A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS AWARD OF DISPUTE RESOLUTION PROFESSIONAL

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1 CASE NO. 18 Z A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS In the Matter of the Arbitration between (Claimant) AAA CASE NO.: 18 Z v. INS. CO. CLAIMS NO.: NEW JERSEY MANUFACTURERS DRP NAME: John J. Fannan INSURANCE COMPANY NATURE OF DISPUTE: MEDICAL NECESSITY (Respondent) AWARD OF DISPUTE RESOLUTION PROFESSIONAL I, THE UNDERSIGNED DISPUTE RESOLUTION PROFESSIONAL (DRP), designated by the American Arbitration Association under the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey, adopted pursuant to the 1998 New Jersey Automobile Insurance Cost Reduction Act as governed by N.J.S.A. 39:6A-5, et. seq., and, I have been duly sworn and have considered such proofs and allegations as were submitted by the Parties. The Award is DETERMINED as follows: Injured Person(s) hereinafter referred to as: The Claimant 1. Oral Hearings were held on: November 27, ALL PARTIES APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration WERE NOT amended at the oral hearing as permitted by the DRP (Amendments, if any, set forth below). STIPULATIONS were not made by the parties regarding the issues to be determined (Stipulations, if any, set forth below). 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: I find the claimant was injured as the result of an automobile accident which occurred on March 21, I further find that the claimant was eligible to make claim for PIP benefits pursuant to the terms and conditions of a policy of automobile insurance issued by the respondent to her.

2 CASE NO. 18 Z The claimant came under the care of Dr. Khanthan for treatment of neck and back pain. During the course of her treatment, she was referred by Dr. Khanthan to Dr. Nagendra for neurological consultation. Dr. Nagendra saw the claimant on June 1, 2001 noting subjective complaints of shooting pain from the neck, throbbing neck pain with a tingling feeling of both hands as well as lower back pain with radiation to both legs and associated tingling of the calves. Dr. Nagendra s physical examination noted stiffness and tenderness of the paracervical region with pain radiation to the left shoulder. An examination of the lower extremities revealed hyperesthesia in the lumbosacral region with diminished pinprick sensation on the left heel and lateral aspect of the left foot. Review of MRI results indicated diffuse bulging at C5-6 and a disc herniation at L5-S1. Dr. Nagendra formed a diagnosis which included cervical myofascial spasm, cervical disc bulge and possible cervical radiculopathy, as well as lumbosacral disc herniation, lumbosacral myofascial spasm and possible lumbosacral radiculopathy. Dr. Nagendra recommended EMG/Nerve Conduction Studies of the upper and lower extremities to objectively diagnose the nerve damage, which the doctor indicated was necessary for the further care of this patient and in order to give a prognosis and treatment. EMG and NCV testing was done on June 22, It is the bill for this testing, as well as the initial consultation of June 1, 2001 ($3,443.98) which is open and unpaid and is the subject of this arbitration. The respondent notes a request for Pre-Certification of this testing was received and reviewed on June 11-12, 2001 by Dr. Rigoglioso. Dr. Rigoglioso recommended denial of certification for the electrodiagnostic testing, concluding that the electrodiagnostic testing cannot be anticipated to alter the patient s treatment as well as concluding that Care Path indicated that EMG and Nerve Conduction Studies would not be recommended if a diagnosis of radiculopathy was apparent. Further, on June 20, 2001 a second request was received for the testing which was reviewed by Dr. Robinton. Dr. Robinton concluded the EMG and Nerve Conduction Studies were neither reasonable, nor medically necessary. Finally, on June 27, 2001, the patient was examined at the request of the respondent by Dr. Elliot Grossman, who concluded there were no objective neurological signs and therefore further neurodiagnostic studies were not warranted. This examination occurred after the testing by Dr. Nagendra was performed. The following documents have been submitted for review and consideration: Demand for Arbitration; Medical Bills (HCFA Forms); Reports of Dr. Nagendra; Electrodiagnostic Test Results; Letter of Medical Necessity from Dr. Nagendra; MRI reports; EOB; Print-out of notes of Dr. Rigoglioso; Report of Dr. Robinton;

3 CASE NO. 18 Z Report of Dr. Grossman; Letter from Respondent denying Pre-Certification of testing; Certification of Services. Where as here the issue is medical necessity, the claimant has the burden of proof to a preponderance of the evidence. Where there is a dispute, the burden rests on the claimant to establish that the services for which he seeks PIP Payment were reasonable, necessary and causally related to an automobile accident. Miltner v. Safeco Insurance Company of America, 175 N.J. Super 156 (Law Div. 1980). The necessity of medical treatment is a matter to be decided in the first instance by the claimant's treating physicians, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on the credible and reliable evidence of it's medical value is enough to qualify the expense for PIP Purposes. Medical expenses have been considered necessary even if the services only provide temporary relief from symptoms and will neither cure nor repair a medical condition or problem. Miskofsky v. Ohio Casualty Insurance Company, 203 N.J. Super 400 (Law Div. 1984). The necessity of medical treatment is a matter to be decided in the first instance by the claimant's treating physicians, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on the credible and reliable evidence of it's medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics v. Allstate, 125 N.J. 491 (1991). While the fact that a treatment is only intended to provide relief from symptoms is not alone a reason to deny benefits, such treatment must still be reasonable and necessary. Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. New Jersey Manufacturers Insurance Co., 244 N.J. Super 695 (App. Div. 1990). N.J.A.C. 11:4-2 defines medical necessity as medical treatment or diagnostic testing which is consistent with "clinically supported symptoms." Clinically supported is further defined as a personal examination in which the physician makes an assessment of subjective testing, complaints, observations, objective findings, neurologic indications and physical tests. Nowhere does the regulation require that the physician make an objective findings in order to administer a diagnostic test. Rather, the regulations clearly contemplate that such findings (or the lack thereof) are only a portion of a physician's assessment of the patient in his decision making process. In fact, the regulations require the recording and documentation of positive and negative findings and conclusions on the patient's medical records. Additionally, pursuant to Case Law developed in this State, where there is a conflict of testimony of medical experts, generally greater weight is to be given to the testimony of the treating physician. Mewes v. Union Building & Construction Company, 45 NJ Super 89 (App. Div. 1957); Biaco v. H. Baker Milk Company, 38 NJ Super 109 (App. Div. 1955); Abelit v. General Motors Corporation, 46 NJ Super 475 (App. Div. 1957). NJAC 11:3-4.5(b)(1) establishes a needle EMG test as reimbursable when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling. Similarly, subsection (2) establishes NCV and H-Reflex studies as reimbursable when used to evaluate neuropathies and/or signs of atrophy. The reports of Dr. Nagendra clearly establish the presence of symptomology consistent with the administration of these

4 CASE NO. 18 Z electrodiagnostic tests. Further, as Dr. Nagendra reported, the diagnosis formulated on June 1, 2001 was a possible radiculopathy and the request for testing was to further refine that diagnosis. Dr. Rigoglioso quotes the Care Path as holding that if a diagnosis of radiculopathy is apparent EMG and Nerve Conduction Studies are not recommended. In fact, the Care Paths specify that if the diagnosis of radiculopathy is obvious and specific on clinical examination, EMG testing is not recommended. No such reference is given with respect to Nerve Conduction Studies. The report of Dr. Robinton cites striking discrepancies in comparing the examinations of Dr. Nagendra and Dr. Khanthan. However, those discrepancies are not described or even enumerated. Dr. Robinton further indicates Dr. Nagendra does not discuss indications for the EMG and Nerve Conduction Studies in his report. That conclusion is not explained and it would appear to be inconsistent with a plain reading of Dr. Nagendra s report. Again, Dr. Robinton relies on the language of the Care Path. However, the Care Path contains the following footnote: These Care Paths identify typical courses of intervention. There may be patients who require more or less treatment...treatments must be based on patient need and professional judgment. Deviations may be justified by individual circumstances..." The report of Dr. Grossman, which occurs after the testing was done, is summary, inconclusive and certainly insufficient to overcome the recommendations of the treating physician. I find that the reports and records submitted by the claimant do establish to a preponderance of the evidence that the treatment for which payment is sought herein was reasonable, medically necessary and for a condition or conditions causally related to the subject accident. However, I find the billing of Dr. Nagendra to be inconsistent with the Fee Schedule. By applying the Fee Schedule, I find the amount to be awarded to Dr. Nagendra is $2,134.28, and amount subject to reduction only by application of any portion of the policy deductible and co-payment which remains open and unsatisfied. I also award interest in the amount of $ I further find the claimant was successful and is entitled to an award of counsel fees. Counsel for the claimant has submitted a Certification of Services wherein is sought counsel fees in the amount of $ together with costs in the amount of $ Counsel for the respondent has entered an objection to any award of counsel fees, with particular opposition in this matter to both the number of hours billed (4.9) and the hourly billing rate ($225.00). I find that an award of counsel fees in the amount of $ is consonant with the amount awarded herein and is consistent with the requisites of RPC 1.5 as well as consistent with the degree of effort, expertise and experience required for a successful prosecution of this claim. I also award costs in the amount of $

5 CASE NO. 18 Z This matter was the subject of an oral hearing conducted on November 27, The hearing was held open to afford the parties the opportunity to make additional submissions and was declared closed as of December 18, With the consent of the parties, the time within which the award was to issue was extended until February 14, MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Dr. Nagendra $ $2, Dr. Nagendra Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. 6. INCOME CONTINUATION BENEFITS: Not in Issue 7. ESSENTIAL SERVICES BENEFITS: Not in Issue 8. DEATH BENEFITS: Not in Issue 9. FUNERAL EXPENSE BENEFITS: Not in Issue 10. I find that the CLAIMANT did prevail, and I award the following COSTS/ATTORNEYS FEES under N.J.S.A. 39:6A-5.2 and INTEREST under N.J.S.A. 39:6A-5h. (A) Other COSTS as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $ (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $ (C) INTEREST is as follows: $ This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. February 10, 2003 Date John J. Fannan, Esq.