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.: RUTGERS CASUALTY DRP NAME: John J. Fannan INSURANCE COMPANY NATURE OF DISPUTE: MEDICAL NECESSITY, EUO (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 Patients: JOR & JAR 1. Oral Hearings were held on: June 25, NO ONE APPEARED at the oral hearing(s) for the respondent. At the time of the hearing, I telephoned Rutgers Casualty Insurance Company and was referred to an adjuster named Johnnie who believed the file had been referred to the law firm of Shurkin & Fershing. I spoke to someone in the office of Shurkin & Fershing and was advised they could find no record of this file. However, I directed that the hearings be held open for two weeks to allow the respondent and/or its representative to make any submissions required, after which the claimant counsel would have one week to reply. By correspondence dated June 26, 2003, Shurkin & Fershing did make a submission. The hearing was closed but re-opened by me to accept an additional submission dated July 15, 2003 from Mr. Fershing. 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: This is a claim which arises out of an automobile accident which occurred on August 5, At that time, patients JAR was a passenger in the vehicle owned and operated by Patient JOR. The claim for PIP benefits is made pursuant to the terms and conditions of a policy of automobile insurance issued by the respondent to issued to patient JOR. The patients came under the care of Dr. Ronald Kolator at Right Touch Chiropractic. Dr. Kolator reports that patient JOR complained of neck pain which radiated to the shoulders, mid-back pain and low back pain. There were positive findings to orthopedic tests administered, decreased ranges of motion and myospasm in the cervical, thoracic and lumbar spines. Dr. Kolator further reports that an MRI was ordered for the cervical spine due to radiation of pain into the shoulders. Dr. Kolator further reports that patient JAR presented with neck pain, low back pain as well as headaches. An examination revealed palpable edema and spasm to the cervical and trapezius musculature with painful trigger points and decreased ranges of motion. Similarly, the lumbar spine revealed palpable muscle spasm and areas of tenderness with decreased ranges of motion. Several orthopedic tests which were administered produced positive results. The diagnosis of patient JAR was for chronic traumatically induced sprain/strain to the cervical and lumbar spines. This patient was referred for cervical and lumbar MRIs. Dr. Kolator reports the lumbar MRI was needed to discover the exact cause of pain. It is the unpaid bills for these MRIs performed by claimant on October 16 th (JOR- $1,050.00) and October 17 th and 22 nd (JAR-$2,300.00) which are open and unpaid and are the subject of this arbitration. The procedural history is as noted above. The counsel for the respondent has requested to take an Examination Under Oath of their insured (patient JOR) and three passengers in his vehicle (one of whom was patient JAR). This request was made for the first time by correspondence dated June 26, 2003, one day after the oral hearing was convened. The following documents have been submitted for review and consideration: Demand for Arbitration; Assignments; Medical Bills (HCFA Forms); Certification request of Dr. Kolator (Re: JOR); Letter from ALTA Services pre-certifying cervical MRI for JOR; Report of Dr. Kolator re: Patient JAR; Undated Statement of Dr. Kolator re: Patient JAR; MRI results; Certification of Services; EOBs;

3 CASE NO. 18 Z Letter from respondent s claim department regarding delayed payment due to special investigation department referral (2/19/02). With respect to the EUOs, no evidence has been presented that the respondent at any time prior to the conduct of the hearing requested or scheduled EUOs. It is clear the right to conduct EUOs is not absolute or unfettered. That right is at least circumscribed by ordinary standards of reasonableness and fairness. See NJ Auto Full Insurance v. Jallah, 256 NJ Super 134 (App. Div. 1992); See also Prudential Property & Casualty v. Nardone, 332 NJ Super 126 (Law Div. 2000). The reading of these cases suggests that the right to conduct the EUOs arises where there is a reasonably articulable suspicion of fraud. Here, no evidence whatsoever has been presented that any indicia of fraud exists. The representations made in counsel s letter suggests there is a question as to the registration/licensing of the other vehicle involved in this accident, but there is no reference to suspected fraud in the claims of the patients herein. Further, the respondent first notified the claimant that it was investigating this claim in February, 2002, some four months after the services were rendered by the claimant. In March, 2003, the Demand for Arbitration was filed. Nevertheless, the first time an EUO issue is raised is in correspondence dated June 26, 2003, sixteen (16) months after the investigation was undertaken, three (3) months after the Demand for Arbitration was filed, and one day after the oral hearing of the arbitration claim was conducted. I do not find the conduct of an EUO at this late date, in light of the history of respondent s indifference to same throughout this matter, comports with ordinary standards of reasonableness and fairness, and the resolution of this claim will not be delayed pending same. With respect to medical necessity, suffice it to say that ALTA Services on behalf of the respondent determined the MRI of the cervical spine of patient JOR was medically necessary and certified same. According to NJSA 11:3-4.8(e)(2), the respondent may not deny payment for treatment provided when prior approval has been obtained unless the approval was based upon fraudulent information submitted by the person receiving treatment or the provider. There has been no evidence of any fraud whatsoever on the part of either JOR or the provider. Further, the reports and records submitted by the provider do establish to a preponderance of the evidence that the cervical MRI administered to patient JOR was reasonable, medically necessary, for a condition or conditions causally related to the subject accident and was prescribed in accordance with the American College of Radiology Appropriateness Criteria as required by NJAC 11:3-4.5(b)(5). Therefore, payment of cervical MRI for patient JOR is awarded. With respect to patient JAR, the only findings of Dr. Kolator include neck and low back pain, muscle spasm, areas of tenderness, decreased ranges of motion of both the cervical and lumbar spines. Absolutely no neurological deficit is documented. The American College of Radiology Appropriateness Criteria, at Variant 3 ( Spine Trauma: neck pain, no neurological deficit ) assigns the MRI an appropriateness rating of a mere 4 out of 9. Similarly, the Appropriateness Criteria at Variant 10 ( lumbar spine trauma: pain, tenderness ) also assigns the MRI an appropriateness rating of 4 out of 9. At Variant 11 ( lumbar spine: severe trauma, normal plain films, no radicular symptoms ) there is assigned to the MRI an appropriateness rating of 3 out of 9. Even given severe trauma,

4 CASE NO. 18 Z where is no radicular symptomotology to the lumbar spine, the MRI is not deemed to be a particularly appropriate test.. I find the reports and records submitted by the claimant have failed to establish to a preponderance of the evidence that the cervical and lumbar MRIs performed on patient JAR were reasonable, medically necessary, for a condition or conditions causally related to the subject accident or prescribed in accordance with the Appropriateness Criteria of the American College of Radiology. Payment of those MRIs is denied. With respect to the actual billing for patient JOR, it is noted that the billing for this MRI includes a billing for a Modifier-26 charge of $ NJAC 11: indicates that the professional component of global service charges shall be reported using Modifier-26 as designated in the CPT. Services with professional component amounts of $0 in the Fee Schedule are considered to be 100% technical. The technical component is the difference between the global service and the professional component amounts listed in the Fee Schedule. That language is abundantly clear and demonstrates the CPT Codes for the MRI are global charges comprised of two components: Technical Component and Professional Component. The amount of the total charge (the global charge) includes the amount reflected in the Fee Schedule under Modifier-26 as the professional component. It is wholly inappropriate to bill both the global and Modifier-26 professional component charge separately, inasmuch as the global charge already includes the professional component. Therefore, and in applying the Fee Schedule to the amount billed, I find the claimant Perth Amboy Diagnostic Imaging is entitled to an award on behalf of patient JOR in the amount of $ 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 claimant has submitted a Certification of Services wherein is sought counsel fees in the amount of $2, together with costs of $ The Certification of Services includes billing of 9.25 hours at an hourly rate of $ per partner, $ per associate and $60.00 per paralegal. Counsel for the claimant has provided no authority or precedent which would support the grant of paralegal fees to a successful claimant, and the portion of the Certification of Services which seeks payment therefor is denied. I have reviewed the line items reflected in the Certification of Services and find that an award of counsel fees in the amount of $1, 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).

5 CASE NO. 18 Z The procedural history of this matter is outlined above. The matter was declared closed as of August 7, MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Perth Amboy Diag. Imaging (Patient JAR) (Patient JOR) $ $ $0-Patient JAR $ Patient JOR Perth Amboy Diag. Imaging 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 16, 2003 Date John J. Fannan, Esq.