Causality, PIP, and the Motor Vehicle Accident

Which insurer should you bill for treatment for your nagging backache?  Well, it depends on the cause of the back injury.

 

Let’s say you were in a motor vehicle.  You were minding your own business waiting patiently for the red light to turn green, and boom, your vehicle was rear-ended!  The impact caused you to jerk back and forth even though your seatbelt was properly fastened.  The next day, you wake up with back pain.  You never had back pain prior to the motor vehicle accident.  You go to a chiropractor, and sure enough you do have a back injury and you will start treatment.  So, which insurer should be billed?  Your health insurer?  A PIP insurer? And whose PIP insurer?

 

If your back injury is determined to be caused by that accident, the provider should generally bill a PIP insurance carrier.  In New Jersey, this mean billing your PIP insurer, not the insurer of the automobile that rear-ended your vehicle.  New Jersey PIP follows the “person” at least as the coverage of priority.  The order of priority of PIP coverage in New Jersey is the name insured first; resident relatives; and lastly the host vehicle.  Therefore, if you have PIP insurance, your insurer is billed.  If you do not have PIP insurance, but you live with a relative who has PIP insurance, that insurance should be billed.  Lastly, if you do not have your own PIP insurance and you do not live with a relative who has PIP insurance, the host vehicle insurer should be billed.  There are times New Jersey PLIGA will provide coverage, when none of the other categories are present.  Keep in mind, you may be disqualified for PIP coverage if you own a vehicle that is being operated without insurance.

 

Also, there are times your health insurer must be billed before the PIP carrier, even if the injury is related to a motor vehicle accident.  This happens when you chose “health insurance” as your primary insurance on your policy, or the relative you live with makes this election.  If this is the case, your provider should first bill your health insurer, and only if the health insurer does not pay the amounts due under the New Jersey PIP Fee Schedule (meaning a balance remains due and owing) should the PIP insurer be billed.  The PIP insurer should receive a copy of the health insurance EOB to show what the health insurer paid, and the PIP insurer should then pay the balance.  This all assumes, of course the treatment was medically necessary and causally related to the motor vehicle accident.

 

How is “causality” defined?   Generally, a claimant seeking PIP benefits must prove by a preponderance of the evidence that the injuries for which treatment was rendered was  proximately caused by the motor vehicle accident.  Preponderance means it is more likely than not that your injury was caused by the motor vehicle accident.

 

Now, what happens if you already had some back pain, but after the motor vehicle accident, the pain got worse?  Here, the issue is whether the motor vehicle accident caused an “exacerbation” of a pre-existing injury.  If you can show that is what happened, the PIP insurer will be responsible for medically necessary treatment up to the policy limits.  The standard for causality under the New Jersey PIP laws is found in the case Bowe v. New Jersey Manufacturers Ins. Co., 367 N.J. Super. 128 (App. Div. 2004).  The Court explained, if an insurance carrier raising causality as a defense, “… the insured has the burden of proving that the treatment at issue is causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury independent of that pre-existing injury or condition.  In either case, the treatment must have resulted from the particular automobile accident triggering coverage.  In a case alleging an aggravation of a pre-existing injury or condition, a PIP claimant must present objective medical evidence from which a medical professional can form an opinion that the trauma suffered in the particular accident caused the aggravation. This opinion must, at the very least, be based on an evaluation of the medical records of the claimant prior to the particular accident.  Once that causal link is established, a PIP carrier is liable for the cost of the post-accident treatment.”  (Id. at 138).

 

You will not be required to establish the precise percentage of injury attributable to a motor vehicle accident compared to a prior injury or pre-existing condition, but to show your pre-existing injury or condition was aggravated by the accident for which coverage is sought.

 

It is important to review your PIP policy and to be aware of the elections you may have made, including any policy limitations.  It is better to be aware of the specifics of your policy before you may actually need to enforce its terms.