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.: LA LIBERTY MUTUAL DRP NAME: Kate Rabassa Wallen (Respondent) NATURE OF DISPUTE: Pre- Certification, Billing 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 3/9/ ALL PARTIES APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration were 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). Browning Road Apothecary withdrawn. 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: Claimant was involved in a motor vehicle accident on 1/8/03. The primary issue in dispute involves an allegation by Respondent that Dr. Zweibaum violated N.J.A.C. 13:44B-2.8(6) with respect to mechanical traction and failed to provide adequate supervision in order to bill CPT code 90714, electrical stimulation and CPT code and

2 CASE NO. 18 Z With respect to the ambulance bill for the date of accident, 1/8/03, I find that Respondent has not paid this and it is due and owing. Pre-certification cannot be applied because it was an emergency service of the first ten days. Therefore, I award $ subject to reduction based on application of the medical fee schedule by Respondent. With respect the bill of Excalibur-Kennedy Imaging. L.L.C. for an xray of the cervical spine performed on 7/23/03, I find that the amount is due and owing but subject to a fifty percent reduction based on a failure to pre-certify. Therefore, I award $9.50 prior to application of the medical fee schedule. In addition, Respondent is only responsible for this amount pending receipt of a bill with a CPT code. Next, I find that the office visit to Dr. Bao Nguyen in March of 2003 was medically necessary, however there was no pre-certification requested. Therefore, I award fifty percent of the fee scheduled amount of $78.01, or $ Interest in the amount of.50 is awarded. With respect to the bill of Dr. Zweibaum, who testified at the arbitration hearing, his understanding of AICRA was that he did not have to seek certification for care path treatment within the first four weeks if it was conservative care as set forth on the care path. I agree that this is the correct interpretation of the law. On 2/11/03, his office faxed an initial 1/10/03 and an interim 2/10/03 report and office visit notes for services rendered between 1/10/03 and 2/10/03. The last page of the 2/10/03 report had CPT codes for which treatment was sought on a three times per week basis for four weeks. I find that pre-certification requests were provided for treatment between 2/11/03 and 8/11/03 and therefore, no pre-certification penalty applies, based upon the fax reports dated 2/12/03 and 2/11/03 and 3/10/03, 4/7/03, 5/14/03, 6/9/03 and 7/14/03. With respect to the allegation of improper billing of CPT code 97012, mechanical traction, due to Dr. Zweibaum permitting unlicensed staff to place Claimant upon a table and without any direction of a licensed physician, violating N.J.A.C. 13:44E-2.7( c )(6), Dr. Zweibaum testified that N.J.A.C. 13:44E-2.7(d)(9) indicates that an unlicensed assistant may perform mechanical traction under the direct supervision of and when delegated by a licensed chiropractor. He testified that Bernadette had been employed by him for fifteen years, has gone to seminars and he has trained her. The weekly office meetings with discussions of problems and most of the time at least two out of three chiropractors in the office are there. The traction units are in a large room, always visible by the chiropractors who are in offices with glass walls providing them a view of the large room and a physical therapist is always in the large room supervising therapy. Photographs of the office set up were produced at the arbitration hearing. Bernadette sets the timer and moves on, she does not attend to the patient while the traction on the roller tables is taking place. She does not speak Vietnamese, but they have a Vietnamese interpreter on staff (the insured in this case spoke Vietnamese). I find that sufficient proof has been provided by Dr. Zweibaum that he complied with the administrative code regulations with respect to the mechanical traction billed under CPT code

3 CASE NO. 18 Z With respect to electric stimulation, the CPT code for indicates that electric stimulation billed under this code is unattended and this is found under the supervised category of modality, meaning that the application for modality does not require direct one on one patient contact by the provider. N.J.A.C. 13:44E-2.7 does not include electric stimulation in any of the categories either permitting application by an unlicensed assistant or administration by an unlicensed assistant. For the same reasons as set forth in the discussion of traction above, I find that Dr. Zweibaum's delegation of electric stimulation was appropriate under N.J.A.C. 13:44E-2.7. The issue of appropriate billing for office visits is raised by Respondent. Respondent argues that billing under CPT code is for a new patient, because the insured had already treated with Dr. Zweibaum for a prior accident, and this should have been billed at CPT code Dr. Zweibaum admits this and therefore, I find this was the appropriate code where reimbursement is sought. Dr. Zweibaum did not mention the prior accident in his report. He also indicates that in the second paragraph of his treatment, where he states that he would perform a diversified adjustment technique at the thoracic level, it should have read at the cervical, thoracic and lumbar spine level and thoracic was a typographical error. I accept his explanations and award the revised billing amounts. With respect to the physical therapy, Dr. Zweibaum testified that a physical therapist needs to observe someone on the bicycle. In his practice, he employs one physical therapist on a full time basis with two to four patients in for physical therapy at the same time. He also has had three hundred hours of specialized rehabilitation training under his chiropractic license and he performs physical therapy as well. Respondent argues that the physician or therapist does not have direct one on one patient contact based on the insured's sworn statement. The insured testified that neither the nurse nor the doctor would stay with her while she was on the bicycle nor when she used weights. They would be there a few minutes in the beginning and then the nurse left and she would be alone (page 44). After approximately fifteen minutes, the timer called automatically and the nurse would return. The bicycle had a timer and the pulleys did not have a timer. She testified that she would be alone doing the weights. Dr. Zweibaum testified that he did not know why the Claimant would say that no one stayed with her while she was doing physical therapy. The Claimant testified at page 48 that she stopped going to Dr. Zweibaum because he was unable to help her with her neck and her neck was worse currently than it had been. The treatments helped her back but her neck still had pain. The bicycle helped her back but the weights did not help her shoulder. (Pages ). The Claimant's testimony that her low back resolved but her neck pain continued is confirmed that the pre-certification requests submitted by Dr. Zweibaum. The insured was a seventy-three year old woman at the time she was undergoing treatment. The Claimant's testimony, taken with the services of an interpreter, was consistent with Dr. Zweibaum's except in one respect. According to the Claimant's testimony the treatment she received on the bicycle and the weights were given in the same manner as she received mechanical traction and electric stimulation. The CPT code book distinguishes these by indicating that mechanical traction and

4 CASE NO. 18 Z electric stimulation (unattended) does not require direct (one on one) patient contact by the provider but therapeutic procedures, including CPT code requires the physician or therapist to have direct (one on one) patient contact. Given the lack of distinction mentioned by the Claimant, I find insufficient evidence has been provided to support the therapeutic exercises billed under CPT code and the therapeutic activities billed under CPT code The HCFA forms list the name of John Armstrong, licensed physical therapist (LPT), as the person who provided the therapy but the insured did not testify in her sworn statement that any man helped her with the weights or bicycle. In reviewing the billing statements, I note that chiropractic care was rendered by Dr. Zweibaum through 4/7/03 and subsequent to that date, the care rendered in the form of physical therapy by, according to the HCFA form, John Armstrong, L.P.T. and Dr. Klausman, M.D. on 12/5/03. Based on the insured's testimony, I do not award reimbursement for services rendered 4/9/03 and 8/4/03. Therefore, I award a total of $5, prior to application of the medical fee schedule and in accordance with the prior determination that the office visit on 1/10/03 was reimbursed under CPT code 99214, rather than With respect to attorney fees, I have reviewed Claimant's attorney review certification. I note that the sworn statement was taken of the Claimant. I find an attorney fee of $1, is consonant with the award and with RPC 1.5. This includes the actual length of the arbitration hearing, receipt and review of Respondent's submission and takes into account that an EUO of the claimant was taken. The filing fee of $ is awarded as a cost as well as the cost of certified mail in the amount of $13.95 for total costs of $ Interest on Dr. Zweibaum's bill is awarded in the amount of $60.00 which is an estimate based on the fee scheduling to be done to the amount awarded. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Dr.Zweibaum $11, $5, Provider Dr. Bao Nguyen $ $39.01 Provider Township of Cherry $ $ Provider Hill EMS Excalibur-Kennedy $19.00 $9.50 Provider Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below.

5 CASE NO. 18 Z Amounts awarded are subject to reduction based on application of the medical fee schedule/ucr as calculated by respondent. 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): $ $13.95 certified mail = $ (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1, (C) INTEREST is as follows: Awarded in the amount of. $60.00 to Dr. Zweibaum This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. 4/2/04 Date Kate Rabassa Wallen, Esq.