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.: V7103 USAA INSURANCE DRP NAME: Barry E. Moscowitz (Respondent) NATURE OF DISPUTE: Standing, Medical Necessity, and UCR 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: JT. 1. ORAL HEARING held on February 9, 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: FINDINGS OF FACT: Claimant submitted: Demand for Arbitration dated September 1, 2003; Letter dated December 3, 2003; Letter dated February 9, 2004; and Certification of Services dated February 9, 2004.

2 CASE NO. 18 Z Respondent submitted: Letter dated February 6, On November 18, 2002, JT was injured in an automobile accident. As a result of his injuries, JT went to claimant for treatment. From November 19, 2002 through March 12, 2003, JT underwent chiropractic treatment. Claimant submitted the bills for this treatment to respondent for payment. Respondent, however, denied payment. As a result, claimant filed this Demand for Arbitration. The issues presented are three: (1) whether or not claimant has standing to bring these claims; (2) whether or not the treatment with the DRX9000 was medically necessary; and (3) whether or not claimant billed the DRX-9000 properly. Regarding the first issue, claimant argues that it has standing to bring these claims. In support of its argument, claimant relies upon the argument contained in its February 9, 2004 submission. In short, claimant argues that it does have standing because respondent s policy imposes an unreasonable restriction upon assignments. As claimant writes, The Court in Coalition held that DOBI s approval of policies containing, clauses that place reasonable restrictions on the assignment of PIP benefits was permitted... Respondent has language in their policy that prohibits the assignment of benefits unless the provider of service benefits agrees to be the subject to the requirements of our Decision Point Review Plan... It should be noted that by compliance with the precertification requirements, Claimant has proven by a preponderance of the evidence that it has in-fact agreed to be bound by Respondent s Decision Point Review plan. Respondent, on the other hand, argues that claimant does not have standing to bring these claims. In support of its argument, respondent relies upon the argument contained in its February 6, 2004 submission. In short, respondent argues that claimant does not have standing because respondent did not consent to the assignment. As respondent writes, As written consent to the assignment was neither sought from nor provided by USAA, the instant Petitioner has no standing to present this claim and, accordingly, the arbitration demand must be dismissed. Regarding the second issue, claimant argues that the treatment with the DRX9000 was medically necessary. In support of its argument, claimant relies upon the argument contained in its February 9, 2004 submission. As claimant writes, In an effort to aggressively treat and remedy the disc pathology suffered by Claimant, the treating physicians sought to obtain pre-certification for non-surgical decompression therapy (DRX-9000). Respondent, on the other hand, argues that the treatment with the DRX9000 was not medically necessary. In support of its argument, respondent relies upon the argument contained in its February 6, 2004 submission. As respondent writes, Respondent relies

3 CASE NO. 18 Z upon the attached October 29, 2003 narrative of Dr. Joseph Scherpf... Dr. Scherpf noted that the benefits this particular patient derived from the therapy was negligible. Regarding the third issue, claimant argues that it billed for the DRX9000 properly. In support of its argument, claimant relies upon the argument contained in its December 3, 2003 submission as well as the EOBs attached to it. Respondent, on the other hand, argues that claimant did not bill for the DRX9000 properly. In support of its argument, claimant relies upon the argument contained in its February 6, 2004 submission. As respondent writes, The service has no assigned value in the fee schedule. Accordingly... the petitioner should not have charged a UCR rate because there is a similar service set forth in the fee schedule. The DRX-9000 is a traction device that provides decompression to the disc spaces by stretching out the back. The similar service noted in the fee schedule is obviously CPT code mechanical traction with a fee scheduled rate of $ CONCLUSIONS OF LAW: Regarding the first issue, I conclude that claimant has proven by a preponderance of the evidence that it has standing to bring these claims. I base this conclusion upon the argument claimant sets forth in its February 6, 2004 submission. Regarding the second issue, I conclude that claimant has proven by a preponderance of the evidence that the treatment with the DRX9000 was medically necessary. In New Jersey, every standard automobile liability insurance policy shall contain personal injury protection benefits for the payment of benefits without regard negligence, liability, or fault. N.J.S.A. 39:6A-4. "Personal injury protection coverage" means and includes the payment of medical expense benefits, which must also be in accordance with the benefit plan provided in the policy and approved for reasonable, necessary, and appropriate treatment. N.J.S.A. 39:6A-4(a). Moreover, these no fault provisions shall be liberally construed to effect their purposes. N.J.S.A. 39:6A-16. Their purposes are to provide insureds with the prompt payment of medical bills, lost wages, and other such expenses without making them await the outcome of protracted litigation. Amiano v. Ohio Casualty Ins. Co., 85 N.J. 85, 90 (1980). "Mandated as a social necessity, PIP coverage should be given the broadest application consistent with the statutory language." Ibid. Accordingly, even palliative treatment, designed only to relieve symptoms temporarily, may constitute necessary treatment. Elkins v. New Jersey Mfrs. Ins. Co., 244 N.J. Super. 695, 700 (App. Div. 1990). Still, medical expenses must be both reasonable and necessary to be compensable. Ibid. Under N.J.S.A. 39:6A-2(e), "medical expenses" means reasonable and necessary expenses for treatment or services as provided by the policy. And under N.J.S.A. 39:6A- 2(m), "medically necessary" means that the treatment is consistent with the symptoms or diagnosis -- and that the treatment (1) is not primarily for the convenience of the injured

4 CASE NO. 18 Z person or provider, (2) is the most appropriate standard or level of service according to the standards of good practice and standard professional treatment protocols, and (3) does not involve any unnecessary diagnostic testing. The regulatory definition of "medically necessary," however, differs slightly from the statutory definition of "medically necessary." Under N.J.A.C. 11:3-4.2, "medically necessary" or "medical necessity" means that the medical treatment or diagnostic test is consistent with the clinically supported symptoms, diagnoses, or indications of the injured person. And also under N.J.A.C. 11:3-4.2, "clinically supported" means that a health care provider made an assessment of current and/or historical subjective complaints, observations, objective findings, neurological indications, and physical tests. Statutes and regulations in pari materia are to be construed together to resolve doubts or uncertainties. Brewer v. Porch, 53 N.J. 167, 174 (1969). Stated otherwise, "Where statutes and regulations in some apparent conflict relate to the same subject matter, it is the duty of the court to construe them together as a unitary and harmonious whole." Lawrence v. Butcher, 130 N.J. Super. 209, 212 (App. Div. 1974). As a result, I will use the arguably more expansive definition of "medically necessary" or "medical necessity" contained in the administrative code. In this case, I conclude that the treatment was consistent with the clinically supported symptoms, diagnoses, or indications of JT. I also conclude that claimant made an assessment of current and/or historical

5 CASE NO. 18 Z elective servcies or equipment provided outside the State, the region in which the insured resides. Also under N.J.A.C. 11:3-29.4(e), where the fee schedule does not contain a reference to similar services or equipment as set forth in the preceeding sentence, the insurer s limit of liability for any medical expense benefit for any service or equipment not set forth in the fee schedules shall not exceed the usual, customary, and reasonable fee. Moreover, in Cobo v. Market Transition Facility, 293 N.J. Super. 374 (App. Div. 1996), the Appellate Division set forth the factors a tribunal should use in determining the reasonableness of fees not set forth in or not covered by the fee schedule. In that case, the Appellate Division concluded that the trial court should have used the fee schedules as no more than evidence of reasonableness, and should have considered other factors, such as what other [providers] were charging for the same services, [the particular provider s] billing history, and the disparity in fees charged to different insurance carriers. Id. at 387. In this case, claimant has justified the reasonableness of its fees. I base this conclusion upon my finding that the DRX9000 is not mechanical traction and upon the EOBs claimant submitted. As a result, I conclude that claimant s charge of $225 for the DRX9000 is the usual, customary, and reasonable fee. This conclusion is consistent with my previous awards addressing the same issue. Finally, I conclude that claimant is entitled to attorney s fees. Under N.J.A.C. 11:3-5.6(d)(3), an award may include attorney's fees for a successful claimant in an amount consonant with the award and with Rule 1.5 of the Supreme Court's Rules of Professional Conduct. Rule 1.5 states that a lawyer's fee shall be reasonable. The factors to be considered are, among others: the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; and the experience, reputation, and ability of the lawyer or lawyers performing the services. In this case, claimant was successful. As a result, claimant is entitled to attorney's fees consonant with the amount of the Award and Rule 1.5. Claimant shall be awarded costs and attorney s fees in the amount set forth in section 10 of this Award. The amount awarded also considers respondent s objection to claimant s hourly rate and time expended. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to

6 CASE NO. 18 Z Sente & Ferraro Chiropractic $6, $6, Provider Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. The amount awarded shall be subject to all applicable fee schedules, deductibles, and copayments consistent with this Award as well as any amounts already paid. 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): $285 for filing fee and $35 for certified mail, Lawyers Service, and copies (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1,300 (C) INTEREST is as follows: waived per the Claimant. $. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 15, 2004 Date Barry E. Moscowitz, Esq.