In the wake of the recent Supreme Court decisions in Serrano and DiProspero, which lifted the plaintiff’s burden to demonstrate a subjective impact, plaintiff’s attorneys have achieved another important victory. Formerly, a split
in the lower courts left a question as to whether a chiropractor’s opinion would be sufficient support to a finding of permanency, as required by the Automobile Insurance Cost Reduction Act (“AICRA”). However, the recent
Appellate Division recently cleared up this confusion, inexplicably finding that a chiropractor is a physician, qualified to certify permanency. The Act provides, in pertinent part: “In order to satisfy the tort option provisions of this section, the plaintiff shall… provide the defendant with a certification from the licensed, treating physician… [asserting] that the plaintiff has sustained an injury described above.” N.J.S.A. 39:6A-8. The definition of physician is asserted in the Verbal Threshold Statute, which asserts: “… the term ‘physician and surgeon’ or ‘physician or surgeon’ shall be deemed to include practitioners in any branch of medicine and/or surgery or method of treatment or human ailment, disease, pain, injury, deformity, mental or physical condition…, the practice of medicine and/or surgery shall be deemed to include, inter alia, the practice of osteopathy [etc.]… “N.J.S.A. 45:9-5.1 Courts have routinely struggled in their attempts to interpret the meaning of many AICRA sections, and this one is no different. There have been no less than four Law Division opinions written on the subject, two of which have been published. All of these opinions have struggled with who, exactly, qualifies as a “treating physician.” The first of these opinions, handed down in Pensabene v. Straus, took notice that the definitional portion of the Verbal Threshold statute is confusing and ambiguous. 342 N.J. Super. 196, 199 (Law Div. 2001). In struggling with the meaning of this term, the Pensabene Court relied on how other courts have viewed “physician” in other state statutes. Thomas v. Carlton Hosiery Mills, 14 N.J. Super. 44 (App. Div. 1951)(construing “physician” in the context of temporary disability benefits). In making its finding that a chiropractor is a physician under the rule, the Thomas court looked to the impact a contrary finding would have on the public. Finding that “it would be unjust to construe the… Law so narrowly as to deprive worthy claimants of the benefits thereunder.” Id. In other words, it would be a manifest injustice to refuse a claim because the plaintiff chose to seek the help of a chiropractor, blissfully ignorant of the impact that may have on his future claims. Thus, even though a chiropractor is not enumerated in a list of professionals qualified to issue a permanency opinion, they will be allowed to issue permanency reports. This was followed by an opinion in Olarte v. Crocker, which relied on numerous opinions covering various areas that have held chiropractors to be physicians as well as regulations imposed upon them by statute. 380 N.J. Super. 203 (Law Div. 2002) The Court asserted that the legislature must have been aware of the regulation of chiropractors and the judicial opinions whose interpretations included that term in prior legislation. With that in mind, the Court found that since chiropractors were not specifically excluded, they must have been included. These Law Division opinions were called into question by other courts, both in unpublished opinions set forth by the same Judge. The gravamen of the Judge’s argument in both cases was the same. In looking that the definition of “chiropractor” and “physician” in the dictionary, she concluded: Chiropractors simply are not permitted to diagnose or treat the systems and functions of the body that physicians are trained and statutorily licensed to do… [, and] are also not permitted to perform the panoply of objective diagnostic tests that physicians are obliged to use and which the AICRA statute requires before an opinion on permanency can be given[,] N.J.S.A. 45:9-14.5; N.J.S.A. 39:6A-8. (citations omitted). Afram v. Heller, Docket No. A-4840- 03T3 (decided October 4, 2005)(citing Chun v. Henick, unpublished). The second of these two opinions was taken to the Appellate Division and was the underlying case for the recent Appellate Court decision in Afram v. Heller, (decided October 4, 2005). This case attempted to resolve the above-mentioned split among the lower courts. In so
doing, the Afram Court held that a chiropractor’s certification is sufficient proof of permanency to survive a summary judgment motion. In rendering that decision, the Appellate Court specifically denied the reasoned arguments
of the trial Judge and relied on the opinions asserted in Olarte and Pensabene. As a simple matter of fact, this decision woefully misunderstands the real life implications of using such a certification to defeat a summary judgment motion. The decision to seek a physician to procure a permanency exam is made long after a layman has made any treatment decisions. It is a decision that is made, invariably, by whichever lawyer whose services the injured party has decided to procure. More clearly, it is a decision that has no impact on the treatment a person may wish to procure. Further, while the legislature was aware of the existence of statutes involving chiropractors, they were also keenly aware that they exist. The legislature made a conscious choice to keep them off the enumerated list of physicians qualified to offer permanency evaluations. These arguments are suspect at best. The most sound arguments that can be found have been buried under this decision and can be found in the Trial Judge’s opinion. Permanency is a determination that should be made while looking to objective tests. Physicians are the only individuals statutorily mandated to administer the tests that are required to determine permanency. Failing to find that chiropractors are not included in the statute effectively eviscerates the legislature’s intention when requiring a permanency evaluation in the first place. As a result, the Afram decision in combination with Serrano and DiProspero has made it a rather difficult year for insurers defending against verbal threshold claims.
– Christopher M. Erb, Esq.
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