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

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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.: LA LIBERTY MUTUAL GROUP DRP NAME: John J. Fannan NATURE OF DISPUTE: PRE- CERTIFICATION, 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: July 2, NO ONE APPEARED at the oral hearing(s) for the claimant. This matter was scheduled for an oral hearing on April 1, On that date, I received a telephone call from the office of claimant s counsel advising that, due to a personal emergency, claimant s counsel could not attend. The matter was rescheduled for July 2, On that date no one appeared for the hearing from the office of claimant s counsel. I telephoned the office of claimant s attorney but received no response. The oral hearing proceeded but the hearing was held open to afford claimant s counsel the opportunity to make submissions, which they did. 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).

2 CASE NO. 18 Z FINDINGS OF FACTS AND CONCLUSIONS OF LAW: I find the claimant was injured as the result of an automobile accident which occurred on July 13, 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 Kassandra Hemby. The claimant came under the care of Adams Chiropractic Center on 7/17/01, complaining of, in relevant part, neck pain, severe bilateral spasms of paraspinal cervical musculature with radiation of pain into both arms, painful right and left shoulders, numbness of right forearm, weakness in both arms, low back pain, pain and numbness in right and left legs and weakness in lower extremity. A physical examination revealed limitations of movement as well as tenderness and spasm. Orthopedic tests administered produced positive results. Based upon the subjective complaints and the physical examination as well as the results of the orthopedic tests, Dr. Bianchi formed the following diagnosis: Cervical sprain/strain, brachial radiculitis, subluxations of the cervical spine, cephalgia, lumbar sprain/strain, lumbar radiculitis, lumbar subluxation complex and lumbar paraspinal myalgia. The claimant was placed on a program of treatment consisting of spinal manipulation, galvanic therapy, mechanical vibration-oscillation therapy, trigger point therapy, application of cold compresses. She continued to treat with Adams Chiropractic Center through January 26, According to the claimant, there is open and unpaid the sum of $2, which consists of improper 50% additional co-payment penalty applied to dates of service 7/18/01-8/13/01 as well as for non-payment of any dates of treatment after 11/19/01. The respondent argued the 50% co-payment penalty was properly applied pursuant to NJAC 11:3-4.8(c). Further, the respondent notes that on December 4, 2001, at the request of the respondent and based upon the treating providers request for Pre- Certification of additional chiropractic treatment, a peer review was conducted by Dr. Paul McLaughlin, a chiropractor. The report of Dr. McLaughlin notes that in view of the fact the claimant was still exhibiting significant pain and findings after 40 visits, the treatment which was being employed was obviously not very effective and there was little likelihood that additional chiropractic treatment would result in any additional improvement. Therefore, the request for Pre-Certification of additional chiropractic treatment was denied. The following documents have been submitted for review and consideration: Demand for Arbitration; Medical Bills; PIP Application; Pre-Certification request with examination reports and faxed headers attached to report of Dr. Bianchi; Physical examination reports; Metrecom Inclinometer reports of the cervical and lumbar spines (12/14/01); EOBs;

3 CASE NO. 18 Z Report summary of Dr. McLaughlin; Correspondence from respondent denying Certification; Certification of Services. With respect to the issue of Pre-Certification, it is clear the injuries sustained by the claimant involved neck and back. These are injuries which are specifically within the purview of the New Jersey Care Paths and as such, fall under the conditions and requirements of NJAC 11:3-4.7, relating to Decision Point Review. Therefore, respondent s reliance on the terms of NJAC 11:3-4.8(c), specifically exempting only 10 days of treatment from Pre-Certification requirements, is misplaced. In fact, the Care Paths do not establish the first Decision Point Review for the type of injuries involved here until four weeks post-injury. Thus, apart from a notification of treatment within 21 days (which was provided), there simply was no obligation on the part of the provider to supply information to the respondent regarding ongoing treatment until after August 13, Therefore, the 50% additional co-payment penalty ($390.82) which was imposed by the respondent for dates of service 7/18/01 through 8/13/01 was improper and return of same is awarded. I find the proofs provided by the respondent do demonstrate that for services provided from 8/15/01 through 11/27/01, that payments were made in accordance with the New Jersey Fee Schedule, including considerations of usual, customary and reasonable billing practices, and with application of the relevant policy of insurance deductible and copayment amounts. Therefore, the respondent owed no further payment for those dates of service. With respect to dates of services of 11/29/01 and thereafter, the issue of one of medical necessity. 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).

4 CASE NO. 18 Z Medically Necessary is defined in NJAC 11:3-4.3 as medical treatment or diagnostic testing which is consistent with the clinically supported symptoms, diagnosis or indications of the injured person. The same section of the Administrative Code defines clinically supported as meaning that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic has (1) personally examined the patient to insure that the proper medical indications exist to justify ordering the treatment or tests; (2) physically examine the patient including making an assessment of any current and/or historical subjective complaints, observations, objective findings, neurologic indications and physical tests; (3) considered any and all previously performed tests that relate to the injury ;(4) recorded and documented these observations. The last progress report of the treating provider which has been submitted was dated 10/22/01. The only reports subsequent to that date are the Inclinometer reports, which merely recite data but offer no comments whatsoever relevant to the interpretations of that data or the significance thereof. Thus, it is impossible to determine whether the treatments administered to the claimant on and after November 29, 2001 was medically necessary. I find the reports and records submitted by the claimant have failed to establish to a preponderance of the evidence that the treatment administered to the claimant by Adams Chiropractic Center was reasonable, medically necessary and for a condition or conditions causally related to the subject accident and payment thereof is denied. Inasmuch as no calculation of interest has been provided, the claim for interest is deemed to have been waived. I further find the claimant was successful and is entitled to an award of counsel fees. Counsel for the respondent has entered an objection to an award of counsel, arguing the matter hand was relatively non-complex and required minimal pre-hearing discovery and/or submissions. After the reviewing the submissions of counsel, and noting that claimant s counsel did not appear for the hearing itself, I find that an award of counsel fees in the amount of $ is consonant with the amount at issue herein and is consistent with the requisites of RPC 1.5 as well as consistent with the degree of effort, expertise and expertise and experience required for a successful prosecution of this claim. I also award costs in the amount of $ I further find the award of counsel fees in that amount to be consistent with the mandates of the Court in Enright v. Lubow, 215 NJ Super 306, (App. Div.), cert. Denied 108 NJ 193 (1987) as well as of Scullion v. State Farm, 345 N.J. Super 431 (App. Div. 2001). This matter was the subject of an oral hearing conducted on July 2, The hearing was held open to afford the parties the opportunity to make additional submission, which both parties did, and was declared closed of July 30, 2003.

5 CASE NO. 18 Z MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Adams Chiropractic Center $ $ Adams 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. (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. September 8, 2003 Date John J. Fannan, Esq.