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

Transcription

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.: NJ MANUFACTURERS DRP NAME: John J. Fannan (Respondent) NATURE OF DISPUTE: Validity of Assignment, Decision Point Review/Pre- Certification 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 patient. 1. ORAL HEARING held on July 24, 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 (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 that the patient was injured as the result of an automobile accident which occurred on April 23, I further find that the patient was eligible to make claim for PIP Benefits pursuant to the terms and conditions of a policy of insurance issued to him by the respondent. I further find that the term of the aforesaid policy was 4/18/99 4/18/00. I find that the policy was renewed after the effective date of AICRA (3/22/99) therefore this matter is subject to AICRA Law.

2 CASE NO. 18 Z As a result of the automobile accident, the patient sustained the following injuries, by medical record: Traumatic soft-tissue injury to neck and back; Cervical sprain/strain with cephalgia; Thoracic sprain/strain; Herniated disc at L4-5; Acute hyperflexion/hyperextension injury to the neck and back. He came under the care of the claimant on April 27, 1999 and continued to treat with the claimant through 11/23/99. At issue are unpaid bills from July 8, 1999 through November 23, 1999 ($1,590.00), representing services rendered after benefits were terminated, and an unpaid bill for services rendered 5/11/99 through 5/21/99 ($895.00), for a total amount due and owing of $ Claimant maintains the total amount due and owing is $2,485.00, comprised of the unpaid bills of May, 1999 ($895.00) and post cut-off treatment bills ($1,590.00). The respondent asserts it is not liable for payment of these bills for the following reasons: 1. The claimant has failed to produce an Assignment of Rights; 2. Payment of the bills for treatment 5/12/99 through 5/21/99 was denied because of failure of the claimant to comply with Decision Point Review requirements; 3. Treatment after July 8, 1999 was not medically necessary based upon the examination performed at the request of the respondent by Dr. Joseph Seeman. The following items were presented for review in consideration: Demand for Arbitration; Medical bills; Report of Dr. Fotiou (7/21/00); MRI Report (6/22/99); Application for PIP; Report of Dr. Seeman (7/14/99); Relevant portions of patient s policy of insurance; Letters of April 27, 1999 to insured regarding Pre-Certification/Decision Point Review Plan; Letter of May 6, 1999 to Apex Chiropractic Center Re: Pre- Certification/Decision Point Review Plan; Explanations of Benefits; Certification of Services. With respect to the Assignment issue, I note that included in the Arbitration Demand was an executed Arbitration form dated 4/27/99 which is clear and unequivocal and is an authorization from the patient to permit the claimant to accept payments directly from the

3 CASE NO. 18 Z carrier on his behalf. Further, it is clear from the Explanations of Benefits provided that payment was in fact made by the respondent directly to the claimant on the patient s behalf. Therefore, I find that a valid assignment has occurred, of which the respondent had notice, and which assignment is sufficient in accordance with Tirgan v. Mega Life, 304 N. J. Super 305, (Law Div. 1997). With respect to the post cut-off treatments, and the attendant issue of medical necessity, I note that the claimant has the burden of proof to the 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. Thermographic Diagnostics v. Allstate, 125 N.J. 491 (1991). 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. Miskossky v. Ohio Casualty Insurance Company, 203 N.J Super 400 (Law Div. 1984). Even palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. New Jersey Manufacturers Insurance Company, 244 N.J. Super 695 (App. Div. 1990). I find that the claimant has met its burden of proof with respect to these treatments. The report of Dr. Fotiou (July 21, 2000) notes the patient experienced palpable edema and spasm in the cervical and trapezius musculature with many painful trigger points. Foraminal compression tests were positive of the right and left as well as shoulder depression tests on the right and left. Further, when Dr. Fotiou examined the patient on November 23, 1999 he further noted the patient continued to exhibit a reduction in the normal physiological range of motion in the cervical spine and lumbar spine. The report of Dr. Seeman, which does not dispute the causal relationship between the patient s injuries and the August 23, 1999 motor vehicle accident, does note that the patient exhibits mild residual symptoms of cervical and lumbar sprain/strains. Nevertheless, the Doctor then opines no further treatment is necessary, which I find conclusory and unpersuasive. Therefore, the bills from 7/8/99 through 11/23/99 ($1,590.00) are awarded. With respect to the billing of May 12, 1999 through May 21, 1999, the respondent initially contended payment was denied pursuant to Pre-Certification requirements. Subsequently, this defense was amended to allege that the claimant failed to comply with Decision Point Review Requirements. Under the circumstances of this case, I see no reason why amendment of the defense should not be permitted. The claimant alleges, based upon the approval date of the respondent s Pre-Certification/Decision Point Review Plan (1/14/00), that the unpaid dates in question were not subject to Pre- Certification notice of Decision Point Review requirements.

4 CASE NO. 18 Z I do not agree with claimant s position in that regard. Changes to policy forms are effective when the policy is issued or renewed and are not effective mid-term. As part of the changes made by AICRA, insurers included a general reference in their policy forms or PIP endorsement to utilization in review procedures for medical expense benefits mandated by AICRA. These provisions were effective for policies issued or renewed after March 22, However, in addition to the language in the policy form about the insurer s ability to determine the medical necessity of some PIP medical expense benefits prospectively, the Department s administrative rules require that the insurer have a Decision Point Review/Pre-Certification Plan that gives detailed information to the patient and provider about when and how notification to the insurer is required. In order for the insurer to be able to penalize the provider or insured for failing to follow its plan, the insurer must have its plan approved by the Department. Because the underlying policy language was already in place, the Department, upon approval of Decision Point Review/Pre-Certification plans, permitted insurers to apply the requirements of those plans on a going forward basis to claims that were already open provided that: (1) the policy was subject to AICRA, i.e. issued or renewed after 3/21/99 or reformed prior to that date; and (2) the insurer had given the provider and the insured information on how to comply with the plan requirements. The respondent has presented a letter from DOBI dated March 19, 1999 indicating that their Pre-Certification Plan was approved March 19, Further, respondent has provided evidence that the policy the patient was in fact renewed on April 18, 1999, after the effective date of AICRA. Finally, the respondent has provided a letter dated May 6, 1999 to APEX Chiropractic outlining the requirements of Pre-Certification/Decision Point Review Plan. However, that letter, upon which the respondent relies, clearly sets forth that the penalty for non-compliance shall be an additional 50% co-payment against the amount due and owing. Here, the respondent made no payment whatsoever toward the $ bill, which is clearly in violation of its own procedures. Therefore, I find that the bills for services rendered from May 12, 1999 through May 21, 1999 should be paid, subject to application of an additional 50% co-payment after Fee Schedule and Multiple Procedure Reduction adjustments have been applied. I find no evidence of a Pre-Certification or Decision Point Review compliance on behalf of the claimant. I further find, inasmuch as no calculation of interest has been provided, the claim for interest is deemed to have been waived. I further find that all amounts awarded under this decision, shall be subject to the application of the Fee Schedule and Multiple Procedure Reductions. Additionally, the

5 CASE NO. 18 Z amount of $ for services from May 12, 1999 through May 21, 1999 shall be subject to an additional 50% co-payment reduction. I further find that the claimant was successful and is entitled to an award of counsel fees; however the amount sought in payment thereof is reduced with consideration being given to the arguments of defense counsel in opposition thereto. I find that an award of counsel fees in the amount of $ representing 8.0 hours at $ per hour is consonant with the amount awarded 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 action. Oral hearings of this matter were conducted on July 24, The matter was held open to permit the parties to make additional submissions. Thereafter, the hearing was again reopened at the request of the DRP so that a conference call could be conducted. The call took place on November 19, 2001, at the conclusion of which the matter was declared closed. 5. MEDICAL EXPENSE BENEFITS: Awarded. Provider Amount Claimed Amount Awarded Payable to Apex Chiropractic Center $ $ Apex Chiropractic Center 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.

6 CASE NO. 18 Z (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: Waived. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. January 11, 2002 Date John J. Fannan, Esq.