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HomeMy WebLinkAbout08-1877OF SNYDER & DORER .VENUE, SUITE 503 ?A 17011 NUMBER: (717) 731-0988 _ FOR PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Insurance Company, Petitioner Vs. Barbara Monighan, Respondent PETITION TO COMPEL PHYSICAL EXAMINATION 1. Petitioner, Nationwide Mutual Insurance Company, (hereafter "Nationwide") is I an Ohio corporation licensed to issue motor vehicle insurance policies in the Commonwealth of Pennsylvania. 2. Respondent, Barbara Monighan, is an adult individual residing at 6363 Baseshore Road, Mechanicsburg, PA, 17050. 3. At all times relevant hereto, Barbara Monighan was an insured under a Nationwide motor vehicle insurance policy (policy number: 58 37 D 578493) issued to Gary E. and Barbara E. Monighan. The policy includes first party medical benefits in the amount of $100,000.00. (A true and correct copy of the insurance policy and declarations page is attached hereto as Exhibit "A" and incorporated herein by reference.) 4. Respondent, Barbara Monighan was involved in a motor vehicle accident on March 30, 2005. She was eastbound on the Carlisle Pike in Mechanicsburg, PA near Circuit City when a vehicle traveling in the opposite direction made a left turn in front of her car. 5. As a result of the aforementioned accident, Ms. Monighan claims to have personal injuries for which she has received, and continues to receive, medical treatment. 6. As of this date, Nationwide has paid medical benefits under the policy totaling $20,598.11. 7. On March 30, 2005, Ms. Monighan sought medical treatment from her primary care physician, Vernnen Greiner, D.O., complaining of pain in her neck, upper back, lower back, shoulders and knees. 8. On January 13, 2006, Dr. Greiner pronounced that Ms. Monighan had obtained maximum medical improvement from the injuries sustained in the accident. He noted two prior low back injuries preceding the subject accident by many years, but which had since left Ms. Monighan with ongoing, intermittent low back pain. He also noted a variety of problems with her shoulder joints prior to the subject accident. (See Dr. Greiner's office note of 3/30/05 attached hereto as Exhibit `B".) 9. In addition to her primary care physician, Ms. Monighan has sought and received treatment from Dr. Michael Lupinacci, Dr. William Rolle, Dr. George Durisek, Matthew Gamber, D.C., Dr. Maximilian Braun., and has received physical therapy from Conforti Physical Therapy and Fitness and Drayer Physical Therapy Institute, as well as diagnostic imaging from various providers. 10. Lumbar x-rays and a MRI performed in May, 2006 revealed multiple level facet arthropathy (a degenerative condition) which was subsequently confirmed via bone scan. A cervical MRI performed on 12/11/06 revealed minor spondylosis and tiny disc protrusion with no frank herniation. There was no significant change from the prior MRI of December 14, 2005. (See Exhibit "C".) 11. An independent medical examination and peer review by Dr. Daniel C. DeFalcis on June 8, 2006 determined that Ms. Monighan had reached maximum medical improvement of her low back injury and required no further intervention other than a home exercise program. Dr. DeFalcis further determined that Ms. Monighan had not reached maximum medical improvement with respect to her cervical sprain/strain. (See Exhibit "D".) 12. At two and a half years post accident, Respondent is still actively treating for her cervical/lumbar sprain/strain injuries. Respondent's ongoing complaints appear to be related to degenerative condition or conditions of the spine which pre-existed the accident. 13. Under the policy and the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), Nationwide is responsible for paying first party medical benefits for reasonable and necessary medical care related to the accident. (See Exhibit "A", p. F1). 14. Nationwide is desirous of determining and evaluating its obligations with regard to Barbara Monighan's continuing medical claims. 15. In order to evaluate these claims, Nationwide has requested that Ms. Monighan attend an independent medical evaluation. However, counsel for Ms. Monighan has refused to comply with Nationwide's request. (See Plaintiff's counsel's letter attached hereto as Exhibit 44E,,.) 16. Pursuant to the policy, Ms. Monighan is required to participate in an independent medical examination upon request by Nationwide. The policy provides: "Injured persons must submit to examinations by company-selected physicians as often as the company reasonably requires." (See Exhibit "A", p. F5) 17. The Respondent's failure to cooperate and attend the medical examination is a material breach of the terms of the policy. 18. Pursuant to 75 Pa.C.S.A. §1796(a), this Court may order a claimant to attend a medical examination where his or her medical condition is at issue in the claim. 19. The physical condition of Respondent Barbara Monighan is material to her claim for first party medical benefits under the policy. 20. Based upon the fact that Ms. Monighan had a prior back injury with some level ongoing back pain and problems, as well as a pre-existing degenerative condition of her cervical and lumbar spine, Nationwide has good cause to request that Ms. Monighan attend an independent medical evaluation. WHEREFORE, Petitioner Nationwide Mutual Insurance Company respectfully requests this Honorable Court to issue an Order compelling Barbara Monighan to attend an independent medical examination with a physician of Nationwide's choosing within sixty (60) days, or suffer an Order finding that Barbara Monighan has materially breached the terms of the policy and that Nationwide Mutual Insurance Company has no further duty to pay for first party benefits thereunder. B Respectfully submitted, LAW,,OFFICE OF SNYDER & DORER E. Kinzel, Esquire ration No. 55453 Attorney for Petitioner Date: March 10, 2008 )?? ?)bi? /+ NATIONWIDE AUTO POLICY DECLARATIONS Pape 1 of 3 These Declarations are a part of the policy named above and Identified by policy number below. They supersede any Declarations Issued earlier. Your policy provides the coverages and limits shown In the schedule of coverages. They apply to each Insured vehicle as indicated. Your policy compiles with the motorists' financial responslbHhy laws of your state only for vehides for which Property Damage and Bodliy Injury Liability coverages are provided. Policyholder. Policy Number: (Named insured) 58 37 D 578493 GARY E 3 BARBARA E MON I GRAN Issued: 6363 BASESHORE ROAD JAN 13, 2005 MECHANIUSBURG, PA 17050.2802 Policy Period From: JAN 11, 2005 to JUN 10 , 2005 but only I the required premium for this period has been paid and only for six month renewal periods M renewal premiums have been paid as required. This policy Is Initially effective at (1) the time the application for Insurance Is completed, or (2) 12:01 a.m. on the first day of the policy period, whichever is later. Each renewal period begins and ends at 12:01 a.m. standard time at the address of the named Insured stated herein. This policy cancels at 12:01 a.m. at the address of the named insured stated herein. 0 S 8 I n IM E FOLLNOW MESSAGES: G CHANGE(S) C(S) HAVE BEEN MADE TO YOUR POLICY: EFFECTIVE JAN 11, 2005 CHANG CHANGED DISLCOUNT(S)97 AUDI AS QUATT SEE ENCLOSED NOTICE FOR PREMIUM DETAIL INSURED VEHICLE(S) 3 SCHEDULE OF COVERAGES P 1. 1997 AUDI AS OUATT ID NWAU81i84D4VU014023 Six Month Coverages Limb Of Liability Premium COMPREHENSIVE ACTUAL CASH VALUE 91,70 COLLISION ACTUAL CASH VALUE LESS $ 500 160.10 PROPERTY DAMAGE LIABILITY 50,000 EAAj OCCI?1_RRENCE 46.40 BODILY INJURY LIABILITY 060,000 EAGi P UNINSURED MOTORISTS-BODILY INJURY s(SMIKED OCCURRENCE S 46.80 ES PERSON s 100.'00 OCCURRENCE $ 10.70 UNDERINSURED MOTORISTS-BODILY INJURY (STACKEDa 100;000 PRRENCE $$ 41.80 LOSS OF USE BROAD FORM 30 PER DAY EMENT 3022 S 18.70 900 PER ACCIDENT FIRST PARTY BENEFITS OPTION 1-MEDICAL BENEFIT 100,000 $ 34.10 OPTION 2-INCOME LOSS BENEFIT 25,000 TOTAL 00 OPTION 3-ACCIDENTAL DEATH BENEFIT 10,000 MONTHLY 1.70 OPTION 4-FUNERAL BENEFIT 1,600 120 FULL TORT f TOTAL $ 460.40 V-100-A r- RH171C i J 1 V Page 2 of 3 2 1989 CNEV BLAZER ID N10NCT18Z80110628 Six Month Coverages Limits 01 Liability Premium PROPERTY DAMAGE LIABILITY 50,000 EACH OCCURRENCE $ 56.70 BODILY INJURY LIABILITY 60,000 EACH PERSON 100,000 EACH OCCURRENCE $ 53.10 UNINSURED MOTORISTS-BODILY INJURY (STACKED 60 00 EACH PERSON , 100,000 EACH OCCURRENCE S 10.70 UNDERINSURED MOTORISTS-BODILY INJURY )) (STAG ED) 1 60 EACH PERSON 100,000 EACH OCCURRENCE $ 41.80 FIRST PARTY BENEFITS OPTION I-MEDICAL BENEFIT 100,000 $ 61.50 OPTION 2-INCOME LOSS BENEFIT 26,000 TOTAL 1,500 MONTHLY 13.90 OPTION 3-ACCIDENTAL DEATH BENEFIT 10,000 2.50 OPTION 4-FUNERAL BENEFIT 1,600 .40 FULL TORT TOTAL $ 230.60 3. 1969 CHEY IMPALA ID 118839971170844 Six Month Coverages Limits Of Liability Premium COMPREHENSIVE ACTUAL CASH VALU U 14.20 COLLISION ACTUAL CASH VAL LESS S 500 31.90 PROPERTY DAMAGE LIABILITY 60,000 EA OCCURRENCE 51.60 BODILY INJURY LIABILITY 50,000 EA PERSON 1 100,000 EA OCCURRENCE $ 50.60 UNINSURED MOTORISTS-BODILY INJURY (STACKED 60 00 EACH PERSON , 1 00 , 000 EACH OCCURRENCE $ 10.70 UNDERINSURED MOTORISTS-BODILY INJURY (S T 60 K00? ? EACH PERSON 100,000 EACH OCCURRENCE 41.80 LOSS OF USE BROAD FORM ENDORSEMENT 3022 18.70 30 PER DAY 900 PER ACCIDENT FIRST PARTY BENEFITS OPTION 1-MEDICAL BENEFIT 100,000 $ 54.20 OPTION 2-INCOME LOSS BENEFIT 25,000 TOTAL OPTION 3-ACCIDENTAL DEATH BENEFIT 1,600 MONTHLY 10,000 14.60 2 70 OPTION 4-FUNERAL BENEFIT 1,500 . 40 FULL TORT . TOTAL S 291.40 INSURED DRIVERS: Driver Birth Marital License # Name Data Status Number 01 GARY E MONIGHAN 12/08/49 MARRIED 13861025 02 BARBARA E MONIOHM 07/09/48 MARRIED 13612916 APPLIED DISCOUNTS: PASSIVE RESTRAINT SAFE DRIVER ACCIDENT FREE MULTI CAR MULTI LINE P'rk uP• _ V V A r RMI'1G i n l u NATIONWIDE AUTO POLICY DECLARATIONS Page 3 of 3 Policy Number. Policyholder: 58 37 D 578493 (Named Insured) GARY E & BARBARA E Issued: Policy Period From: JAN 13, 2005 JAN 11, 2005 to JUN 10, 2005 Policy Form & Endorsements: V037A 0 8 d n n n OWN SON a! s! i? aws asn i ant Office use: NOV 16, 2004 S 110.70 Issued By: NATIONWIDE INSURANCE COMPANY OF AMERICA 26463 Home Office - Columbus, Ohio Countersigned At: HARRISBURG, PA. By: ROY E COOK IMPORTANT PHONE NUMBERS Nationwide 24-Hour Claims Number: 1400-421-3535 For OUESTIONS About Your Policy, Call Your NATIONWIDE AGENT : ROY E COOK 717.766-9173 For Hearing Impaired: TTY 145004122-2421 Nationwide Regional Office: 717467-6400 r- mmniz i L L U Table Of Contents Page INSURING AGREEMENT ................................................ D1 DEFINITIONS ..........................................................D1 TERRITORY ............................................................D2 COVERAGES: Physical Damage ............................................. P1-P6 (damage to your auto) Comprehensive Collision Towing and Labor Auto Liability ..................................................L1-L5 (for damage or injury to others caused by your auto) Property Damage and Bodily Injury First Party Benefits ............................................ Fl-F5 Uninsured Motorists ........................................... U1-U5 (for bodily injury caused by uninsured motorists) Underinsured Motorists ....................................... U11-UI5 (for bodily Injury caused by underinsured motorists) GENERAL POLICY CONDITIONS Insured Persons' Duties After an Accident or Loss ..................................G1 How Your Policy May Be Changed ........ . G1 Optional Payment of Premium in Installments ..................................... G1 Renewal/Non-Renewal .. ............. . Cancellation During Policy Period .............................................. G2 Dividends ................................................................G2 If You Become Bankrupt .....................................................G2 Unauthorized Use of Other Motor Vehicles ....................................... G2 Fraud and Misrepresentation ............... . G3 Legal Action Limitations ................................................... . G3 Subrogation ........................ . . . . . .G3 Non-Sufficient Funds ......................................... G3 Unlicensed Drivers .........................................................G4 MUTUAL POLICY CONDITIONS Nationwide Mutual Insurance Company Nationwide Mutual Fire Insurance Company ..................................... G4 V-037-A Nationwide Auto Policy Insuring Agreement For the policyholder's payment of premiums and fees in amounts we require and subject to all of the terms and conditions of this policy, we agree to provide the coverages the policyholder has selected. These selections are shown in the enclosed Declarations, which are a part of this policy contract. The selected coverages in this policy apply only to occurrences while this policy is in force. Renewal premiums for terms of sbc months each must be paid in advance. De flnitions This policy uses certain common words for easy reading. They are defined as follows: 1. "POLICYHOLDER" means the first person named in the Declarations. The policyholder is the named insured under this policy but does not include the policyholder's spouse. If the first named insured Is an organization, that organization is the policyholder. 2. "YOU" and "YOUR" mean: a) the policyholder and spouse, if resident of the same household, when the policyholder is a person; or b) the sole proprietor or majority shareholder of an organization, or general partner of a family limited partnership, as shown in the Declarations, and spouse, if resident of the same household, when the policyholder is an organization. 3. "RELATIVE" means one who regularly lives in your household and who is related to you by blood, marriage or adoption (including a ward or foster child). A relative may live temporarily outside your household. 4. "INSURED" means one who is described as entitled to protection under each coverage. 5. "WE," "US," "OUR," and "THE COMPANY" mean or refer to the company Issuing the policy--Nationwide Mutual Insurance Company, Nationwide Mutual Fire Insurance Company, Nationwide Property and Casualty Insurance Company, Nationwide General Insurance Company, or Nationwide Insurance Company of America. 6. "YOUR AUTO" means the vehide(s) described in the Declarations. 7. "MOTOR VEHICLE" means a land motor vehicle designed primarily to be driven on public roads. This does not include vehicles operated on rails or crawler treads. Other motorized vehicles designed for use mainly off public roads shall be included within the definition of motor vehicle when used on public roads. 8. "PRIVATE PASSENGER AUTO" means a four-wheel: a) private passenger auto; b) van; or c) pickup truck having either four or six wheels. 9. "DEDUCTIBLE" means the amount of loss to be paid by the insured. We pay for covered loss above the deductible amount shown in the Declarations. 10. "OCCUPYING" means in, upon, entering, or alighting from. 11. "BODILY INJURY" means: a) physical injury; b) sickness; c) disease; or d) resultant death; of any person which results directly from a motor vehicle accident. 12. "PROPERTY DAMAGE" means: a) destruction of tangible property, D1 Nationwide Auto Policy b) damage or injury to it; and c) loss of its use. 13. "NON-ECONOMIC LOSS" means pain and suffering and other non-monetary detriment. 14. "BIOLOGICAL DETERIORATION OR DAMAGE" meaning damage or decomposition, breakdown, and/or decay of manmade or natural material due to the presence of fungi, algae, lichens, slime, mold, bacteria, wet or dry rot and any by-products of these organisms, however produced. Fungi as used above Include, but are not limited to: yeasts, mold, mildew, rust, smuts, or fleshy fungi such as mushrooms, puffballs and coral fungi. Other words are also defined. All defined words are in bold print. Territory The policy applies In Canada, the United States of America and its territories or possessions, or between their ports. All coverages except Uninsured Motorists and Underinsured Motorists apply to occurrences in Mexico, If within 50 miles of the United States boundary. We will base the amount of any Comprehensive or Collision loss in Mexico on cost at the nearest United States point. This policy does not apply In any territory except as stated in this provision. NOTE: You will need to buy auto Insurance from a Mexican Insurance company--regardless of coverage provided by this policy--before driving in Mexico. Otherwise, you may be subject to jail detention, auto Impoundment, and other legal complications in case of an accident. D2 Physical Damage (damage to your auto) ADDITIONAL DEFINITIONS APPLICABLE TO THESE COVERAGES For purposes of these coverages only 1. "LOSS" means direct and accidental loss or damage to your auto. Your auto includes its equipment. 2. "EQUIPMENT" means anything usual and incidental to the use of a motor vehicle as a motor vehicle. Any type of trailer is not equipment. Coverage Agreements COMPREHENSIVE COVERAGE 1. We will pay for loss to your auto not caused by collision or upset. We will pay for the loss less your deductible. Coverage is included for a) damage from contact with: (1) animals; or (2) falling or flying objects. b) broken glass: (1) even if caused by collision or upset; and (2) If you do not have Collision coverage. If your Comprehensive and Collision coverages have different deductibles, the smaller deductible will apply to broken glass. For damage to your auto's windshield, we may offer to have it repaired In lieu of replacement. We will not apply a deductible for the repair of the windshield. However, if the repair Is not satisfactory, we will replace the windshield subject to your deductible. 2. Also, if your auto has a foss under this coverage we will: a) pay for resulting damage to your clothing and luggage or that of any relative. Maximum payment Is $200. We will pay for stolen clothing or luggage only If your auto Is stolen. b) repay your travel costs after your auto is stolen. Maximum payment Is $15 per day--not to exceed $450 per occurrence. These costs must be incurred within a certain time. It starts 48 hours after you report the theft to us and the police. It ends when your auto is returned to you or a settlement Is agreed to. c) repay you for the cost of travel from where your auto was disabled to where you were going. Maximum payment is $10. COLLISION COVERAGE 1. We will pay for loss to your auto caused by collision or upset. We will pay for the loss less your deductible. We will not subtract the deductible amount for broken glass if you have full (no deductible) Comprehensive coverage in force. 2. Also If your auto has a loss under this coverage we will: a) pay for resulting damage to your clothing and luggage or that of any relative. Maximum payment is $200. b) repay you for the travel cost to where you were going. Maximum payment Is $10. P1 Physical Damage TOWING AND LABOR COSTS COVERAGE We will pay towing and labor costs If your auto is disabled. We will pay only for labor costs at the place where your auto is disabled. Our maximum payment per disablement is shown in the Declarations. Coverage Extensions USE OF TRAILERS The insurance on your auto covers a trailer used by you or a relative. 1. The trailer must be: a) designed for use with a private passenger auto; and b) used with a vehicle that is insured under these coverages. 2. The trailer must not be. a) otherwise insured; b) owned by you or a relative; or c) used for business purposes with a vehicle that's not a private passenger auto. 3. The maximum amount payable Is $500. USE OF OTHER MOTOR VEHICLES The Insurance on your auto also covers other motor vehicles as follows: 1. A motor vehicle you do not own, while it is used in place of your auto for not more than 30 days. Your auto must be out of use because of: a) breakdown; c) servicing; or b) repair; d) loss. 2. A four-wheel motor vehicle newly acquired by you. You must report the acquisition of the vehicle to us during the first 30 days you own the vehicle. Also, If the newly acquired vehicle does not replace your auto, all household vehicles owned by you must be insured by us or an affiliate for this extension of coverage to apply. We provide this coverage only if you do not have other collectible insurance. You must pay any added premium resulting from this coverage extension. 3. A private passenger auto owned by a non-member of your household and not covered in item 1. of this section. a) This applies only while such auto Is used by you or a relative. b) We will not pay for loss: (1) that results from the operation of an auto: (a) repair shop; (c) sales agency; or (b) public garage or parking place; (d) service or maintenance facility. (2) involving a private passenger auto owned by an employer of an insured. (3) Involving a private passenger auto furnished or available to you or a relative for regular use. (4) to any rented motor vehicle. 4. A rented private passenger auto, including its loss of income. a) This applies only: (1) while such auto Is rented by you or a relative; (2) if such auto is rented from a rental company for less than 28 days; and (3) for loss of income that Is: (a) verifiable by us; and P2 Physical Damage (b) owed to a rental company because: (1) the rental company had a customer willing to rent a private passenger auto; and (2) there was no other vehicle avaiabie for rental In place of the damaged rented auto. b) We will not pay for loss involving a private passenger auto rented or leased by anyone for or on behalf of the employer of an insured. Coverage Exclusions We will not pay for loss: 1. To more than one: a) recording tape; b) compact disc; or c) other recording media. 2. To a container to be used for storing or carrying: a) recording tapes; b) compact discs; or c) other recording media. 3. To any device which is a: a) tape player; b) compact disc player or recorder; c) video cassette player or recorder; d) television; e) electronic navigational system; f) citizens band radio; g) two-way mobile radio; h) telephone; or 1) any other device which records, emits, amplifies, receives and/or transmits sound. However, this exclusion (3.) does not apply: a) to such a device, its antenna or its other parts or accessories If permanently installed by the original manufacturer or new car dealer as part of the purchase agreement for the vehicle; or b) up to the first $1,500 of the actual cash value of any and all such devices, antennas, or other parts and accessories that are permanently installed but were not a part of the new car purchase agreement for the vehicle. However, payment under this subpart b) shall not exceed the actual cash value of the Insured vehicle In which the devices are Installed. Permanently installed means installed, using bolts, brackets, or welding. A device attached only by wires is not "permanently installed." No coverage will be provided for any Item that is not permanently Installed. No coverage will be provided for the devices designed to detect or deter speed monitoring equipment excluded in exclusion 4. below, whether permanently Installed or not. 4. To scanning monitor receivers used for radar detection, or any other device designed to detect or deter the monitoring of speed. 5. To a camper or living quarters unit which can be mounted on or attached to a vehicle. We will pay the loss if: a) the unit is reported to us; and b) the required premium is paid; before the loss. P3 Physical Damage 6. Caused by and limited to: a) wear and tear; b) freezing; c) mechanical or electrical breakdown or failure. This exclusion (6.) does not apply to Towing and Labor coverage. 7. To any motor vehicle while used: a) to carry persons or property for a fee; or b) for retail or wholesale delivery, including but not limited to pizza, magazine, newspaper and mall delivery. This exclusion (7.) does not apply to motor vehicles used in shared-expense car pools. 8. To any motor vehicle due to an act of war, including insurrection, rebellion or revolution. 9. To any motor vehicle which occurs: a) while it is being used on a temporary or permanent basis, for the transportation of, or in exchange for, any illegal substance, or in connection with any criminal trade or transaction by: (1) you; (2) a relative; or (3) anyone else with your knowledge or permission; or b) due to confiscation of your auto by any law enforcement agency because of your auto's use in such activities. 10. Caused intentionally by or at the direction of an insured, Including willful acts the result of which the insured knows or ought to knowwill follow from the insured's conduct. 11. To your auto while rented or leased to others. 12. To a motor vehicle, while being used in any prearranged or organized racing, speed, demolition, stunting activity, competitive event, or driver's education course conducted on a racetrack; or in practice or preparation for such event or course. 13. To your auto or any other motor vehicle due to diminution in value or depreciation. 14. Caused by or resulting from nuclear hazard, meaning any: a) nuclear reaction; b) nuclear discharge; c) radiation; or d) radioactive contamination; whether controlled or uncontrolled or however caused, or as a consequence of any of these. Loss caused by nuclear hazard is not considered loss caused by fire, smoke or explosion. 15. Caused directly or Indirectly by biological deterioration or damage. Such loss is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. Limits and Conditions o f Payment ACTUAL CASH VALUE The limit of our coverage is the actual cash value of your auto or its damaged parts at the time of loss. To determine actual cash value, we will consider: 1. fair market value; 2. age; and 3. condition of the property, P4 Physical Damage at the time of loss. In addition to our payment of the loss, necessary and reasonable towing and storage will be paid to protect the auto from further damage. Covered storage costs are not to exceed four days of storage charges incurred prior to the date you report the loss to us. LOSS SETTLEMENT At our option, we may: 1. pay you directly for a loss; 2. pay to repair or replace your auto or its damaged parts with the parts furnished either by original equipment manufacturers or non-original equipment manufacturers; 3. return stolen property at our expense and pay for any damage. AMOUNTS PAYABLE FOR TOWING AND LABOR COSTS The limit of our coverage for a loss Is limited to the amount shown In the Declarations. Limits apply as stated in the Declarations. Insuring more than one person or vehicle under this policy does not Increase our limits. OTHERINSURANCE If there is other insurance that covers any loss, we will pay only our share of the loss. Our share is our proportion of the total Insurance collectible for the loss. For loss to motor vehicles other than your auto, we will pay only the insured loss not covered by other insurance or self insurance. Coverage Conditions AUTO RECOVERY When an Insured auto which has been stolen or abandoned is located, we have the right to take it into our care and custody. CONTROLLING STORAGE COSTS When an insured is involved in a Collision or Comprehensive loss, we have the right to move the vehicle from any impound lot, storage site, towing yard or any other facility to control storage costs, towing costs or other fees. The insured will be promptly notified whenever any such action Is undertaken. Loss Payable Clause This clause applies to the Comprehensive and Collision coverages provided by this policy. It protects the lienholder named in the policy Declarations. Payment for loss will be made according to the Interest of the policyholder and lienholder. At our option, payment may be made to both jointly, or to either separately. Either way, the company will protect the interests of both. Protection of the lienholder's financial interest will not be affected by any change In ownership of the vehicle insured, nor by any act or omission by any person entitled to coverage under this policy. However, protection under this clause does not apply: a) In any case of conversion, embezzlement, secretion, or willful damaging or destruction, of the vehicle committed by or at the direction of an insured. b) to the loss of any motor vehicle while it Is being used on a temporary or permanent basis, for the transportation of, or in exchange for, any Illegal substance, or in connection with any criminal trade or transaction. If the company cancels or refuses to renew the policy, the lienholder will receive notice at least 10 days before protection of its Interest will end. The company will also notify the lienholder If coverage under the policy Is excluded for any named driver. The Iienholder shall notify the company upon learning of any change in ownership of the vehicle. P5 Physical Damage To the extent of payment to the llenholder, the company will be entitled to the lienholder's rights of recovery. The company will do nothing to impair the right of the Ilenholder to recover the full amount of its claim. Assignability No interest In these coverages can be transferred without our written consent. However, if the policyholder dies, the coverages will stay in force for the rest of the policy period. They will apply for anyone having proper temporary custody of your auto. P6 Auto Liability (for damage or Injury to others caused by your auto) Coverage Agreement PROPERTY DAMAGE AND BODILY INJURY LIABILITY COVERAGE 1. We will pay for damages for which you are legally liable as a result of an accident arising out of the: a) ownership; b) maintenance or use; or c) loading or unloading; of your auto. Arelative also has this protection. So does any person or organization who Is liable for the use of your auto while used with your permission. 2. Damages must Involve: a) property damage; or b) bodily injury. 3. We will pay such liability losses up to the limits stated In the Declarations. In addition to these limits and as to any covered damages, we will: a) defend at our expense, with attorneys of our choice, any suit against the insured. We may settle or defend any claim or suit as we think proper. b) pay: (1) all expenses incurred by us; and (2) all costs levied against the insured, Including prejudgment interest on that portion of the award which does not exceed the limits of this coverage; In any such suit. c) pay premiums: (1) of not more than $250 per insured for bail bonds required because of an accident or traffic violation. (2) for appeal bonds In defended suits and for bonds to release attached property. The amount of such bonds shall not be more than the limits of liability shown in the Declarations. Although paying such premiums, we are not required to apply for or furnish any bonds. d) pay post-Judgment Interest on all damages awarded. We will not pay Interest that accrues after such time as we have: (1) paid; (2) formally offered; or (3) deposited in court; the amount for which we were liable under this policy. e) pay expenses Incurred by an insured for emergency medical aid to others at the time of accident. f) pay all reasonable expenses Incurred by an insured at our request, but not more than $50 per day for loss of earnings. 4. After the limits of this coverage have been paid, we will not defend any suit or pay any claim or judgment. L1 Auto Liability Coverage Extensions USE OF TRAILERS 1. This coverage applles to the use of a trailer by: a) you; b) a relative; or c) someone else with your permission. 2. The trailer must be: a) designed for use with a private passenger auto; and b) used with a vehicle that is insured under this coverage. 3. The trailer must not be used for business purposes with a vehicle that's not a private passenger auto. USE OF OTHER MOTOR VEHICLES This coverage also applies to certain other motor vehicles as follows: 1. A motor vehicle you do not own, while it is used in place of your auto for not more than 30 days. Your auto must be out of use because of: a) breakdown; c) servicing; or b) repair; d) loss. 2. A four-wheel motor vehicle newly acquired by you. This coverage applies only during the first 30 days you own the vehicle unless it replaces your auto. If the newly acquired vehicle does not replace your auto, all household vehicles owned by you must be insured by us or an affiliate for this extension of coverage to apply. We provide this coverage only If you do not have other collectible Insurance. You must pay any added premium resulting from this coverage extension. 3. A motor vehicle owned by a non-member of your household and not covered In Item 1. of this section. a) This applies only while the vehicle is being used by you or a relative. It protects you or the relative as the operator, and any person or organization, except as noted below in b), who does not own the vehicle but is legally responsible for its use. b) This does not apply to losses involving a motor vehicle: (1) used in the business or occupation of you or a relative except a private passenger auto used by you, your chauffeur, or your household employee; (2) owned, rented or leased by an employer of an insured; (3) rented or leased by anyone for or on behalf of an employer of an insured; or (4) furnished or available to you or a relative for regular use. Furnished for regular use does not include a motor vehicle rented from a rental company for less than 28 days. FINANCIAL RESPONSIBILITY We will adjust this policy to comply: 1. With the financial responsibility law of any state or province which requires higher liability limits than those provided by this policy. 2. With the kinds and limits of coverage required of non-residents by any compulsory motor vehicle insurance law, or similar law. However, any loss payment under this coverage will be made only over and above any other collectible motor vehicle insurance. In no case will anyone be entitled to duplicate payments for the same loss. When we certify this policy as proof under any financial responsibility law, it will-coMply'with the law to the extent of the coverage required by the law. L2 Auto Liability Coverage Exclusions This coverage does not apply to: 1, Property damage or bodily injury caused intentionally by or at the direction of an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured's conduct. 2. Use of any motor vehicle: a) to carry persons or property for a fee; or b) for retail or wholesale delivery, including but not limited to pizza, magazine, newspaper and mall delivery. This exclusion does not apply to motor vehicles used In shared-expense car pools. 3. a) Any person for any occurrence arising out of the operation of an auto: (1) repair shop; (3) sales agency; or (2) public garage or parking place; (4) service or maintenance facility. b) However, this exclusion does not apply to: (1) you; (2) a relative; or (3) a partner, employee, or agent of you or a relative; with regard to the use of your auto. 4. Property damage caused by any insured: a) to a motor vehicle that is owned or operated by, or in the custody of, that insured; or b) to any other property that is owned by or in the custody of any insured or anyone occupying your auto. This exclusion does not apply to a: (1) rented home; or (2) rented private garage. 5. Bodily injury to any person eligible to receive any benefits required to be provided or voluntarily provided by any insured under a: a) workers' compensation; b) unemployment compensation; c) non-occupational or occupational disease; d) disability benefits; or any similar law. 6. Bodily injury to an employee of any insured while engaged in employment. However, it does cover an employee at your home who is not, or Is not required to be, covered by any workers' compensation law. 7. The United States of America or any of its agencies. It also does not apply to any employee of the United States of America or any of its agencies while such person is acting within the scope of his or her office or employment and the provisions of the Federal Tort Claims Act apply. 8. Any person protected under nuclear energy liability insurance. This exclusion applies even if that insurance has been exhausted. 9. Non-economic loss of or for any person who has elected or has deemed to have elected "Limited Tort" in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law. 10. Bodily injury or property damage arising out of the ownership, maintenance or use of your auto while rented or leased to others by any insured. L3 Auto Liability 11. Bodily injury or property damage arising out of the ownership, maintenance or use of a motor vehicle, while being used in any prearranged or organized racing, speed, demolition, stunting activity, competitive event, or driver's education course conducted on a racetrack; or in practice or preparation for such event or course. 12. Bodily injury arising directly or indirectly from the inhalation of, ingestion of, contact with, exposure to, existence of or presence of any fungi, algae, lichens, slime, mold, bacteria, wet or dry rot and any by-products of these organisms, however produced. Fungi as used above include, but are not limited to: yeasts, mold, mildew, rust, smuts, or fleshy fungi such as mushrooms, puffballs and coral fungi 13. Property damage caused directly or indirectly by biological deterioration or damage. Such loss is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. Limits and Conditions o f Payment AMOUNTS PAYABLE FOR LIABILITY LOSSES Our obligation to pay Property Damage or Bodily Injury Liability losses is limited to the amounts per person and per occurrence stated in the Declarations. The following conditions apply to these limits: 1. The limit shown: a) for Property Damage Liability is for all property damage in one occurrence. b) for Bodily Injury Liability for any one person applies to one person's bodily injury, Including death, and includes all claims resulting from or arising out of that one person's bodily injury, including death. This per person policy limit shall be enforceable regardless of the number of insureds, claims made, vehicles or premiums shown in the Declarations or policy, or vehicles involved in the accident. c) for Bodily Injury Liability for each occurrence is, subject to the per person limit described in paragraph b) above, the total limit of our liability for all legal damages when two or more persons sustain bodily injury, including death, as a result of one occurrence. The per occurrence policy limit shall be enforceable regardless of the number of insureds, claims made, vehicles or premiums shown in the Declarations or policy, or vehicles involved in the accident. 2. Liability limits apply as stated in the Declarations. The insuring of more than one person or vehicle under this policy does not Increase our liability limits. 3. In any loss covered under items 2. and 3. of "USE OF OTHER MOTOR VEHICLES," the highest liability limit applicable to any one vehicle on this policy will apply. 4. A motor vehicle and attached trailer are considered one vehicle for Auto Liability coverage. 5. Any payment under this coverage shall be reduced by any amount paid under the Uninsured Motorists or Underinsured Motorists coverage of this policy. OTHERINSURANCE 1. In any loss involving the use of your auto, we will be liable for only our share of the loss If there is other collectible liability insurance. Our share is our proportion of the total insurance limits for the loss. 2. For losses covered under "USE OF OTHER MOTOR VEHICLES,"our coverage is excess over any other collectible: a) insurance; b) self insurance; c) proceeds from a governmental entity; or d) sources of recovery. L4 Auto Liability If more than one policy issued by us or a company affiliated with us applies on an excess basis to the same loss, we will pay only up to the highest limit of any one of them. Assignability No Interest In this coverage can be transferred without our written consent. However, if the policyholder dies, the Liability coverage will stay in force for the rest of the policy period for: 1. Anyone having proper temporary custody of your auto until a legal representative Is appointed; and 2. The appointed legal representative L5 First Party Benefits Coverage Agreement This coverage provides First Party Benefit options In accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law. The options and limits which the policyholder has selected are shown in the Declarations. We will pay First Party Benefits for the bodily injury of an insured as a result of an accident that arises out of the maintenance or use of a motor vehicle as a motor vehicle. We will pay these benefits regardless of who Is at fault in the accident. ADDITIONAL DEFINITIONS APPLICABLE TO THIS COVERAGE For purposes of this coverage: 1. "RELATIVE" means the following residents of the policyholder's household: a) spouse; b) anyone related to the policyholder or spouse by blood, marriage or adoption; and c) a minor in the legal custody of the policyholder or such relative. A relative may live temporarily outside the household. 2. "MOTOR VEHICLE" means any vehicle which is self-propelled, except one which is propelled: a) solely by human power; or b) by electric power obtained from overhead trolley wires but not operated upon rails. 3. "NECESSARY MEDICAL TREATMENT AND REHABILITATIVE SERVICES" means: a) treatment; b) accommodations; and c) products or services; which are determined to be necessary by a licensed health care provider unless they shall have been found or determined to be unnecessary by a state-approved Peer Review Organization (PRO). INSUREDS The policyholder and relatives are covered while occupying or Injured by any motor vehicle. Persons other than the policyholder and relatives are covered: a) while occupying your auto. b) as non-occupants of a motor vehicle if injured as a result of an accident in Pennsylvania involving your auto. Options OPTION 1- MEDICAL BENEFIT We will pay all reasonable expenses for necessary medical treatment and rehabilitative services. We will pay such expenses up to the limit shown on the Declarations. Subject to the applicable provisions of the Motor Vehicle Responsibility Law conceming the statute of limitations, there is no time limitation for this benefit, provided that, within 18 months after the date of the accident, it is determined with reasonable medical probability that further expenses may be Incurred as a result of the Injury. F1 First Party Benefits OPTION 2 -INCOME LOSS BENEFIT If this option is selected by payment of premium, we will pay for loss of Income from work the insured was unable to do because of bodily injury. We will not pay under this benefit until five working days have been lost. We will not pay for these five days of lost Income. "LOSS OF INCOME" means: a) 80 percent of actual loss of gross Income. Gross income is income received from work performed while normally employed in gainful activity. b) reasonable expenses actually Incurred for hiring a substitute to perform self-employment services In order to reduce loss of gross Income or for hiring special help which permits a person to work and reduce loss of gross income. We will pay such benefits up to the limit shown on the Declarations. However, the total limit of this benefit Is subject to the monthly maximum shown on the Declarations. Income loss benefits do not continue after a person dies. OPTION 3-ACCIDENTAL DEATH BENEFIT If this option is selected by payment of premium, we will pay the Accidental Death Benefit for the policyholder or a relative who suffers accidental bodily injury causing death from a covered accident. We will pay the Accidental Death Benefit limit shown In the Declarations. Death must occur within two years of, and as a direct result of, the accident. Payment will be made to the: a) executor; or b) administrator; of the estate. In the alternative, payment will be made to the surviving spouse. OPTION 4- FUNERAL BENEFIT If this option is selected by payment of premium, we will pay reasonable expenses directly related to the: a) funeral; b) burial; c) cremation; or d) other form of disposition of the remains of a deceased insured. These expenses must be the direct result of death from a covered accident within two years of the date of the accident. Payment will be made to any person presenting bills for qualified expenses incurred. We will pay such expenses up to the limit shown on the Declarations. OPTION 5-COMBINED LOSS BENEFITS If this option is selected by payment of premium, we will pay the benefits described in Options 1, 2, 3, and 4 above. However, total benefits payable under this option are limited to: a) the aggregate limit shown on the Declarations for this option; or b) three years from the date of the accident; whichever occurs first. Option 5 is subject to the following conditions: a) within 18 months after the date of the accident, it must be determined with reasonable medical probability that future medical expenses will be incurred as a result of the Injury. b) in no event will benefits be paid beyond three years from the date of the accident. c) there Is no monthly dollar maximum for Income Loss Benefits. d) the maximum Accidental Death Benefit payable is $25,000. e) the maximum Funeral Benefit payable Is $2,500. f) benefits under d) and e) are only payable If death occurs within two years of the date of the accident. F2 First Party Benefits OPTION 6 -EXCESS MEDICAL BENEFITS If this option is selected by payment of premium, we will pay the Excess Medical Benefits for an insured who suffers accidental bodily injury from a covered accident. Excess Medical Benefits are reasonable expenses for necessary medical treatment and rehabilitative services. We will pay such expenses in excess of $100,000 but not to exceed one million dollars. We will not pay Excess Medical Benefits to an insured who is not eligible for Option 1--Medical Benefits under this policy. Our liability to one person in one accident is $50,000 per year. Subject to this limit for any one person in any one year, our aggregate limit for any one person is one million dollars for any one accident. During the first 18 months of eligibility, we shall approve payments for an insured without regard to the $50,000 per year limit. For purposes of this option, the first 18 months of eligibility begins when the insured has Incurred $100,000 of eligible necessary medical treatment and rehabilitative services expenses. If the insured is covered by Option 5--Combined Loss Benefits package (or a similar auto benefits package with another Insurer), applicable Medical Benefit limits greater than $100,000 in such package shall be excess over any sums paid or payable under Excess Medical Benefits. Coverage Exclusions We will not pay First Party Benefits in certain circumstances, as follows: 1. The policyholder and relatives are not covered for bodily injury arising out of the maintenance or use of a motor vehicle that the policyholder owns that is not an Insured motor vehicle. An Insured motor vehicle is one on which there are First Party Benefits and to which the Auto Bodily Injury Liability coverage in this policy applies. 2. There is no coverage for bodily injury to a relative arising out of the maintenance or use of a motor vehicle owned by such relative which is rat Insured for First Party Benefits and Auto Bodily Injury Liability coverage under this or any other policy. 3. There is no coverage for anyone while occupying a: a) motorcycle; b) motor-driven cycle; c) motorized pedalcycle, or similar type vehicles; or d) a recreational vehicle not Intended for highway use. 4. There is no coverage for anyone, other than the policyholder or a relative, who knowingly converts a motor vehicle. 5. There is no coverage for anyone Injured by your auto while it is unoccupied and parked so as not to cause unreasonable risk of Injury. 6. There is no coverage for use of any motor vehicle by an insured: a) to carry persons or property for a fee; or b) for retail or wholesale delivery, Including but not limited to pizza, magazine, newspaper and mail delivery. This exclusion does not apply to motor vehicles used in the shared-expense car pods. 7. There is no coverage for anyone, other than the policyholder, who Is the owner of a currently registered motor vehicle and who does not have financial responsibility. Financial responsibility means the type of financial responsibility that was self-certified to the Department of Transportation to obtain the registration. 8. We will not pay any benefits to or for anyone who Injures themselves: a) or another intentionally, including an attempt to intentionally injure themselves or another; b) while committing a felony; or c) while seeking to elude lawful apprehension or arrest by a law enforcement official. F3 First Party Benefits 9. a) There is no coverage for any person for any occurrence arising out of the operation of a motor vehicle: (1) repair shop; (2) public garage or parking place; (3) sales or leasing agency; or (4) service or maintenance facility. b) However, this exclusion does not apply to the use of your auto to: a) the policyholder, or b) a relative. 10. There is no coverage for loss sustained by any person as a direct result of loading or unloading any motor vehicle, except while occupying the motor vehicle. 11. There is no coverage for bodily injury caused by or resulting from: a) an act of war, including Insurrection, rebellion or revolution; or b) nuclear hazard meaning any: (1) nuclear reaction; (2) nuclear discharge; (3) radiation; or (4) radioactive contamination; whether controlled or uncontrolled or however caused, or as a consequence of any of these. 12. There is no coverage for bodily injury arising directly or indirectly from the inhalation of, ingestion of, contact with, exposure to, existence of or presence of any fungi, algae, lichens, slime, mold, bacteria, wet or dry rot and any by-products of these organisms, however produced. Fungi as used above include, but are not limited to: yeasts, mold, mildew, rust, smuts, or fleshy fungi such as mushrooms, puffballs and coral fungi. 13. There is no coverage for bodily injury arising out of the ownership, maintenance or use of a motor vehicle, while being used in any prearranged or organized racing, speed, demolition, stunting activity, competitive event, or driver's education course conducted on a racetrack; or In practice or preparation for such event or course. Limits and Conditions o f Payment Limits apply as stated in the attached Declarations. However, the insuring of more than one person or vehicle under this First Party Benefits coverage does not Increase the limit of coverage to any one person in any one accident. In no event will any insured be entitled to more than the highest limit applicable to any one motor vehicle under this or any other policy. The following conditions apply to the relationship of this coverage to other insurance or benefits that pay be available: PRIORITIES OF POLICIES We will pay First Party Benefits In accordance with the order of priorities set forth by law. We will not pay If there is other insurance at a higher level of priority, even N the limits of that insurance have been paid. The highest priority level listed below is the FIRST level which provides benefits for a named insured. The priority order is: FIRST- For a named insured on any policy, the policy on which that person Is the named Insured. SECOND- For a relative, the policy covering the relative as an insured. THIRD- For the occupants of an Insured motor vehicle, the policy on that motor vehicle. FOURTH - For a person who is not the ocupant of a motor vehicle, the policy on any motor vehicle Involved in the accident. F4 First Party Benefits NO DUPLICATION OF BENEFITS; OTHER INSURANCE In any occurrence where other similar auto Insurance or self-insurance of equal priority to that provided in this coverage is available and the claim is first presented to us, we will process and pay the claim as if wholly responsible up to the limits of our policy. The total limits available from all such insurance will be considered not to exceed the highest limits available from any one source of coverage. In no Instance may an insured or legal representative recover duplicate benefits from the same elements of loss under this and other similar auto Insurance or self-insurance. WORKERS' COMPENSATION REDUCTION There is no coverage for bodily injury occurring during the course and scope of employment If workers' compensation benefits are payable or available for the bodily injury. Any amount payable to anyone under this coverage will only be in excess of and not in duplication of any valid and collectible workers' compensation benefit. Insured Persons' Duties The insured, or someone on the insured's behalf, will report any accident to us in writing as soon as practicable. This report will identify the injured and give reasonably obtainable information about the time, place and circumstances of the accident. As soon as practicable, the insured or someone on the insured's behalf will submit written proof of claim to us, under oath if required. This proof will include detailed information about the nature and extent of bodily injury, treatment and rehabilitation received and contemplated, and anything else that may help us determine what benefits are payable in what amounts. The injured person must grant us authorization, If we request it, to obtain copies of medical, Income and income tax reports and records. Injured persons must submit to examinations by company-selected physicians as often as the company reasonably requires. The Injured person must submit to examination under oath as often as reasonably requested by us. F5 M C Uninsured Motorists (for bodily Injury caused by uninsured motorists) ADDITIONAL DEFINITIONS APPLICABLE TO THIS COVERAGE 1. "ARBITRATION" means a forum for resolving questions subject to arbitration. 2. "ARBITRATOR" means the person conducting the arbitration. 3. An "UNINSURED MOTOR VEHICLE" Is: a) one for which there is no bodily Injury liability bond or Insurance at the time of the accident. b) one for which the Insuring company denies coverage or becomes insolvent. c) an unidentified motor vehicle which causes bodily injury to an insured by physical contact with: (1) such insured; or (2) a vehicle the insured is occupying. The driver and the owner of the unidentified vehicle must be unknown. A report must be made to the police within 24 hours and us within 30 days, or as soon as practicable. it must state that the insured has a legal action due to the accident. It must include facts to support the action. We may inspect any vehicle the insured was occupying. We will not consider as an uninsured motor vehicle: a) a motor vehicle that Is "self-insured" under any law; b) any motor vehicle owned by the government of the United States of America or any of its agencies; c) any vehicle In use as a residence or premises; d) any equipment or vehicle designed for use mainly off public roads except while on public roads; e) any motor vehicle insured under the Auto Liability coverage of this policy or any other policy; nor f) any motor vehicle furnished for the regular use of you, a resident, or a relative. Coverage Agreement YOU AND A RELATIVE We will pay compensatory damages, including derivative claims, which are due by law to you or a relative from the owner or driver of an uninsured motor vehicle because of bodily injury suffered by you or a relative. Damages must result from an accident arising out of the: 1. ownership; 2. maintenance; or 3. use: of the uninsured motor vehicle. OTHER PERSONS We will also pay compensatory damages, including derivative claims, which are due by law to other persons who suffer bodily injury while occupying: 1. Your auto. 2. A motor vehicle you do not own, while it is used as a temporary substitute for your auto. Your auto must be out of use because of: a) breakdown; U1 Uninsured Motorists b) repair; c) servicing; or d) loss. 3. A four-wheel motor vehicle newly acquired by you. This applies only during the first 30 days you own the vehicle, unless it replaces your auto. RECOVERY 1. Before recovery, we and any Injured party seeking protection under this coverage must agree on two points: a) whether there is legal right to recover damages from the owner or driver of an uninsured motor vehicle; and if so, b) the amount of such damages. If agreement can't be reached, the matter will go to arbitration. 2. Questions between the injured party and us regarding whether the injured party is an insured under this coverage, or the limits of such coverage, are not subject to arbitration and shall be decided by a court of law. 3. Any judgment against the uninsured will be binding on us only if it has our written consent. 4. The injured party shall provide notice of an uninsured motorist claim within two years after the date of the accident. If the Injured party falls to provide such notice, and this failure precludes our ability to subrogate against liable parties, coverage may be denied as provided in Insured Persons' Duties No. 2 below. 5. Where multiple policies apply, payment shall be made in the following order of priority: a) a policy covering a motor vehicle occupied by the Injured person at the time of the accident. b) a policy covering a motor vehicle not Involved in the accident with respect to which the injured person is an Insured. 6. Where multiple sources of equal priority apply, the insured against whom a claim is asserted first under the priorities set forth in 5. above shall process and pay the claim as If wholly responsible. We are thereafter entitled to recover contribution pro rata from the other insurer for the benefits paid and the cost of processing the claim. Coverage Exclusions This coverage does not apply to: 1. Use of any motor vehicle: a) to carry persons or property for a fee; or b) for retail or wholesale delivery, including but not limited to pizza, mazagine, newspaper and mail delivery. This exclusion does not apply to motor vehicles used In shared-expense car pools. 2. Use of any motor vehicle by an insured without the owner's permission. 3. Punitive or exemplary damages. 4. Directly or indirectly benefit any workers' compensation or disability benefits carrier, or any person or organization qualifying as a "self-Insurer" under a workers' compensation, disability benefits,or similar law. To the extent that workers' compensation, disability or self-Insured benefits under workers' compensation are paid or payable, this coverage Is excess. 5. Bodily injury suffered while occupying or struck by a motor vehicle owned by you or a relative, but not insured for auto liability coverage under this or any other policy. U2 Uninsured Motorists 6. Bodily injury suffered while occupying a motor vehicle owned by you or a relative but not Insured for Uninsured Motorists coverage under this policy; nor to bodily injury from being hit by any such motor vehicle. 7. Non-economic loss of any insured who has elected or has deemed to have elected "Limited Tort" In accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law. 8. Bodily injury of any insured if the insured settles, without our written consent, with a liable party. 9. Bodily injury suffered while occupying a motor vehicle being used in any prearranged or organized racing, speed, demolition, stunting activity, competitive event, or driver's education course conducted on a racetrack; or in practice or preparation for such event or course. 10. Bodily injury to you or a relative using a non-owned motor vehicle that is available for regular use by you or a relative. Insured Persons' Duties 1. The insured must: a) submit written proof of claim to us. It must be under oath, if required. It must include details of: (1) the nature and extent of Injuries; (2) treatment; and (3) any other facts which could affect the amount of payment. b) provide all facts of the accident and the names of all witnesses. c) submit to oral examination under oath as often as we require with good reason. d) be examined by doctors, including doctors examining the insured for rehabilitation purposes, or vocational specialists, chosen by us as often as we require with good reason. At our request, the Injured person must promptly authorize us to: (1) speak with any doctor who has treated him; (2) read all medical history and reports of the injury; (3) obtain copies of wage and medical reports and records; and (4) obtain copies of all medical bills as they are incurred. Failure to do the above precludes recovery under this coverage. 2. We require the insured to fle suit against any and all liable parties to preserve and protect our subrogation rights. Failure to do so precludes recovery under this coverage. 3. The insured must obtain our written consent to: a) settle any legal action brought against any liable party; or b) release any party. Failure to do so precludes recovery under this coverage. Arbitration if we and the insured disagree about the right to recover damages from the owner or driver of an uninsured motor vehicle or the amount of such damages: 1. After written demand for arbitration by either party, each will select a competent arbitrator. The two so selected will select a third competent arbitrator. Unless the insured and we agree otherwise, arbitration will take place in the county and state where the insured lived at the time of the accident. 2. If the third arbitrator is not selected within 30 days, the insured or we may request a judge of a court of record to name one. The court must be in the county and state in which arbitration Is pending. U3 Uninsured Motorists 3. Each party will pay Its chosen arbitrator. Each will pay half of the neutral arbitrator's expenses. Fees to lawyers and expert witnesses are to be paid by the party hiring them. 4. Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Arbitration Act of 1927. 5. Discovery under arbitration should proceed in accordance with requirements of the Pennsylvania Rules of Civil Procedure unless both parties agree otherwise, with the chair of the arbitration panel resolving all disputes regarding discovery. 6. Evidence and testimony under arbitration must be presented In accordance with the Pennsylvania Rules of Evidence unless both parties agree otherwise. Our Right to Recovery This applies to the extent of any payment we make under this coverage. We will have first right to any amount the insured receives from any liable party. The insured will: 1. Hold In trust for us his right to recover against any such party, and 2. Furnish us all papers in any suit the insured files. Our payment of a claim may result from the insolvency of an insurer. If so, we have the right to recover from the insurer, but not its insured. Limits and Conditions of Payment AMOUNTS PAYABLE FOR UNINSURED MOTORISTS LOSSES We agree to pay losses up to the limits stated In the policy Declarations. The following applies to these limits: 1. The Uninsured Motorists bodiy injury limit shown for any one person is for all legal damages, including ail derivative claims, claimed by anyone due to bodily injury to one person as a result of one occurrence. The per-person limit is the total amount available when one person sustains bodily injury, including death, as a result of one occurrence. No separate limits are available to anyone for derivative claims, statutory claims, or any other claims made by anyone arising out of bodily injury, including death, to one person as a result of one occurrence. The total limit or our liability shown for each occurrence is the total amount available when two or more persons sustain bodily injury, Including death, as a result of one occurrence. In no event shall any one person recover more than the per-person limit shown. 2. Coverage applies as stated in the Declarations. The insuring of more than one person or vehicle under this policy does not increase our Uninsured Motorists payment limits. In no event will any insured be entitled to more than the highest per-person limit applicable to any one motor vehicle under this policy or any other policy issued by us. However, If your Declarations show you have elected "Uninsured Motorists--Bodily Injury Stacked" coverage, the sum of limits for your autos apply to you or a relative as stated in the Declarations. 3. Any payment under this coverage shall be reduced by any amount paid under the Auto Liability coverage of this policy. 4. The insured may recover for bodily injury under the Auto Liability coverage or the Uninsured Motorists coverage of this policy, but not under both coverages. OTHERINSURANCE If there is other insurance: 1. For bodily injury suffered by an insured while occupying a motor vehicle you do not own, we will pay the Insured loss not covered by other insurance. U4 Uninsured Motorists 2. Except as stated above, if there is other Insurance similar to this coverage under any other policy, we will be liable for only our share of the loss. Our share is our proportion of the total Insurance limits for the loss. 3. If more than one policy applies, the total limits applicable will be considered not to exceed the highest limit amount of any one of them. 4. When the Declarations show you have elected "Uninsured Motorists--Bodily Injury Stacked" coverage, the total limits applicable will be considered not to exceed the highest limit amount of any one of them for an insured other than you or a relative. DUPLICATE PAYMENT We will make no duplicate payment to or for any insured for the same element of loss. Assignability No Interest In this coverage can be transferred without our written consent. However, If the policyholder dies, this coverage will continue in force for the rest of the policy period. it will apply to the following having proper custody of your auto: 1. your relatives; 2. your heirs; 3. an appointed legal representative; or 4. anyone else using your auto with the express permission of the legal representative. U5 Underinsured Motorists (for bodily injury caused by underinsured motorists) ADDITIONAL DEFINITIONS APPLICABLE TO THIS COVERAGE 1. "ARBITRATION" means a forum for resolving questions subject to arbitration. 2. "ARBITRATOR" means the person conducting the arbitration. 3. An 'UNDERINSURED MOTOR VEHICLE" is a motor vehicle for which bodily injury liability coverage, bonds or insurance are in effect. However, their total amount Is insufficient to pay the damages an insured is entitled to recover. We will pay damages that exceed such total amount. We will not consider as an underinsured motor vehicle: a) a motor vehicle that Is "self-insured" under any law; b) any motor vehicle owned by the government of the United States of America or any of its agencies; c) any vehicle in use as a residence or premises; d) any equipment or vehicle designed for use mainly off public roads except while on public roads; e) any motor vehicle insured under the Auto Liability coverage of this policy or any other policy; nor f) any motor vehicle furnished for the regular use of you, a resident, or a relative. Coverage Agreement YOU AND A RELATIVE We will pay compensatory damages, including derivative claims, which are due by law to you or a relative from the owner or driver of an underinsured motor vehicle because of bodily injury suffered by you or a relative. Damages must result from an accident arising out of the: 1. ownership; 2. maintenance; or 3. use; of the underinsured motor vehicle. OTHER PERSONS We will also pay compensatory damages, including derivative claims, which are due by law to other persons who suffer bodily injury while occupying: 1. Your auto. 2 A motor vehicle you do not own, while it is used as a temporary substitute for your auto. Your auto must be out of use because of: a) breakdown; b) repair; c) servicing; or d) loss. 3. A four-wheel motor vehicle newly acquired by you. This applies only during the first 30 days you own the vehicle, unless it replaces your auto. Uli Underinsured Motorists RECOVERY 1. Before recovery, we and any injured party seeking protection under this coverage must agree on two points: a) whether there is legal right to recover damages from the owner or driver of an underinsured motor vehicle; and if so, b) the amount of such damages. If agreement can't be reached, the matter will go to arbitration. 2. Questions between the Injured party and us regarding whether the injured party is an insured under this coverage, or the limits of such coverage, are not subject to arbitration and shall be decided by a court of law. 3. Any judgment against the underinsured will be binding on us only If it has our written consent. 4. The injured party shall provide notice of an underinsured motorist claim within two years after the date of the accident. If the Injured party falls to provide such notice, and this failure precludes our ability to subrogats against liable parties, coverage may be denied as provided in Insured Persons' Duties No. 2 below. 5. Where muftipie policies apply, payment shall be made in the following order of priority: a) a policy covering a motor vehicle occupied by the Injured person at the time of the accident. b) a policy covering a motor vehicle not involved in the accident with respect to which the injured person is an Insured. 6. Where multiple sources of equal priority apply, the insured against whom a claim Is asserted first under the priorities set forth in 5. above shall process and pay the claim as If wholly responsible. We are thereafter entitled to recover contribution pro rata from the other insurer for the benefits paid and the cost of processing the claim. Coverage Exclusions This coverage does not apply to: 1. Use of any motor vehicle: a) to carry persons or property for a fee; or b) for retail or wholesale delivery, including but not limited to pizza, mazagine, newspaper and mall delivery. This exclusion does not apply to motor vehicles used in shared-expense car pools. 2. Use of any motor vehicle by an insured without the owner's permission. 3. Punitive or exemplary damages. 4. Directly or indirectly benefit any workers' compensation or disability benefits carrier, or any person or organization qualifying as a "self-insurer" under a workers' compensation, disability beneffts,or similar law. To the extent that workers' compensation, disability or self-insured benefits under workers' compensation are paid or payable, this coverage is excess. 5. Bodily injury suffered while occupying or struck by a motor vehicle owned by you or a relative but not insured for Auto Liability coverage under this or any other policy. 6. Bodily injury suffered while occupying a motor vehicle owned by you or a relative but not insured for Underinsured Motorists coverage under this policy; nor to bodily injury from being hit by any such motor vehicle. 7. Non-economic loss of any insured who has elected or has deemed to have elected "Limited Tort" In accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law. 8. Bodily injury of any insured If the insured settles, without our written consent, with a liable party. U12 Underinsured Motorists 9. Bodily injury suffered while occupying a motor vehicle being used in any prearranged or organized racing, speed, demolition, stunting activity, competitive event, or driver's education course conducted on a racetrack; or in practice or preparation for such event or course. 10. Bodily injury to you or a relative using a non-owned motor vehicle that is available for regular use by you or a relative. Insured Persons' Duties 1. The insured must: a) submit written proof of claim to us. It must be under oath, if required. It must Include details of: (1) the nature and extent of injuries; (2) treatment; and (3) any other facts which could affect the amount of payment. b) provide all facts of the accident and the names of all witnesses. c) submit to oral examination under oath as often as we require with good reason. d) be examined by doctors, including doctors examining the insured for rehabilitation purposes, or vocational specialists, chosen by us as often as we require with good reason. At our request, the Injured person must promptly authorize us to: (1) speak with any doctor who has treated him; (2) read all medical history and reports of the Injury; (3) obtain copies of wage and medical reports and records; and (4) obtain copies of all medical bills as they are Incurred. Failure to do the above precludes recovery under this coverage. 2. We require the insured to fie suit against any and all liable parties to preserve and protect our subrogation rights. Failure to do so precludes recovery under this coverage. 3. The insured must obtain our written consent to: a) settle any legal action brought against any liable party; or b) release any party. Failure to do so precludes recovery under this coverage. Arbitration if we and the insured disagree about the right to recover damages from the owner or driver of an underinsured motor vehicle or the amount of such damages: 1. After written demand for arbitration by either party, each will select a competent arbitrator. The two so selected will select a third competent arbitrator. Unless the insured and we agree otherwise, arbitration will take place In the county and state where the insured lived at the time of the accident. 2. If the third arbitrator is not selected within 30 days, the insured or we may request a judge of a court of record to name one. The court must be in the county and state in which arbitration is pending. 3. Each party will pay its chosen arbitrator. Each will pay half of the neutral arbitrator's expenses. Fees to lawyers and expert witnesses are to be paid by the party hiring them. 4. Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Arbitration Act of 1927. 5. Discovery under arbitration should proceed in accordance with requirements of the Pennsylvania Rules of Civil Procedure unless both parties agree otherwise, with the chair of the arbitration panel resolving all disputes regarding discovery. U13 Underinsured Motorists 6. Evidence and testimony under arbitration must be presented in accordance with the Pennsylvania Rules of Evidence unless both parties agree otherwise. Our Right to Recovery This applies to the extent of any payment we make under this coverage. We will have first right to any amount the insured receives from any liable party. The insured will: 1. Hold in trust for us his right to recover against any such party, and 2. Furnish us all papers in any suit the insured files. Our payment of a claim may result from the insolvency of an Insurer. If so, we have the right to recover from the Insurer, but not its insured. Limits and Conditions o f Payment AMOUNTS PAYABLE FOR UNDERINSURED MOTORISTS LOSSES We agree to pay losses up to the limits stated In the policy Declarations. The following applies to these limits: 1. The Underinsured Motorists bodily injury limit shown for any one person is for all legal damages, including all derivative claims, claimed by anyone due to bodily injury to one person as a result of one occurrence. The per-person limit is the total amount available when one person sustains bodily injury, including death, as a result of one occurrence. No separate limits are available to anyone for derivative claims, statutory claims, or any other claims made by anyone arising out of bodily injury, including death, to one person as a result of one occurrence. The total limit of our liability shown for each occurrence is the total amount available when two or more persons sustain bodily injury, Including death, as a result of one occurrence. In no event shall any one person recover more than the per-person limit shown. 2. Coverage applies as stated in the Declarations. The Insuring of more than one person or vehicle under this policy does not Increase our Underinsured Motorists payment limits. In no event will any insured be entitled to more than the highest per-person limit applicable to any one motor vehicle under this policy or any other policy issued by us. However, if your Declarations show you have elected `Underinsured Motorists--Bodily Injury Stacked" coverage, the sum of limits for your autos apply to you or a relative as stated in the Declarations. 3. Any payment under this coverage shall be reduced by any amount paid under the Auto Liability coverage of this policy. 4. The insured may recover for bodily injury under the Auto Liability coverage or the Underinsured Motorists coverage of this policy, but not under both coverages. 5. No payment will be made until the limits of all other auto liability insurance and bonds that apply have been exhausted by payments. 6. An insured who recovers damages for an uninsured motorists claim cannot recover damages for an underinsured motorists claim for the same accident. OTHERINSURANCE If there is other insurance: 1. For bodily injury suffered by an insured while occupying a motor vehicle you do not own, we will pay the Insured loss not covered by other insurance. 2. Except as stated above, If there is other Insurance similar to this coverage under any other policy, we will be liable for only our share of the loss. Our share is our proportion of the total Insurance limits for the loss. U14 Underinsured Motorists 3. If more than one policy applies, the total limits applicable will be considered not to exceed the highest limit amount of any one of them. 4. When the Declarations show you have elected 'Underinsured Motorists--Bodily Injury Stacked" coverage, the total limits applicable will be considered not to exceed the highest limit amount of any one of them for an insured other than you or a relative. DUPLICATE PAYMENT We will make no duplicate payment to or for any insured for the same element of loss. Assignability No interest in this coverage can be transferred without our written consent. However, if the policyholder dies, this coverage will continue in force for the rest of the policy period. it will apply to the following having proper custody of your auto: 1. your relatives; 2. your heirs; 3. an appointed legal representative; or 4. anyone else using your auto with the express permission of the legal representative. U15 General Policy Conditions We, you, and anyone Insured by this policy are bound by and must comply with all the terms, conditions and obligations of the policy. The following are policy conditions: 1. INSURED PERSONS' DUTIES AFTER AN ACCIDENT OR LOSS The insured will: a) give us or our agent prompt notice of all losses and provide written proof of claim if required. b) notify the police of all theft losses as soon as practicable. c) promptly deliver to us all papers dealing with any claims or suits. d) submit to examinations under oath as often as reasonably requested by us. e) assist us and, If applicable, the defense counsel chosen for you by us, with any claim or suit. f) if Injured, submit to examinations by company-selected physicians as often as the company reasonably requires. The Injured person must grant us authority, at our request, to obtain copies of all wage and medical, dental or other health care provider records. g) protect damaged property Insured under this policy and make it available to us for inspection before its repair or disposal and reinspection during the repair process. h) provide all records and documents we reasonably request and permit us to make copies. i) comply with and be bound by the terms, conditions and obligations of the policy. 2. HOW YOUR POLICY MAY BE CHANGED a) Any terms of this policy which may be in conflict with statutes of the state in which the policy is issued are hereby amended to conform. b) Any insured will automatically have the benefit of any extension or broadening of coverage in this policy, as of the effective date of the change, provided it does not require more premium. c) No other changes may be made in the terms of this policy except by endorsement or policy revision. d) The premium for each coverage is based on information in our possession. Any change or correction in this information will allow us to make an adjustment of the premium as of the date the change is effective. e) The policyholder has a duty to notify us as soon as possible of any change which may affect the premium or the risk under this policy. This includes, but is not limited to, changes in: (1) the principal garaging address of the Insured vehicle(s), which must be reported to us within 30 days of the date the address change becomes effective; (2) drivers; (3) use of the Insured vehicle(s); or (4) desired coverages, deductibles, or limits. 3. OPTIONAL PAYMENT OF PREMIUM IN INSTALLMENTS The policyholder may pay the premium for this policy in Installments, under terms and conditions approved where required by the Insurance Department. For each separate Installment payment there is an installment service charge. Your agent can provide more Information. 4. RENEWAL/NON-RENEWAL This policy is written for a six-month policy period. We will renew it for successive policy periods, subject to the following conditions: a) Renewal will be in accordance with policy forms, rules, rates and rating plans in use by us at the time. G1 General Policy Conditions b) Prior to the expiration date of a policy term for which premium has been paid, we will mail a notice to the policyholder for the premium required to renew or maintain the policy in effect. We will mail this notice to the address last known to us. c) All premiums, premium instalment payments, and fees must be paid when due, whether payable directly to us or through any premium finance plan. d) At the end of each 12-month period after the first effective date of the policy or any coverage, we will have the right to refuse to renew any coverage or the entire policy. If we elect not to renew, we will mall notice to the policyholder 60 days In advance of the date when coverage will terminate. Such mailing to the last known address will be considered proof of notice. 5. CANCELLATION DURING POLICY PERIOD The policyholder may cancel this policy or any of its coverages by mailing notice to us of the future date of cancellation desired. Premium refund, if any due will be made as soon as practicable after the date of cancellation. We will calculate any returned premium according to the rules, rates, fees and forms In effect and on fife If required, for our use in your state. If this policy or any coverage has been in effect less than 60 days, we have unlimited right of cancellation. We may cancel by mailing notice to the policyholder 15 days in advance of termination. After any coverage of this policy has been in force 60 days, our right to cancel such coverage during the policy period is limited. We may cancel during an annual policy period: a) if premiums, premium installment payments, or fees are not paid when due, whether payable directly to us or through any premium finance plan, b) if the driver's license or motor vehicle registration of any named Insured has been suspended or revoked during the policy period; c) If it is determined that any insured has concealed a material fact, has made a material allegation contrary to fact, or has made a misrepresentation of a material fact and that such concealment, allegation or misrepresentation was material to the acceptance of the risk by us. We must mail notice to the policyholder: a) 15 days in advance of termination for nonpayment of premium, b) 15 days in advance of termination for loss of license or of motor vehicle registration. c) 60 days in advance of termination for concealment or misrepresentation. In any case of cancellation by us, our mailing of notice to the policyholder's last known address or delivery of it to the policyholder will constitute proof of notice. We will retain premium for days covered during the policy period. Premium refund, if any due, will be made as soon as practicable. Mailing or delivery of our check will constitute tender of refund. 6. DIVIDENDS The policyholder is entitled to any dividends which are declared by the Board of Directors and are applicable to coverages in this policy. 7. IF YOU BECOME BANKRUPT Bankruptcy or insolvency of any insured will not relieve us of any obligation under the terms of this policy. 8. UNAUTHORIZED USE OF OTHER MOTOR VEHICLES Protection in this policy does not apply to other motor vehicles which any insured: a) uses without a reasonable belief that the insured is entitled to do so. b) has stolen. c) knows to have been stolen. - G2 General Policy Conditions 9. FRAUD AND MISREPRESENTATION a) THIS POLICY WAS ISSUED IN RELIANCE ON THE INFORMATION YOU PROVIDED AT THE TIME OF YOUR APPLICATION FOR INSURANCE COVERAGE. WHEN THIS POLICY HAS BEEN IN EFFECT LESS THAN 60 DAYS, WE MAY RESCIND COVERAGE UNDER THIS POLICY, DENY COVERAGE UNDER THIS POLICY, OR, AT OUR ELECTION, ASSERT ANY OTHER REMEDY AVAILABLE UNDER APPLICABLE LAW, IF YOU OR ANY INSURED PERSON SEEKING COVERAGE UNDER THIS POLICY, KNOWINGLY, OR UNKNOWINGLY CONCEALED, MISREPRESENTED OR OMITTED ANY MATERIAL FACT OR ENGAGED IN FRAUDULENT CONDUCT AT THE TIME THE APPLICATION WAS MADE OR AT ANY TIME DURING THE POLICY PERIOD. b) AFTER THIS POLICY HAS BEEN IN EFFECT 60 DAYS OR MORE, AND IF: (1) YOU OR ANY INSURED PERSON SEEKING COVERAGE UNDER THIS POLICY KNOWINGLY MISREPRESENTED OR OMITTED ANY MATERIAL FACT, AND (2) SUCH MISREPRESENTATION OR OMISSION COULD NOT HAVE REASONABLY BEEN DISCOVERED BY US IN LESS THAN 60 DAYS; AND (3) THE UNDISCLOSED INFORMATION WOULD HAVE PROMPTED US TO REFUSE ACCEPTANCE OF THE RISK; WE MAY RESCIND COVERAGE UNDER THIS POLICY AS TO COVERAGES RELATING TO THE ACTUAL PERPETRATOR OF THE FRAUD OR MISREPRESENTATION, OR, AT OUR ELECTION, ASSERT ANY OTHER REMEDY AVAILABLE UNDER APPLICABLE LAW. 1 o. LEGAL ACTION LIMITATIONS No legal action may be brought against the company concerning any of the coverages provided In this policy until the insured has fully compiled with all terms of the policy. Under the liability coverages of this policy, no legal action may be brought against the company until judgment against the insured has been finally determined after trial. This policy does not give anyone the right to make us a party to any action to determine the liability of an insured. 11. SUBROGATION We have the right of subrogation under the: a) Physical Damage; b) Auto Liability; c) Medical Payments; d) Uninsured Motorists; and e) Underinsured Motorists; coverages In this policy and its endorsements. This means that after paying a loss to you or others under this policy, we will have the insured's right to sue for or otherwise recover such loss from anyone else who may be liable. Also, we may require reimbursement from the insured out of any settlement or judgment that duplicates our payments. These provisions will be applied In accordance with state law. Any insured will sign such papers, and do whatever else is necessary, to transfer these rights to us, and will do nothing to prejudice them. If payment of a claim under Uninsured Motorists coverage arises out of the insolvency of an insurer, we will have right of recovery against the Insurer or its receiver, but not Its insured. We are not entitled to recovery under Uninsured Motorists or Underinsured Motorists coverage untl the insured has been fully compensated for damages. 12. NON-SUFFICIENT FUNDS The company reserves the right to Impose a fee for any premium payment that is unable to be processed due to non-sufficient funds, or if there are non-sufficient funds In an account that Is being utilized for electronic funds transfer (EFT) payments. This is under the terms and conditions approved where required by the Department of Insurance. G3 General Policy Conditions 13. UNLICENSED DRIVERS Protection under this policy does not apply to the use of any motor vehicle when operated by an individual without a current valid operator's license. MUTUAL POLICY CONDITIONS (Applicable only to policies issued by Nationwide Mutual Insurance Company--Nationwide Mutual Fire Insurance Company.) If this policy is issued by Nationwide Mutual Insurance Company or Nationwide Mutual Fire Insurance Company, the policyholder is a member of the company issuing the policy while this or any other policy issued by one of these two companies is in force. While a member, the policyholder is entitled to one vote only--regardless of the number of policies issued to the policyholder--either in person or by proxy at meetings of members of said company. The annual meeting of members of Nationwide Mutual Insurance Company will be held at the Home Office at Columbus, Ohio, at 10 a.m. on the first Thursday of April. The annual meeting of members of Nationwide Mutual Fire Insurance Company will be held at the Home Office at Columbus, Ohio, at 9:30 a.m. on the first Thursday of April. If the Board of Directors of either of the above companies should elect to change the time or place of meeting, that company will mail notice of the change to the policyholder at the address last known to it. The company will mail this notice at least 10 days in advance of the meeting date. This policy is non-assessable, meaning that the policyholder Is not subject to any assessment beyond the premiums the above companies require for each policy term. IN WITNESS WHEREOF: Nationwide Mutual Insurance Company, Nationwide Mutual Fire Insurance Company, Nationwide Property and Casualty Insurance Company, Nationwide General Insurance Company, or Nationwide Insurance Company of America, whichever is the issuing company as shown in the Declarations, has caused this policy to be signed by its President and Secretary, and countersigned as may be required by a duly authorized representative of the company Secretary 4?r4 r-400" President Nationwide General Insurance Company Nationwide Mutual Insurance Company Nationwide Mutual Fire Insurance Company Nationwide Property and Casualty Insurance Company Secretary Nationwide insurance Company of America Nationwide Mutual Insurance Company Nationwide Mutual Fire Insurance Company President Nationwide General Insurance Company Nationwide Property and Casualty insurance Company President Nationwide Insurance Company of America Nationwide Insurance Companies/Home Office: Columbus, Ohio 43215-2220 Nationwide Mutual Insurance Company • Nationwide Mutual Fire Insurance Company Nationwide Property and Casualty Insurance Company • Nationwide General Insurance Company Nationwide Insurance Company of America G4 Endorsement 3022 Loss of Use - Broad Form Comprehensive or Collision Coverages (Auto Rental - Travel Expense) Please attach this important addition to your auto policy. Loss of Use - Broad Form coverage Is subject to the provisions of the policy that apply to the Comprehensive and/or Collision coverages. The most we will pay under this coverage for all Covered Expenses Incurred by all persons as a result of one accident is shown in the Declarations. Coverage applies only if this endorsement was in effect at the time of a covered Comprehensive or Collision loss. Any expense payable under this coverage shall be reduced to the extent it is payable under the Comprehensive or Collision coverages of the policy. COVERED EXPENSES are: AUTO RENTAL EXPENSE We will pay you for auto rental expense incurred by you or a relative If unable to use your auto because of a covered Comprehensive or Collision loss. Auto rental expense Is the cost of renting one vehicle from a rental agency or garage. Subject to the coverage limit, reimbursement is limited to a maximum daily payment. The coverage limit and daily payment amounts are shown in the Declarations. This expense must be Incurred within a certain time period. It begins when your auto cannot run due to a covered loss; or if your auto can run, when left at a shop for agreed repairs. It continues: a) for 30 consecutive days; or b) until your auto is repaired; or c) until a total settlement is agreed to; whichever comes first. Also included is the expense of any deductible you are required to pay the owner of a rental auto as the result of damage to it under any Comprehensive or Collision coverage in effect on an auto rented from an auto rental agency or garage. TRAVEL EXPENSE We will also repay you for certain expenses Incurred by you or a relative if unable to use your auto because of a covered Comprehensive or Collision loss. This loss must occur more than 50 miles from your home residence. The expenses covered are: 1. Commercial transportation fares for an insured to continue to his/her destination or home residence. 2. Extra meals and lodging needed when the covered loss to your auto causes a delay en route. The expenses must be incurred between the time of loss and the arrival of the insured at your residence or destination or by the end of the fifth day, whichever occurs first. 3. Extra meals, lodging, and commercial transportation costs Incurred by you or a person you choose to drive your auto from the place of repair to your destination or home residence. This endorsement applies as stated in the policy Declarations. This endorsement is Issued by the company shown in the Declarations as the Issuing company. NATIONWIDE INSURANCE COMPANIES Home Office: Columbus, Ohio 43215-2220 V-3022 ?x f?lb%+ ? .Ouipt Note MONnHAN, BARBARA A - 0565986 * Preliminary Report OUTPATIENT NOTE Name: MONIGHAN, BARBARA A HMC Number: 565986 DOB: 07/09/1948 Date of Service: 03/30/2005 A 56-year-old female presents stating that she had an accident at 1 p.m., which was about 3 hours before the visit. She reports that she was driving in the right=hand lane-arid apparently somebody in the left lane had-waved another car across and Barb-hit the broad side, she estimates-around 25 miles an hour. She was wearing her seatbelt but her airbag did not deploy. The others driver's did and apparently she had- no major injuries that were apparent- Barb was quite distressed with the accident. Had a few aches and pain but declined going to the emergency department from the scene. Since then, she is noting, her knees hurt, she has a-littlepaln on right wrist, she has pain in her neck and upper back and her low back. She has had a history of low back- injury about-Wyears ago being pushed from behind during- roller skating-and-having a hard fall-and feel-she has always had little bit of sacroiliac problem intermittently since then. She also had-a fall downstairs-19 or 20 years ago and-thafwas more on her left hip. She has had a variety of problems with shoulder joints but no upper-back or neck-injuries-.She- continues working as a ahline-ticket agent. She is-on no chronic medicine and-hasno known drug allergies. She does admit to a dull headache-now. On exam, she is alert, pleasant and in no distress. She-moves comfortably. She does have aai ly contusions along with little erythema on each knee but little tenderness on palpation. There are no other abno0a iti s notq ` ri lower extremities. Upper extremities, there is very slight- pain on palpation on the dorsal aspecfof`the radiouinar styloid and forced dorsiflexion causes little pain. She later mentionedthat her left arm hurt lit%'Ai She was moving about but again no other signif !cant findings in the upper extremities. Cervical range of motion is limited fantlriii rotation and side bending to the right. There is some tenderness toparacervical muscles-bilaterally, little,rnore on the left in the-upper range than on the right and asiight tenderness in the upper nuchal ligament"ara. Si lots are free range actively with no pain. She denied any radicularpattem of pain. Lumbar exam revealed some tenderness over sacroiliac dimples and along the lumbar spine quite close to midline throughoul<AAumbcr,range, lesser discomfort to the muscles several centimeters laterally on both sides. Lumbar flexiort s,.pxgellent M, degrees and done with ease. IMPRESSION: Cervical and lumbar strain and some-minor contusions. PLAN: The patient-is-advised to use- ice pack-omher-neck and low back for-thenext 48 hours intermittently. She was given cervical exercises and may use over-the-counter pain relievers. Rx Flexeril 10 mg to-be used h.s. Cautioned sedation. She was given an-excuse4or-woe days since she has to-handle luggage as passengers check in.-She is-to-be-rechecked in 2 weeks so she is able to return to work on April-4th. Otherwise, she is to call sooner. I did tell her that we may need to-have-her get some formal physical therapy and she agrees with those plans. 53095 Signature-Line Review/Sign: Vemne W Greiner, DO 1 Printed by: Hill, Kimberly A Page i of 2 Printed on: 4/5/200511:12 AM (Continued) .Outpt Note VWG /MS13 DD: 03130/05 DT: 04/01/05 20:29 MONIGHAN-, BARBARA A - 0565986 Result Type: Outpt Note Date of Service: Wednesday, March 30, 2005 8:29 PM Authorization Statuses Prelim/Transcribed Author or Import Date: -Greiner, Vemne W on Wednesday, March 30, 2005 8:29 PM Encounter info: 5434550, HMC, Clinic, 3/30/2005 - 3/31/2005 Printed by: Hill, Kimberly A Page 2 of 2 Printed on: 4/5/2005 11:12 AM (End of Report) rx k, 0C1'/31/2007/WED 08:57 AM MAGNETIC IMAGING FAIT N%7177319165 P.CC1/001 mic MAGNETIC IMAGING CENTER RE: MONIGHAN, BARBARA DATE: 12/11/2006 6363 Sayshore Rd. APS#: 42014 Mechanicsburg, PA 17055 DOB: 07109/1"8 SSW. 167-40-1710 OD STUDY: MRI of the cervical spine REFERRING PHYSICIAN: Michael Lupinsooi, MD CLINICAL HISTORY: Inoreming neck pain. Remote motor vehicle accident. PREVIOUS STUDIES: 12114/06, minor degenerative changes. PULSE SEQUENCES: 1.5 TESTA; T2, T1, IR sag; 2D MERGE, 30 COSMIC . ax COMMENTS: No abnorrrtallty is seen at the posterior fvese on sagittal lmaging., The atlentoaxlel orticulatlon is normal. Dlso levels 02-3 through C41 6 are essentially normal. At C4-5 there is a tiny central disc protrusion. This'Was also prevent on previous exam. Disc level C".does show narrowing and disc margin hypertrophy whioti is mild. There Is mild bilateral fbMminal stenosis, There Is no disc protrusion or central canal stenools. Disc levels 06-7-fhrough T1-2 are essentially normal. There is no diso protrusion, herniation or ste6osls. The cervical cord does not show signal abnormality. There Is no mass Intrinsic or extrinsic to the cervical cord. There is no signal abnormality of bone marrow oompar"nts. Developmentally the central neural canal Is not small. CONCLUSION: Minor spandyloals primarily at C5-6 with minimal foratminar stenoals. Tiny central disc protrusion at 03.4 without frank herniation. No central canal stencels. No significant change compared with prior exam. Thank you for referring this patient to us. Sincerely, George S. Durlsek, M.D. GSD/dmr 4"a TIONOLS ROAD. NECMANICSOURG, PA 17060, 717.973.0444. FAX 717.731,9165, wwwwarand.co?n ,?? ? b+ J ar2anstein De Falcis Rehabilitation Institute StCV4b L. tiloramstein, Do 815 Sir'rbonirs Court, Suite 7 AwTisbiug, PA 171,09 (717) 651-5goo 'rGL 0.1 -1) 651.5808 FAX September 18, 2007 Shirley Dukett C&M Manager Blue Ridge kehabllitation Services, LLC P.O. Box 475 South Park, PA 15129 FAX #: (412) 8337789 RE: Barbara Monighan Providing Physician: Dr. Lupinacci, -M.D. CL#: 5$ 37 D 578493 Data of Loss; 03/30/05 Dear Ms. Dukctt: Dtuiie? C. !fie FAI(;.iE, M., D. 18iO Nora wdle Dr1ve Yor!c, PA 17408 ('r 17) 764-4291 7'FL (717) 764.4249 FAX Thank you for allowing me: to participate in a Peer Review of the above physician, Dr. Michael Lupinacei, as it pertains to the treatment rendered to Barbara Mooighan for the alleged injuries sustained in the motor vehicle accident of 03/30/05. As per your introductory letter dated 08/24107, Dr. Lupinacci has not requested a telephone consultation prior to completion of this report, MEDICAL RECOU5,UVIEWED: As provided by Blue Midge Rehabilitation 11 I I I It II?1 ¦ Services, LLC: 1. US Airways Disability Form 2, Application for benefits 3. Verna Grainer, DO a. Notes b. Script for PT 4. The Hetrick Center ;L PT Evaluation b. PT Notes 5. Matthew Ganibar, DC - Invoices 6.' Quantum Imaging - biology Report 7. HealthSouth a. PT Evaluation b. PT Notes 8. MIC - IMRI - Cervical 04/05/05 03/30/05 - 01/13/06 04/06/05 04/13105 04/13/05 - 06115105 05/09/05 - 07/13/07 11/17,05 11/23/05 11/23/05 -12/16/05 12/14/03 Page 2 Barbara Moaighan RECORDS REVIEWED continued: 9. Malik 1bMomin, MD a. Initial Pain Management Evaluation 12/20/05 10. Michael Lupinoeci, NO a. Evaluative 02/16/06 b. Follow-'Up 03/02/06 - 07/18/07 c. Cervical Facet Joint Injection 03/10/06 d. Progress Notes 09/19/06 -- 05/14/07 e. Script for PT 04/07/06 11. Drayer PT a. Initial Evaluation 04/12106 b. PT Notes 04/12/06 - 05/02/06 c. Discharge 06/17/06 12. Quantum Imaging L Radiology Report 05/05/06 b. MM - Lumbar 05/08/06 c. MU - Cervical 12/11/06 13. William Rolle, MD a. Operative Report 03/10/06 -04/02/07 14. Con€orti Physical Therapy a. Script b. Treatment Plan c. Notep 04/16/07 - 07126/07 d. Letter to Dr. Lupinaeci 05/30/07 BRMF MSTORY: She was involved in a motor vehicle accident on 03/30/05 while driving on Carlisle Pike in Mechanicsburg. She was riding eastbpund in the right hand lane on a four-lane highway. Them had been a ctu in the left lane that had apparently waved a car to tum left onto the oncoming path of her car. She struck the backeaad of the vehicle at approximately 25 mph. She had been wearing her seatbelt. There was no loss of consciousness. She had complaints of neck pain and had refused transportation to the emergency department, however, presented to her pr maay care physician, Dr. Vernne Greiner. At that point she had also complained of lore back pain and pain in her knees. She had been diagnosed with cervical and lumbar strain as well as mild contusions. She was placed on over-the-counter medications and given ROM exercises to perform. She was then enrolled in The Detrick Center for therapy and had improvement in her overall pain and was noted to have full ROM of the cervical spine upon follow-up with her primary care physician, however, on 11/04/05 she had persistent neck pain and back pain. She underwent cervical spine x-rays on 11/17/05 which was Page 3 ' Barbara Monighan normal with normal flexion/extension projections. She had an MR1 of the cervical spine on 12/14/05, which showed some mild degenerative changes at multiple levels. No cord impingement. No focal disc herniation. She was evalumed by Dr. Max Braun and underwent epidural steroid injection at the cervical spine level at C6-7 on 12/20/05 as well as a left paraspinal trigger point injection in which she had no significant improvement. She was then referred to Dr. Michael Upinacci on 02116/06 for evaluation of her chronic pain. At that time, it was noted that she had no prior cervical pain complaints, however, she did have a history of low back pain with flare-ups ftm time-to-time prior to her accident. The impression was that of cervical facet On in which a bone scan with spectroscopy was ordered and performed on 0=4106, which shovued mildly increased activity involving the C2 And/or C3 cervical facet. She was referred to Dr. Rolle for left cervical facet injections at the C3-4, C4-5, and CS-6 levels which was performed on 03/10/06. Following this she had good- relief of her pain complaints. She was transitioned to an outpatient physical. therapy program for facet mobilization, which she attended at brayer Physical Therapy Institute. She completed her physical therapy from 04/12/06 through 06/17/06 comprising of 28 visits in which she received passive resistive exercises to bilateral upper extremities, upper extremity stretching program, posture muscle strengthening, scapular stabilization exercises, modalities including heat, cold pack, e-s-tim, manual therapy techniques, home exercise program; and patient education. At that time she was discharged after receiving maximtuu benefit from therapy, 90 % established treatment goals were nut. She had also been noted to have an increase in low back pain. X-ray of the lumbar spine was ordered by Dr. Lupinacci and was performed on 05/05/06, which showed unilateral spondyiolysis on the right at L5. There was a sclerotic focus noted in the left ilium recommending s bone scan. The sacroiliac joints were noted to be symmetric and unremarkable. The patient did undergo an mm of the lumbar spine on 05/08/06, which showed facet joint arthropathy at multiple levels. No evidence of canal stenosis. Minimal shallow disc bulge at the L2-3 level. Mild degenerative disc changes noted at L5-S1. The facet arthropathy was noted to be mild degree at all levels. SI joints were noted to be normal. Based on this Dr. Lupinacci had reco did lumbar facet injections at rho L3-4, L4-5, and L5-31 bilaterally. She was seen in re-evaluation an 10/17/06 following recent lumbar facet injections performed by Dr. Rolle in which she noted approximately 50-60% improvement, She was continued in a home exercise prograrn. On 12/06/06 documentation indicates no sustained relief from the lumbar facet injections with continued low back pain. Consideration was for a trial of S1 joint injection. It was noted that she had- continued cervical neck pain, Maximum pain a 340 with the usual of 2/10. Neurologic oxmnination was noted to be stable. Tenderness ovar the cervical paraspinal muscles and lumbar paraspinal muscles with a positive Gaenslen's test for S1 joint dysfunction bilaterally. At that time, the impression was of persistent cervical neck pain with cervical arthropathy and degenerative disc disease improved following facet injections and therapy, but still with pmistent pain and Page 4 Barbara Monighaa unction, low back pain with evidence of lumbar facet ardooputhy, probable SI joint dysf Recommendations were unproved transiently following facet injections and therapy. consideration for r update her cervical MRY and she was scheduled for SI joint in&ctions, a x-ra and a repeat course of ct"icttl and lumbar therapies- Repeat -M of the right lap Y? cervical spine on 12/1110+5 was campaced to prior MR1 and noted W significant change with prior exam. Tiny disc protrusion at the C3-4 without frame hernist'0* noted No central canal stenosis. The patient was seen in follow-up on Q1111/0Z noting that her Nl studies showed no change. F ornm?endins continue home exercise pmgratn with possibly repeating a course of CaMcal thempy and a refresher on her lumbar slobilization exeraisea. She was scheduled for fs cod relief ?o loves 1 a ral Si joint injections, foUow.up and had several days g howev?> the pain still gen$iiStzdas with ra&ation to ft ri&t lateral thigh aiad left po noted to have some tenderness ©v the lumbar A0601 buttocks. Her physical exam w p pinal musetes, bilateral lower' Oxtremity motor, a?nsocy, and dip ttAdon W10 yt w wes good. At that point the improssion was that of either lumbar facet arrri?rapathy, probable SI joint dysfunction, or a question of lumbar disc disease at L5 She was sent for lumbar epidural steroid injection. She was seen in re-evaluation on 03/16/07 noting that the lumbar epidural steroid injection had no significant i Inprowcment. Physical exaUination was unchmSed, She was seen in tbllow-up on 04/11/07 by Jennifer Tanner, PA-C with two separate notes oa the same day where the neck pain appears to be getting worse with radiatian into the left shoulder as described prior. No weakness, numbness, or tingling. Limited ROM secondary to her paid. Normai strength and reflexes in the upper e=emities. Racomrnendatioas are to try is few weeks of physical therapy and possibly repeat the cervical faoet ivJ=dana. The other note of 04/11/47 addressed the low back pain following her second round of sacroiliac joint injections noting only I OIA improvement. She had been participating in physical therapy. Lower extranxity strength, motor, sensory, and DTR's were now to be intact. She was seen again in follow-up on 05/94/07 with no significant change. She was to continue with her physical therapy program. On 07/18107 she was noted to have 30% lass pain in her neck, but continued with left-sided headaches, law back pain was also felt to be 50% improved, but still right-sided low back pain. Rwommendations were to repeat the cervical facet injections, continue with outpatient physical therapy, and continue with light duty restrictions. Of note, she had been working fhtl duties for approximately a year and a half after her accident in which she had to lift 50 to 70 Pounds, Also, the impression was to update her lumbar MRl because of persistent right- sided back symptoms and that her last MRI was over a year ago. Again, Dr. Lupinarei did not request any telephone consultation prior to completion of his report. Page 5 Barbara Monighan QUEUION5:. 1. Is care with Dr. Lupinacci consisting of office visits and injections, and his referral to physical therapy reasonable and necessary up to the date of determination's It is my medical opinion that treatment can with Dr. Lupin cci with frequency of follow-ups is reasonable and necessary for the alleged injuries sustained in a motor vehicle accident of 03/3,0/05. His referral for cervical facet injections, lumbar facet injections, SI joint injections, and even a trial of an epidural steroid injection to the lumbar spine is also felt to be reasonable and necessary in trying to identify the pain generator as per the 'Evidemce-Based Prac&A'Guidelizes for interventional Techniques for Management of Chronic Spinal Pain, 2003. I am unsure as to why there arc two separate motes for date of service 04/11/07 by the same provider, The referral for a repeat cervical MRl made by Dr. Lupinacci on 12106/06 is not felt to be reamnable or necessary. The documentation on the 12/06106 note indicates that the cervical pain con'tinues,witb a maximum pain of 3:/10 and a usual of 2/10. This does not constitute a sigoideant increase or change in cervical spine pain complaints. Also, the physical examination, neurologic examination was noted to be stable; therefore. there is insufficient documentation to warrant a repeat MRl of the cervical spine based purely on persistent pain complaints that have not significantly changed the narrnal neurological examinaation'and given that her last ),'M was over a year ago. This holds true for the note of 07/18/07 in which a referral for a lumbar MRY secondary to persistent right sided back symptoms despite improving, but persistent pain complaints noted im the history, The physical exa>minaticai only indicated tenderness over the lumbosaeral paraspinal muscles, but intact lower extremity motor, sensory, and deep tendon reflexes. The referral to physical therapy is reasonable given her persistent pain in her neck and tow back to decrease pain and ensure a proper home exercise program. 2. Is frequency and duration of treatment rearsonuble for the patient's injuries? Based on lfio notes available, the patient has had a considerable amount of therapies at The Hetrick Center, HealthSouth, and Drayer Physical Therapy. There is lack of documentation as to whether or not she was continuing or has continued with a home exercise program. At the time of the last Peer Review it was felt that her back pain was to her baseline end that no further therapies would be required other than a home exercise program. However, due to the persistence of her pain a refresher course of therapy is reasonable. However, the frequency and duration Page 6 Barbara Monighan should be limited to that of 4 to 6 weeks duration or by May 23, 2007 no PT would be considered reasonable or necessary. The above opinions in this Poor Review were made with a reasonable degree of medical certainty based on the legible medical records provided and reviewed as documented above. Again, there was no telephone consultation with Dr. Lupinaeei prior to completion of the report and no physical exam performed on this review. Sincerely, Daniel C. De 1=alcis, M.D., FA.APM&R Board Certified in Physical Medicine and Rehabilitation Hoard Certified in Pain Medicine Board Certified in Independent Medical Evaluations Board Certified in Spinal Cord Injury DCD/jdd Dictated 09/10/07 Transcribed 09/11/07 Page T Barbara Nionighan A FERENCIE 1. State of the Art Reviews, Physical Medicine and Rehabilitation, Motor Vehicle Accidents, Fabruary 1998. 2. Acute Low Back Problems in Adults, Medical Practice Guidelines, December 1994. 3. Evidence-Based Pracdce Guidelines for Interventional '1'ccWques for Management of Chronic Spinal Pain, 2403. cx u SHOLLENBERGER & JANUZZI, LLP 2225 MILLENNIUM WAY ENOLA, PA. 17025 www.sholljanlaw.com (717) 728-3200 FAX (717) 728-3400 Please reply to Enola Office TIMOTHY A. SHOLLENBERGER KARL J. JANUZZI ADAM T. WOLFE Writers direct email: tas(aZshollianlaw.com -OCT 2 0 tujl HARRISBURG OFFICE 4811 JONESTOWN RD SUITE 221 HARRISBURG, PA 17109 (Do not send mail to this address) (717) 671-6400 FAX (717) 671-4900 October 18, 2007 JoAnne Kinzel 214 Senate Ave. Suite 503 Camp Hill, PA 17011 Re: Barbara Monighan Your ref No.: 07HB-00111 Dear Ms. Kinzel: I acknowledge receipt of your letter dated September 28, 2007. My client will NOT agree to submit to a medical examination without a Court order compelling her to do so. If you have any questions regarding the above, please do not hesitate to contact me. TAS/sk Cc: Barbara Monighan [via email] G:\TIM CASE FILES- OPEN\Monighan, Barbara\Correspondence\101807 to oc first pty claim [sk].doc v I ! 07HB-00111 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Insurance Company, Case No.: Petitioner vs. Barbara Monighan, Respondent VERIFICATION I, ?ir, L_Pnt7, verify that the statements made in the foregoing Petition to Compel Physical Examination are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Dated: Q? ±AA iOflims Representative 67 07HB-00111 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 I ATTORNEY FOR PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Insurance Company, Case No.: Petitioner VS. Barbara Monighan, Respondent CERTIFICATE OF SERVICE JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Petitioner herein, and that she caused a true and correct copy of the attached Petition to Compel Physical Examination to be served by regular first class mail upon: Timothy Shollenberger, Esquire Shollenberger & Januzzi 2225 Millenium Way Enola, PA 17025 Date: March 10, 2008 JoAnne e , Attorney for Petitioner Grp CA a C- IP ?np d QQ .} C 07HB-00111 ? $ B zap LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Insurance Company, ase No.: O$ - iv; l `Fexy'1 Petitioner vs. Barbara Monighan, Respondent ORDER OF COURT I Upon consideration of the Petition to Compel Physical Examination, it is hereby ordered I that: 1) A rule is issued upon the Respondent to show cause why the Petitioner is not entitled to the relief requested; 2) The Respondent shall file an Answer to the Petition within twenty (20) days of service upon the Respondent. BY THE COURT: 7 ? ?? 2 ? Y? l ? r' .u _ 2 ?? a? ..... ""- F... .. t_Ll ? % _ `° C.a ?-`-, ?w. C 1 ?; _, -? ? Yr.. „?; c_ ? ? ? t 5 ?- , SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Respondent NATIONWIDE INSURANCE COMPANY OF AMERICA, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. BARBARA MONIGHAN, Respondent NO. 08-1877 Civil Term PLAINTIFF'S RESPONSE TO DEFENDANT NATIONWIDE'S PETITION TO COMPEL PHYSICAL EXAMINATION AND NOW COMES the Plaintiff, Barbara Monighan, by and through her attorneys, SHOLLENBERGER AND JANUZZI, LLP, AND files this Response to Defendant Nationwide's Petition to Compel Physical Examination and, in support thereof, respectfully represents the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part. It is admitted that Respondent, Barbara Monighan was involved in a motor vehicle collision on March 30, 2005. It is further admitted that at the time of the crash Barbara was eastbound on the Carlisle Pike, Mechanicsburg, Pennsylvania near Circuit City. It is denied that a vehicle traveling in the opposite direction made a left-hand turn in front of her. By way of further response, a vehicle exiting a driveway adjacent to Circuit City, after being prompted by another motorist, pulled out in front of Barbara in an effort to make a left hand turn onto the Carlisle Pike. The vehicle collided with the vehicle driven by Barbara as she continued eastbound on the Carlisle Pike. 5. Admitted. 6. After reasonable investigation, Respondent is without sufficient information to admit or deny averment number 4, as she cannot independently verify the amounts paid by Nationwide. To the extent an answer is required, same is denied. 7. Denied. The Medical Records speak for themselves. 8. Denied. The Medical Records speak for themselves. 9. Admitted. 10. Denied. The Medical Records speak for themselves. 11. Admitted in part, denied in part. It is admitted that on or about June 8, 2007, Dr. Daniel C. DeFalcis performed a defense medical examination and peer review with respect to Barbara's neck and back. It is further admitted that with respect to the medical examination, Dr. DeFalcis found that, as a result of the March 30, 2005 collision, Barbara suffered cervical and lumbar sprain and strain, as well as cervical facet syndrome. By way of further response Dr. DeFalcis found that all prior cervical and lumbar treatments were reasonable and casually related to the collision. It is further admitted that Dr. DeFalcis indicated that Respondent had not reached maximum medical improvement with regard to her neck, but had reached maximum medical improvement with regard to her low back. By way of further response, Petitioner failed to attach the Report 2 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-729-3200 Fax: 717-728-3400 of the June 2006 Medical Examination and Peer Review. Instead they attached a September 18, 2007 Peer Review Report of Dr. DeFalcis wherein he indicated that treatment, including physical therapy for both Respondent's neck and low back, were reasonable and necessary, stating with regard to the low back "due to the persistence of her pain a refresher course of therapy is reasonable." See June 14, 2006 Report of Dr. Daniel C. DeFalcis attached hereto as Exhibit A. 12. Admitted in part, denied in part. It is admitted that Barbara continues to treat. It is denied that her ongoing complaints are related to a degenerative condition or conditions of the spine that pre-dated the March 30, 2005 collision. 13. Admitted. 14. After reasonable investigation, Respondent is without sufficient information to admit or deny averment Number 14. To the extent an answer is required, same is denied. Plaintiff believes, and therefore avers, that Nationwide's actions are motivated in part by the fact that the Plaintiff has $100,000 of first party medical coverage and has alleged soft tissue injuries. It is believed that Nationwide has a claims practice that its claims handlers are compelled to follow regardless of the facts of a particular case when the first party coverage is high and the alleged injury is soft tissue. It is believed that this claims practice includes aggressive steps such as employed in this case, including multiple peer reviews and multiple requests for medical examinations of the claimant. 3 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-729-3200 Fax: 717-725-3400 15. Admitted in part denied in part. It is admitted that Nationwide has requested a defense medical examination of the Respondent. It is admitted with clarification that counsel for respondent has refused to comply with the request based upon the factual circumstances of this case, to wit, that Plaintiff has already been examined and Nationwide has already requested and received two peer reviews. It is denied that the medical examination is needed to evaluate the continuing medical claims and is part of a claims practice designed to discourage claimants with high first party limits and alleged soft tissue injuries from pursuing reasonable and necessary medical treatment by asking for multiple peer reviews and medical examinations. By way of further answer, Plaintiff has already attended ONE medical examination WITHOUT A COURT ORDER. 16. Denied. The policy provisions do not supersede 75 Pa.C.S. § 1796 and the interpreting case law. By way of further response, Petitioner's request is not reasonable. Nationwide has already had the Plaintiff examined, her providers are the same, the nature of the treatment is the same, the alleged injuries are the same and the causal relationship between the treatment and the crash has already been established by the defense medical examiner. 17. Denied. The policy provisions do not supersede 75 Pa.C.S. § 1796 and the interpreting case law. By way of further response, Petitioner's request is not reasonable. Nationwide has already had the Plaintiff examined, her providers are the same, the nature of the treatment is the same, the alleged injuries are the same and the causal relationship between the treatment and the crash has already been established by the defense medical examiner. This 4 5hollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-729-3200 Fax: 717-728-3400 statement is another attempt by Nationwide to avoid its responsibility to pay benefits to its insured and part of a claims practice to aggressively attempt to deny benefits to claimants who have high first party medical limits and are alleged to have suffered soft tissue injuries. 18. Denied. The court does have the discretion to order Barbara attend a medical examination, but only if "good cause" is shown by the petitioner. 75 Pa.C.S. § 1796; see also State Farm Ins. Co. v. Swantner, 406 Pa.Super. 235, 594 A.2d 316 (1991). The "good cause" standard is meant to "prevent harassment, untoward intrusion and unwarranted examination." Id. at 248, 322. 19. Admitted. 20. Denied. Nationwide does not have good cause to request that Barbara attend a medical examination."[M]ere allegations by an insurer... unsupported by the development of the record, [are] insufficient to order a medical examination." Id. at 247 citing Keystone Ins. Co. v. Caputo, 365 Pa.Super431, 529 A.2dl 134 (1987). Respondent has previously submitted to a medical examination conducted by Nationwide. Causation was established by Dr. DeFalcis who found that Respondent suffered cervical and lumbar sprain and strain, as well as cervical facet syndrome. Likewise, in determining "good cause" the Superior Court has held that a court may also consider "[w]hether the same information can be obtained by other means. " State Farm Ins. Co. v. Hunt, 390 Pa.Super 620, 623, 569 A.2d 365, 367 (1990). In addition to the Defalcis examination, Respondent recently submitted to a defense medical examination performed at request of the third party carrier. The examination was performed 5 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-729-3200 Fax: 717-728-3400 by William Beutler, M.D. who opined that Barbara sustained lumbar and cervical sprain injuries and has ongoing cervical symptoms. See January 15, 2008 Report of William Beutler, M.D. attached hereto as Exhibit B. He went on to note that "[t]he medical treatment was very appropriate for the cervical and lumber sprain." Dr. Beutler did not indicate that Barbara would require no further treatment for her cervical injuries. Furthermore, a Lackawanna County Court of Common Pleas case referenced in the Case Summaries to § 1796, suggests a stricter standard for determining an insurer's need to perform a second examination. The court indicated that a second examination under Pa. R.C.P. 4010(a) would require a showing that plaintiff/claimant is alleging a new injury or that the plaintiff/claimant withheld information at the time of the first examination. Judge v. Solid Waste Services., Inc, et al., 41 D & C 41h 225 (1999). Barbara is not claiming a new injury and did not withhold information during the first examination. WHEREFORE, the Respondent, Barbara Monighan, respectfully requests that Petitioner, Nationwide's Petition to Compel Physical Examination be dismissed and that Respondent, Barbara Monighan, not be required to submit to another First Party Medical Examination. RESPONDENT, BARBARA MONIGHAN'S. NEW MATTER DIRECTED TO PETITIONER 21. Respondent's responses to averments 1 through 20 of the Petition to Compel Physical Examination are incorporated herein by reference as if set forth 6 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-729-3200 Fax: 717-729-3400 in full. 22. The Pennsylvania Unfair Insurance Practices Act reads in pertinent part: "[n]o person shall engage in this state in any trade which is defined or determined to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance pursuant to this act." 40 P.S. § 1171.4. 23. Under the Pennsylvania Unfair Insurance Practices Act, "unfair or deceptive acts or practices in the business of insurance" includes "unfair claim settlement or compromise practices when the "following acts [are] committed or performed with such frequency as to indicate a business practice: [flailing to adopt and implement reasonable standards for prompt investigation of claims arising under insurance policies; [r]efusing to pay claims without conducting a reasonable investigation based upon all available information; and/or [n]ot attempting in good faith to effectuate prompt, fair and equitable [coverage] of claims which the company's liability under the policy has become reasonably clear." 40 P. S. § 1171.5 (a)(10)(iii)(iv)(vi). 24. Petitioner, Nationwide, has failed to adopt and implement reasonable standards for investigation of first party medical benefit claims where the applicable first party medical coverage limits are high and the claimant alleges soft tissue injuries, because Nationwide employs an unreasonable claims practice designed to discourage claimants, who have high limits of first party medical coverage, a preexisting condition and an alleged soft tissue injury, from pursuing reasonable and necessary medical treatment by asking for multiple peer reviews and medical examinations. 7 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-729-3400 25. Petitioner, Nationwide, refuses to pay claims without conducting a reasonable investigation based upon all available information, because in investigating claims where the applicable first party medical coverage limits are high, the claimant allegedly has a relevant preexisting condition and the claimant's alleged injuries are soft tissue in nature, Nationwide does not consider the facts germane to each individual case, instead they ask for numerous peer reviews and medical examinations in an effort to discourage the claimant from getting reasonable and necessary medical treatment. 26. For the reasons stated in averments 25 and 26, Petitioner, Nationwide, does not, in good faith, attempt to effectuate prompt, fair and equitable coverage of claims where the applicable first party medical coverage limits are high, it is suspected that the claimant has a relevant preexisting medical condition and the claimant alleges soft tissue injuries. 27. Respondent, Barbara Monighan, has previously submitted to a medical examination requested by Petitioner and Petitioner has had two peer reviews performed with regard to Barbara's treatment. A causal relationship between the crash and injuries was established by the examiner and the medical treatment was found to be reasonable and necessary. 28. Petitioner, Nationwide, is undertaking "unfair claim settlement or compromise practices" by, in part, "investigating" Barbara's claim without considering the facts particular to the claim, instead, because of the $100,000 of first party medical coverage, their belief that she has a preexisting condition and 8 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-729-3200 Fax: 717-728-3400 their belief as to the nature of Barbara's injuries, Petitioner is attempting to have Barbara submit to yet another medical examination. WHEREFORE, the Respondent, Barbara Monighan, respectfully requests that Petitioner, Nationwide's Petition to Compel Physical Examination be dismissed and that Respondent, Barbara Monighan, not be required to submit to another First Party Medical Examination. In addition, Respondent respectfully requests that Petitioner pay Respondent's attorney's fees and costs. Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP Attorneys for Respondent By: Wr olle s uire Date: April 18, 2008 . . #34343 9 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-729-3400 oes.i srr.-ii;n?? F 7"17764493 , DEPA p _. Yr?''? 1 _ J & +Nfb1L ryW.40t1,,'??? a... PEltill'?I YL1/Af?, I-A REH•ABf-LlTA ?Q? ?,.. qin? Fuq?fivn Back 'To Life Daniel C pe l ?y??Q. 1 Bb0 Norm ndfe : -CM0..U1tanaa Services, LLC FA I5129 633-778- . ?:E; Ba?bnz,? :1V1cr;??l7sn uxidcc' MACw: Dr. Luplnamci ?11e'Na,::5.6 T Dwms.. l?? lcett, kyW!pD'`laW1,A]Cw?r:3A!Qa ROF W=CQ$h1I13t1011g?+['w nom. j mt. 1OW uA? 7R . B era Mafia a?a attr thy' ?maim e i 2} ed`bY fir, C11aE. ?. t4 tXie ali in arise tat e 1 z;pizaacci es i>;Ct iod j u d fa the a?dtor've,ucle acc?d4ot Af3/30195. A.s pa o c o.k - '. ttec of M . Z2, 200 xdd w,up setter- ofWg 26, 200 Dr. L ,?}ar?ct -1..U,t requestod:a tei ? ne r su1#?tbviaprlar #? the completlon:.oftl is r$3yoxt,ea=bsralV?oniam,v?raf •9esa ozaxri1ne ; B audcxe=ed,tmb/$L TI1o ex iltl 'e-was::iri£orm>rd`o t? o ':p?racess as ttret there v??as nn doctor/Qati;eat re ttslu?, xtiat I wi?I: not be gzavxdiag,.accy treat nalM but a history and p1? caj ysi Piz Woulil?l r ca ducted as.13?e ? of recot& and a rcpoxt would be p? +t61ho it Fsu an ca cedar. ThF,**f i* did consent to the evwua? ' . Sbe szut;a. 'diagram w.wcU as amr?edicai history fo=, CES-D,'and pain disability irtdwc gc,estr6unai c, as we -as. an 'Oswestry fur=eou test, I &MADS: RE-M-AM'ED: As Provided by Blue Ridge Rehabilitation Services, LLC: 1. Applack*A f'4,t tlcaeftts 415105 2. Vemne.C er, DO .a. Notes 3/30/05-1/13/06 b. Se Ft for PT 416105 3. The Iictziok Center a FTE^val'uaton 4/13/06 b. PT Notes 4/13105-611.5/05 4. Matthew Cramer, DC - ix oice 5/9105-7113/05 5. Quantum Ong a 11/17/05, 05105106 is. a. PT Evaluation 1123/05 vir?;s? o?!vo yat i.o /1 I /D44 E4y ? AErFaLCS P G Own i rp.:?,w.Y I..?y?,iy+• .(?4LM v4 i?Yi(prr .si•w CAI. +•w ^ .. meiwf?fCIWOWI Y 9' x Ip?r.4: w...l. Y j:efi':MN ?"r .Y 'v.1• µS. 1R. k. l iw ?Yi:. '^"?rx. a T ' ' ?I? ?ote? 11/?3/os-1 x/16/0,5 • 7...t, 12/14/05 :..usian w: l0/OS ,,... 9. aaci; UA -PRISM u?trCm l? ''c ec L Jail' ection f ?..((b TT i77,Qs G esor,> fa VTO -51.17/06 • 10, ? lalys?ottl rr?PY 'Initial`&v* a#ion p? 15. w`ates 4t1-AT06.5/2106 r ;j1 RT"oitliti¢ibarVine '51810:6' IZ, y pint. Hospital a. Boric can 2124/06 15f 9: l cmighau'd -bring.bar ?Rl Gaza qfthe lut 4bmX..spiae dated-5/$106 as well as cdviitI 1iRI dated'l2/?4/OS, as well as bone scan ofZ%Z4/Q6 atad bone scam, of 5/15/06. 1 -HILT( RY-W.: Cu y, N19. Moui shi ia.4 57 year old d0t'hended white ?e ,. - rc?om t+W she;* 5'5'/. "andiapp iAgately 175 pounds. She sues that slti wss iztrltcr usual stag o health ualal, /3CJ/0? umil dnivind ?n Cam. a Pike in 11g6ai%l0tgic w?s;' egst bound in t6te right lane of a four lane liiglnuay. TIaQ Ud bu' n a cer-in rite Iel? lid l!! eicl u sppj pntjy -heed graved a car ta:tnitn loft onto true oneomm A cz£ 1>«r car acrd: she ?vQk the Wick end of the vehicle passenger side at & ; zy 25 mph The exam 4a= reports to she was wearing. a seat4glt_ Ai,r bags d otr boy. T13 m wag polossdfcopsciQnsazss,'bm she-reportsthzt'Iher glasses were tl;ovm from-her hmc. She states•that.she•did bave nedk pain and bad raf coed ambulance transport to fire =crienzy depareaR HQwevex, she was -able to be seen by her primary eat physician, Dr. V=m Greiner; later tba t• dry. At that point, she noted that her bees we,bgrth* as wc11 as•a littte plain in Imr right wart, Amk pain, as well as upper back m.d low badk pairs. It was acted that she -did ''bave a history of low back injury appxwdmmmly 30 years ago in. which she had smue intcrmittem sacrolliaapaia. She also aMegrm4y had. a fall •dowu stairs onto her left hip is the past. However, she denied any upper back or neck it}jitries prior to the motor vehicle aecideat and had been on no ahroviam%Ucmdompriorto:to ac f ftW;.:Mr.% Jn`?lrrr1; ,,,rs?aed?,yj c taal arnd lisEg r strain with minor .,. X , .v[rsv? wrvo bra io rl r ro44Gq?, D ALGIS t ??} P?1Fa? ?d??31?[ •Mid{yaK?il?a!!'•rWa wayu:'.1aU.h.!N T°M°""r'yf'.r5 .,a?. r:! iL 1 w•... ,'. CE,.i.Jrr. ?? J .wi 'ra w. la' q.•Sl?? o ,ltf sfQp?s, ahc'was placed om ovalmii-?coUhler pne toattarxtg as well '89 F1exe 4 ts7ceatl oz+Jc,?fpx iwo da,aad`g' ce?+tca1 RC111r? cxses tofgr?t, 5?u ooatznt?ei to u?p wtth?l?e,pcxmliry'casabjys?iart, aucl_o 4/6/4S shy uia5 alala fo pccfoszni • .? blr?r?wpg ax'h??ket couotec at?USr,Artxvysys Jyavrxi? to L3t.lx?g?a,gc, liewcver! ?d have eoa??iuab o?,? pcsysten •ut hex ne?c ater kb ?iLLLeI w ba It She ' •??r r \ iti "?' S§wr ?•a - .s.'e+.l'("_i; '.,,.? _ !lk 1- .I,.lr-`!? ...;s :. ? ._•___ -? 5... _+_"O .? .. r = rntoll?w up ovaIi?afion by bicz have.°fiil! RCIvf of eervzcal spine. WAR -C??m.iaanct.?a?tc?wasprada??xunaat e l as}acrpsg a bat k?y? rcz? s14u'Jd? glades; l ex levy be ?,lf pain. ad' bee k - , s• { r ifl .,.. M +a&L wF rxr¢s. {r' ME!, -1.TTIT4FRVP?.•?'61Vfr'1/f1R :1'?1?_?9ew17f/?rw`efrnMai $4 'the tycal..sp. inoa :1:71I 4?Q'5 M s at:at nrtuktiplc IeweLa°? NI pgrd :;wa5ea and evaluated Dr,' Iy1ex .77 y :10/Q at?the "C64 ; level as vvell as -a tnlptoverhent; S2fe was fhaa xefenro-4•f?:?t 1Iyo2ye1 Litgtnacci arytl, evaluated 0 16106 At thartirciq n bad been noted.#het sic lied tpanor lyistory gflow.beak.paia a dzom c f?are?up of fret .lflrou'back aitt:5 ii f her accident. Sloe had no history ;paapo; to thr stygtor yh?ole ap dent. It,w,ts also repaztea that haxbaek pare uupmvet3•atrd was only: oaCasi malaJy Dual. 'cxF was no bowel orZadader dines. Nq-adtaa aPry 1 tbe'tigp?r aCtitfes. lcr.pestaadtcal history was g?icant'fo i m shmgdm't'"ro separ>at umes..ffW examinaxiaia:ported 515 strctig„ 9c?ASahon urtat tQ P.cl end light totich_vth deep teradan.flg4es symynetric a laczth f > t tad. lowee:z?ctrmai?ties. Sh;rbiA full•J•umbar:fle41_jDn and exton. No luM Ps 1 pwasp?al MU 3.61e .4=% aver, ebe.Jisd aicdera? left s rlmd cervical pe alp naJ tt uacln to deraess aptI ragre sed pain v ft wct.=4 mid-lateral rotation, with a Rt ve'. JJ 's hest. ' =P -W!rl4 Ikt'tbat ttnaae was -that 0cervical facet. . gmed seer a bgtte seep aitlt speCspya cdaed as wall as a trial of Mobic. Tliie one scan, perfomed on 2/2 /06,'showGd?itlitl3?+ ityergased acttiivity Involving Q auftr C3. She wa.4Ib cu._sentfOP 14 cep Nx4 tacct.in aetiory 'apt C34, C4.5, and C5-6 by Dr. Roue whored w xtned o0/10/06, Fdl?pwmg:0iis, she had p#fo •_ good. relief of her paisy.whieb. wag noted to ba `mild to nionm stoat. She b d stopped the lvlobic.=d she was t uU3Jtionodto an outpat cnt zhc=py pMpiau for facet mobilization. Shc attended therapy at Dray;r Physical .Tbgw. Institt m lima 4/12/06.in which she reports she continues to be."Ued in tb ampy at this point She is not Ending any significant aggravated The pain end the pain had reoccunad. She was seen in follow-up on 515ID6 ti vor +. sr coos ^ l a? t\v r1 094 " 1 7 '. DEFAUCTfi 4 G Gt ?..yy?+?1•• r .?yy'rl +Y14•`.Y?rp'+7iU Sl?xwr.?c.Jl'w'M+ ?.,tWl ?kr sML'1M tayWr,.j•1? + ra.:?.?M .o-.. r.+,,.: .Yt ?.n, nv-v :,Y •1 ..y.<'.:wG.iirn PrA' ?j Yry? ? 'T^. .-Y 4. ?4?`AYILc?'t'r'°,NCiN' IY?7eJ} (? ?n .4 .. r l?Onl ..'.' ,• .. ,? ?r' h: ,kir, }r 4 -.,..? ,.u. ..a. _ ? ,.. _...':.•? r "p•w 1 4,? .? .. .... r'?.: • ?,?'tt1?T?lc, L acct whn 1 :: - . - ?„?:t$?'?`X?',•wceleS.??? ?tg_, ;s?tc w .7noted o ,hav?e.m«iergr? t„?? t ?? M7-j. M ??? ,?«u?ss?aua:p3creaso4 pairs nth extensiaa. Sys of fhc luiiibor F-: s?'>4 ord Wet as?a of tixE lumbar shine 6herizaszracd,lier'lVl,abic. o t he'l r<sp?ne-.-C /5/Q6 ?oteii unilefcratl sggndy oljrsxs st &o rig #1L5, g4F?.$1ftciroc?ss mabccl as the 1et2 ilium with t?uId disc space.: g?fnte? etle:5 S?I;1? Sacroiliac joints were motcd to be 4`+ ?? + h " C MI ?Q G L1mba<"M1ne p pr y k yQ ?YM?mLettLdr end' ;.. dMr -.:rf frier h \ r rr .S'Y+i Pl+tmeil on ?f?/'O/?? W?Y4.11 x1.l OW-6d , `"; ' ' su?lta ac Ievels . > gf.'3' ?# «With no evti3epcc ,' casaal stcos? N?uuma[ 4?tGYus,t?t .3escd ozt the7resvlts al sized ?ra SS osn `ua t f t #Qaned of 5?1?/?6 wtcla^slrvwod-accumulisoti M4,•:{-?aittticorzstczt'?vithaeet arttropsthy noted On x"ray, aid C',?1o'afhorfaocutilLilStiq? vvas Wargo: , l Ntort;ghatLcttt? ckscribes her neq$ am f ?l a N T w? 7}ew vra?+urKa? n . o•ad7cTC ?IQIIU 0 OtO iT x?lld{`It5 yY1 aura a?cFa# ap aghunately a'3/LQ ?t?i? t?sal sued npnradiabng Z'herq is na mess ft 'E ?Iu a'the u e? a tremi tea 1v i1eakaesS She denies any headaehos, w § t t i ?" fr as Saps y,,? ?7_.3 11 ?uvulldOC,s'OIII90'0C?1?11'++?6raat+?+C,CCCY1Cc11p E s .i a h' n ; a..*Q laLS1Q 0' ??oph°aarti?zarnausheadahns, S,e;stabestliaz.herpRuniS wccrxsowenlaokirzg ?t # F W & a t 1`Iee1; 'y W& uTlplavgd'w?lt11 the 1Db1C, and qtly Orz the muscle e 4 at:iaYhal,l70# a lies s1e54 Cuory, s L9 seeputg.WCll w11b no s`gz?tfieant P ws?lp?g her tlpr $l?c doe9 oz alio rtn a?wear tl o sho:1213cr blades wlrich tn'l?lcc'?t fames rocr?uCh civets aadrga?S;erttK 'S]re desczibes hex low.laak;paiu H,110E it& best,/10 at 49 waist} andcurie fly:a Dt? 9he stated that it flared v,&t &oa?the ta1?1d"to take rAys S?e d t`,uiyradiatian into the }M=.extrerriities. She 13entb9 wel arb ln3derzncon p Y n1? ? `) tta ass or htxu in the lower .exttcmitscs ]?1o wea?ass ? the lower extrei?f?e9. ?? is sle?tmg on-an ou:mattress wl h tends to of .Heat to ch to' c, p. S} e reports do t aUbn e not iilFe toltiiig z Q for pttla. Overall, sloe re rw she is.alile to do gardening. as well ' as gleag.nnc?'tbi$=inEreeascsbe?rpszA;iutslie-isl.ab7o to wat+lcfhzQUgh;it. PA f 'i4 , >E?33I't •?O*u4caat #or' unor to x rack pain . S?C reports that 4D rtLII1?t yJ? yCa j alP C h A VV r TQUeR' ** Which W- flared-up htr ttuil ttnt44P-tim through the Rears. She lord no s?'l5eaW.psin in the back prior to Exrs,?uto' 811p sl n kas a l story • U nQc?l'.: sWc capsuU0s:,requi4ng PQnet is we11 sr ` • ? F? '?gwhich symptoms essentially reso ye . e.J3?is a Ototy +a It teraotomy, R y ud'a.phgtiomane, .write }ale bowel, and degreasgd Ovulation. She has had..a negative colonoec?py..ia ttie past. She denies s;ny history of di betcs, hyperb=sion„ &Z and peptic ulcer disease. l?io history of GE reflux. No history ?f•dopressi6r? MS; or seizure disorder. Sbe`hashad•her 14 arm broken in 1955. M^MC MC a / T W?Ti'7 .l r ? f f ;, ; antral W1?' • ? ' '?+' ? , f'AGE ?'w?i?i?Y.lb:..,rn ?..xrxrxr}ua, .u•.•,q ,-.+kwwn at,.'r• ?_f. ? x w+,. nx larxY :,i 1-arJ .iyr.wtld?a?L{4., .. ?r .iw.e? w ty6,er? ?.. r„•c,CU,.,t ..yn-yF?,L-+x. . •?},?. ... ... ? , .,: ?, L.?x ? '""Q ,?. CT"'T ,. M.•.. ._ i. ---. ... '.... ....,. _a. ?.t_,1.?,. a e w?::Y c. s• - ..e.f?.. 7r +'f. MY-IM T•S-DORY: S'ivntfircmr Fnr HR>?r:;x•nt;?,.«" , Fagz >:r Heil another died ?i ovar n ra?oei (c?c f er xs sti]]: }r vy i} ? k nsA?t'e d?eage. ':. 1?' ?CxA'TI lzyclude iwjobic Dn aridto . e s Qgcn patch. .as well as..a .>?31e vItamtrt, amd occasomally.utzes Advil or''ylenol Artlantts.prn. ? lf?? Shc?.$s.tro?knowzt?dni? allergies. . _?`?'??ORh''? She de?x4a,Fmy tbtiacrao ahuse...?Dccasioria'1=?1D©?iol usc;?-3=b- pe.v;*eo'k. 5 0 @eµxe aa3? I? drug abuse '8hc, eXisng: on^ae `basis CTC r y.. ,?U'y,94 s,+fr. i 1 h a $m aS as.y?lcxl tbetap. Am. ST. becnemplQyed Wi#h: A?asrsince>1 g; ,gam warles IT'i7f,¢M.A%1Tf??i•.nf.ww?w'v.:?.?-L..?.t„?.._... L'?_. ?? nn r .? ,.. - .. -.. e es?as a amistanae w171? Vt doesw is ded. a or am k etg? ouch per v p naaatly standing au daxt She has,been dvutgs foz ,umate`ly foul years ad su`l wor ' Ra dutaes,at plus o -s8 p srtC .:, l'rtor to shE ?A 9 od?atX7S Azrvuays, but at Elie oit3r tlc?Cet o?&cawvhieh closed fvIlowzr91I I. Slte" xspnrts 1tar sl a doe r Ott di$-icult ' y?r?L .di viR?; ivit3s Ii$ving to ti n her:neck:anal caLts?lpzutcr?ased;?an; ' + '';GT9YS? 9 Pte:' ,t ep ta¢f$ RW fevors, c1 ills, cbes. pairL kSY'0°eat}#. Shy ca4 comptifk D .45 waS ss-po5terli~.ocdxj?ital hmaiaowe detucsay tsciiazicn izt?ctpes extremitcas No )qu?he36 Or BIFn - t ??ry } slocpmg, She:nati,; ?at.abe is.ovciwei& howrw4r, there b no gafiticaat flt tuataon§?in hi~e tttia;?tl?:NVOight No bowel or bladder lcxrai . ??ce. ?hie';cloEs trot feet Hutt. tlie•t? ia:Itel?ing. . aEs: cm fvnc4on•twOoes not reveal a high level. of ex ed ? Gy ?D diolos not tndiaate dbimed-mood. Tfie pain disability iz>dt does nthU'd mte,* bit level of • p=cdiy'od•disa O y,. Pain clingsam noted to be totent wth.acia?eclc•?d`Tdwbaek pave. lal3XSL[AL •F ) ff?L 'IC3N? Ms. Monighan s pleasant, cooperative, in no acute diss=nSB; : mrovari ealy?vughout th s.o Frith no facial gritrtacing nested. Her Batt wes within nothAl 10* with adaquete beef 0-4M said toe-o$ She ambulated out gssistive deytce. Pvs?ttge vitas ggod. Sho (d rp.-31*tlY rounded forward- Her spesab vms• clear &nA flueus, Ile cc&a ocularnros$ks w6i inu= Cranial nerves, 20,10Y 1..5?+'?aP 3 liadiutased p rd c?azbzi-ceaising r1nPr• r7,r7 ;?'I` , } .?.'t'Ir«.??r.•?rrtw y?+.?+u -'? rr?yy?cy? CyE=F?1LC7S `" ?, pA?iE 9y{/y1f f ?' _ -.+^^'R'?'JA' 'OF'F ?'JC?ww.1t. ?frft'Mlisrd.+..:Jt. { J.t.:?:, 1 •4C i•u.'rnre s?g:*rA; a.t'aL4 *-Olt X?.M {Y+1•v'A4Lv 'J.r..1 r'rtRILbL.M1 Jai avrr 9L'?^M?a,tr7a?N"!?W'F T. Krl±;f:.h' 1 Pnigbam 114 1 ii Ta95 fort u ithe U oerytcal segirtotits. 4tetasion was wltltim Or 1]mtts, _ w?zthinnazzpalantit? 1Towevaer P ut #hc:end isige she:had soiie ]ncrt;asert ain and on J te4kK.? Lry l Muar . s orty?a the ce??wtal s? ?e ts, Sbe; iad Fo sn forward le gan.a9.we11 as q rw '. i 1. ?h`•n TQtatl Qtl .`lRot4?]t.?i U??atly'W,?'!?•l2]Q.. b 4 gt41 w 5c,1wd 515rst;?ezxgtb wsth tesw]g?af]]e 3eto]ds : u°a 11in C er SOTSa wia5t ]e oTS} iaatd ]ntnna]cs* aS:WC11!as •k,soy w8sntact'tQ i]ght toucf] ul"1?ilatezaI uPpa WC?pRtttes, alb d;oa]ca IIiota;oard?ina{nn v?ra uttact . Fs?!y?.os-t? t k ''w3il' t fql .r r? y. i t k i'F r 7 4g Y no?rA$?.. ad. bilate ' . xxtrem? ` CCp CO C?OZ1fT e7CQ$ ware 9 II(1x17CtI1C'3C L'?j b1CCp9?a: 0I8Luis: 7r,Ce•R y ti1?QIlp?•pBCdF'14'Le ?,,y otl?rt 9II.? }?? $ - ??? ii:?3L t?k•:t .? xr.ylnt"'_,.5'FYs'+act• f ' :. r ? ,..h i.1.?i 9 + ....C' . ei' 1' X71 :.r, -., . •1C: . t . °*, ?C h'YxY}r,4 r< ?.if q p. ?( ?nti4NAvF-fRy.?aee.W .+?.N.rE Fdrs'?.'`': ??,. it,?? z? s ,.?.` it•'ri .vi a e i' ?! at„• r Y.. ?cunatel ah? Ni7v •1` ,_.?. ?•, nY?a ,? _...,. gn?¢?casnsgd pain -j5]de.lZendansr-:v ot 1 $ddticrti?on,'gtta+dozsifle?uo ?ril`eelexior] ShS waa able'to walk mft letaa "toCS vtOtat drf5nu?ty r*'rnod ec tio#ed+ 14.egative Rar?]1aerQ Sensory } '?hrtouc? upt bti`ztcral lbwei n?ciaifae, ell's?$tQmes. Aeep'tendo]l7efleices ?4 c V tl?E?lmre? xi]edial bemshis}g? A A= Ullcs N.o:clanus•:nom3 Toes ,sue $ bnlataX$r,TAropY ztor m'tbe4yveT pctremihes . $he lzatl ` s acfioa?sfrsug?]t Iegs xse. z&ati?e stc?u leg xaxse: 5hr had tedder]iess p p¢a of the P5I$ balate?ally, ?Al;~tgceaftr}anng]# with;a posntivc Fabez's tesc ure d:szgaucaat tcndenaoeao:compneasionkaf the3i$.e pe=lvis 0 ie9iisb QPP to be sarraihhic„ Theme vas n?.appese:ttle.lengih discrepancy nd, 9ie11'#1btliiyo# tha'batsi^$S.wc11 AS:gt]acis and hip.:fle?cois. The ce k ?aC spine w?,s al p av waled while hp dcara{ae was laving tupize. `?l?tq had na s3 itt i t t iexness uFaWP attar] a##he' ce tcl (mlarjnor•sternacl.c]6v aas7oid. lQw; c]dte some Pam'uo) palpatzan 6tha<?eg1 Facers, lc#t Side gieatcr than] m t: around 2, 3, d4 . Cev dxstracti'on °or, cv>u?zcs.S did not significantly p 4.i`kxr:ovet}t]s:fve Spurlla'q'test T'hetacic and lumbar pa i re?1 anvscies vcie matumal to palpatioly tdpd'o T R MU FE•Q?tJ}w^,itL-=-- N: Telephone consultation was not requested by Dr. Lugix 40 pner tc6,roxapletiOlt o TvorL D?GlY0:3?.9: . 1. $tatus post motor whick accident of 3130105 with cervical and Nmbar sprain and sprin.• •C--av;" {i-ciet=synctro]nz. Par,F AR vrar a,ovoo o r l er t i tb4g4? llkF ALaT3 PgGC X91}1 A - F ?ViiO4 i Y .A.:+,4r.-? 4?i ?' yY WuMUU.!• •a•J?zf ???j; •,9K+Y eY1?0 YV ?11.1y" r..11 c9? .M1r+N? ^ : P .'.r *r lh'?^ JE'K`1' .5 i n _ ........ i . s• urn 3 Llnilatezal sPCbdYJo?'Xsis onAe,ri#t.L5 wit( left sided.L5•Sl Facet r i ? Page 8 Barbara Monighan PEER-REVIEW REVIEW C-ONC1< O ON: 1. Mrs. Monighan was involved io a motor vehicle accident on 3/30105 in which she sustained a.eavical and lumbar sprain and strain injury with resultant cervical facet syndrome.. She was appropriately treated by her prim=7 care physician with medication, inctudimg aonsteroidal medications, muscle relaxants, aver-the- counter pain medications, a trial of physical therapy as well as chiropractic care. She was appropriately referred for cervical M KI as well as cervical x-rays and given her.persistent pain, at appropriate referral for pain management. Dr. Lupinacci did evaluate the patient on 2!16/06 and his referral for bone scan with spectroscopy!i?S.upgropziate- The bone scan did show increased uptake in the ceirvici&facets.,ibis referral for cervical facet injections with Dr. Rolle was also apgcoprime and appear robe affective. According to the Bvidenoed-based Furrier Guidelines for l,aterventio'=1 Techniques in the Management of Chronic Spinal Fain. 2003, cervical.Paecrjoints have been shown to be capable of being a source of neck pain and referred pain to -the bead. The validity, specificity, and sensitivity of facet joint nerve bloom ace cousldcred strong in the diagnosis of noel facet joint pain. Additiortal:tbetapy at that time aimed parflcularly at the facet joints for -mobilization is also felt to be reasonable and medically necessary, 4rhr die. documauted -WJuries. Given her persistence and flare of her low back pain complaints, lumbar x-says as well as a lumbu 1V1R1, was also felt to be +l;, pure. A bone scan of the lumbar spine was also appropriate, based on the. radiologist's recommendation to Anther evaluate the small sclerotic focus in the iiiA IIJurn which was noted on lumbar x-rays. 2. Is frequracy and. dursition of csre reasonable and ueeessary.AIfrfF &mediWI pp?}??rv_??ri e? +ratinn of ??mn is r?cnn??;QadsneCC99813^"?t31Stl1E Ti N W WAS 13:53 PPGE.10 Page 9 Barbara Moaighan The above opinions in the this PROPlus combination L'VWecr Review were made with a reasonable degree of medical certainty based on the history and physical examizatiorl and the legible medical records provided and reviewed as documented above. Again, there was no telephone consultation with Dr. Lupinacci prior to compled on of th%,S report. If any further information becomes available, I would be more thaw happy to take this into consideration. This may or may not change the opinions rendered in this Independent Medical Exam nation and Peer Review. Sincerely, 4 'r.Daniel C. DeFalcis. M.D. J?Itlo,ird Certiied in Pbysical Medicine and Rahabilitation oard Certified in Paint Management . Certified in Independent Medical Evaluation Certified in Spinal Cord J4u y 6/12/46, 6114/06 PAGE. 11 AIN 20 2006 13'53 (ir _ r..•rrrr rr•rr r.rr •vr rr Tr AKUMCE-s Evidenced-based Practice Ouidelines for Interveritional Techniques for the Manager neat of Chronic Spinal Pain, 2003. State of the Art Review. Physical Medicine and Rebabil tatim Motor Vehicle ac=idents' 12-1, February,1998. Lord SM, The'Prevalence of Chronic Cervical Zygote Apophyseal Joint pain Lt"Wbpjasb.atul Spine 20:20-25, 1995. Low .Back Problems in Adults Medical Practice Guidelines, December,.1.994. PAGE. 12 -n ILI REFIMCE5 Evidcncod-based Practice Guidelines for zntervertional Techniques fnr the Management of Chronic Spinal Pain, 2003. State of the Art Review. Physical Medicine and Rcbabilitation, Motor Vehicle Accidents; 12-1, Februcy.1998. L e ey Lord SM, Tbe'Prevalence of Chronic Cervical Zygote Apophyseal Joint Pain ?lash.and Spine.20:20-25, 1995. Zow Back Problems in Adults Medical Practice Guidelines, December, .1.994. PAGE. 12 r a I -wa 'force 41 PENNSYLVANIA SPINE INSTITUTE 01/15/2008 Daniel Deardorf, Esq 10 East High Street Carlisle, PA 17013 PS RE: BARBARA MONIGHAN Dear Attorney Deardorf: Walter C. Peppelman Jr., D.O., FACOS William J. Beutler, M.D., FRCS I had the opportunity Lo meet with Barbara Monighan for an independent medical examination at Pennsylvania Spine Institute on January 15, 2008. Ms. Monighan is a 59-year-old woman with a history of neck and low back pain. Ms. Monighan notes that on March 30, 2005 she was driving her car east along the Carlisle Pike when a car pulled in front of her. She was driving a 1997 Audi and hit the side of the car which she remembers was a Chevrolet. She described sustaining about $12,000 in damage to the car. The police came to the accident. She reports the police offered an ambulance transport to the hospital and she declined this. She went home. She notes at the accident while standing she developed neck and low back pain. She went home and made an appointment to meet with Dr. Vernne Greiner, her family physician. Ms. Monighan denies any loss of consciousness. She did not strike her head. i She reports there was no airbag deployment although the Audi is equipped with an airbag. She notes that the front of her car hit the side of the other car, i she was wearing a seat belt. She was the sole occupant of her car. Ms. Monighan saw Dr. Greiner on the same day of the accident. She describes being diagnosed with a cervical and lumbar strain/sprain injury. She reports she also complained of right foot and knee pain. She notes over the next couple of weeks that the right foot and knee pain resolved. She reports her low back and neck pain persisted. Ms. Monighan went for physical therapy. She felt it was of some benefit. She went to a chiropractor which she feels did not help. She notes in the fall of 2005 she had worse neck pain. She went back to Dr. Greiner and had another course of physical therapy. She had an MRI of the cervical spine and had an °p'iCa..',.1r31 injection in December 2005. She f2215 it did not help. Ms. Monighan was referred to Dr. Lupinacci. She had facet injections which were of temporary help. She notes that this time her low back got worse and she had x-ray and MRI and a bone scan completed. In June 2006 she describes developing right leg pain and right groin pain when walking. In October 2006 she underwent low back facet injections. Ms. Monighan describes that she was working her normal duties full time from the time of the accident until January 2007. In January 2007 she started light duty. She had a lumbar epidural injection which she feels did not help. i She had sacroiliac injections which she feels also did not help. She had some 805 Sir Thomas Court a Harrisburg, PA 17109 • (717) 540-3993 • Fax (717) 552-2630, www,pasputeinstitute.com physical therapy which she felt did help with her low back. RE: BARBARA MONIGHAN 01/15/2008 In August 2007 she had facet injections which were temporarily helpful. Currently Ms. Monighan describes left sided neck pain. The pain on the left side of her neck will radiate to the left suboccipital region. She describes a tenderness to palpation over the right and left sacroiliac region. She denies any upper extremity symptoms. She reports at times she will have pain radiating from the sacroiliac region toward the left posterior thigh. She denies any numbness or weakness in the upper or lower extremities. She denies any bowel or bladder changes. Ms. Monighan reports that she was on light duty in January 2007 and then ultimately had to stop working. She reports that she worked as a customer service representative at US Airways. She describes she was unable to lift the luggage and after a time of light duty no further work was available and she had to stop working all together. Ms. Monighan reports she does drive a car currently. She reports she does do housework at home. She describes that her husband does help with the housework. Ms. Monighan denies allergies. She does use anti-inflammatory medication intermittently. Review of systems notes irritable bowel syndrome. She has a history of Raynaud's phenomenona in both hands. She has a history of hysterectomy. She worked as a customer service representative for US Airways at the ticket counter. She is married and has two children age 26 and 34. The 26 year old is living at home. She denies smoking and significant alcohol use. On examination Ms. Monighan is a bright, alert 59-year-old woman in no acute distress. She weighs 195 pounds and stands 5 foot 5 1/2 inches. Vital signs are reviewed and recorded in chart. HEENT is normal. Facial strength and sensation are symmetric. The patient had normal strength in the upper and lower extremities. Sensory exam noted intact findings to all modalities. Reflexes were 2+ and symmetric throughout the upper and lower extremities. Toes are downgoing to plantar stimulation. Hoffman's is negative bilaterally. Lhermitte's is negative. There is no spine tenderness throughout. The pulses are normal. There is no hip tenderness. The patient had normal gait. The lungs are clear. Heart showed regular rate and rhythm. There are no carotid bruits. There is good range of motion of the neck and lumbar spine without significant symptoms. She did have some mild tenderness to palpation of the sacroiliac joints bilaterally. There is no evidence of muscle spasm in the lumbar or cervical spine. Her hands were cold to touch reflecting the Raynaud's phenomena. There are numerous medical records available for review. The records include a job description dated May 11, 2007. The letter indicates that light duty is not available. The job description includes carrying a 70 pound suitcase for 25 feet. There are physical therapy notes from the Hetrick Center. There was a complaint of neck and low back pain described. She initially started treating on March 30, 2005 and continued into may 2005. The records from Conforti physical therapy indicate treatment from April through August 2007. The handwritten note at the end of the Oswestry questionnaire handwritten by Ms. Monighan reflects that she had neck pain with movement of her neck. There was no mention of low back pain in this handwritten note. The progress notes indicate treatment was completed on both the neck and lower back. She had pain in the right hip flexors. The notes from Dr. Gamber of chiropractics began on may 9, 2005. Neck and RE: BARBARA MONIGHAN 01/15/2008 shoulder pain is described. Although the notes indicate primarily treatment to the neck there was some lower back treatment also. There is a peer review note written by Dr. DeFalcis on June 6, 2006. The history of motor vehicle accident on March 30, 2005 was described. Neck and low back pain was described. The low back pain would flare up with activity. The diagnosis was cervical facet syndrome. She was also diagnosed with unilateral spondylysis on the right at L5-S1 and left L5-S1 facet arthropathy. He felt cervical and lumbar strain was related to a motor vehicle accident of March 30, 2005. He noted that prior to this accident she had no prior history of neck pain. He felt the intervention was necessary and related to the March 30, 2005 injury. He noted that she had recovered from the lumbar injury. There are records from Drayer physical therapy. The discharge summary of June 17, 2006 details she was treated for low back pain and cervical pain. The treatment notes indicate primarily neck pain. The note also indicates that as of discharge she was pain free with regard to the lumbar spine. There are records from Dr. Braun indicating cervical epidural steroid injection was completed on December 20, 2005. There are records also from Dr. Lupinaccils practice. The note of July 18, 2007 indicates that there was 50W improvement at the cervical spine and also the lumbar pain. The diagnosis was facet arthropathy in the lumbar and cervical spine and SI joint dysfunction. The note of April 11, 2007 indicates persistent low back pain after SI joint injection. There is no mention of neck pain on this note. The note of March 16, 2007 indicates there was improvement with bilateral SI joint injections. There is no mention of cervical symptoms. The note of February 20, 2007 indicates that her neck symptoms were "better" and she was seen "primarily for her back symptoms" On January 17, 2007 she had follow up with regard to neck pain. On this visit there is no description of low back pain. The note of December 6, 2006 indicates primarily low back pain and persistent neck pain. The note of May 17, 2006 indicates history of low back pain after motor vehicle accident. The note also indicates ,her neck pain is doing well, but her back pain is problematic". There is initial note from Dr. Lupinacci dated February 16, 2006. The history of motor vehicle accident of one year prior is described. There was history of low back pain prior to the motor vehicle accident noted. It was also noted she had no prior history of neck pain before the accident. The note indicates ongoing neck pain. The final notation in the history indicates "her back pain has majorly improved and is now only occasional". There is a note from Dr. Greiner dated January 16, 2006. This note indicates neck pain after a motor vehicle accident of March 2005. Flare up of neck pain in January 2006 is described after riding a shuttle bus. On a very detailed note there is no mention of any low back pain. There is a note from Dr. Greiner dated November 2005 describing neck pain as well as history of lumbar strain. The lumbar strain was reported as healing "pretty good". There were times with activity that she had recurrent symptoms. The note of September 6, 2005 indicates "her low back is doing much better". She had neck pain "more in the last 2 days for no clear reasons". The note of July 19, 2005 described that she was no longer using medications and was 1170`k better" with regard to her cervical and lumbar strain. Dr. Greiner's note of April 6, 2005 indicates history of cervical and lumbar strain from motor vehicle accident. The note of March 30, 2005 describes motor vehicle accident about 3 hours after the motor vehicle accident. The letter indicates there was history of low back pain 30 years prior from a rollerskating injury and also a fall 20 years prior. There was no history of neck pain prior to the motor vehicle accident. She complained of headache. RE: BARBARA MONIGHAN 01/15/2008 Cervical range of motion was limited only in rotation and there was tenderness in the paracervical musculature. Lumbar exam revealed tenderness over the sacroiliac region and lumbar spine. She had good range of motion of the lumbar spine. The diagnosis was cervical and lumbar strain with minor contusions. She was given an excuse to be off of work for 2 days. Older medical records from the University Physician Group indicates follow up on August 31, 2001. There was history of hitting her head. Her neck pain "is better". She still had right foot pain. There is note from August 11, 2001 indicating Ms. Monighan hit her head while cleaning the bathtub. She denied neck pain on this visit. Note of January 14, 2000 indicates there was left shoulder tendinitis. She went through physical therapy. The note of October 8, 1999 indicates there was left arm pain after painting. There is no mention of neck pain. The note of June 3, 1997 indicates there was a history of low back pain. The note also indicates there was history of prior low back pain in the past. Examination noted tenderness over the left sacroiliac joint. There is report of cervical spine x-ray dated November 17, 2005. The study was normal with flexion and extension views. There is MRI of the cervical spine dated December 14, 2005. The study is essentially normal with "minor degenerative changes" noted. Included in Dr. Greiner's notes is a physical therapy note from Physiotherapy Group. She was treated for left shoulder tendinitis. She had good range of motion of her neck but with pain with rotation of the neck. There is a report of lumbar spine x-ray dated May 5, 2006. Unilateral spondylolysis on the right at L5 is described. There is a nuclear medicine bone scan report dated May 15, 2006. Activity in the left L5-S1 facet joint is described. There is a bone scan of February 24, 2006 which noted uptake at C2 or C3 in the spinous process. There is MRI of the lumbar spine report dated May 8, 2006. There is "minimal shallow central disc bulge at L2-311. There is no canal stenosis. There is MRI of the cervical spine report dated December 11, 2006. "Minor spondylosis" is described. There is a deposition transcript of Barbara Monighan dated July 17, 2007. She described her job duties for US Airways. She describes some aggravation of her pain from a long drive to New York City in September 2005. She reported in her view she injured her neck and the sacroiliac region as a result of the motor vehicle accident. She describes she developed right leg pain in June 2006. She re-orts prior history of injury roller skating 30 'y'ears prior. -he described a fall in 1984 with left hip pain. She reported in the 6 months prior to March 3, 2005 she did not have problems with her back. She described history of left shoulder injury in 2003 from lifting bags at work. She described vacations to Myrtle Beach, Germany and St. Marten. She described difficulty with gardening but did admit she did complete some gardening and other household chores. She described her ongoing physical therapy. She noted episodes of flare up of low back pain since the roller skating incident. She noted that when treating at Gamber Chiropractic she had flare ups in 1992 and 1995 on questioning. There are multiple radiographic studies available for review. The bone scan of February 24, 2006 notes minor uptake in the lower lumbar region. There is an MRI of the lumbar spine of May 8, 2006 and more recent study of July 25, RE: BARBARA MONIGHAN 01/15/2008 2007. The study of May 8, 2006 notes minor bulge of L2-3. The study of July 25, 2007 notes worsening of the disc protrusion at the L2-3 level. There is an MRI of the cervical spine of December 11, 2006 and December 14, 2005. Both studies appear essentially normal with very minor degenerative change. There is x-ray of the lumbar spine of May 5, 2006 which notes a unilateral right sided spondylolysis. There is x-ray of the cervical spine of May 17, 2005 with flexion and extension views which is essentially normal. My diagnosis is lumbar and cervical sprain injury. There does appear to be relationship of the sprain injury to the March 30, 2005 motor vehicle accident. I agree with Dr. DeFalcis noting Ms. Monighan has resolution of the lumbar sprain injury. Her ongoing lumbar symptoms are related to the unilateral spondylolysis and SI joint symptoms. These ongoing symptoms are related to pre-existing problems as well as her work with repetitive lifting activity. There is no current lumbar symptom or problem related to the motor vehicle accident of March 30, 2005. Ms. Monighan does continue to complain of left sided neck pain. There does not appear to be a history of neck pain prior to the motor vehicle accident of March 30, 2005. I do not have an objective finding to relate to her subjective symptoms. Her examination notes appropriate range of motion of her neck and there is no evidence of cervical muscle spasm or tenderness. The MRI of the cervical spine was completed twice and was normal. The medical treatment was very appropriate for the cervical and lumbar sprain. I reviewed the job description at US Airways. I believe that Ms. Monighan is not capable from this job, from issues related to her lumbar spine. she does have new finding of central disc protrusion of L2-3 on her more recent MRI. This change is not related to the motor vehicle accident of March 30, 2005. It is possible that it is related to her work duties. I believe she should be at light to medium duty work capability with a 30 pound weight lifting limit. This limit is related to the MRI of the lumbar spine findings. There is no relationship between any work restriction and the motor vehicle accident of March 30, 2005. With respect to the March 30, 2005 motor vehicle accident Ms. Monighan did appear to suffer a cervical strain injury. She still has ongoing cervical symptoms without any objective findings clinically or radiographically. I do not have an objective etiology for her ongoing symptoms. There is no work restriction related to her ongoing cervical complaints. Ms. Monighan was accompanied today by a representative from her attorney's office. Ms. Monighan understood the purpose of today's evaluation was for an ,independent medical exam in..ati --n and no patient-physician reiatioish4p was established. Please let me know if. I can be of further assistance. Sincerely yours, William Beutler, MD WB/db SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Respondent NATIONWIDE INSURANCE COMPANY OF AMERICA, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. BARBARA MONIGHAN, Respondent NO. 08-1877 Civil Term CERTIFICATE OF SERVICE AND NOW, this 18th day of April 2008, 1 hereby certify that a true and correct copy of the foregoing PLAINTIFF'S RESPONSE TO DEFENDANT NATIONWIDE'S PETITION TO COMPEL PHYSICAL EXAMINATION has been served upon the following, via U.S. Mail: JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 SHOLLEN By: 10 RGER & JANUZZI, LLP Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Nationwide Mutual Insurance Company, Petitioner VS. Barbara Monighan, Respondent No. 08-1877 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Petition to Compel Physical Examination 2. Identify all counsel who will argue cases: (a) for plaintiffs: JoAnne E. Kinzel, Esquire, Snyder & Dorer, 214 Senate Avenue Suite 503, Camp Hill, PA 17011 (Name and Address) Timothy Shollenberger, Esquire, Shollenberger & Januzzi, 2225 Millenium Way Enola PA 17025 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Yes. 4. Argument Court Date: July 9, 2008 JoAnn'eE. Kinzel, Esquire Print your name #55453 Attorney for Petitioner Date. INSTRU TIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 07HB-00111 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 I ATTORNEY FOR PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA I Nationwide Mutual Insurance Company, Petitioner No.. vs. Barbara Monighan, Respondent CERTIFICATE OF SERVICE I JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Petitioner herein, and that she caused a true and correct copy of the attached Praecipe for Listing Case for Ar ug_ ment to be served by regular first class mail upon: Timothy Shollenberger, Esquire Shollenberger & Januzzi 2225 Millenium Way Enola, PA 17025 Date: June 11, 2008 / -A, -f JoAm* P. Kinzel, Esquire Attorn for Petitioner r? rr„ Tr r .. ? 'lam' 07HB-00111 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HII.L, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Insurance Company, Case No.: 08-1877 Civil Term Petitioner vs. Barbara Monighan, Respondent PETITIONER'S REPLY TO RESPONDENTS NEW MATTER i 21. In response to paragraph 21 of Respondent's New Matter, Nationwide incorporates herein by reference paragraphs 1 through 20 of its Petition to Compel Physical Examination. 22. - 23. In response to Respondent's citations to the Pennsylvania Unfair Insurance Practices Act, Nationwide avers that the provisions of said statute speak for themselves. 24. The allegations in paragraph 24 of Respondent's counter claim are specifically denied. On the contrary, Nationwide has adopted and implemented reasonable standards for the investigation of claims for first party medical benefits for all levels of coverage, whether the medical benefits limits are minimum or "high". Nationwide reviews each claim for coverage on a case-by-case basis. Nationwide specifically denies any practice or procedure which singles out soft tissue injuries and high medical benefit limits for differential treatment in order to discourage policyholders from seeking reasonable and necessary medical treatment. On the contrary, Nationwide pays for all reasonable and necessary medical treatment using the means provided by the legislature to determine the reasonableness and medical necessity of treatments on an "as needed" basis. 25. The allegations in paragraph 25 of Respondent's New Matter are specifically denied. On the contrary, Nationwide evaluates all claims for first party medical benefits on a case-by-case basis and does not have different standards for investigation of claims where the first party medical coverage limits are high and the claimant has a soft tissue injury overlaying a pre-existing condition. Where the individual facts of a particular case raise a question as to the reasonableness and medical necessity of the treatment being provided, a peer review is requested in conformance with the tool provided by the legislature in the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1797. By way of further Answer, Nationwide submits that, under the facts and circumstances of the instant case, an initial medical examination requested one year and three months after the onset of injury followed by a peer review two years and six months after the onset of injury in no way suggests a request for "numerous peer reviews and medical examinations in an effort to discourage the Claimant from getting reasonable and necessary medical treatment" as alleged in paragraph 25. In the initial IME in June, 2006, Dr. Daniel DeFalcis found that Respondent had reached maximum medical improvement relative to her lumbar strain. Although maximum medical improvement had not been achieved with regard to her cervical strain, Dr. DeFalcis noted that the cervical MRI performed in December, 2005 showed some minor degenerative changes at multiple levels, but no cord impingement and no disc herniation. On a scale of 0-10, with zero being no pain, Respondent rated her average pain at a 3 out of 10. Accordingly, based upon the specific facts c Respondent's claim, it was neither onerous nor unreasonable to request a follow-up peer review after another year and three months of treatment. 26. The allegations in paragraph 26 of Respondent's New Matter are specifically denied and, in response thereto, paragraphs 24 and 25 above are incorporated herein by referenc as though set forth at length. 27. Nationwide agrees it requested a combination independent medical evaluation/peer review, which took place a year and three months after the accident, and a follow-up peer review two years and six months after the accident. For the reasons stated in paragraph 25 above, which are incorporated herein by reference, Nationwide submits that these requests were not unreasonable or onerous and, in fact, were necessary to resolve the issue of whether Respondent's ongoing treatment was reasonable and medically necessary under all of the existing circumstances. 28. The allegations in paragraph 28 of Respondent's counter claim are specifically denied. On the contrary, Nationwide's handling of Respondent's claim for medical benefits has been undertaken in conformance with the requirements of the MVFRL and with the specific face of this case. As previously set forth above, Respondent was diagnosed with, and treated for, a cervical and lumbar strain. The lumbar strain sustained in the accident was superimposed upon pre-existing lumbar injury for which Respondent was receiving periodic treatment prior to the accident. In addition, a MRI of the cervical spine following the accident revealed some minor degenerative changes, but no disc herniations or cord impingements. After a year and three months of treatment for her cervical and lumbar strains, Nationwide requested an independent medical evaluation/peer review to determine whether the ongoing treatment for these conditions was reasonable and medically necessary. The IME/peer review determined that the lumbar strait had reached maximum medical improvement, but the cervical strain had not. After another year and three months of treatment for the cervical strain, Nationwide requested a peer review evaluation by the same doctor to ascertain whether or not the treatment continued to be reasonable and medically necessary. Nationwide submits that, under the circumstances, these infrequent requests for a medical assessment of Respondent's injuries were reasonable, necessar} and in full compliance with the provisions of the MVFRL. Now, three years and three months after the accident, Nationwide is requesting a second IME to assess the treatments which Respondent continues to receive. Counsel for Respondent suggests that the IME performed on January 15, 2008 in connection with her third party tort claim should provide sufficient information to negate Nationwide's request. Nothing could be further from the truth. While Respondent alleges that the third party IME performed by Dr. Beutler confirmed that she sustained lumbar and cervical sprain injuries as a result of the accident, she neglects to inform the Court that Dr. Beutler agreed with Dr. DeFalcis that Respondent's lumbar sprain had resolved and that any ongoing lumbar symptoms were related to the spondylosis and SI joint symptoms which pre-dated the accident, as well as to her work with repetitive lifting activity. With regard to her cervical strain, Dr. Beutler stated "She still has ongoing cervical symptoms without any objective findings clinically or radiographically. I do not have an objective etiology for her ongoing symptoms. There is no work restriction related to her ongoing cervical complaints." Accordingly, while Dr. Beutler concluded that Respondent "did appear to suffer a cervical strain injury", he did not conclude that her ongoing complaints and symptoms were referable to the accident. In fact, despite Respondent's assertion that Dr. Beutler's report resolves the question as to whether her ongoing treatment is reasonable and medically necessary, in point of fact, Dr. Beutler was unable to point to any objective finding to explain her subjective symptoms noting that her range-of-motion was normal, her MRIs were normal and there was no evidence of muscle spasm or tenderness, he was unable to specify an objective etiology for her ongoing complaints. Rather than resolving the issue of the reasonableness and medical necessity of the treatment, Dr. Beutler's report actually highlights and reinforces that an issue still exists. WHEREFORE, Petitioner respectfully requests this Court to enter an Order requiring Respondent to submit to an independent medical evaluation within sixty (60) days. Respectfully submitted, LAW OFFICE OF SNYDER & DORER By: JoAnne m el, Esquire Identificat n o. 55453 Attorney for Petitioner Date: June 11, 2008 07HB-00111 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Insurance Company, Petitioner No.. VS. Barbara Monighan, Respondent CERTIFICATE OF SERVICE JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Petitioner herein, and that she caused a true and correct copy of the attached Petitioner's Reply to Respondent's New Matter to be served by regular first class mail upon: Timothy Shollenberger, Esquire Shollenberger & Januzzi 2225 Millenium Way Enola, PA 17025 Date: June 11, 2008 JoAnne E: nzel Attorney f etiti c C :S'?: ? ?;: ?° m t;{:' n3 ?? r' .,.. -v rz-1 F7 +y..' ii ? ?? +..? NATIONWIDE MUTUAL INSURANCE COMPANY Petitioner VS. BARBARA MONIGHAN, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-1877 CIVIL IN RE: PETITION TO COMPEL PHYSICAL EXAMINATION BEFORE HESS, OLER AND GUIDO, J.J. ORDER AND NOW, this 12- day of August, 2008, following argument, pursuant to 75 Pa.C.S.A 1796(a) and, alternatively, in accordance with the policy of insurance that exists between the parties, the within petition to compel physical examination is GRANTED and the respondent, Barbara Monighan, is directed to attend an independent medical examination with a physician of the petitioner's choosing within sixty (60) days. BY THE COURT, Anne E. Kinzel, Esquire 6,11 For the Petitioner /rimothy Shollenberger, Esquire For the Respondent J :rlm w Q C.> C*? i^ c ?? y L. LL- 0 ° 0 c s