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.: KB FIRST TRENTON INDEMNITY DRP NAME: John J. Fannan INSURANCE COMPANY NATURE OF DISPUTE: MEDICAL NECESSITY (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 Claimants JJ & LB 1. Oral Hearings were held on: January 14, ALL PARTIES APPEARED at the oral hearing(s). REPRENSENTATIVE OF THE RESPONDENT 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 Claimants JJ & LB were injured as the result of an automobile accident which occurred on November 24, I further find that the Claimants JJ & LB were eligible to make claim for PIP benefits pursuant to the terms and conditions of a policy of automobile insurance issued by the respondent to Claimant JJ. Patient JJ came under the care of Dr. Fotiou at Apex Chiropractic on November 28, 2001 complaining of neck pain, mid-back pain and frequent severe headaches. A physical examination revealed palpable edema and spasm in the cervical and trapezius

2 CASE NO. 18 Z musculature with many painful trigger points and restricted range of motion in the cervical spine. A number of orthopedic/neurologic tests produced positive results and the following diagnostic impression was formed: cervical sprain/strain, thoracic sprain/strain. He was placed on a program of chiropractic treatment consisting of osseous manipulation, receptor muscle tonus work and physiotherapy in the form of high galvanic muscle stimulation, ultrasound and progressive vibratory therapy as well as a rehabilitative program. He continued to treat with Dr. Fotiou through June It is claimed there is due and owing as and for the bill of Apex Chiropractic for treatment of patient JJ the sum of $6, Also, during the course of this treatment, patient JJ was referred to Brunswick Imaging for two MRIs (cervical and thoracic) and there is also alleged an open bill for Brunswick Imaging in the amount of $2, for these tests. Patient LB came under the care of Dr. Fotiou at Apex Chiropractic on November 28, 2001 complaining of neck pain, numbness radiating into the right arm, mid-back pain, low back pain and right knee pain. A physical examination also revealed edema and spasms in the cervical and trapezius musculature with painful trigger points. Both the cervical and lumbar spines produced positive results to a number of orthopedic/neurologic tests administered and ranges of motion were noted to be restricted. Dr. Fotiou formed the following diagnostic impression: cervical disc herniation at C4-C5 (seen on MRI) with cervicobrachial syndrome and cervical radiculitis, thoracic sprain/strain, lumbar disc bulges (as seen on MRI). Patient LB was placed on a program of chiropractic treatment consisting of osseous manipulation, receptor muscle tonus work and physiotherapy in the form of high galvanic muscle stimulation, ultrasound and percussive vibratory therapy with a rehabilitative program. Patient LB continued to treat with Dr. Fotiou through July 24, It is alleged there is due and owing to Apex Chiropractic as and for treatment to Patient LB the sum of $5, The respondent argues that all treatment which has been determined to reasonable and medically necessary has been paid in accordance with the New Jersey Fee Schedule. Claimant LB was examined by Dr. Anthony DeMarco, a chiropractor, on March 22, Dr. DeMarco determined that the patient LB had plateaued chiropractically and reached maximum chiropractic benefit. Therefore, payment of chiropractic benefits for patient LB were terminated effective 3/28/02. Similarly, chiropractic benefits for patient JJ were terminated effective 2/12/02. The following documents have been presented for review and consideration: Demand for Arbitration; Medical Bills (HCFA Forms); Assignment; Request for Pre-Certification; Reports of Dr. Fotiou; MRI reports; Certification of Services; EOBs;

3 CASE NO. 18 Z PIP Payment Ledger; Report of Dr. DeMarco. The issue presented is clearly one of medical necessity. Where as here 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). Medically Necessary is defined in NJAC 11:3-4.2 as medical treatment or diagnostic testing which is consistent with the clinically supported symptoms, diagnosis or indications of the injured person. That same section of the Administrative Code defines clinically supported as meaning that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic has (1) personally examined the patient to insure that the proper medical indications exist to justify ordering the treatment or tests; (2) physically examined the patient including making an assessment of any current and/or historical subjective complaints, observations, objective findings, neurologic indications and physical tests; (3) considered any and all previously performed tests that relate to the injury ;(4) recorded and documented these observations. With respect to the MRIs performed by Brunswick Imaging, NJAC 11:3-4.5(b)(5) establishes the MRI as a reimbursable test when used in accordance with the guidelines contained in the American College of Radiology Appropriateness Criteria to evaluate

4 CASE NO. 18 Z injuries in numerous parts of the body, particularly the assessment of nerve root compression and/or motor loss. The Appropriateness Criteria of The American College of Radiology clearly indicate that the MRI is an appropriate test where there is evidence of radiculopathy or neuropathy. The reports submitted by Dr. Fotiou with respect to patient JJ are silent with respect to the referral for an MRI. However, the MRI reports of Brunswick Imaging reflect a history of trauma with neck and mid back pain. No reference is made to radiation of that pain. The Appropriateness Criteria under the heading Spine Trauma at Variant 3 ( Cervical Spine Trauma: neck pain, no neurological deficit ) assigns the MRI an appropriateness rating merely 4 out of 9. That same section of the Appropriateness Criteria at Variant 7 ( thoracic spine trauma; severe trauma, pain, no neurological deficit ) assigns the MRI an Appropriateness Rating also a 4 out of 9. In the absence of a clear explanation from Dr. Fotiou detailing the necessity for the MRI, I find the claimant JJ has failed to demonstrate that the testing performed by Brunswick Imaging was reasonable, medically necessary or for a condition or conditions causally related to the subject accident nor has it been demonstrated that these tests were prescribed in accordance with the American College of Radiology Appropriateness Criteria, as is required by the Administrative Code. Therefore, the section of the claim which seeks payment of the bill of Brunswick Imaging is denied. With respect to claimant JJ and LB, I find the reports and records of Dr. Fotiou do demonstrate the presence of objective symptomotology, as well as objective confirmation of the injuries underlying those symptoms, as evidenced by physical examination and test results. Periodic re-evaluations were conducted which monitored the progress of the patients and documented the need for continuing treatment. With respect to the termination of chiropractic benefits for patient JJ, I have not been provided with an IME report to form the basis for that termination. As to patient LB, there is a report submitted by Dr. DeMarco. Dr. DeMarco opined that the patient LB plateaued chiropractically and had reached maximum chiropractic benefit from the extensive treatment recorded to date as of 3/22/02. Dr. DeMarco does not conclude the patient was asymptomatic nor does he conclude that the patient was not in need of additional treatment he simply concluded no further chiropractic treatment was medically necessary. However, the reports of Dr. Fotiou do demonstrate a progressive improvement through that date, albeit slow and measured. I find the report of Dr. DeMarco to be unpersuasive and unconvincing with respect to the medical necessity of continued treatment. I find the reports and records submitted by the claimants have established that the treatment rendered to them by Apex Chiropractic Center was reasonable, medically necessary and for a condition or conditions causally related to the subject accident for patient JJ for dates of service 2/20/02 through 5/10/02 and for patient LB from 3/29/02-5/28/02. With respect to dates of service thereafter, the reports of Apex Chiropractic Center are strikingly similar and reflect virtually no change in the patients physical condition after the dates mentioned. Clearly then, effective 5/10/02 for patient JJ and

5 CASE NO. 18 Z /28/02 for patient LB, the patients had reached a treatment plateau. After treatment to effectuate a cure or rehabilitation has ended and the patient s condition has plateaued, medical expenses for palliative treatment may continue, but only to the extent that such expenses are deemed reasonable and necessary. The reasonableness and necessity of palliative expenses must be evaluated in the context of the quantum of pain involved, plaintiff s tolerance of pain and the overall effect of the pain on plaintiff s life. Perun v. Utica Mutual Insurance Company, 280 N.J. Super 280, (Law Div. 1994). The services must be shown by competent medical testimony to be such as are reasonable and necessary for the particular patient, taking into consideration his individual condition and need. Howard v. Harwood s Restaurant Company Rest. Co., 25 NJ 72 (1957). In determining what is reasonable and necessary, the touchstone is not the (patient s) desires or what he (sic) thinks is to be most beneficial. Rather it is what is shown by sufficient competent evidence to be reasonable and necessary to cure and relieve him (sic). Squeo v. Comfort Control Corp., 99 NJ 588 (1995). The reports and records submitted do not establish that treatment after the dates referenced hereinabove were reasonable or necessary to cure and relieve these patients or were any thing other than mere palliative care. The portions of the claim of the claimants which seeks payment for dates of service after 5/10/02 for JJ and after 5/28/02 for patient LB are denied. Therefore, and applying the Fee Schedule to the bills submitted, including the Daily Maximum Allowable Fee of $90.00 set forth in NJAC 11:3-29.4(m), the claim of patient JJ for payment of the bill of Apex Chiropractic Center is awarded in the amount of $2,470.54, and the claim of LB for payment of the bill of Apex Chiropractic Center is awarded in the amount of $1, The amounts awarded are subject to reduction only by application of such portion of the relevant policy of insurance deductible and co-payment as 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 a Certification of Services wherein is sought counsel fees in the amount of $1, together with costs of $ Counsel for the respondent has entered an objection to an award of counsel fees in this amount, with voicing opposition to both the total number of hours billed (7.10) and the hourly billing rate ($185.00). I have reviewed the line item entries on the Certification of Services and, mindful of the fact that the claimant was only partially successful but also recognizing the matter involved the claim of two individuals, I find that an award of counsel fees in the amount of $1, is consonant with the amount at issue 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 $ I further find the award of counsel fees in that amount to be consistent with the mandates of the Court in Enright v. Lubow, 215 NJ Super 306, (App.

6 CASE NO. 18 Z Div.), cert. Denied 108 NJ 193 (1987) as well as of Scullion v. State Farm, 345 N.J. Super 431 (App. Div. 2001). This matter was the subject of an oral hearing conducted on January 14, The hearing was held open to afford the parties the opportunity to make additional submission, and was declared closed of February 3, MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to JJ: Brunswick Imaging Apex Chiro $ $ $ Brunswick Imaging Apex Chiro LB: Apex Chiro. $ $ Apex Chiro. Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. 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): $ (C) INTEREST is as follows: Waived.

7 CASE NO. 18 Z This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 15, 2004 Date John J. Fannan, Esq.