STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
NEWARK, ESSEX COUNTY DISTRICT

CLAIM PETITION
NO. 93-034285

DECISION ON MOTION TO COMPEL PAYMENT
OF MEDICAL EXPENSE

FLORENCE ROMAINE, Petitioner
vs.
CEDAR GROVE BOARD OF EDUCATION, Respondent

BEFORE:

HONORABLE ANTHONY J. MINNITI
Judge of Compensation

APPEARANCES:

LAURIE W. FIEDLER, ESQ.
Attorney for the Petitioner

BRAFF, HARRIS & SUKONECK, ESQS.
By: IRA D. SUKONECK, ESQ.
Attorney for the Respondent

This is the decision under Claim Petition No. 93-034285, Florence Romaine v. the Cedar Grove Board of Education.

In this compensation claim petition, the petitioner brought a Motion for Medical and Temporary Benefits. At the trial of the Motion, the respondent stipulated that the petitioner met with a compensable injury on November 11, 1992. Wages and rates were also stipulated. The petitioner was paid 51 5/7 weeks of temporary disability totaling $13,359.84. It is the respondent=s contention that all necessary and authorized medical treatment has been paid.

This Motion was tried on numerous issues of medical treatment. During the course of the trial it appeared that the petitioner, while back at work, suffered another compensable injury for which she was placed under active medical treatment authorized by the respondent under a new carrier, Selective Insurance. Since the active treatment related to the same parts of the body, it was the court=s impression that all issues regarding medical treatment were either resolved or rendered moot. At a pretrial conference regarding the subsequent injury, it appeared that there was an outstanding bill, referable to this Motion, payable to the Total Rehabilitation Center in the amount of $6,100.

The Motion is revisited to resolve the responsibility for the payment of that bill only.

Petitioner is a mail carrier/bus driver for respondent. On November 11, 1992, she fell while on the employer=s premises and injured her left knee, lower back and the right side of her neck. She was treated for approximately six weeks by a Dr. Sorger who casted her foot. Thereafter, she was told to go to Total Rehab Center for therapy. She continued treating with Total Rehab Center for therapy to her left foot. By the time she testified in court, that therapy had concluded.

For the knee injury the petitioner underwent heat treatment, ultrasound and a TENS machine. An MRI was reviewed by Dr. Seidenstein who noted a torn ligament. Dr. Seidenstein also performed an arthroscopy in 1992 for the left knee. At the time petitioner testified, she was still receiving treatment from the Total Rehab Center in Cedar Grove for the left knee. That treatment consisted of heat compresses. The physical therapy was done by Dr. Cava. With respect to her low back, she was referred to Dr. Seidenstein who again referred her for an MRI. Following the MRI she received treatment which consisted of a TENS machine, ultrasound and cold compresses. She testified that she was again sent by Dr. Sorger to the Total Rehab Center for treatment to her back. At the time of her testimony she was still under active treatment for her back by the Total Rehab Center.

Since Mrs. Romaine suffered a new work-related accident for which she was under active medical treatment, this Motion for Medical and Temporary Benefits has resolved itself into a single question of whether Royal is responsible for the outstanding bill in the amount of $6,100 to Sports Medicine and Rehabilitation Center, the physical therapist.

In its brief, respondent maintains that it is not responsible for two reasons: 1) the petitioner has failed to sustain her burden of proving the need for treatment and that the treatment provided was reasonable and necessary; and 2) the petitioner was on notice that no further treatment would be authorized by virtue of a certain correspondence dated September 1, 1993.

Petitioner maintains that this correspondence of September 1, 1993 from Royal Insurance, the previous insurer, was sent to Ms. Romaine by Dr. Flax discharging her from Amedical@ care. It was Ms. Romaine's position that no one ever informed her that she was discharged from physical therapy.

There is no question that Royal provided appropriate medical treatment for the petitioner's injuries. Initially, treatment was authorized by Dr. Seidenstein who recommended an epidural block and an MRI of the knee. Physical therapy was then prescribed for the knee and the back. Dr. Seidenstein then recommended pain management. The respondent sent the petitioner to Dr. Flax on June 8, 1993. Dr. Flax believed the petitioner would benefit from one additional month of physical therapy and recommended a reevaluation. Accordingly, Dr. Flax recommended another month of physical therapy with the Total Rehabilitation Center and saw the petitioner on August 5, 1993.

It seems that Dr. Flax wrote a separate letter to the previous carrier, Royal Insurance Company, wherein he indicated he believed that petitioner may be able to resume work. Based upon this communication from Dr. Flax, Royal Insurance sent a letter to the petitioner. There is an ambiguity contained in that letter which resulted in this litigated Motion. The letter states in relevant part:

If you feel you are in need of further medical treatment, please be advised that you must contact our office . . . for the name of an authorized physician. Any treatment rendered that has not been authorized by our office first will be considered unauthorized and will become your own financial responsibility.

It is the petitioner's position that since she was already receiving Aauthorized medical treatment@ from Total Rehabilitation Center this correspondence could not possibly pertain to that portion of the treatment. She testified that it was her understanding that the letter from Dr. Flax meant that he was releasing petitioner from his care and from his treatment.

The petitioner testified that she never received any notice from the representatives at Total Rehabilitation Center that they were no longer "authorized" medical providers. Eventually, petitioner on her own volition, stopped treating with Total Rehabilitation Center when she believed that the rehabilitation was no longer necessary.

Essentially this Motion revolves around the interpretation of an ambiguous statement made to the petitioner by the insurance company.

Following the original trial of this Motion and the submission of briefs by counsel, it appeared that additional testimony was required from the petitioner. I, thereafter, asked the petitioner to again testify as to her understanding of the letter she received from Royal Insurance Company.

I have had the opportunity to observe the petitioner testify on two occasions. I found the petitioner to be completely honest and forthright. I found her to be extremely credible in describing the accident itself, the effects of the accident on the various parts of her body, the description of the treatment rendered, and her impressions and understanding of the correspondence and directions given to her from doctors and Royal Insurance Company. This petitioner was first treated by Dr. Sorger. She was then sent to Dr. Calva for rehabilitation. She was then sent, by the respondent, to Dr. Seidenstein who for some reason replaced Dr. Sorger. It was Dr. Seidenstein who recommended a series of pain management sessions. For some unknown reason the respondent Adeauthorized@ Dr. Seidenstein and sent the petitioner for an examination to Dr. Flax. In addition to the treating doctors, the petitioner was also sent to a number of evaluating doctors including two neurologists required by the respondent, Dr. Frankel and Dr. Flicker. In each instance the petitioner submitted to the required evaluations.

I find that it is completely reasonable and logical for Ms. Romaine to have interpreted the letter she received from Royal Insurance requiring that new treatment must be authorized. I find that petitioner did honestly and candidly believe that the treatment that she was receiving from the Total Rehabilitation Center, which had been authorized in the past by respondent's physicians, was still authorized. To support the petitioner=s position, it is interesting to note that the respondent did not send a similar letter to petitioner=s counsel nor did it send a letter to Total Rehabilitation Center itself indicating it would no longer be responsible for any payment. Therefore, the petitioner had no way of knowing that the therapy that she was actively receiving from the authorized physician had been Adeauthorized.@

I further find that petitioner had every right to rely on the actions of the authorized physicians of the respondent and that the ambiguity contained in the letter of September 1, 1993 must be resolved in favor of the petitioner under all the attendant circumstances. I find that the $6,100 bill from the pain rehabilitation center is the responsibility of respondent Royal Insurance Co. I find the treatment was reasonable and necessary based upon petitioner=s testimony and her understanding that this therapy was, in fact, Aauthorized@ by the respondent.

An Order has been prepared in accordance with this decision and is being distributed to the parties simultaneously herewith. There shall be a counsel fee of $1,000 payable to petitioner's counsel, Laurie Fiedler, by the respondent; a $250 fee for Dr. Shaw payable by the respondent; and a stenographic fee in the amount of $750 to be paid by the respondent.

_________________________________

Anthony J. Minniti

Judge of Compensation

Dated: April 16, 1999