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.: DS First Trenton Insurance Company DRP NAME: James H. Garrabrandt (Respondent) NATURE OF DISPUTE: EMG/NCV Testing, 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: Claimant. 1. ORAL HEARING held on May 20, 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 matter arose out of a motor vehicle accident that occurred on August 18, 2001 and is, therefore, subject to AICRA. Claimant underwent EMG/NCV testing of his upper and lower extremities on December 11, The testing was performed by Dr. Nalini Prasad at a cost of $3, Respondent denied payment for the EMG/NCV testing; taking the position that the testing was neither clinically supported, nor medically necessary.

2 CASE NO. 18 Z Respondent bases its denial of payment on a peer review of a request for precertification of EMG/NCV testing conducted by Mark Dudick, D.C. The request for precertification of EMG/NCV testing had been submitted by the treating chiropractor, Dr. Frank Belverio. In his PIP Precertification Response dated December 5, 2001, Dr. Dudick, a chiropractor, indicated that documentation provided does not clinically support the medical necessity of 4 limb EMG/NCV studies for there is absence of a thorough neurological evaluation. Although the MRIs noted significant degenerative disc disease this was a pre-existing condition exacerbated at most by the 08/18/01 MVA. Dr. Dudick recommended that the 4 limb EMG/NCV testing be non-certified pending a thorough neurological evaluation and/or ICE. As suggested by Dr. Dudick, a thorough neurological evaluation of Claimant was conducted by Dr. Nalina Prasad on December 11, In a report dated December 15, 2001, and addressed to the referring chiropractor, Dr. Frank Belverio, Dr. Prasad indicates that on his initial visit to her office, Claimant complained of pain and stiffness in the neck. The neck pain traveled to both arms, hands and scapular regions, associated with numbness and tingling of both arms and hands. Claimant also complained of lower back pain and stiffness. The lower back pain radiates to both legs and knees. He also reports numbness of both legs. Due to continued symptoms in the neck and lower back, Dr. Prasad advised electrodiagnostic studies of both upper and both lower extremities with related paraspinals. According to Dr. Prasad, EMG and NCS studies were medically necessary to differentiate if Claimant had compressive neuropathy, plexopathy or radiculopathy. Following the EMG/NCV testing, Dr. Prasad recommended that Claimant continue with chiropractic therapy and physical therapy with cervical and lumbar traction. Based on the prior precertification denial, and despite the fact that the treating chiropractor had followed the peer review chiropractor's suggestion of seeking a neurological evaluation of Claimant, Respondent notified Dr. Prasad that payment of her bill for the EMG/NCV testing would be denied as the treatment plan did not support the medical necessity of the testing at that time. Following the neurological evaluation, Dr. Prasad recommended EMG/NCV testing for, and actually performed the testing on Claimant. In keeping with the suggestion of the peer review chiropractor, Dr. Mark Dudick, that Claimant undergo a neurological evaluation, and Claimant having done so, then, deference should be given to the recommendation of the consulting neurologist, Dr. Nalina, that Claimant undergo EMG/NCV testing.

3 CASE NO. 18 Z Of greater significance, though, and fatal to Respondent's contention that the EMG/NCV testing was not medically necessary, is its reliance upon the PIP Precertification Response of Dr. Mark Dudick as the basis for its contention. Under N.J.S.A. 39:6A-13(d), "[w]henever the... physical condition of an injured person covered by personal injury protection under a standard automobile insurance policy or medical expense benefits under a basic automobile insurance policy is material to any claim that has been or may be made for such past or future personal injury protection benefits or medical expense benefits, such person shall, upon request of an insurer... submit to... physical examination conducted by a health care provider licensed in this State in the same profession or specialty as the health care provider whose services are subject to review under this section..." Implicit in the language of N.J.S.A. 39:6A-13(d), then, denial of payment for EMG/NCV testing cannot be based upon a peer review conducted and/or recommendations made by a health care provider whose specialty is different than the specialty of the health care provider rendering the services under review. Claimant was examined by a neurologist, Dr. Nalina Prasad, who recommended EMG/NCV testing for, and actually performed the testing on him. The peer review physician, Dr. Mark Dudick, is a chiropractor and, therefore, not of the same specialty as the health care provider whose services were subject to review. Respondent's denial of payment for the EMG/NCV testing performed on Claimant by Dr. Prasad, a neurologist, on December 11, 2001 based on a peer review conducted by, and recommendations of Dr. Dudick, a chiropractor, is in violation of the provisions of N.J.S.A. 39:6A-13(d) and, therefore, invalid. In addition, N.J.A.C. 11:3-4.2 Definitions, in pertinent part, reveals that "Medically necessary" or "medical necessity" means that the medical treatment or diagnostic test is consistent with the clinically supported symptoms, diagnosis or indications of the injured person, and: 1. The treatment is the most appropriate level of service that is in accordance with the standards of good practice and standard professional treatment protocols including the Care Paths in the Appendix, as applicable. In Care Paths 1 & 2 and 5 & 6 for injuries to the cervical and lumbar spine, respectively, diagnostic evaluation may include an EMG.

4 CASE NO. 18 Z As set forth, in pertinent part, in N.J.A.C. 11:3-4.5 Diagnostic tests, (b) The personal injury protection medical expense benefits coverage shall provide for reimbursement of 1. Needle electromyography (needle EMG) when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling. 2. Nerve conduction velocity study is reimbursable when used to evaluate neuropathies and/or signs of atrophy. Through the report rendered by Dr. Prasad on December 15, 2001, Claimant has established that the EMG/NCV testing of his upper and lower extremities was consistent with the clinically supported symptoms, diagnosis and/or indications of the injured person and used in the evaluation and diagnosis of radicular syndrome where clinically supported findings reveal numbness or tingling. Claimant has demonstrated the treating physician's compliance with statutory guidelines and/or acceptable medical standards for diagnostic testing with regard to the EMG/NCV tests conducted on his upper and lower extremities and, therefore, has established the medical necessity of those EMG/NCV's. Claimant is entitled to reimbursement for those EMG/NCV studies. For the foregoing reasons, Claimant is entitled to reimbursement in the amount of $3,426.00, subject to the prevailing medical fee schedule and any applicable deductible and co-payments. With respect to attorney's fees in this matter, the Certification of Services submitted by Claimants' counsel has been reviewed. Respondent's argument that the attorney's fees being sought by Claimant's counsel are excessive has been taken into consideration, as well. As set forth in RPC 1.5, consideration has been given, but not limited to, the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the fees customarily charged in the locality for similar legal services, the amount involved and the results obtained, as well as the experience, reputation and ability of the lawyer performing the service. An attorney's fee of $1, is consonant with the amount of the Award and in keeping with the guidelines of RPC 1.5. Costs are awarded in the amount of $ (AAA filing fee - $325.00). 5. MEDICAL EXPENSE BENEFITS:

5 CASE NO. 18 Z Awarded Provider Amount Claimed Amount Awarded Payable to Dr. N. Prasad $3, $3,426.00* Dr. N. Prasad Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. *Subject to the prevailing medical fee schedule and any applicable deductible and copayments. 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): $1, (C) INTEREST is as follows: waived per the Claimant.. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. July 8, 2003 Date James H. Garrabrandt, Esq.