 22, 27, and 29, 2004.

At the conclusion of the trial, the judge reserved decision, asking for written summations. After receiving the summations and reviewing the evidence, Judge Santiago issued a written opinion dated January 5, 2005, finding in favor of defendant. On January 2, 2005, the judge issued an order for judgment dismissing all claims against defendant. In so ruling, the judge stated, in pertinent part:

It is undisputed that the only injury sustained by the plaintiff was orthopedic in nature, namely a minimally displaced fracture of the right tibial plateau. Plaintiff has never alleged a head injury or any neuropsychiatric condition as a result of the July 3, 2002 accident.

* * * *

To date, [defendant] has paid in excess of $102,000.00 for plaintiff' medical treatment. The plaintiff in this matter seeks to have [defendant] pay for plaintiff's nursing home care for the remainder of her natural life or until the $250,000.00 policy limit is exhausted. [Plaintiff's] PIP benefits were terminated by [defendant] on February 5, 2003.

* * * *

It is further undisputed that the plaintiff's alleged dementia was not caused by the July 3, 2003 accident. In fact, both of the plaintiff's medical experts, John Ambrose, M.D. and [Mohammed] Elrafei, M.D. testified at trial that plaintiff's alleged dementia was not caused by the July 3, 2002 accident and instead was a condition that had developed naturally before the accident. . . . The reason for [plaintiff's] placement at Renaissance was rehabilitation for the orthopedic injury to her right leg. No psychiatric, neuropsychiatric or psychological treatment has ever been rendered to [plaintiff]. . . .

* * * *

Notwithstanding the fact that no psychological injuries have ever been alleged to have been caused by the accident, plaintiff presented the testimony of [Mohammed] Elrafei, M.D. at trial. Dr. Elrafei testified that he conducted a one time consultation on the plaintiff, which by his own admission lasted approximately twenty minutes and issued a two-page handwritten note. Dr. Elrafei testified that plaintiff had mild dementia. However, Dr. Elrafei[,] similar to Dr. Ambrose[,] concluded that [plaintiff's] alleged dementia was not caused by the July 3, 2002 accident.

Both Dr. Ambrose and Dr. Elrafei testified at trial that they had concerns about [plaintiff's] ability to live independently after the accident. Dr. Ambrose testified that he discussed [plaintiff's] long-term prognosis with . . . Nurse Fury. He recommended to [plaintiff] that she consider moving into a long-term facility at Renaissance for safety reasons. He based his recommendation on his belief that [plaintiff's] orthopedic injuries were going to result in her need to use a cane or walker the rest of her life. Dr. Elrafei also opined that [plaintiff's] orthopedic injuries would require her to reeducate herself on how to use a cane or walker to conduct day-to-day activities. However, there has been no evidence presented that [plaintiff] presently uses a walker or cane to ambulate. In fact, her niece, Pat Jennings, testified that he aunt does not use a walker or cane when she ambulates in her room at Renaissance. There has been no evidence presented that she uses these devices at all when she leaves her room at Renaissance.

* * * *

The burden of establishing entitlement to PIP benefits is on the plaintiff. Langley v. Allstate Ins. Co., 206 N.J. Super. 365, 368 (App. Div. 1985). In order to be compensable at all, all medical expenses incurred as a result of personal injury in an automobile accident must be both reasonable and necessary. Paul v. Ohio Casualty Insurance Co., 196 N.J. Super. 286, 295 (App. Div. 1984)[, certif. denied, 99 N.J. 228 (1985)]. In addition to proving that the treatment/services rendered were "medically necessary," plaintiff has the burden of proving by a preponderance of the evidence that the treatment/services were proximately caused by the particular accident. Bowe v. New Jersey Mfrs. Ins. Co., 367 N.J. Super. 128[, 138-39] (App. Div. 2004).

* * * *

The plaintiff . . . has the burden of demonstrating that the treatment/services for which she seeks reimbursement are for injuries proximately caused by the July 3, 2002 accident, and she must also prove that they are "medically necessary" and reasonable. . . .

* * * *

Plaintiff in this case has failed to carry [that] burden on each of those issues. The plaintiff contends that she was suffering from dementia at the time of the accident and that the accident did not contribute or worsen her dementia. However, the plaintiff stipulates that she suffered orthopedic injuries during the accident that were superimposed upon her dementia, which made her incapable of independent living[,] this justifying her stay at Renaissance. The plaintiff's own doctor, Dr. Ambrose, testified that [plaintiff] reached the maximum medical improvement from her orthopedic care on October 24, 2002. Thus, since the plaintiff's injury reached its maximum medical improvement and her dementia was neither caused nor worsened by the orthopedic injuries, the plaintiff's orthopedic injuries were not superimposed upon her dementia. There is no legal basis for [defendant] to be held responsible for payment of [plaintiff's] continued nursing home services at Renaissance beyond the February 5, 2003 benefit termination date. The only injury sustained by [plaintiff] at the time of the July 3, 2002 accident was orthopedic in nature and it is undisputed that the plaintiff had reached maximum benefit from orthopedic treatment in October of 2002. There has been no evidence to suggest that [plaintiff's] alleged cognitive impairment or dementia is related to the July 3, 2002 motor vehicle accident. To the contrary, both of plaintiff's medical experts testified that her alleged dementia was not caused by the accident. There has been no evidence put forth to show that [plaintiff's] continued nursing care at Renaissance is causally related to the July 3, 2002 motor vehicle accident. [Defendant] cannot be held responsible for payment [of plaintiff's] nursing home care for a condition unrelated to the accident. . . .

On or about February 8, 2005, plaintiff filed and served a motion seeking reconsideration. An order was entered by the trial court on March 7, 2005, denying the motion for reasons set forth on the record on March 7, 2005.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

A. The Court Decision that Encompass is not Responsible for Mary Smith's Continued Assisted Living Services was Not Supported by Adequate, Substantial and Credible Evidence.

B. The Trial Court Decision that Encompass is not Responsible for Mary Smith's Continued Assisted Living Services was Contrary to those Opinions of her Treating Physician and Based Solely upon a Single Orthopedic PIP (Personal Injury Protection) IME (Independent Medical Examination).

C. The Trial Court Decision that Mary Smith's Need for Continued Assisted Living Services was "Medically Unnecessary" was Against the Weight of the Evidence Presented The Trial Court.

D. The Trial Court Decision that Mary Smith's Need for Continued Assisted Living Services was not Causally- Related to the Motor Vehicle Accident was Against the Weight of the Evidence Presented The Trial Court.

E. The Legislative Intent Behind the PIP/No-Fault Statute is to Ensure the Broadest Coverage Possible to Injured Persons.

POINT II

The Trial Court Decision to Deny Mary Smith's Continued PIP/No-Fault Coverage has Resulted in Encompass Receiving An Improper Windfall/Cost Savings Now Being Borne by Medicaid.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons articulated by Judge Santiago in her written opinion dated January 5, 2005. The findings and conclusions of the judge are supported by substantial, credible evidence contained in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We add the following.

Although both Dr. Ambrose and Dr. Elrafei testified that they believed plaintiff required assisted living care, they failed to provide the objective medical evidence necessary to establish that this need was proximately caused by the automobile accident. Dr. Ambrose testified that dementia is "a diminished mental function due to a . . . shortage of brain cells in the aging brain." He stated that dementia impairs complex motor functions such as "buttoning, sewing, writing, wriggling the toes independently." Dr. Ambrose explained:

I recognize this injury as a kind of straw breaking a camel's back. That's how I saw it. The additional complication of her life, of her ability to ambulate, of her ability to get to a bathroom and back, to stand, to walk, to claim stairs, to shop, to keep home, would be so impaired by this new condition, this traumatic arthritis of the knee resulting from a fractured tibial plateau, such that she could not carry those things out without the close supervision of another responsible adult.

Thus, Dr. Ambrose based his recommendation that plaintiff live in a long-term assisted care facility on his belief that she would have to use a cane or walker for the rest of her life. However, as Judge Santiago found, there was no evidence presented at trial that plaintiff was currently using a cane or walker to ambulate in her normal routines of life, or that the orthopedic injury had affected her ability to live alone as she had done prior to the automobile accident. In fact, plaintiff's niece testified that her aunt did not use a cane or walker when ambulating around her room or when walking through the halls at the Renaissance facility.

Dr. Mohamed Elrafei also testified about the dynamics of a person suffering from dementia who is forced to adapt to the use of a cane or walker, stating in pertinent part

Well, it's -- it's always compounding the -- the -- the problem of dementia when you get a physical disability like that. You know, in order to work around your environment, you -- you probably would need more mobility and more ability to -- to -- to -- to function physically in your -- in your own environment. So, I think that -- that's -- orthopedic problem like this, which -- which interferes with her ability to ambulate compound her dementia process in -- in the total function of the person as a patient, as -- as a human being. So, I think it's the -- the addage.

Dr. Elrafei focused on the "addage" of the dementia to the knee injury. However, it is not clear from the evidence in the record how a stable, recovered knee could result in the kind of "addage" he discussed and, again, there was no evidence that plaintiff's ability to ambulate, once the orthopedic injury had been resolved, was different from her physical status prior to the accident.

Plaintiff possessed pre-existing, progressive dementia. She sustained a knee injury during the automobile accident which had reached its maximum potential for healing according to both Dr. Ambrose and Dr. Lakin in October 2002. Dr. Elrafei failed to explain how plaintiff, with her recovered knee, digressed so significantly in her ability to function as a result of the accident that she now requires long-term assisted living care. Further, neither Dr. Ambrose nor Dr. Elrafei explained how the car accident not the gradual onset of dementia necessitated plaintiff's residency at the Renaissance long-term care facility. Rather, the evidence supports the conclusion that it was solely the progression of plaintiff's dementia that necessitated her long-term care at Renaissance. The testimony of Patricia Jennings concerning the condition of plaintiff's apartment subsequent to the July 3, 2002 accident; the fact that plaintiff's orthopedic injuries had been resolved and she was medically ready for discharge from Renaissance's rehabilitation facility in October 2002; the proximity of Ms. Jennings' home to the Renaissance facility; and the psychiatric examination by Dr. Elrafei on October 11, 2002, all support the trial court's conclusion that it was the cognitive difficulties of plaintiff, which were unrelated to the automobile accident, that led to the decision for plaintiff to remain at Renaissance to receive assisted-living care.

 
Affirmed.

A transcript of the March 7, 2005 proceedings is not contained in the record on appeal.

(continued)

(continued)

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A-3162-04T2

March 1, 2006