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.: N G.E. FINANCIAL ASSURANCE DRP NAME: Barry K. Odell (Respondent) NATURE OF DISPUTE: Reasonable and Necessary 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: J.D. 1. ORAL HEARING held on October 24, 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 made by the parties regarding the issues to be determined (Stipulations, if any, set forth below). 1. The parties stipulate that the provisions of AICRA apply to the within claim. 2. The parties stipulate that any award made is subject to adjustment as required by application of the New Jersey Medical Fee Schedule. 3. The parties stipulate that the claims for Income Continuation Benefits and Essential Services Benefits are withdrawn at time of hearing. 4. Respondent stipulates that $64.00 will be paid to Brielle Orthopaedics for date of service February 1, Claimant has amended its Demand to the amounts set forth in Claimant s submission dated January 3, FINDINGS OF FACTS AND CONCLUSIONS OF LAW:

2 CASE NO. 18 Z The within matter arises from an automobile accident which occurred on January 5, The parties have stipulated that the provisions of AICRA apply to the within claim. The initial Demand was filed on December 15 (14?), The hearing was held on October 24, Numerous submissions were made post-hearing, and the proceedings were finally closed on March 6, Claimant has submitted its initial Demand filed December 15, 2001, along with an Amended Demand dated February 11, 2002, as well as an Arbitration Statement dated October 23, Post-hearing submissions were forwarded dated November 21, 2002 and January 3, Hearings were reopened to accept Claimant s submission dated February 27, Supplemental submissions were required due to some confusion in the initial amounts claimed in the supporting documents. Claimant s Demand as amended is set forth in its letter dated January 3, Opposition from Respondent has been submitted under cover letter dated May 1, 2002 with an Arbitration Memorandum, an updated Arbitration Memorandum dated October 18, 2002 submitted at time of hearing. A supplemental submission dated October 28, 2002 was submitted by Respondent s attorney showing payments to Medical Center of Ocean County for the January 17, 2000 through January 31, 2000 charges in the amount of $ and indicating that the check had been cashed by the provider. Claimant was injured in the January 5, 2000 accident. Counsel for Claimant candidly admits that prior to the accident Claimant had an episode of low and mid-back pain in the summer of 1998, took and responded to epidural steroids, and by April of 1999 was feeling fine. In support of this position, Claimant has provided the report of Neurosurgical Associates of New Jersey, P.C. This report was prepared by Dr. Jonathan Lustgarten dated December 7, 2000 and indicates that Claimant was back to normal and doing fine, but in January of 2000 was injured in a motor vehicle accident and had immediate and much worse low back pain and numbness in the right thigh. Additional epidural steroid injections were provided. Dr. Lustgarten noted in his report that J.D. had two separate problems. The first was a moderate disc herniation at L5-S1 which was contributing to his lower back pain. He noted the distribution of the pain in the leg did not follow the distribution of the S1 nerve root, and he felt that this was a separate problem which correlated with the lateral femoral cutaneous nerve. He recommended ice packs on that nerve, Ibuprofen, physical therapy and nerve root blocks. Dr. Lustgarten s February 22, 2001 report indicated that J.D. had epidural injections and they did not significantly change his back pain or the pain and burning in his right thigh. He felt that this was meralgia paresthetica with some overlying lumbar spine disc problems related to the herniation. He then recommended an EMG/NCV, diagnostic blocks on the lateral femoral cutaneous nerve and x-rays.

3 CASE NO. 18 Z Dr. Lustgarten s April 2, 2001 report indicates that he had electrodiagnostic studies with only a mild right S1 radiculopathy related to the disc herniation. It was still felt that the lateral femoral cutaneous nerve was the problem. Also provided was the lengthy report and notes of Brielle Orthopaedics from Dr. Joseph Marsicano. Dr. Marsicano, in his March 19, 2002 report, reviewed records and noted that Claimant had been seeing Dr. Weintraub in the year 2000 and was receiving medication and had been shown by MRI to have a disc herniation at L5-S1. It was noted, however, that there was a previous MRI taken in October of 1998, and that there was no essential change from the prior MRI. By November 9, 2000, due to increasing pain, Dr. Weintraub ordered a third MRI, as he felt that the disc had been somewhat extended by the accident and was exacerbating his problem. By this time the disc was impinging on the nerve root. There was also a complaint of a burning sensation of the right thigh radiating to the foot. Dr. Weintraub discussed surgical options with J.D. if epidural and steroid injections did not work. Referral to Pain Management was recommended. The last evaluation was on February 6, 2002 at which time there were five physical therapy sessions already provided, none of which gave him any improvement. Referral to Pain Management with Dr. Daknis was recommended. Dr. Marsicano felt to a reasonable degree of medical probability that the thoracic and lumbar strains were causally related to the motor vehicle accident and felt the prior difficulties were undoubtedly re-aggravated by the accident. The report of Dr. David J. Frank, M.D. from Central Jersey Neurology Associates is provided. In his March 29, 2001 report, he mentions the problem with the compressed discs as being accident related and also notes meralgia paraesthetica on the right side as noted by Dr. Lustgarten. He recommended electrodiagnostic testing which was performed on March 9, A mild chronic S1 radiculopathy was noted. A Medical Center of Ocean County consultation from March 23, 2000 is provided. It was performed by Dr. Bruce. Injection with fluoroscopy was provided to relieve the severe discomfort in J.D. s lower back. Epidural steroid injection was performed at L4 and L5. The bill of Pain Management, also known as Spine & Pain Medicine, was provided. This was for treatment by Dr. Daknis. His February 20, 2002 report accompanies the bill. It indicates that Dr. Bruce had done an unsuccessful injection. It noted that J.D. had lateral femoral cutaneous nerve blocks which did help in resolving his symptoms. He recommended additional epidural steroid injections at a different location. These were performed on March 5, 2002, and the operative report from Monmouth Medical Center is submitted. A March 13, 2002 note indicates that this did not reduce his symptoms and that some surgery might be required. A provacative discography was performed by Dr. Daknis on April 9, An April 17, 2002 office note indicated that J.D. returned after discography noting a reproduction of pain at the L5-S1 segment and that he was recommending a follow-up with Dr. Marsicano of Brielle Orthopaedics for surgical options. On May 10, 2002 it as noted that J.D. had withdrawal symptoms and was on a

4 CASE NO. 18 Z three-week methadone taper to give his body a drug holiday. On June 5, 2002 it was noted that J.D. was off methadone. He was undergoing treatment by pain management physicians at Brick Hospital who were providing radiofrequency denervation of his spine. It was recommended, as he was off all narcotic analgesics and had completed discography, that he see a spine surgeon for surgical options. By letter dated November 21, 2002, physical therapy records from January through April, 2001 were provided. Claimant s January 3, 2003 submission contained a detailed analysis of the bills claimed. Additional medical provided consisted of a physical therapy discharge report from Meridian Health System indicating that J.D. had 20 sessions of physical therapy but did not return for further treatment. The final medical record presented in support of this claim was secured by counsel for Claimant from Concentra Medical Examinations. The report of Dr. Allan J. Drapkin, M.D., an Associate Professor at the Robert Wood Johnson Medical School at the University of Medicine & Dentistry of New Jersey, Division of Neurosurgery, in New Brunswick, New Jersey was provided. This report is dated December 10, Dr. Drapkin reviewed the medical records of Brielle Orthopaedics, Dr. Bruce, Brick Hospital and Monmouth Ocean Open MRI. They revealed that Claimant was a 44-yearold male with a prior history of low back pain which had resolved. A history of the January 5, 2000 car accident was presented along with visits at Brick Hospital emergency room, evaluations with Dr. Weintraub, MRI s, nerve blocks and pain management. After reviewing all the records, Dr. Drapkin diagnosed a herniated disc at L5-S1 and a traumatic meralgia paresthetica. He felt that the accident was the cause of both of these conditions. He recommended further treatment and believed that a right L5-S1 laminotomy with disectomy would be advisable and that the patient had been treated with conservative measures for too long without benefit. As for the meralgia paresthetica, a repeat block might resolve this problem in the doctor s opinion. If that should fail, a repeat course of neurontin should be attempted. If that, too, fails surgery is also an option. Claimant has indicated that it believed that all bills had been submitted for proper payment and that the bills presented in the Demand remained outstanding. Based upon a review of the medical records presented, I find that all treatment provided was medically necessary as set forth in N.J.A.C. 11:3-4.2 and that Claimant has proven this by a preponderance of the evidence. See, Miltner v. Safeco Ins. Co. of America, 175 N.J. Super. 156 (Law Div. 1980). I also find that the prescription medical expenses claimed, as amended, are also medically necessary and accident related. I also find that all injections claimed were medically necessary. The sole supporting documentation for denial of any treatment based upon the argument of medical necessity

5 CASE NO. 18 Z is a November 22, 2000 letter from Respondent to Dr. Weintraub. It is by a Dr. Silby. However, based upon the documentation provided, I find that these injections were also medically necessary. With regard to the bills set forth in Claimant s January 3, 2003 submission, I find that the pharmacy bills presented, as amended, are all accident related and award these amounts, for reimbursement to the Claimant directly. As for the bill of Medical Center of Ocean County, for treatment from January 17 to January 31, 2000, Claimant alleges the total bill claimed was $1, and that the fee schedule adjusted amount was $ Respondent argues that these charges were paid. Claimant disputes the amount paid and its sufficiency. Based upon a review of the file, I find that the fee schedule adjustment made by Respondent is correct. The patient copayment of $ is the patient s responsibility. The remaining balance, $721.20, is the amount due. The PIP payment ledger and the Explanation of Benefits form indicate that a 50% co-payment penalty was assessed for the provider s failure to pre-certify treatment. I find that this co-payment penalty was properly assessed. There is no indication that Pre-Certification or Decision Point Review Notice was provided under N.J.A.C. 11:3-4.7 or N.J.A.C. 11:3-4.8 and/or that the provider complied with the provisions of the Respondent s Decision Point Review plan. Claimant seeks an Order compelling Medical Center of Ocean County to accept the payment made as payment in full. First, this does not take into account the $ policy co-payment and deductible which would be the patient s obligation. Second, it is beyond the scope of this arbitration proceeding. I do, however, note that the standard personal automobile policy contained in the Administrative Code does require that the acceptance of an assignment by a medical provider requires them not to seek to obtain payment from the insured whenever coverage has been denied or charges have been reduced in accordance with the Pre-Certification plan. In this case no evidence has been presented as to the provisions of the plan or if Medical Center of Ocean County received benefits by way of assignment. I therefore deny the claim for benefits of Medical Center of Ocean County for services rendered from January 17 to January 31, 2000, as these have already been paid by Respondent in full. With regard to the bill of Brielle Orthopaedics, a review of both parties submissions indicates that services for February 1, 2000 remained outstanding. Respondent has stipulated that this bill would be paid, and I award the fee schedule adjusted amount of $ With regard to the bill of Medical Center of Ocean County for services rendered on March 9 and March 23, 2000, Claimant argues that the bill for fluoroscopic exams were not paid. The EOB s attached to Claimant s October 23, 2002 submission confirm this. I therefore award the amount claimed for these two dates of treatment, subject to reduction as required by application of the New Jersey Medical Fee Schedule.

6 CASE NO. 18 Z With regard to the bill of Neurosurgical Associates of New Jersey in the amount of $240.00, Claimant argues that there were co-payments in the amount of $60.00 and a balance due of $ for two unpaid dates of treatment. Respondent argues that no bills were ever submitted to Colonial Penn and that there were no records or reports attached to the Demand. All documents have now been supplied. The treatment rendered was medically necessary and accident related. I award this $188.00, adjusted by the New Jersey Medical Fee Schedule, subject to no further reduction, $60.00 payable to Claimant and $ to provider. With regard to the bill of Central Jersey Neurology Associates, Respondent argues that most of this bill was paid by Blue Cross Blue Shield and there is no lien asserted. However, Claimant seeks repayment of co-payment amounts in the amount of $ I award the amount claimed. With regard to the bill of Medical Center of Ocean County for services rendered on April 5, 2001, Respondent argues that it has collection notices for dates of service April 1, 2001 in the amount of $ and $ This is for physical therapy services. Respondent argues that the amount claimed was never submitted, that there are no C.P.T. Codes on the statement, and there is no supporting documentation for this date of services. Physical therapy and office notes were submitted as Exhibit 3 to the January 3, 2003 Statement. Claimant argues that the hospital bill indicates that the amount is still open for the full amount of $ However, the bills presented only indicate an amount due of $ I award the amount charged on the bill, $146.88, subject to adjustment as required by application of the New Jersey Medical Fee Schedule. With regard to the bill of Pain Management for Dr. Daknis services, Claimant demands $ for services from February 20 through June 5, The bill presented indicates numerous payments and insurance write-offs, and a balance due of $ No C.P.T. Codes are provided. Patient payments in the amount of $ are noted. I award this amount only, payable to the Claimant. I deny the remainder of the bill for failure to provide adequate billing information. The final provider listed is Point Pleasant Radiology. I award the amount claimed, $48.00, subject to adjustment as required by application of the New Jersey Medical Fee Schedule. This charge was for the fluoroscope exam necessary for the epidural shots previously awarded. As no argument or computation as been presented with regard to the issue of interest on the awarded amount, I find this portion of the claim to have been waived. Claimant has submitted a Certification of Services seeking counsel fees and costs. Claimant seeks hours of legal services at a rate of $ per hour. Several submissions were made. Attendance at hearing was required. Post-hearing documents were submitted. Claimant did prevail in securing payment of several outstanding bills. Based upon a review of the file, I find that a counsel fee in the amount of $1, would be consonant with both the amount of the award and with Rule 1.5 of the Supreme

7 CASE NO. 18 Z Court Rules of Professional Conduct. See, Enright v. Lubow, 215 N.J. Super. 306 (App. Div) cert. den. 108 N.J. 193 (1987). I also award reimbursement of costs in the amount of $ representing the filing fee only. An additional amount of $ is claimed for costs with no explanation or basis for the claim for recovery of this fee, and is denied. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded* Payable to Briarmill Pharmacy $ $ Claimant Medical Center of Ocean County $1, Brielle Orthopaedics $ $ Provider CVS Pharmacy $ $ Claimant Medical Center of Ocean County 03/09/00 $ $ Provider 03/23/00 $ $ Provider Neurosurgical Associates of NJ, P.C. $ $ Provider - $ Claimant - $60.00 Central Jersey Neurology Associates $ $ Provider Medical Center of Ocean $ $ Provider County 04/05/01 Pain Management $ $ Claimant Point Pleasant Radiology $ $ Provider Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. *Amounts awarded are subject to adjustment as required by application of the New Jersey Medical Fee Schedule unless otherwise indicated. 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

8 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): $1, (C) INTEREST is as follows: Awarded in the amount of $0.00. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. April 9, 2003 Date Barry K. Odell, Esq.