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.: 30V State Farm Insurance Company DRP NAME: Patrick W. Foley (Respondent) NATURE OF DISPUTE: Causation, Reasonable and Necessary 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: claimant. 1. ORAL HEARING held on January 29, 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: This arbitration arises as a result of an automobile accident that occurred on January 24, The claimant was an eligible recipient of PIP benefits from the respondent when she suffered injuries as a result of said accident. This arbitration arises as a result of the respondent s refusal to pay certain benefits that it contends are unreasonable, unnecessary and/or rendered after the applicable cut-off date. From the claimant the undersigned has the following documents herein: * A copy of answers to Interrogatories completed by the claimant in her underlying bodily injury claim; * A copy of the May 29, 2003 report of Matthew Garfinkel, MD; * A copy of the March 6, 2003 report of Dr. Garfinkel;

2 CASE NO. 18 Z * A copy of the March 19, 2003 Operative Report of Dr. Garfinkel; * A copy of the January 31, 2003 report of Dr. Alan D. Tiedrich, MD, together with the April 30, 2003 addendum thereto; * A copy of the April 18, 2001 MRI report of Brunswick Imaging for MRIs conducted of the claimant s cervical and lumbosacral spines; * A copy of the December 29, 2001 report of Dr. Edward Palluzzi, DC; * A copy of the May 22, 2001 report of G.S. Neuro Associates, together with EMG/NCV test results; * A copy of emergency room records for treatment rendered to the claimant on the date of the accident at Raritan Bay Medical Center; and * A copy of all disputed bills herein. The claimant also testified on her own behalf. From the respondent in this matter the undersigned has the following documents: * A copy of the Accident Information Sheet the claimant filled out at her initial treating chiropractor s office shortly after the accident; * A copy of the chiropractic IME report of the exam conducted by Dr. George W. Pappas, DC on June 4, 2001; * A copy of the follow-up chiropractic IME report of the exam conducted by Dr. Pappas on March 13, 2002; and * A copy of the July 7, 2003 orthopedic IME report of Dr. David Rubinfeld, MD The main point of contention in this arbitration is the causal relationship of left knee surgery conducted upon the claimant herein by Dr. Matthew Garfinkel in 2003 to the accident in question. The claimant contends that the left knee injury she suffered was caused by this automobile accident and that she sought treatment with Dr. Tiedrich some eighteen months after the accident. Dr. Tiedrich, after examining and treating the claimant for a short period, referred her to Dr. Garfinkel for consideration of knee surgery. Dr. Tiedrich opined that the claimant herein had sustained a permanent left knee injury because of the accident, based upon his examination and consultation with the claimant. Dr. Garfinkel, after examining the claimant, determined that, based upon his examination and review of the MRI of her left knee, she had suffered a torn medial meniscus which was consistent with his finding of an inferior articular surface on the MRI. He determined that, at the time of his examination more than two years after the accident, based upon the history of her accident as well as the fact that she had not improved, that she had a significant internal derangement including the aforementioned torn medial meniscus as well as other possible abnormalities such as bone chips and/or inflamed tissue. He advised that a surgical procedure was necessary in order to properly treat this condition.

3 CASE NO. 18 Z Dr. Garfinkel was very emphatic in his findings as they relate to causation. In his report he wrote as follows: This [left knee internal derangement] is directly related to the motor vehicle accident of January 24, The patient was now more than two years from the accident and was not improving and, in fact, worsening with mechanical symptoms based on the history of her accident as well as the fact that she was now more than two years from the injury as well as my exam on this date. In further review of the MRI, I have certainly felt that she had significant internal derangement including torn medial meniscus and possible other abnormalities such as bone chips and/or inflamed tissue. On March 19, 2003 Dr. Garfinkel performed the arthroscopic procedure on the claimant s left knee and as a result of that procedure determined that she had, in fact, suffered a left knee torn medial meniscus and he performed a left knee arthroscopy with partial medial meniscectomy, together with a partial synovectomy of the left knee. For her part, the claimant testified that she did not suffer initial problems with her knee, but that over the course of the two years after the accident she noticed swelling, pain and clicking in her knee that progressed over time. She testified that she was not involved in any other accidents or incidents to her knee and when questioned by respondent s counsel as to why she reported no injury to her knee early, she indicated that she did not realize her knee was injured at the time of the accident. With regard to this issue, the respondent had the claimant examined by Dr. Rubinfeld who did an examination on July 7, As a result of his examination of the records provided to him, Dr. Rubinfeld opined that based upon his examination and a review of records, clinical experience and applicable research, the claimant s condition was not caused by the January 24, 2001 accident. He based his conclusion on the fact that there was no documented attention to the left knee for almost two years after the accident of record and that an injury that was serious enough to require surgery would require more expeditious treatment. Pursuant to case law developed in this State where there is conflict of testimony of medical experts, generally greater weight is to be given to the testimony of the treating physicians. See Mewes vs. Union Building and Construction Co., 45 N.J. Super. 89 (App. Div. 1957); Biaco vs. H. Baker Milk Co., 38 N.J. Super. 109 (App. Div. 1955); Abelit vs. General Motors Corp., 46 N.J. Super. 475 (App. Div. 1957). In this matter, Dr. Garfinkel had the opportunity to observe the assignor over a period as he treated her. He also had the benefit of the immediate reports of Dr. Tiedrich as well as the contemporaneous complaints of the claimant. While Dr. Rubinfeld opines that the fact there was no documented attention to the left knee for almost two years after the accident would, in and of itself, indicate that the injury could not have been related to the accident, he cites no basis or standard for that conclusion. Further, Dr. Garfinkel is quite concise and thorough in both his examination and in his findings. That, together with the credible compelling testimony of the claimant that she had no other injuries or accidents involving

4 CASE NO. 18 Z the knee, leads one to the conclusion that the knee injury, as determined and treated by Drs. Tiedrich and Garfinkel was, in fact, causally related to the accident in question. For these reasons the finding herein is that the treatment of the left knee by these doctors, inclusive of the surgery performed upon the claimant by Dr. Garfinkel, was reasonable, necessary and causally related to the accident in question. Accordingly, all bills submitted with this proceeding shall be paid in full by the respondent herein. By consent of the parties, this award is rendered subject to the New Jersey Medical Fee Schedule as well as any remaining deductible and co-pay of the claimant. The claimant herein waived interest. The claimant is the prevailing party for the purposes of fees and costs in this matter. The claimant s attorney has submitted an affidavit of services setting forth 18 hours at $ per hour seeking a total fee of $4, The respondent s attorney has commented on this Affidavit, indicating that it is excessive as to both the number of hours spent and the amount per hour. The undersigned had an opportunity to review this affidavit and notes that this was unusually complex case involving more thorough preparation than the usual matter. Further, the parties did engage in discovery, including an Examination Under Oath of the claimant. All that being said, however, the undersigned does find the allocation of time of the claimant s lawyer to be excessive. Further, the hourly rate is higher than that which is appropriate in matters such as these. For these reasons, the undersigned is awarding a fee of $2,500.00, or 12.5 hours at $ per hour plus costs in the amount of $ MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Edison Metuchen $5, $5, Provider* Orthopedic Group Edison Surgical $3, $3, Provider* Center Dr. Allan Tiedrich $ $ Provider* AP Diagnostic $1, $1, Provider* Imaging Menlo Anesthesia $ $ Provider* Associates HealthSouth $59.00 $59.00 Provider* Physical Therapy JFK Medical Center $ $ Provider* *Award is subject to the New Jersey Medical Fee Schedule, as well as any remaining deductible and co-pay.

5 CASE NO. 18 Z 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): $2, (C) INTEREST is as follows: waived per the Claimant. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 12, 2004 Date Patrick W. Foley, Esq.