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 INSURANCE COMPANY DRP NAME: Kate Rabassa Wallen (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: Claimant. 1. ORAL HEARING held on 3/12/ 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: Claimant was involved in a motor vehicle accident on 10/18/00. The issues in the case involve chiropractic care between 3/3/01and 3/1/04 as well as a claim for reimbursement of prescriptions prescribed by a psychiatrist in 2001 and Respondent sent a termination letter dated 5/15/01 to Claimant terminating chiropractic treatment as of 5/29/01. The letter was addressed to the Claimant however although the street address was the correct address, it was sent to Barrington, New Jersey rather than

2 CASE NO. 18 Z Cherry Hill and the zip code of was used rather than as set forth on the policy declaration's page. Claimant testified that she never received that letter nor did she receive letters scheduling the IMEs with Dr. Dudick on 4/10/01 and 5/1/01. Based on the erroneous address and Claimant's testimony, I find that Respondent cannot rely upon Claimant not appearing for the IMEs to deny benefits in this case. This is an AICRA case. A pre-certification request was made by chiropractor, Simon Aslanian, D.C., and a physician advisor determination was issued on 1/3/01 by Dr. John Brow, D.C. At that time, Dr. Brow recommended four visits at once per week for four weeks. Dr. Aslanian was requesting twelve visits over four weeks at three times per week. Dr. Brow spoke with Dr. Aslanian as set forth on the pre-authorization denial form and indicated that Dr. Aslanian states that the patient had diagnostic testing which revealed positive findings and the impression from her neurological consult was to continue with chiropractic care for her post traumatic problems. He stated that the patient missed several appointments and has two small children and that she has difficulty in finding care to get to her appointments. The provider stated that after the patient received treatment, she gets relief and she has an increased range of motion. He did not feel that she was ready for any active care at that point. Dr. Brow stated that based on the clinical significance described by the provider, and the disruption in the patient's care, along with the lack of active care, that modification was recommended at four visits at one time per week. Dr. Brow states that that provider would not accept the modification, and a denial was issued. The follow up notice dated 1/4/01 received by Dr. Aslanian denied the treatment as requested. Claimant testified that she gets adjustments from Dr. Aslanian and it was to relieve the pain in her neck and headaches that she gets going up the right side of her head over to her forehead. She had an MRI of the head and neck and is still treating. She still gets headaches when her neck hurts but the chiropractic adjustments take the pressure away and make her feel better. Her pain then comes back. She is exhausted if she misses an appointment. The frequency of her treatment has changed as she indicates that she doesn't want to keep going three times per week because she was getting depressed by having to go so often and asked Dr. Aslanian if she had to go that often. He then let her come in only two times per week. She gets the same treatment, but sometimes it does differ as to whether she is having other problems. She indicated that prior to this motor vehicle accident, she saw Dr. Aslanian for low back pain which began with her pregnancy and thereafter got adjustments once a month to her low back. She had never gotten adjustments to her neck and he does not crack her neck but adjusts between her shoulder blades. She indicates that she is a lot better than she used to be. She asked the chiropractor how long she would have to treat and he said that she would have to come to him forever. She did see an orthopedic surgeon, Dr. Lawrence Barr, who recommended cortisone shots which she refused. I have reviewed Dr. Aslanian's reports of 5/6/02 and 3/24/03. No progress notes of Dr. Aslanian were provided. The reports of 5/6/02 and 3/24/03 are identical although the dates are different. They indicate that the patient has made sporadic improvement obtaining progressive general relief of symptoms. However, the reports indicate that

3 CASE NO. 18 Z these types of injuries are subject to episodes of remission and exacerbation caused by various aggravations. EMG performed on 11/16/00 shows consistent with a left C6-7 radiculopathy. Cervical MRI performed on 10/26/00 showed a small central herniated disk at C6-7 as well as minimal right neuroforaminal stenosis at C5-6. I find that the Claimant's injuries which placed her into Care Path 2 were a neck injury and a herniated disc/radiculopathy. She had MRI and EMG testing and was referred to neurology and an orthopedic doctor who recommended cortisone injections which Claimant refused. From Claimant's testimony at the arbitration hearing, it is clear that the chiropractic care that she is receiving is not helping her get better but is palliative in nature. On 1/15/01, when Claimant went for her neurological consult and her father recently became very ill and this also exacerbated her neck as well as her low back pain. He encouraged her to continue with treatment that Dr. Aslanian was providing. On 2/5/01, he also indicated that Claimant should continue with chiropractic treatments. Respondent apparently has paid for visits on 1/29/01 and again paid for chiropractic are between 6/4/01 and 7/24/01. In between, there is claim for payments between 3/3/01 and 5/25/01. There has been a gap of treatment in February, 2001, which presumably is due to Claimant's father's health. Number 3 of Exhibit 10, addendum to care paths found at N.J.A.C. 11: states that a course of spinal manipulation/chiropractic care is to be considered as conservative therapy on all care paths. If there is no improvement within one month, then immediate re-evaluation is indicated to determine appropriate further treatment and treatment options, including referral to other health care providers and/or modification of conservative therapy. Where findings suggest progressive or severe neurologic deficits, an appropriate diagnostic assessment to rule out serious neurologic conditions is indicated in any conservative therapy. In this case, Dr. Aslanian did refer Claimant to Dr. Barr, however Claimant refused the treatment offered by Dr. Barr and chose to continue conservative chiropractic care. I find that Claimant has not sustained her burden of proof in proving that the continuing chiropractic care was medically necessary. Deviations from the care path may be justified to individual circumstances, such as pre-existing conditions and co-morbidities. In this case, the reports of Dr. Aslanian which are submitted are devoid of any specific information regarding this Claimant and why care continued to date. It appears that Respondent did attempt to schedule the independent consultative opinion required by the care path when there was no improvement under chiropractic care. However, because Claimant did not receive the notice, she did not attend. Respondent did however take the position in that letter that it was not going to honor any further treatment on or after 5/29/01. Since some of the treatment issue took place prior to 5/29/01, I am awarding reimbursement of dates of service between 3/3/01 and 5/25/01 for a total amount of $2, prior to application of the medical fee schedule. However, I find that insufficient medical evidence has been presented to support the medical necessity of any further chiropractic care when the care paths and Dr. Brow's physician advisor review are considered. With respect to prescriptions provided by Covered Bridge Pharmacy between 8/9/01 and 6/21/02 in the amount of $3,143.52, these were prescribed by Dr. Joel Glass, a psychiatrist and consisted of Effexor and Wellbutrin. Respondent relies upon a report of

4 CASE NO. 18 Z Dr. David Piltchman who concluded in his 2/4/02 that the diagnosis of dysthmia is appeared indicated and it would appear the causality of the disorder goes beyond injuries as a direct result of the motor vehicle accident. Claimant advised Dr. Piltchman that she was prescribed Wellbutrin but she was not happy about as she was unable to tolerate the medication and the dosage. No records of her treating psychiatrist, Dr. Joel Glass, were provided. Claimant had been prescribed Ativan by Dr. Patel on 1/15/01 to relieve anxiety. Claimant testified that she went to Dr. Glass for depression and some of the medication he prescribed did not work. She indicates that she had lost of weight. Claimant was seen for psychological evaluation on 12/4/00 by Neuropsychologist Dr. Lewis Lazarus who noted that Claimant was noticeably distressed and despondent and also that she could benefit from psychotherapy to address her depression and anxiety symptoms. Around this time, Claimant was undergoing family therapy secondary to her pending divorce. Given that there were no medical records of Dr. Glass provided and Claimant's testimony that some of the medication did not work, I am awarding the first three prescriptions of Effexor and first two prescriptions of Wellbutrin. I find that insufficient evidence has been presented to support the remaining prescriptions being related to the motor vehicle accident related symptoms. Dr. Patel in January and February of 2001 prescribed Ativan, however the prescriptions at issue in this case range from August 9, 2001 through December 13, 2001 and no reports regarding reasons for their being prescribed have been presented. With respect to attorney fees and costs, I have reviewed Claimant's attorney fee certification and award an attorney fee of $1, which is consonant with the award and with RPPC 1.5. The filing fee of $ is awarded as a cost and in this case I am also reimbursing the costs of filing the complaint in Superior Court prior to it being removed to the American Arbitration Association jurisdiction in the amount of $ for total costs in the amount of $ Interest is deemed waived by Claimant. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Dr. Simon Aslanian $24, $2, Provider Covered Bridge $3, $1, Provider Pharmacy 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 to Dr. Aslanian are subject to reduction based on application of the medical fee schedule, co-payment and deductible as applied 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): $285.00, plus $ $ (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. 3/25/04 Date Kate Rabassa Wallen, Esq.