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

Transcription

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.: 30-V STATE FARM DRP NAME: John J. Fannan INSURANCE COMPANY NATURE OF DISPUTE: MEDICAL NECESSITY AND PRE- CERTIFICATION (Respondent) 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: The Patient 1. Oral Hearings were held on: January 16, 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 as permitted by the DRP (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: I find the Patient was injured as the result of an automobile accident which occurred on May 8, I further find that the patient was eligible to make claim for PIP benefits pursuant to the terms and conditions of a policy of automobile insurance issued by the respondent to Maria Santiago. The patient came under the care of the claimant, Dr. Marc Centrelli on May 24, She was diagnosed as suffering from disruption of the cervical intervertebral disc,

2 CASE NO. 18 Z cervical radiculitis, cervicalgia, acute traumatic lumbar strain, lumbosacral radiculitis and discogenic lumbago. She was placed on a program of chiropractic care consisting of manipulation, traction, trigger point therapy and exercise. She continued to treat with the claimant through November 29, The claimant alleges there is due and owing from the respondent the sum of $7, consisting of the following items: 1- an improper 25% additional co-payment penalty in the amount of $ for reductions taken for treatments administered during the first 30 days; and 2-$7, for treatments from date of service 6/26/00 through 11/29/00. The respondent alleges the patient failed to pre-certify treatment rendered from 5/24/00 through 6/23/00 as a result of which a 25% additional co-payment penalty was properly applied. Further, the respondent argues, with respect to treatment after 6/26/00, the respondent relies on the Peer Review report of Dr. Cornely dated July 19, That report finds that the records provided did not support ongoing care after 6/23/00. The following documents have been submitted for review and consideration: Demand for Arbitration; Medical Bills; Assignment; Certification of Dr. Centrelli; Treatment Plans and Requests for Certification with Fax Headers; Police Report; Report of Dr. Centrelli; MRI Reports; Report of Dr. Beg; EOBs; PIP Payment Ledger; Report of Dr. Cornely; Respondent Pre-Certification/Decision Point Review Plan; Certification of Services. With respect to the Pre-Certification penalty taken, the Plan of the respondent draws a distinction between Decision Point Review and Pre-Certification, which is in accordance with the Administrative Code. The Plan states as follows: Decision Point Review: Upon a determination that the injury is subject to Care Path Treatment Protocols, the manner will be monitored for appropriate follow-up at relevant Decision Points as defined by the Care Path Treatment Protocols. That same plan further defines Pre-Certification as follows: Pre-Certification: Upon a determination that the claim involves medical procedures, treatment or other services,

3 CASE NO. 18 Z non-medical expenses or durable medical equipment as specified herein, the Pre-Certification process will review the proposed Treatment Plan The Plan continues to indicate that Decision Point Review shall apply to all treatment of accidental injury to the spine and back for ICD-9 code as specified in the Care Paths in the appendix of NJAC 11:3-4.1, et seq. Pre-Certification is indicated as applying to a list of circumstances which need not be enumerated here. This distinction between Decision Point Review Pre-Certification is entirely consistent with the opinion of the Appellate Division in Coalition for Quality Healthcare v. New Jersey Department of Banking and Insurance, 348 N.J. 272 (App. Div. 2002) The Court noted that the Care Path Regulations establish typical courses of treatment for certain common automobile related injuries. The Court continued to observe that in contrast, Pre-Certification is defined as a program described in policy forms in compliance with these rules by which the medical necessity of certain diagnostic tests, medical treatments and procedures are subject to prior authorization, utilization review and/or case management. In referring to a Guideline Memorandum issued in July, 1999 by DOBI, the Court in Coalition II quoted the relevant section as follows: However, the DOBI cautioned that the (m)andated use of Pre-Certification, in connection with medical treatment of injuries addressed in the Department s Care Paths is problematic. Decision Point Review already sets the matter in which treating practitioners must interact with an insurer or his representatives. No penalty co-payment should be imposed during the period of insurer review, outside examination or until a determination is communicated, while treatment may continue uninterrupted pursuant to Decision Point Review and the Care Paths. Pre-Certification may also be identified for use as a tool to monitor over utilization of treatment of injuries outside of Care Paths. The injuries identified of the patient herein were a cervical injury and a lumbosacral injury, both of which are addressed in the Care Paths. The first Decision Point Review under these appropriate Care Paths does not occur until four weeks post-injury. I find that the respondent improperly applied a Pre-Certification penalty to Care Path injury treatments, which are by definition separate and apart from treatments subjected to Pre-Certification Requirements. Therefore, the claimant is awarded the return of the

4 CASE NO. 18 Z $ taken as and for 25% additional co-payment penalty for treatments from 5/24/00 through 6/23/00. With respect to treatment from 6/26/00 through 11/29/00, the issue there is medical necessity. Where the issue is medical necessity, the claimant has the burden of proof to a preponderance of the evidence. Where there is a dispute, the burden rests on the claimant to establish that the services for which he seeks PIP Payment were reasonable, necessary and causally related to an automobile accident. Miltner v. Safeco Insurance Company of America, 175 N.J. Super 156 (Law Div. 1980). The necessity of medical treatment is a matter to be decided in the first instance by the claimant's treating physicians, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on the credible and reliable evidence of it's medical value is enough to qualify the expense for PIP Purposes. Medical expenses have been considered necessary even if the services only provide temporary relief from symptoms and will neither cure nor repair a medical condition or problem. Miskofsky v. Ohio Casualty Insurance Company, 203 N.J. Super 400 (Law Div. 1984). The necessity of medical treatment is a matter to be decided in the first instance by the claimant's treating physicians, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on the credible and reliable evidence of it's medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics v. Allstate, 125 N.J. 491 (1991). While the fact that a treatment is only intended to provide relief from symptoms is not alone a reason to deny benefits, such treatment must still be reasonable and necessary. Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. New Jersey Manufacturers Insurance Co., 244 N.J. Super 695 (App. Div. 1990). Additionally, pursuant to Case Law developed in this State, where there is a conflict of testimony of medical experts, generally greater weight is to be given to the testimony of the treating physician. Mewes v. Union Building & Construction Company, 45 NJ Super 89 (App. Div. 1957); Biaco v. H. Baker Milk Company, 38 NJ Super 109 (App. Div. 1955); Abelit v. General Motors Corporation, 46 NJ Super 475 (App. Div. 1957). The report of Dr. Cornely, prepared more than one year after treatment stopped, is inconclusive and unpersuasive. The report notes that it is based on limited documentation and admits that Dr. Cornely did not have the re-examinations to evaluate ongoing progress. Nevertheless, in his summary, Dr. Cornely concludes the records provided suggest the patient was not responding positively to care. I find that the reports and records submitted by the claimant do establish to a preponderance of the evidence that the treatments from 6/26/00 through 11/29/00 for which payment is sought herein were reasonable, medically necessary and for a condition or conditions causally related to the subject accident. Applying the Fee Schedule to these treatments, I find the claimant is entitled to an award of $5, for these dates of service.

5 CASE NO. 18 Z Therefore, the total amount awarded to the claimant herein is $6, That amount is subject to reduction by application of the relevant policy of insurance deductible and copayment, to the extent that same remains open and unsatisfied. Inasmuch as no calculation of interest has been provided, the claim for interest is deemed to have been waived. I further find the claimant was successful and is entitled to an award of counsel fees. Counsel for the claimant has submitted an Affidavit of Legal of Services wherein is sought legal fees in the amount of $ together with costs in the amount of $ Counsel for the respondent has entered a vehement opposition to any award of counsel fees, but particularly has objected to both the number of hours billed (8.5) and the hourly billing rate ($225.00). I note that the issue involved in this claim, at least with respect to the Care Path/Pre-Certification distinction is significant and adds a degree of complexity to the services involved. I find that an award of counsel fees in the amount of $ is consonant with the amount awarded herein and is consistent with the requisites of RPC 1.5 as well as consistent with the degree of effort, expertise and experience required for a successful prosecution of this claim. I also award costs in the amount of $ This matter was the subject of an oral hearing conducted on January 16, The hearing was held open to afford the parties the opportunity to make additional submissions and was declared closed as of January 30, MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Dr. Mark Centrelli $7, $6,222.08* Dr. Marc Centrelli 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 is subject to reduction by application of the relevant policy of insurance deductible and co-payment, to the extent that same remains open and unsatisfied. 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

6 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): $ (C) INTEREST is as follows: Waived. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 4, 2003 Date John J. Fannan, Esq.