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HENRI HAIM ZERBIB v. NATIONWIDE INSURANCE COMPANY (11/08/85)

filed: November 8, 1985.

HENRI HAIM ZERBIB
v.
NATIONWIDE INSURANCE COMPANY, APPELLANT



Appeal from the Order of January 16, 1985, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1648 July Term 1983

COUNSEL

James C. Haggerty, Philadelphia, for appellant.

Edwin P. Smith, Philadelphia, for appellee.

Spaeth, President Judge, and Hoffman and Hester, JJ.

Author: Hester

[ 347 Pa. Super. Page 383]

This is an appeal from the January 16, 1985, order granting summary judgment in favor of appellee, Henri Haim

[ 347 Pa. Super. Page 384]

Zerbib, on his claim for No-fault motor vehicle benefits.*fn1 Appellee's complaint alleged that appellant insurer wrongfully refused to pay for vocational rehabilitation in the form of educational expenses for an intensive English language program. We hold that summary judgment was improper, and remand for trial to resolve material issues of fact as to the reasonableness and necessity of the educational expenses.

On October 20, 1982, appellee was injured in an automobile accident which disabled him in his occupation of constructing swimming pools. Dr. Samuel Romirowsky, a clinical psychologist, one of the physicians who had treated appellee following his accident, wrote to appellee's attorney on April 15, 1983. The letter stated:

As you know, I have been treating Mr. Henry Zerbid [ sic ] for the treatment of severe depression. This letter is to document that from an emotional standpoint, work, that is employment, would be excellent therapy in as much [ sic ] as his poor self esteem and depression is [ sic ] exacerbated by his unproductivity. Because he is physically unable to do the kind of work he was doing prior to his accident, vocational rehabilitation is essential in order to obtain retraining and other employment.

In order for Mr. Zerbid [ sic ] to obtain maximum benefits from a vocational rehabilitation program, he must have a better command of the English language, both verbal and written. It is my feeling, therefore, that an intensive English language program would also serve to, in the longrun, [ sic ] reduce Mr. Zerbid's [ sic ] depression.

Reproduced record at 39a.

Appellee, aged thirty-three, had been a resident of Israel and France prior to emigrating to America. Dr. Romirowsky referred him to Dr. Irwin Farbman for a psychological evaluation. Dr. Farbman noted that appellee's "speech was

[ 347 Pa. Super. Page 385]

    heavily accented. Although he was able to communicate effectively, it was apparent that he often was forced to substitute a related word for the one he would have preferred in order to express his precise thought since his vocabulary skills were insufficient to the task." Id. at 18a. It is not in dispute that appellee's command of the English language has not been diminished in any degree as the result of the accident. Appellee's use of the English language was just as limited prior to the accident as it was afterwards.

Appellee used his language training to enroll in a chef's program.

Appellant rejected appellee's claim for payment of educational expenses and filed a motion to compel an examination of appellee by Dr. Philip Spergel, a vocational rehabilitation psychologist. After the examination, Dr. Spergel made the following finding, as detailed in a letter to appellant's counsel. "Even if Mr. Zerbib was not provided with a remedial English course at Temple University, he still would be employable in a number of entry level, ...


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