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.: SKO NEWARK INSURANCE COMPANY DRP NAME: Jack Fannan (Respondent) NATURE OF DISPUTE: Medical Necessity 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 February 26, ALL PARTIES APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration were AMENDED and permitted by the DRP 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). The claim of the claimant ($13,058.96) was amended to $5, FINDINGS OF FACTS AND CONCLUSIONS OF LAW: I find that the patient was injured as the result of an automobile accident which occurred on June 18, 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 to Jaime Agudelo by the respondent. As a result of the accident, the patient came under the care of the claimant on or about June 23, 2000, complaining at that time of headache, neck pain radiating to her upper extremities which pain was accompanied by numbness and paresthesia described as pins and needles of the upper extremities. The patient also complained of thoracic pain and

2 CASE NO. 18 Z lumbosacral pain radiating to both buttocks accompanied by a tingling sensation of the lower extremities. She also complained of stiffness in the cervical and lumbosacral area. The claimant formed the following diagnosis: Post traumatic cephalgia; Cervical sprain; Cervical myofascial pain and trigger point syndrome; Cervical radiculopathy; Central posterior disc herniation at C5-C6; Lumbar sprain; Lumbosacral myofascial pain and trigger point syndrome; Lumbar radiculopathy bilaterally; and Central and left posterior disc herniation at L5-S1. The patient was started on a program of physical therapy including exercises on strengthening, range of motion exercises and stretching of the cervical/lumbosacral paraspinal area. She was also treated with cervical traction, phonoporesis, biofeedback training and physical therapy, as well as a home exercise program. The patient continued under the care of the claimant through March, The claimant submits bills due and owing in the amount of $5, representing treatments from August 30, 2000 through March 21, The respondent argues that reviews of the patient s files at their request failed to demonstrate specific positive findings of a need to continue therapy and that certification had been denied for lack of medical necessity. The following items were submitted for review and consideration: Demand for Arbitration; Summary of bill statement; Patient registration form; Affidavit of No Insurance; Power of Attorney and Assignment forms; PIP Application; 21-day Notice Letter with treatment plan; Pre-certification sheet; Policy Declaration Page; Police Report; Patient Notes; Physical Therapy Progress Notes; Physical Therapy Re-evaluations; Letter to respondent, Re: failure to respond to prior notices; Request for authorization of treatment; Appeal of Denial of authorization of treatment; Denial of Certification letters (Dr. Strell and Dr. Sonzogni);

3 CASE NO. 18 Z Response to request to review Denial (Dr. Strell); Respondent s Pre-Certification Plan; EOB s and payment checks; Reports of Dr. Fishberg (8/30/00; 5/28/01); Electrodiagnostic test results; and Certification of Services. 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. 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). 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. I find that the claimant has met its burden of proof and I find that the reports and records submitted have demonstrated to a preponderance of the evidence that the treatments for which payment is herein sought were reasonable, medically necessary and for a condition or conditions causally related to the subject accident. I find the reports of Dr. Strell and Dr. Sonzogni to be conclusory, unconvincing and unpersuasive. I further find that amount awarded ($5,494.00) is a net award, subject only to application of such portion of the patient s deductible and co-payment as may be open and unsatisfied. No evidence has been introduced to contradict the claimant s submission

4 CASE NO. 18 Z that the aforementioned amount represents a net amount, after application of the Fee Schedule and Multiple Procedure Reduction Formula as outlined by the claimant. Inasmuch as no calculation of interest has been provided, the claim for interest is deemed to have been waived. I find that the claimant was successful and is entitled to an award of counsel fees. Claimant's counsel has submitted a Certification of Services seeking counsel fees in the amount of $1, together with total costs of $ I find that an award of counsel fees in the amount of $1, is consonant with the amount awarded hereunder and is consistent with the requisites of RPC 1.5 as well as consistent with the degree of expertise, effort and experience required for a successful prosecution of the claim. I also award costs in the amount of $ This matter was the subject of an oral hearing conducted on March 26, The hearing was held open to afford the parties the opportunity to make further submissions and was declared closed as of April 2, MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Hudson Rehab. Med. Center $ $ Hudson Rehab. Med. 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

5 CASE NO. 18 Z 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: Not In Issue. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. May 14, 2002 Date John J. Fannan, Esq.