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Home My WebLink About95-04631 ,,\ BARRY A. ItRONTHAL, ESQUIRE Pa. Supre.e Court I.D. No. 55672 REYNOLDS , HAVAS 101 pine Street Poat Office Box 932 Harriaburg, Pennaylvania 17108-0932 Telephone I Paxl [717] 236-3200 [717] 236-6863 Attorney for Petitionerl STATE PARM MUTUAL AUTOMOBILE INBURANCE COMPANY STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA .. . : NO. v. CIVIL ACTION - LAW AUGUST TOKISH, Respondent PETITION OF PETITIONER, STATE FARK MUTUAL AUTOMOBILE INSURANCE COMPANY TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF RESPONDENT. AUGUST TOKISH AND NOW, comes Petitioner, State Farm Mutual Automobile Insurance company ("State Farm"), by and through its counsel, Reynolds & Havas, a Professional Corporation, and hereby files this Petition requesting an orthopedic Independent Medical Examination ("IME") of Respondent, August Tokish ("Respondent"), averring the following in support thereof: 1. Petitioner is an Illinois company which is licensed to conduct insurance business in the Commonwealth of Pennsylvania and regularly and continually conducts such insurance business in Harrisburg, Dauphin county, Pennsylvania, with a local office located at the Harrisburg Service center, 115 Limekiln Road, Post Office Box 257, New cumberland, Cumberland County, pennsylvania, 17070-0257. \~. , 2. Respondent is an adult individual who currently resides at 60 union Hall Road, carlisle, cumberland county, pennsylvania, 17013. 3. on or about April 15, 1995, Respondent was eligible for first party benefits under a private passenger automobile insurance policy issued by state Farm. 4. On that date, Respondent was injured when he slipped and fell while working for Roadway Express in carlisle. 5. Respondent claims that as a result of the accident, he has been unable to work and is entitled to recover wage loss benefits from state Farm. 6. On April 21, 1995, six days after the accident, Respondent went to the Carlisle Hospital Emergency Room solelY complaining of pain and burning on the lower right leg. , Respondent made absolutely no complaints of back pain. x-rays taken of the right leg were negative and Respondent was released on the same day with the diagnosis of a contusion to the right tibia. Copies of the carlisle Hospital Emergency Room notes dated April 21, 1995, are attached hereto, made a part hereof and marked as Exhibit "A". 7. subsequently, on May 17, 1995, more than one month after the accident, Respondent again went to the carlisle Hospital Emergency Room. However, unlike his previous visit, Respondent complained of pain in the lower back, hip and groin. 2 The emergency room note specifically states, however that there was "no injury" which caused Respondent's complaints. Copies of the Carlisle Hospital Emergency Room notes dated May 17, 1995, are attached hereto, made a part hereof and marked as Exhibit "BII. B. While at the hospital, an intravenous pyelogram was done on Respondent's kidneys, which showed a potential abnormality in the right kidney. Respondent was, nevertheless released on May 17, 1995, with a diagnosis of pyelonephritis. A copy of the myelogram report dated May 17, 1995, is attached hereto, made a part hereof and marked as Exhibit "C". 9. On May 26, 1995, Respondent sought treatment from Balint Balog, M.D., an orthopedic surgeon. During that visit, Respondent reiterated his complaints of lower back, hip and groin pain and further indicated that he had a history of lower back pain. Dr. Balog'S initial diagnosis was lumbosacral sprain, with right side lumbosacral radiculitis, as well as a right tibial contusion, which appeared to be resolving. X-rays taken of Respondent's lumbar spine were normal. 10. Subsequently, Respondent had an MRI of the lumbar spine which showed a disc herniation at Ll-2, and a mild diffuse disk bulge at L2-3. 11. Although Respondent continued working for more than one month after the alleged accident, Respondent alleges 3 that he has been unable to work since May 17, 1995, because of his back injury. 12. Respondent further contends that his back injury was directly caused by the April 15, 1995 accident at work and that he is therefore entitled to receive wage loss benefits from state Farm. 13. state Farm believes and therefore avers that Respondent's lumbar disk herniations, along with his complaints of hip and groin pain, were not caused by Respondent's April 15, 1995, accident. This is especially true in view of the fact that Respondent did not seek medical treatment for, and made no complaints of, back or related pain for more than one month after the initial accident; that Respondent apparently has a history of lower back problems; that it specificallY states in the Carlisle Hospital Emergency Room notes of May 17, 1995, that there was "no injury" which caused Respondent's lower back pain; and that Respondent continued working for more than one month after the accident. Accordingly, it is state Farm's contention that the work loss resulting from the alleged back injury is not reasonablY related to the accident on April 15, 1995, and, therefore, under the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, the Act of February 12, 1994, P.L. 26 No. 11, 75 Pa. Cons. stat. 51701 et sea. (the "Act"), state Farm is not required to pay any amount for work loss. 4 14. section 1796 provides in pertinent part, inter AliA, that whenever the physical condition of a person is material to any claim for medical or income loss, a court may order the person to submit to a physical examination by a physician for good cause shown. 15. Also, the policy under which Respondent seeks to recover his wage loss benefits specifically provides that: Whenever the mental or physical condition of a Derson is material to any claim for medical expenses or income loss benefits, a court of competent juriSdiction may order the person to 'submit to a mental or physical examination by a physician. If a person fails to comply with the order, the court may order that the person be denied benefits until he or she complies. (emphasis in original). A copy of page 16 of Respondent's policy is attached hereto, made a part hereof and marked as Exhibit "0". 16. In light of the aforementioned facts, it is clear by the medical records of Respondent's treating physicians that Respondent's physical condition is in controversy and that an Independent Medical Examination ("IME") of his present condition is material to his claim for first party benefits and is relevant and essential to state Farm'S position that such injuries do not exist; are not related to the subject accident; and/or that Respondent is receiving care which is not reasonable and/or necessary. 5 17. In an effort to confirm whether Respondent has sustained an injury and/or whether such injuries are related to the aforesaid accident and to establish that the treatment being rendered is reasonable and necessary, state Farm has requested that Respondent VOluntarilY submit to an orthopedic IME. To date, however, Respondent has refused to submit to any IME. 18. pursuant to the provisions of section 1796 of the' Act and the terms and conditions of the policy under which Respondent seeks to recover wage loss benefits, state Farm believes that good cause does exist to request Respondent to submit to an IME to determine whether his injuries, if any, are related to the accident of April 15, 1995, and that the treatments being rendered to Respondent are reasonable and/or necessary, as required by section 1712 of the Act. 19. Accordingly, state Farm seeks an order requiring Respondent to attend an orthopedic IME. WHEREFORE, pursuant to the provisions of section 1796 of the pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. cons. stat. S1796(a) and the terms and conditions of the subject insurance pOlicy, petitioner, state Farm Mutual Automobile Insurance Company, prays this Honorable court enter an order requiring Respondent, August TOkish to submit to an 6 exhibit A " . I' " I' - ,r' CONVENIENT CARE/EMERGENCY REGISTRATI( ;: 8!il'Zl 07 04/21/95 08:41 PflE cutl "to NONE ..;\)I~E f'*,tI(Nl' OtHE.R f,t"l~Ollll \ I. ROADWAY EXPRES~, 460 STERl.lNG ST CAMP HILL. PA 17011 TOKISH. AUGUST III J. 60 UNION HALL, RD :" , : CARLISLE,::P.A~::., .' i'io 13 . H,lIolf/j.OORUS,~'R(I.A'IOtfIDOD I &OG.S(G-~ TOtnSH Ill. AUGUST J. 60 UNION HALL RD ::0:,-40-8710 ROADWAY EXPRESS 460 STERl.lNG 5T CAMP HILL PAI70il CARli SLE, PA. 17013 TOI:ISH, SUSAN (71 il ;;58. 54:,~ . 02 .. 13 l::i.!SH. AUGUST J. III INSUA.,V.c.1CO\l...f.H' 01 TOt;ISH. AUGUST J, III TEAMSTERS 01 (D IA1TlNoNJ BROTHERS. PAMELA J WOOD. BRADFORD J tA$O"lIfOf'Vl$f'l SLIPPED ON TRUCK STEP HiT ~ ~OWER LEG PAINFUL BURNS ~ ROADWAY q.;1l/.5 ~ 'BLIC? . 3 26700 CAST ROLL. PLASTER 26075 ALL ADDmONAL CHARGES ' . r- --- -.... r-: - -- CLASS I VISIT BIP MONITOR 26037 I II CLASS II VISIT 26720 PACER PADS 79064 I II I II CLASS III VISIT 26730 GASTRO/HEMO SLIDE 26060 '-- _.J '- ------ CLASS IV VISIT 26740 KIDDE TOURNIOUET 26048 r------ -.... r- - -- C.ASS V VISIT OCL PER FOOT I II 26750 79670 I II CCNVENIENT CARE I 27005 FSBS. 60061 I II '---- --- .J '-- - - -- , C:JI..vEt~IENT CARE II 27010 TUBE GAUZE PER FOOT 26074 r-- - -- .... r- '/iI~OR SUTURE EDSOl ED STAT ESTAT I II I II ~EOIUM SUTURE EDS 02 PULSE OX POXED I II '---- ____.J '---- - - -- "AJOR SUTURE EDs 03 EXTENDED CHARGE I 26760 r--- --.... r-- - - -- INTUBATION EDS 04 EXTENDED CHARGE II 26770 I II I II IV nET UP EDs 06 I II I .:~RDIAC MONITOR EDs 11 '- __.J '---- - - -- r-- - -"" r--- ----.... r- - - - - I !';;LVIC EXAM EOs 14 I I I II i ,,:TAO SET,UP EDS 16 1 I I II I I I I I I : '.'~T SCOTCH SHORT ARM 26031 \._________---"'J "-________.J '--------- 1 (./,~T SCOTCH LONG ARM 26032 r' --------, r---- ---, r'----- I , , ' I i ",1.,.,T SI;OTCH SHORT LeG 26033 I I I I I , , I I I I I ,,/.,;1 SCOTCH LONG LEG 26034 ------- ____.J "-- __.J \..-------- ER.050a ,REV ~. LOWER Exhibit B . '~. "'.1 .,1 ,c.u.:=t ., '.. ... -.'.' . ....... ~ ~.-.... '. .... W...'.9012584 "" aRT NO 069322 O~/171e5 11:1 ....,.,.,. ..... NONE ,...... ( TOKISH. AUGUST'III J. tiO UNION HA.LL ~D ROADWAY EXPRESS 460 5TERL!NI~ ST CAMP HILL. PA 17011 ~ 717' 251;...~.45~ O\.lAFUJ\ItOA"$UAPI.OTtA 17013 E..-.AG10fC.,loIOT"" Tm:~SH, ~IJSAN (71 i') 2:,8-54~'::- 0:: (E"T PEKN TEAM !1 !~ 70 ~0540S710 1~ T~,i,Er:. AUliu5',' J. d! .3JRAIa~'Ji1...T . (,1 ""':l4C"~~v<:E \ TEAl1S iER':i lA/R1~ COYLE, JOHNSON DAGEN.J EDWARD PAIN LOWER BACK HIP AND '~RO r N NO 1 N,lUR '( OUWlfl4' '. '; " .-- ~ ROLL. PlASTER BRIEF VlSrT 26700. 2607S CI.A$S .I.VlSIT 26710 BIP MONITOR 26037 ClASS II VISIT 26720 PACER PADS 79064 CLASS III VISIT ~.J:lO/HEMO SUDE ' 26060 CLASS N VISIT 26740 KIDOE TOURNIOUET 26046 CLASS V VISIT 267S0 QCl PER FOOT 79670 CONVENIE~ CARE I '. 27020 .- F,S'BS. 80081 CONVENIE~ CARE II 2702S TUBEOAUZEPERFooT 26074 MINOR SUTURE EDS01 ED STAT ." ESTII1' MEDIUM SUTURE '. ~EDS 02 PULSE OX . POXED _.' , .. ALL' ,,"OOmONA\. CHARGES r-. -- .'; ~--... , I 'cLliMI'i:r'lT.cH I.' .' ", . .,.", .,.;.'--,.. .'.- , " . ,......'. .. 7e93~ -------- ---- ~J9R ~UT\!RE INTUBATION IV SET UP . . ...::(' CARDIAC MONITOR ; t ':' .; pELVIC EXAM NITRO SET.UP CAST. SCOTCH SHORT ARM .:" E~Sp,~ ,~.l\]ENDEOCHAl)~E,I... _' .26.7~0 r...:.:..::..,:.:.:::-~:-,:,..::-.' .;:;:l:,,~:: .,...... - EOS04.. .: .~NoEOCI'\ARGE...~;~U "!' N~26170' r~~'\J <1;:,\: i,W~P,'..VJ11 ,'I' ':;!~H,',Q ,;f .,....,_ .. '" ... .. ..,..,.. ',' . I' .' ,!la>\'V.1 tlt>'::. :~."I~','~'v 'EOS.069 ;,. .':I~:A"f.~,,=.'t. " . "':"L~. I .' . I I . .'" 1,,; :,L': " .. : '.' ,~:...cl"~. -..,;., .....,;,. .~ <. " . ,. . ., ~J ' ,..., . EDS'11' ':',; rJ~;' .. . ,.' . '- -- ;....., ....:.,'- .' I' '- - - -'- '- - -- ro:".- --.---- --, r-;- .........."' r--'~""'"'~- EOS14. , ~'r:" '. II" ;'r,\''''~ll ......., EOS 16 . I'!~'.. . ".'. ..".1 I'; -.'- ..... \~ ",!,.! I, "l:'~' .,.1',' .,. I'~" "",'.. .. 11. ,.,-..-...... ~,:. I t ..~.. :. ,.', ",",.. ' ..:,.;..,. ),." ," . "J ,.'.' '", 26031 '" - - - .... - - - - '- - - - - - - ~ '- - - - ","' - . I I.. . . ~'r'-:"'._''':.~ I I I II I' ..... ,.., I .' .11 ~_ _..J'- ------- r- ----.-,r I. ' ., II 1 II I . .... . .~ '. \ , .:. I Ii: ; '-__---J--J'--------- CAST, SCOTCH lONG tEp>", ; r~. -- - - '-: .r;-- - - , .. .~~~ ~.:. ~ .. . . ._~. ~ .. ... . .. . I I" ' I .. I:' .. I ~, 'itJo .~~.:.: ~ ':'.~t ,';"i.,L'- _ _.J ~.,.-.-:'; 'J" -- -~/i.;:- - - - - ~ -- I" t ',\/11.;1, ..(:",..,../." 1,..\....;:JI;".'. .'1.. I II' . ,. I .' '" . .. I I' ' ,', . : ,", /.,', ./ '. ' , , ,;. .:." ..1,'>1", '- . ___...... _..", ,'-t_ _ _, _':.1. -- ~.,' ,. ,.' -.' " . .' " ! 'j' 'ER.0&06IR~. ; CAST, SCOTCH lONG ARM~' ._26032 26033 26034 ,0 . ' _nIlUlll(l.lI".",'ru ...,n",.. tr.., "lOU_II @ exhibit C I.", . ", I , . DEPARTMENT OF RADIOLOGY ~ Carlisle 1-IoSpital \!::!} 246 ~arker str:el . P,O. Box 310. Carlisle, Pennsylvania 17013.0310 · 1.600.346.4789 · (7171249.1212 CARLISLE IMAGING ASSOCIATES, P.C. TOKI SH, AUGUST J. III 60 UNION HALL ROAD CARLISLE, PA 17013 44Y 05/17/1995 X-RAY #80237 MED. REC. #069322 DR. COYLE - ER INTRAVENOUS PYELOGRAM COMMENT: calcificat Ion be identified Following the Injection of Omnlpaque, prompt excretion Is noted bilaterally. Evaluation of the scout films reveals no evidence of overlying either renal area. Vascular calcification can in the left hemipelvis. The kidneys are normal in size, shape, and position. There is minimal blunting of a mid calyx on the left. The ureter is visualized fractionallY and is normal in course and caliber. There is an abnormal appearance of the calyces of the mid portion of the right kidney. They are indistinctly visualized. There may be minimal caliectasis. No definite space-occupying lesion can be identified. The possibility of an inflammatory abnormality involving the mid portion of the right kidney must be considered. The right ureter is visualized fractionailY and is normal In course and caliber. The urinary bladder Is normal in appearance. Following voiding, only a small amount of contrast can be identified within the bladder. CONCLUSION: 1. Slight fullness of a calyx of the mid portion of the left kidney. 2. The appearance of one (1) or two (2) calyces involving the mid portion of the right kidney Is abnormai. An Indistinct appearance Is noted. Additionally, there may be siight caliectasls. It Is possible that the findings are a manifestation of an Inflammatory abnormality. 3. Depending on the clinical situation, and if an inflammatory disease is suspected, after therapy, further evaluation of the right kidney should be considered. HCP/nb '1': 05/18/1995 08:56 am ~ Herbert c. perlman, M.D. 1 CHART/PHYSICIAN