Award of Dispute Resolution Professional. In Person Proceeding Information

Transcription

1 In the Matter of the Arbitration between CENTRAL JERSEY CHIROPRACTIC AND REHABILITATION CENTER A/S/O J.S. CLAIMANT(s), Forthright File No: NJ Proceeding Type: In Person Insurance Claim File No: Claimant Counsel: Law Offices of Sean Callagy v. Claimant Attorney File No: CJC-NJM-K-156 Respondent Counsel: Dyer & Peterson, P.C. Respondent Attorney File No: Accident Date: 08/05/2012 New Jersey Manufacturers Insurance Group RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Jennifer M. Campbell Esq. I, the Dispute Resolution Professional assigned to the above matter, pursuant to the authority granted under the "Automobile Insurance Cost Reduction Act", N.J.S.A. 39:6A-5, et seq., the Administrative Code regulations, N.J.A.C. 11:3-5 et seq., and the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey of Forthright, having considered the evidence submitted by the parties, hereby render the following Award: Hereinafter, the injured person(s) shall be referred to as: J.S. A proceeding was conducted on: June 13, In Person Proceeding Information Claimant or claimant's counsel appeared by telephone. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: The claim was amended to $4, NJ Page 1 of 17

2 Findings of Fact and Conclusions of Law This matter arises from an automobile accident that occurred on August 5, 2012, involving J.S. On that date, J.S. was eligible to receive PIP benefits under an insurance policy issued by Respondent. Claimant, Central Jersey Chiropractic and Rehabilitation Center has filed the present action for reimbursement of PIP medical benefits in the amount of $4, for dates of service 10/10/12 to 1/21/13. The claim was amended to $4, Issues: The issues presented by the parties at the hearing are as follows: 1. Whether the present matter must be dismissed because of the Claimant s alleged failure to file an internal appeal prior to filing the within Demand for Arbitration;; 2. Whether the patient s failure to cooperate with the Respondent under the applicable insurance policy by failing to submit to an Examination Under Oath warrants a denial of benefits; 3. Whether the chiropractic treatment and DMEs provided from 10/10/12 to 1/21/13 was reasonable, medically necessary and causally related to the accident; The following documentation was submitted by Claimant for review and consideration: -Demand for Arbitration with attachments; -Pre-hearing submission dated 6/5/14; -Certification of Services. The following documentation was submitted by Respondent for review and consideration: -Pre-hearing submission dated 5/27/14. I have also considered the oral arguments of counsel. At the conclusion of the oral hearing, the parties declined the opportunity to provide post-hearing submissions. The hearing was closed without objection on June 13, ISSUE #1- Whether the present matter must be dismissed because of the Claimant s alleged failure to file an internal appeal prior to filing the within Demand for Arbitration; I. Respondent s argument- NJM maintains a Decision Point Review Plan which, in pertinent part, contains a mandatory appeals process which any assignee must abide by prior to the filing of the Demand for arbitration. Pre-Service Appeals If you disagree with our determination with respect to requested treatment, diagnostic testing or durable medical equipment that has not yet been provided, you must submit a written request for appeal by the physician making the initial determination or, in his/her absence, another designated physician, through our internal Appeals Process within 30 days of receipt of a written denial or modification. A submission based on additional medical information that is supplied more than 30 days after the initial request will be considered a new request for decision point NJ Page 2 of 17

3 review or precertification and not an appeal. Submission of information identical to the initial material submitted in support of the request shall not be accepted as a request for appeal. Provided that additional necessary medical information has been submitted, a response to the appeal request shall be made within ten business days. If it is determined that peer review or an Independent Medical Examination is appropriate, this information will be communicated within ten business days as well. Request for pre-service appeals under this paragraph must be submitted via the facsimile number and/or mailing address provided for the assigned PIP Claims Representative. Post-Service Appeals As a condition precedent to filing an arbitration or litigation, a health care provider who has rendered services and accepted an assignment, or any insured, must submit a written request to appeal any and all disputes, including but not limited to any claims for unpaid medical bills for medical expenses and for unpaid services not authorized and/or denied in the decision point review and precertification process. The request must specify the issue(s) contested and provide supporting documentation. A post-service appeal under this section must be submitted at least 30 days prior to initiating arbitration or litigation. All requests for post-service appeal must include, as the cove page, a fully completed Post-Service Appeals form, in the form attached hereto, ad must be faxed to NJM at (609) The Post-Service Appeals form is also available at or may be obtained by contacting the assigned PIP Claims Representative. We will neither accept nor respond to post-service appeals that are sent to any other facsimile number or that fail to include a fully completed Post-Service Appeals form. Please note that only requests or Post-service payment appeals under this paragraph will be accepted at this facsimile number. Bulletin advises that NJM s Plan should be given full force and effect. The provider s failure to adhere to the express provisions of the Plan renders the insured s Assignment of Benefits null and void. As such the provider no longer has standing to proceed with the action: Assignment of Benefits If you wish to be paid directly by us for covered services, you must obtain an executed assignment of benefits. This assignment agreement must be furnished to us upon request. As a condition of assignment, you must follow the requirements of this Decision Point Review Plan and shall hold the insured harmless for penalty co-payments imposed by us based on your failure to follow the requirements of our Decision Point Review Plan. Failure to comply with (1) our Decision Point Review Plan Requirements or (2) the requirement to comply with the Appeals Process at least 30 days prior to initiating arbitration or litigation will render any prior assignment of benefits under the policy null and void. The following facts are relevant to the Failure to Appeal Issue : Failure to abide by NJM s Plan, in terms of submission of an appeal addressing the issues in dispute, voids the provider s assignment of benefits relevant to the issue later submitted to arbitration. In support of Respondent s position regarding the necessity of an issue specific appeal, find the award of DRP Sacco attached. NJ Page 3 of 17

4 Respondent notified Claimant of the denial of requested treatment plans via Decision Point Review Denials on October 22, 2013; November 13, 2012; December 14, 2012 and January 17, Per NJM s DOBI approved DPR Plan, Claimant must have appealed each denial within 30 days, specifically addressing the issue presented. As Claimant failed to appeal NJM s initial medical necessity denial and subsequent denials within 30 days the assignment of benefits is void and Claimant lacks standing to proceed with the claim with regard to the aforementioned dates of service. II. Claimant s argument- Respondent's DPRP requires pre-service appeals for medical determinations. It is Claimant's position that they were not required to submit any pre-service appeals in this matter because Respondent's DPRP response letters indicate either that no determination had been made, or that no medical determination had been made. Specifically, by letters dated October 22, November 13, December 14, 2012 and January 17, 2013, Respondent advised that their determination in response to Claimant's precertification requests were "Withheld Pending IME." Respondent's DRP response dated December 14, 2012 also alleges lack of coverage. Claimant submits that there was no basis to submit such pre-service appeals in this matter because Respondent's letters indicate that no medical determinations had been made in this matter. Therefore, Respondent's defense based on a lack of pre-service appeals must fail. Respondent's appeal defense must be rejected because they have not established appreciable prejudice and also based on Claimant's substantial compliance The Appellate Division stated in Hagar v. Gonsalves, 398 N.J. Super 529, (App. Div.), cert. denied 195 N.J. 522 (2008), that a carrier may only disclaim coverage upon a showing of "appreciable prejudice." Moreover, it is well established that that providers who substantially comply with carriers' Internal Appeals procedures may pursue payment of PIP claims through this forum. See: Saddle Brook Surgicenter a/s/o E.P & S.P.E v. New Jersey Manufacturers, FF#: , Dispute Resolution Professional Maria Daniskas, Esq. ("Based on the documentation in this matter, I find that claimant substantially complied with the internal appeals requirement of respondent's Plan. Claimant's arguments were persuasive on this issue."); Specialty Surgery of Middletown a/s/o Z.A. v. IFA Insurance Co., FF#: , Dispute Resolution Professional Deborah Cassella, Esq. ("In this matter, based upon the weight of the record evidence and the governing regulations, claimant substantially complied with respondent's internal appeals process...accordingly, the AOB is valid and enforceable and claimant has standing to proceed."); Dr. Wolkstein a/s/o H.D. v. New Jersey Skylands Ins Co., FF#: , Dispute Resolution Professional Joseph Tamburino, Esq. ("I find that there was substantial compliance with the provisions relied upon by respondent. To dismiss this proceeding, and then force the parties to proceed again from the start would be a waste of time, effort and money which this whole process was intended to avoid."); East Hudson Medical a/s/o S.G. v. CURE Auto Insurance, FF#: , Dispute Resolution Professional Robert Damiano, Esq. ("I find that the appeals were still filed prior to the filing of arbitration and afforded the Respondent the opportunity for a "second look" or reconsideration of its NJ Page 4 of 17

5 denial which would still permit the parties to accomplish one of the primary goals of the internal appeal process which is to avoid the consumption of time and costs prior to resorting to arbitration or litigation. Respondent was clearly not prejudiced by the Claimant's appeal attempts.") Here, Claimant submits that Respondent's internal appeals defense must fail due to lack of prejudice and based on Claimant's substantial compliance in this matter. Due to the fact that NOTHING was paid on this claim, Respondent was well aware of what was at issue in this matter. Moreover, attached is Claimant's appeal which disputes all denials in this matter. In view of the above, Claimant submits that they submitted ample information to afford Respondent the opportunity to reconsider their underpayment and denials. That being the case, Claimant substantially complied with any applicable internal appeals procedure and Respondent cannot demonstrate "appreciable prejudice." Therefore, this Demand may proceed. III. Findings- N.J.A.C. 11:3-4.7( c)(6) provides that a DPRP filing shall include An internal appeals procedure that permits the provider to provide additional information and have a rapid review of a decision to modify or deny reimbursement for a treatment or the administration of a test.: N.J.A.C. 11:3-4.7( c)(7) also provides that a DPRP filing shall include: Reasonable restrictions on the assignment of benefits pursuant to N.J.A.C. 11:3-4.9(a). In Coal.n for Quality Health Care v. N.J. Dept. of Banking & Ins., 348 N.J. Super. 272, (App. Div. 2001), the Appellate Court upheld the Department of Banking and Insurance s approval of insurance policy forms which void an assignment of personal injury protection benefits to a healthcare provider for noncompliance with policy requirements by the provider or insured. Bulletin issued by Commissioner Thomas Considine of the Department of Banking and Insurance noted: It is only reasonable and logical for insurers to require that, before using the expensive and lengthy external dispute resolution process, an insured or a provider under assignment should first utilitze the insurer s internal appeals process. N.J.A.C. 11:3-4.7(d) states that: The informational materials for policyholders, injured persons and providers shall be on forms approved by the Commissioner and shall include at a minimum the information in (d)1through 9 below 8. An explanation of the alternatives available to the provider if reimbursement for a proposed treatment, diagnostic test or durable medical equipment is denied or modified, including insurers internal appeal process and how to use it; and 9. An explanation of the insurer s restrictions on assignment of benefits, if any. Based on the evidence submitted and the arguments of counsel, I find that Claimant filed an appeal that substantially complies with Respondent s Decision Point Review Plan. Claimant provides a postservice appeal dated 7/31/13 which was forwarded to Respondent two months prior to the filing of the Demand for Arbitration. Claimant provides a facsimile confirmation sheet which indicates that the appeal was forwarded to Respondent on 7/31/13 at 13:36. In addition, I agree with Claimant that the NJ Page 5 of 17

6 pre-service appeal is required in situations where medical necessity determinations have been rendered. In this matter, Respondent forwarded letter to Claimant dated October 22, 2012, November 13, 2012, December 14, 2012 and January 17, 2013, advising that their determination regarding Claimant s precertification request was Withheld Pending IME. In addition, the December 14, 2012, response also advises lack of coverage. I agree with Claimant that there was no basis for Claimant to appeal since no medical determinations were made. I find that the post-service appeal substantially complied with the Respondent s DPRP. I find Claimant has standing to proceed with the arbitration. ISSUE #2- Whether the patient s failure to cooperate with the Respondent under the applicable insurance policy by failing to submit to an Examination Under Oath warrants a denial of benefits; I. Respondent s argument- The patient allegedly involved in the subject accident is the passenger in NJM s insured, J.B s, vehicle. The patient was not a name insured on the policy. A personal history search utilizing the patient s social security number revealed his last known address as 217 Kearny Avenue, Perth Amboy, New Jersey with a date range of November 2005 through August The 236 Mead Street, #4, Perth Amboy, New Jersey address was also listed with a date range of May 2012 through July The patient applied for benefits under the Esurance policy issued to a member in his household, A.M. He then proceeded to complete and application for PIP benefits under NJM s insured, J.B. s policy and indicated there were no other vehicles in his household. As such, NJM opened an investigation into this patient s claim and requested his cooperation pursuant to the terms of the policy. It is well established that the assignee of a patient s PIP claim takes subject to the insured s obligation to comply with the terms of the contract of insurance. NJM s DPR Plan provides, in pertinent part, that NJM may refuse claims where an insured refuses to submit to statements or examinations under oath. Here, the language of this provision, as required by the Regulation, had been provided to the insured and the provider, as it is contained in NJM s Plan. On December 10, 2012, NJM advised the patient to proceed with his claim through the policy of insurance issued to a member in his household. NJM scheduled the examination of the patient for January 22, 2013; January 25, 2013 and February 1, 2013 (See notices and fax confirmations to patient s attorney. The insured failed to attend three examinations, without excuse, and NJM is entitled to a full denial of the claim. NJ Page 6 of 17

7 On January 25, 2013, NJM also notified the patient of the third attempt to schedule his examination under oath. The notice further advised: The applicable NJM policy which mandates an insured must comply with the insurer s requests for examinations, as often as reasonably required. This is a pre-condition to coverage which, in this case, there is no basis to provide. Based on the foregoing, Respondent advised the patient and claimant of the denial of coverage as the patient failed to cooperate with NJMs policy terms. In the event any award is rendered Claimant must establish that all medical services rendered were reasonable, medically necessary and causally related to the August 5, 2012 accident. All medical services will be subject to the NJ Medical Fee Schedule. FAILURE TO COOPERATE: As set forth above the patient failed to attend various scheduled examinations to support this claim. The failure to cooperate, violates the patient s obligations under the policy and no coverage is due and owing for this claim. Additionally, the failure is patently prejudicial to NJM. NJM has been unable to verify whether household coverage existed. In further support of Respondent s position that the failure to cooperate, violates the patient/claimant s obligations under the policy and no coverage is due and owing for this claim, Respondent relies on the award in the matter of Park Avenue Chiropractic a/s/o JJ v IFA Insurance Co., NJ , where DRP Thomas Kaczka denied the demand in its entirety where the injured person failed to provide basic information despite repeated attempts on behalf of the insurer to ascertain same. II. Claimant s argument- An insurer's right to seek discovery is not unlimited. New Jersey Auto. Full Ins. Co. v. Jallah, 256 N.J. Super. 134, 141 (App. Div. 1992). In that regard, in order to obtain discovery, the PIP carrier must establish their request is fair and reasonable. Id. See also: Centre of Elizabeth a/s/o P.J. v. Mercury Insurance Group, NAF No (DRP John Fannan, 08/12/09). The Court went on to explain that denial of a claim is a "draconian remedy" that should only be reserved for wilful and egregious breaches. Jallah, 256 at 142. Moreover, in Hager v. Gonsalves, 398 NJ Super. 529 (App. Div. 2008) the Appellate Court concluded that 'an insurer must show that it was appreciably prejudiced by its insured's failure to cooperate in order to disclaim coverage based on that failure.' The Court explained that two variables should be considered in determining whether an insurer was appreciably prejudiced by a breach of the insured's duties under the policy: (1) "whether substantial rights have been irretrievably lost" as a result of the insured's breach," (2) "the likelihood of success of the insurer in defending against the accident victim's claim" had there been no breach." NJ Page 7 of 17

8 The Hager court was unequivocal in ultimately holding that, 'an insurer must show that it was appreciably prejudiced by its insured's failure to cooperate in order to disclaim based on that failure.' Respondent has not met this burden. Here, Respondent's failure to cooperate defense fails because they have not established that their request for the EUO was fair or reasonable, that any substantial rights have been irretrievably lost, or their defense in this matter was adversely affected. In that regard, the record evidence demonstrates the patient's eligibility for benefits under this policy. Claimant relies on the following documents to establish that the patient a passenger in an NJM insured vehicle and also that the patient was not covered by his own policy or as a resident relative under another policy: *Affidavit of No Insurance in which patient certified that he did not have his own policy, *Patient Household Questionnaire, in which the patient identified M.A. as a Friend, In view of the evidence establishing that this patient is eligible for benefits under this policy, Claimant submits that Respondent's request for an EUO was not fair or reasonable discovery and also that Respondent cannot establish the loss of substantial rights or that their defense in this matter was adversely impacted. Therefore, Respondent's noncooperation/eligibility defense fails. III. Findings- The duty of one seeking coverage to cooperate with the insurer when reasonably requested to do so is well settled in New Jersey. DiFrancisco v. Chubb Ins. Co., 283 N.J. Super. 601 (App. Div. 1995). N.J. Auto. Full Ins. Underwriting Ass n v. Jallah, 256 N.J. Super. 134 (App. Div. 1992). dealt with a dismissal of a claim as a result of a failure to cooperate by not attending a statement under oath. The court held that a dismissal of an otherwise deserving claim for failure to submit to discovery should be reserved for egregious breaches of an insured s failure to cooperate. The Court referred to a dismissal of benefits as a draconian remedy. Id at 242. It is well settled that the right to conduct an EUO is not absolute and unfettered. At the very least, it is circumscribed by ordinary standards of reasonableness and fairness. Prudential Property & Cas. Ins. Co. v. Nardone, 332 N.J. Super. 126 (Law Div. 2000). Based on the evidence presented and the arguments of counsel, I find that Respondent has failed to present sufficient evidence to warrant a denial of benefits in this case. First, I note that there is no evidence presented that the patient, J.S. who was not the named insured received a copy of the Respondent s policy containing the language requiring that he submit to statement or examinations under oath. Respondent further asserts that their DPRP which they claim was sent to J.S. provides that NJM may refuse claims where an insured refuses to submit to statement or examinations under oath. Respondent then refers to the DPRP attached to their submission as Exhibit A. In reviewing, the six pages of the DPRP which was provided by Respondent there is no language contained in what was provided regarding the requirement of submitting to a statement or EUO. I find that the evidence presented fails to establish that J.S. received notice of the requirement that he provide a statement or Examination Under Oath. The January 25, 2013, letter to J.S. rescheduling the EUO contains an excerpt of the policy language regarding Section 5- Duties after an Accident of Loss but there is no evidence that J.S. received a copy of the actual policy or that the DPRP contained language advising J.S. of his NJ Page 8 of 17

9 duties. In addition, I find that there is no evidence that J.S. was eligible for PIP benefits under any other policy. J.S. was a passenger in the vehicle owned by Respondent s insured. J.S. initially applied for PIP benefits under a household policy belonging to A.M. However, J.S. then provides a household questionnaire which indicates that he resided with A.M. at the time of the subject accident but that A.M. is a friend. As a result, J.S. was not eligible for benefits under A.M. s policy because there was not a sufficient relationship to trigger coverage under a resident relative policy. Based on the information provided, J.S. would only be eligible for benefits under the policy of J.B. as the host vehicle. Based on the proofs presented, I find that there is insufficient evidence to deny the claim based on lack of cooperation. ISSUE #3- Whether the chiropractic treatment and DMEs provided from 10/10/12 to 1/21/13 was reasonable, medically necessary and causally related to the accident; I. Claimant s argument- On August 5, 2012, J.S. was involved in a motor vehicle accident. Due to injuries sustained in the accident, the patient required treatment with this provider. The patient reported neck pain with radiation to the shoulders, mid back pain, low back pain radiating to the bilateral flanks and frequent, severe headaches. Exhibit C. Physical examination found guarding, decreased cervical and lumbar range of motion, positive Kemp, Valsalva, Bechterew, Laseque, Braggard, Nachlas, Ely, Yeoman, Linder and Soto Hall tests. X-ray testing was read to show rotational malposition at C5 and T9 and subluxation at L4-5. On November 24, 2012, the patient was read to show bulging with thecal sac compression at C23, C3-4, C4-5, C5-6 and C6-7; herniation with bulging at L2-3 and L3-4, and herniation with thecal sac compression at L5-S1. Respondent has conceded to the medical necessity of biofeedback, CPT Code Respondent's PAR by Dr. D'Amato states "The biofeedback procedures (90901) can be authorized as long as they have been properly documented." Here, Claimant's daily notes document that the biofeedback device was placed under the cervical spine and the patient was instructed to initiate and sustain timed contractions. Accordingly, Claimant is entitled to reimbursement for biofeedback, CPT Code 90901, in this matter. Claimant's determination as to treatment frequency must be given deference in this matter Here, the only PAR by Respondent noncertified taping, MRI studies, a TENS unit, a lumbar sling, and treatment at a frequency of five times per week. Respondent has not supplied any PARs or IMEs concerning the balance of the charges. Therefore, Respondent has waived any medical necessity defense as to the chiropractic treatment at a frequency of three times per week, x-ray studies, and all DME. NJ Page 9 of 17

10 Here, in view of the continued improvement and the severity of the patient's injuries which required additional treatment, it is Claimant's position that chiropractic benefits were improperly denied in this matter. In particular, the patient had had deficits which improved with chiropractic treatment, as follows: Cervical ROM Lumbar ROM October 17, % 21% December 13, % 46% January 16, % 65% Additionally, diagnostic testing confirmed the severity of the patient's injuries, revealing *rotational malposition at C5 and T9 and subluxation at L4-5. *bulging with thecal sac compression at C2-3, C3-4, C4-5, C5-6 and C6-7, *herniation with bulging at L2-3 and L3-4, *herniation with thecal sac compression at L5-S 1. Exhibit H. Claimant submits that the severity of the patient's injuries as well as the above noted steady improvement warranted the chiropractic treatment rendered in the within matter. Therefore, the subject services must be awarded as medically necessary. Through continued re-evaluation, the patient's treating provider was able to monitor results of administered treatments, evaluate change in subjective symptoms and objective findings, to conclude what type of treatment was necessary. The treating provider's records specify clinically supported findings allowing this provider to discern the appropriate treatment. As such, the provider's opinions must be dispositive in this matter. Accordingly, all treatment must be awarded as medically necessary. All DME and x-ray studies must be awarded as medically necessary CPT Codes L0120 and L0625, date of service October 10, 2012 The patient was given a cervical collar, CPT Code L0120 and lumbosacral support, CPT Code L0625, due to severe cervical pain and spasm. CPT Codes and E0190, date of service October 12, 2012 The patient was given a hot pack, ice pack and mineral ice, CPT Code 99070, to reduce pain and spasm and also a cervical pillow, CPT Code E0190, to aid in the proper rehabilitation of the patient's cervical injuries and to reduce further insult to the soft tissue while sleeping. Exhibit F. Claimant notes that the treating records document significant injuries which necessitated this DME, including: *neck pain with radiation to the shoulders, mid back pain, low back pain radiating to the bilateral flanks and frequent, severe headaches. *guarding, decreased cervical and lumbar range of motion, positive Kemp, Valsalva, Bechterew, Laseque, Braggard, Nachlas, Ely, Yeoman, Linder and Soto Hall tests. *rotational malposition at C5 and T9 and subluxation at L4-5. bulging with theca] sac compression at C2-3, C3-4, C4-5, C5-6 and C6-7; herniation with *bulging at L2-3 and L3-4, and herniation with thecal sac compression at L5-S 1. NJ Page 10 of 17

11 Regarding the x-rays, Claimant submits that the patient's injuries warranted this testing and that same was required to develop the patient's treatment plan. The x-ray studies, CPT Code Codes 72050, and 72110, date of service October 10, 2012, were read to show rotational malposition at C5 and T9 and subluxation at L4-5. Therefore, the DME provided in this matter must be awarded as medically necessary. II. Respondent s argument- Claimant failed to properly request precertification for services rendered. Respondent s DOBI approved DPR Plan asserts: If you fail to submit requests for decision point review or fail to submit legible clinically supported findings that support the treatment, diagnostic testing or durable medical equipment requested, payment of medical bills may be subject to a penalty co-payment of up to 50% even if the services are later determined to be medically necessary (See DPRP attached). Claimant submitted three precertification requests, as follows: DATE REQUESTED DATE RANGE 10/17/12 10/10/12 through 11/10/12 12/13/12 12/13/12 through 1/13/13 1/16/13 1/16/13 through 2/16/13 In the event of an award, Respondent respectfully submits the following dates of services (with the exception of the initial office visit on October 10, 2012) are subject to the 50% precertification penalty 10/10/12; 10/11/12; 10/12/12: It is evident Claimant attempted to circumvent the precertification process with respect to the nonemergent radiologic examinations of the spine and durable medical equipment allegedly offered to the patient within the first three visits. Respondent respectfully submits, per its DPR plan, precertification was required for same and should medical necessity be established, the 50% precertification penalty is applicable. 11/12/12 through 12/13/12 and 1/16/13 and 1/18/13: Claimant failed to request precertification and the 50% penalty is proper : Respondent respectfully submits CPT (supplies) are not separately reimbursable. Claimant has failed to provide an itemized invoice and supporting documentation that the supplies billed were over and above those usually used for the therapy provided. Requests and charges for supplies should be denied as unbundling pursuant to N.J.A.C. 11:3-29.4(g) which prohibits artificially separating or partitioning what is inherently one total procedure into subparts that are integral to the whole for the purpose of increasing medical fees. NJ Page 11 of 17

12 Alternatively, Claimant never requested precertification of As two units were billed on October 12, 2012, the 50% precertification penalty is applicable to both units. Code is a CCI edit to and not eligible for separate payment without a separate report: On October 17, 2012, Dr. Luciano D Amato reviewed Claimant s request for treatment at a frequency of five times per week, taping & strapping, biofeedback, lumbar sling, tens unit and supplies and properly denied same based on lack of clinical support of medical necessity. He noted CPT code was not considered correct for the kinesio-taping procedure and denied same. He also denied the request for treatment at a frequency of 5 times per week as it is excessive and beyond normal standards of care practice guidelines. Based on the foregoing, Dr. D Amato recommended an IME and denied treatment until a second opinion was established. Based on the foregoing, Respondent properly denied the requested treatment , 72070, 72110: Respondent submits it was improper for Claimant to perform these studies on the initial date of service without a trial of conservative treatment. Furthermore, Claimant billed CPT Report Findings on the next date of service. Respondent respectfully submits, per the unbundling statute previously discussed, Claimant may not request separate reimbursement for interpreting the aforementioned tests. As previously discussed, Claimant failed to request precertification. An award, if any should be subject to the 50% penalty. L0120 & L0625: Respondent respectfully submits Claimant cannot sustain its burden of proof with regard to the medical necessity of the disputed DME (L0120 & L0625). The claimant bears the burden of proving that the injury is causally related to the accident and the treatment is medically necessary. N.J.S.A. 39:6A-4. See also Miltner v. Safeco Ins. Co. of America, 175 N.J. Super. 156 (Law Div. 1980). The claimant must satisfy this burden of proof by a preponderance of the evidence. State v. Seven Thousand Dollars, 136 N.J. 233 (N.J. 1994). According to the New Jersey Administrative Code, a medically necessary treatment or test is consistent with the clinically supported symptoms, diagnosis or indications of the injured person and is the most appropriate level of service that is in accordance with good practice and standard professional treatment protocols including the Care Paths. N.J.S.A. 11: While the necessity for medical treatment or testing is a determination to be initially decided by the patient s treating physician, the objective, reasonable belief in the utility of a treatment or diagnostic method, must be based on credible and reliable evidence to qualify for PIP payment. Thermographic Diagnostic v. Allstate, 125 N.J. 491 (N.J. 1991). Here, Claimant has failed to offer any clinical documentation in support of the cervical collar and lumbar orthotic purchased. Claimant lacks evidence that such a device was even provided to the patient as there is no documentation of same. In addition to not providing a bill Claimant has failed to document the devices. The SOAP notes and evaluations fail to mention the collar and lumbar orthosis. Furthermore, the documents fail to mention the devices, its benefits to the patient, if any, and/or a treatment plan for the patient. As Claimant has failed to provide any supporting documentation to date, the burden remains unmet and no further reimbursement is owed. NJ Page 12 of 17

13 As previously discussed, the disputed DMEs are subject to the 50% precertification penalty. E0190, E0238-NU & L3020: Claimant has failed to provide supporting documentation for the aforementioned codes on and cannot sustain its burden of proof. The demand attachment and SOAP notes are void of any reference. There is no discussion as to the clinical benefit of the aforementioned codes. There is no mention of same in the provider s treatment plans. As such, Claimant cannot sustain its burden in establishing the necessity of same. Alternatively, N.J.A.C. 11:3-4.4(d) provides, Failure to request a decision point review or precertification where required or failure to provide clinically supported findings that support the treatment, diagnostic test or durable medical equipment requested shall result in an additional copayment not to exceed 50 percent of the eligible charge for medically necessary diagnostic tests, treatments or durable medical goods... As Claimant failed to request precertification, the 50% penalty should be imposed. III. Findings- Where there is a dispute concerning medical necessity, the burden rests with the claimant to establish by a preponderance of the evidence that the services for which he seeks PIP payments were reasonable, necessary and causally related to an automobile accident. See Miltner v. Safeco Insurance Company of America, 175 N.J. Super. 156 (Law Div. 1980). Pursuant to N.J.A.C. 11:3-4.2, 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 as applicable; (2) The treatment of the injury is not primarily for the convenience of the injured person or provider; and (3) Does not include unnecessary testing and treatment. Pursuant to N.J.A.C. 11:3-4.2, clinically supported means that a health care provider prior to selecting or ordering the administration of a treatment or diagnostic test has: (1) Personally examined the patient to insure that the proper medical indications exist to justify ordering the treatment or test; (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 and the results and which are relevant to the proposed treatment or test; and (4) Recorded and documented these observations, positive and negative findings and conclusions on the patient s medical records. 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 its medical value is enough to qualify the expense for PIP reimbursement. See Thermographic Diagnostics v. Allstate Ins. Co., 125 N.J. 491 (1991). While it is true the treating physician s opinion is not automatically accorded conclusive weight, it is accorded an appropriate measure of deference. Black & Decker Disability Plan v. Nord, 123 S. Ct (2003). NJ Page 13 of 17

14 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 Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984). Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. N.J. Mfrs. Ins. Co. 244 N.J. Super. 695, (App. Div. 1990). See also Perun v. Utica Mut. Ins. Co., 280 N.J. Super. 280 (Law Div. 1994). Based on the evidence presented and the arguments of counsel, I find that Claimant has established the medical necessity of the chiropractic treatment performed. With regard to the initial office visit on 10/10/12, I find that Claimant has established the medical necessity of the chiropractic treatment,. Claimant is awarded $ for CPT code , $ for the x-rays and $99.00 for the chiropractic treatment. I do not find a pre-certification penalty applies as this as the initial date of service and pre-certification was not required. Claimant also seeks $19.97 for L0120 (cervical collar, foam) and $43.27 for CPT code L0625 (lumbar orthosis) on date of service 10/10/12. The office note for date of service 10/10/12 states, the patient has been given a cervical collar due to severe cervical pain and spasm. To relieve weight bearing or motion stress on bones & joints & to immobilize structures in a sustained position so as to assist healing. The patient has been given a lumbosacral support due to severe lumbar pain and spasm. To relieve weight bearing or motion stress on bones & joints & to immobilize structures in a sustained position so as to assist healing. I find that the daily treatment note on 10/10/12 established the medical necessity and documents that the patient was provided a cervical collar and lumbar support. In addition, I find that a 50% pre-certification penalty does not apply since Respondent s DPRP requires that DME devices be pre-certified at a cost greater than $ Both the cervical collar and lumbar orthosis were under $ Claimant is awarded $63.24 for CPT code L0120 and L0625. Claimant is awarded the chiropractic treatment on dates of service 10/11/12 and 10/12/12 subject to a 50% failure to pre-certify penalty. However, the claim for CPT code on 10/11/12 has not been established as medically necessary. Claimant has failed to establish why a reevaluation was necessary one day after the initial evaluation had been performed. Claimant is awarded $99.00 for the chiropractic treatment on dates of service 10/11/12 and 10/12/12. With regard to CPT code E0190 (cervical pillow), (ice/gel pack) and (hot pack), I find the daily treatment note supports the medical necessity of same and documents that they were provided to the patient. The office note for date of service 10/12/12 states, the patient has been a hot pack, ice pack and mineral ice for home use to aid in the reduction and management of pain and spasm. These should be used as instructed. EO190- The patient has been given a cervical pillow to aid in the proper rehabilitation of the cervical injuries and to reduce further insult to the soft tissue especially at night while trying to sleep. In addition, I find that a 50% pre-certification penalty does not apply since Respondent s DPRP requires that DME devices be pre-certified at a cost greater than $ Both the hot/cold/gel packs and cervical pillow were under $ Claimant is awarded $76.39 for CPT code E0190 and Claimant has failed to establish the medical necessity of CPT codes E0238-NU on date of service 10/12/12, I find that Claimant has failed to provide documentation to support the medical necessity of same. The daily treatment note does not mention that the patient was provided E0238. The claim for CPT code E0238 on 10/12/12 is denied. Claimant is awarded the re-evaluation, chiropractic treatment and biofeedback on dates of service 11/12/12 to 11/26/12, subject to a 50% pre-certification penalty. Claimant submitted a pre-certification request on 10/17/12 for date range 10/10/12-11/10/12. The next pre-certification request was not received by Respondent until 12/13/12. Therefore, dates of service 11/12/12 to 11/26/12 were not pre-certified. Claimant also seeks reimbursement for strapping on 11/12/12. I find that the medical records fail to support the medical necessity of strapping and the claim for CPT code is denied. Claimant is awarded $ (50% of $1,011.44) for dates of service 11/12/12 to 11/26/12. Claimant has established the medical necessity of the re-evaluation, chiropractic treatment and biofeedback for NJ Page 14 of 17

15 dates of service 12/13/12 to 1/8/13. However, a 50% pre-certification penalty applies to date of service 12/13/12 since the pre-certification request was received by Respondent on that date and the date of service was performed within the three days that Respondent had to reply to the pre-certification request. Claimant is awarded $ for date of service 12/13/12 (50% of $ ) Claimant is awarded $ for dates of service 12/17/12 to 1/8/13 as the treatment was pre-certified. Claimant has established the medical necessity of the re-evaluation, chiropractic treatment and biofeedback for dates of service 1/16/13 to 1/21/13. However, a 50% pre-certification penalty applies to date of service 1/16/13 since the pre-certification request was received by Respondent on that date and the date of service was performed within the three days that Respondent had to reply to the pre-certification request. Claimant is awarded $ for date of service 1/16/13 (50% of $ ) Claimant is awarded $ for dates of service 1/18/13 and 1/21/13 as the treatment was pre-certified. Claimant has failed to establish the medical necessity of CPT code L3020 on date of service 1/18/13, I find that Claimant has failed to provide documentation to support the medical necessity of same. The daily treatment note does not mention that the patient was provided with this DME. The claim for CPT code L3020 on 1/18/13 is denied. Based upon the foregoing, Claimant is entitled to payment in the amount of $2, The award is subject to the fee schedule, co-pay and deductible. Interest is awarded in an amount to be calculated by Respondent. I find the claimant was successful and is entitled to award of counsel fees. Counsel for the claimant has made claim for attorney s fees and costs, and in connection therewith has submitted a Certification of Services wherein is sought counsel fees in the amount of $1, together with costs of $ Respondent has entered an objection to both the total number of hours billed as well as the hourly billing rate. Respondent further argues that any such fee awarded must be reasonably related to the amount of effort expended in attempting to secure payment and in proportion to the amount of bills sought to be recovered. In N.J. Coal. for Healthcare v. DOBI, 323 N.J. Super 207 (App. Div. 1999) the Court noted that an award of counsel fees to an insured who successfully obtains an Arbitration Award against an insurance carrier for payment of PIP Benefits has been the statutory and historical jurisprudence of our State. The Courts have construed that Rule 4:42-9(a)(6) which allows for an award of counsel fees in an action upon a liability or indemnity policy of insurance, in favor of a successful claimant to permit an award of attorney s fees and judicial actions brought under the PIP Statute. In Enright v. Lubow, 215 N.J. Super 306, (App. Div.), cert. denied 108 NJ 193 (1987) the Court indicated the factors to be considered in deciding whether to award attorney s fees include the insurer s good faith in refusing to pay the claim, the excessiveness of plaintiff s demands, the bona fides of the parties, the insurer s justification in litigating the issues, the insured s conduct as it contributes substantially to the need for litigation, the general conduct of the parties and the totality of the circumstances. As the Court pointed out in Scullion v. State Farm, 345 N.J. Super 431 (App. Div. 2001), while the Enright factors are to be considered in making the threshold determination as to whether to award counsel fees, many of those factors are equally applicable in determining the amount of counsel fees to be awarded. The Court in Scullion clearly suggests that the proper determination of the amount of counsel fees to be awarded requires a line by line analysis of the various Certifications of Services to determine whether hours expended by counsel are excessive for what appear to be routine efforts. NJ Page 15 of 17

16 In Rendine v. Pantzer, 141 N.J. 292 (19955), our state supreme court stated: both as a matter of economic reality and simple fairness, we have concluded that a counsel fee awarded under a fee shifting statute cannot be reasonable unless the lodestar, calculated as if the attorney s compensation were guaranteed irrespective of result, is adjusted to reflect the actual risk that the attorney will receive payment if the suit does not succeed. Id. at 338. As a general principle I find the hourly rate sought by Claimant s attorney is not unreasonable given the experience possessed by counsel and the degree of work/skill required to prosecute the present matter. However, an attorney s fee is also a product of the complexity of the service being rendered. I have considered the criteria and standards set forth herein and have reviewed the line item entries reflected on the Certification of Services and 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 $ for the filing fee as the other costs have not been proven. NJ Page 16 of 17

17 Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Central Jersey Chiropractic and Rehabilitation Center $4, $2, Central Jersey Chiropractic and Rehabilitation Center *Award is subject to the NJ fee schedule, co-pay and decductible. 2. Income Continuation Benefits: Not in issue 3. Essential Services Benefits: Not in issue 4. Death or Funeral Expense Benefits: Not in issue 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h.: to be calculated by Respondent. Attorney's Fees and Costs I find that the Claimant did not prevail and I award no costs and fees. I find that the Claimant prevailed and I award the following costs and fees (payable to Claimant's attorney unless otherwise indicated) pursuant to N.J.S.A. 39:6A-5.2g: Costs: $ Attorney's Fees: $1, THIS AWARD is rendered in full satisfaction of all claims and issues presented in the arbitration proceeding. Entered in the State of New Jersey Date: 07/28/14 NJ Page 17 of 17