Award of Dispute Resolution Professional. Hearing Information

Transcription

1 In the Matter of the Arbitration between Accurate Monitoring, LLC a/s/o M.S. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: Law Offices of Sean Callagy v. Claimant Attorney File No: AM-AA-K-002 Respondent Counsel: Gelfand, Barone & Bava Respondent Attorney File No: Accident Date: 07/02/2007 AAA Mid-Atlantic Ins Grp RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Nanci G. Stokes 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: M.S. An oral hearing was waived by the parties. An oral hearing was conducted on: 08/15/12. Hearing 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 is amended to $ NJ Page 1 of 10

2 Findings of Fact and Conclusions of Law Nature of Dispute: I. Were lumbar surgical procedures causally related and medically necessary? II. If yes, what reimbursement is owed to the providers? The following documentation was submitted for consideration: Claimant M.S.: Demand including: bills and assignment. Submission dated 5/10/11 including: letter memorandum, amendment, medical records, and operative records. Letter memorandum dated 7/5/12 with coding materials. Certification of Services. Claimant Accurate Monitoring: Demand including: bills and assignment. Submission dated 7/26/12 including: letter memorandum, medical records, EOBs and other materials. Certification of Services. Claimant Neurophysiologic Interpretive Services: Demand including: bills and assignment. Submission dated 5/20/11 including: letter memorandum, report, articles and other materials. Submission dated 5/26/11 with letter of explanation. Certification of Services. Claimant NJ Spine Institute: Demand including: bills and assignment. Submission dated 8/7/12 including: letter memorandum, records and other materials. Certification of Services. Respondent: Submission dated 7/26/12 with letter memorandum, IME report, peer review, and additional materials. MRO MRO report of Dr. Malanga I also heard the arguments of counsel and testimony of M.S. I. Initially, it is noted that this matter is part of a consolidated matter involving co-surgeons, the anesthesia provider, intra-operative monitoring/interpretation providers and the surgical facility involved in lumbar surgery on 1/12/10. The patient filed individually under NJ as to the claims of Paramus Surgical Center, one of the surgeons (Dr. Ragukonis of Bergen Pain Management), Bergen Pain Anesthesia and Quest Diagnostics (pre-surgical blood work). This case was consolidated with NJ (monitoring), NJ (interpretation) and NJ (NJ Spine Institute- Dr. Quartararo) at the request of respondent per Rule 9 in order to promote prompt, efficient resolution of PIP disputes consistent with fairness and due process of law. Ancillary providers rely upon the medical records and arguments as to the necessity and causality of care NJ Page 2 of 10

3 Specifically at issue are endoscopic discectomy with a transpedicular approach at L5-S1 and L4-5 with rhizotomy (left L5-S1), annuloplasty (both levels), discogram for tissue identification (both levels), placement of an ISO brace under fluoroscopy as well as a Platelet Plasma Rich injection. The surgery was initially authorized during the pre-certification process. However, respondent asserts that the issue presented is one of causality. However, respondent relies upon an IME of Dr. Fillion to assert a causality defense. The 11/19/09 IME and record review by Dr. Fillion notes that there is a gap in care of 18 months. The patient had undergone adequate care in 2007 and early 2008 for her condition. Dr. Fillion believed that patient had reached maximum medical improvement prior to her presentation to Dr. Ragukonis in August Dr. Fillion s examination was within normal limits. Dr. Floriani notes that he reviewed the pre-surgical evaluation by Dr. Quartararo on 11/24/09 in connection with his approval. However, he notes in a subsequent review that he would have deferred to the IME physician s determination as to causality because Dr. Fillion had far more extensive documentation to review in connection with the examination. Further, Dr. Fillion was able to discuss the history with the patient. As such, Dr. Floriani agreed with the IME determination. It is noted that Dr. Floriani discusses the complete history of the patient and noted that an orthopedic surgery IME on 2/24/10 (after the surgery in issue) found additional physical therapy was needed to complete her postsurgical care Respondent requested an MRO in this case as to the issue of medical necessity and/or causality of lumbar surgical services rendered. N.J.S.A. 39:6A-5.1(d) states that "[w]ith respect to disputes as to the diagnosis, the medical necessity of the treatment... administered to the injured person, whether the injury is causally related to the insured event or is the product of a preexisting condition,... [the issue may be referred] to a medical review organization for a determination." Dr. Malanga s MRO report of 12/27/10 concludes that: This case involves a 26-year-old female involved in a motor vehicle accident as a restrained driver, with injuries to her neck and lower back. She apparently suffered cervical sprains and strains from this accident and underwent a prolonged course of chiropractic care and acupuncture treatment without benefit. She underwent epidural injections on three separate occasions with some improvement. These injections occurred in December of Following this, there was a lack of documentation of any sort of treatment for these injuries until August of 2009, nearly one and a half years from the time of the last documented active treatment. She then was seen by Pain Management Specialist, Dr. Ragukonis, who, rather than trying active therapy in the form of McKenzie exercises and medications, recommended discography in spite of the fact that there were known disc herniations at L4-5 and L5-S1. She then underwent a percutaneous discectomy by Dr. Ragukonis, who is not a spine surgeon. This procedure also included multiple other procedures simultaneously, that included a rhizotomy of the right L5 with PRP injections at L4-5 and L5-S1, intraoperative SSEP and EMG monitoring, and intraoperative discography. The rationale for these various additional procedures is not substantiated. NJ Page 3 of 10

4 Based on the documentation I have reviewed to the medical necessity for the performance of the two level endoscopic discectomy with rhizotomy, intraoperative discography, intraoperative SSEP and EMG monitoring, and the addition of PRP injections at L4-5 and L5-S1 bilaterally, is not supported for the motor vehicle accident of 7/2/2007. The documentation fails to explain a nearly one and a half years of lack of treatment between the dates of the last treatment for this motor vehicle accident and then the initial evaluation by Dr. Ragukonis. Therefore, any symptoms that presented at that time are not substantiated as being related to the motor vehicle accident of 7/2/2007. In addition, the treating physician failed to provide less invasive treatments that could be effective for discogenic back pain, and performed additional procedures without indications. Claimant supplies the records of Dr. Ragukonis as well as the evaluation of Dr. Quartararo. In addition, the MRI reports and other materials are supplied. Dr. Ragukonis saw the patient on referral of Dr. Perrone on 8/6/09, the treating chiropractor. The patient had 8 months of chiropractic care and underwent 3 lumbar epidurals. As to the low back, the patient reported pain that radiate down both legs, more left sided than right. MRI of the lumbar spine showed an annular tear and herniated disc at L4-5 ad L5-S1 with some stenosis. Formal physical therapy was recommended with Dr. Perrone as well as discograms. Dr. Ragukonis advises he considerdd the injruies and current complaints to be causally related. Discography was approved and performed on 9/16/09. The testing procedure revealed reproduction of pain at L4-5 and L5-S1. The patient was refereed for surgical evaluation with Dr. Quartararo. The patient reported low back pain with radiation to the extremities. Some weakness and reflex asymmetry was noted. Dr. Quartararo. Dr. Quartararo noted the positive discograms and recommended surgical intervention. A discectomy procedure was recommended over the more invasive fusion option given the patient s age of 27. The surgery was performed on 1/12/10. The patient is noted as having favorable results on follow up exams with Dr. Ragukonis. The patient testified as to her symptoms and the surgery at the hearing. The patient underwent conservative care and the epidurals helped temporarily. She discontinued care because she was told by Dr. Perrone (chiropractor) that her insurance company was no longer going to pay for treatment. However, her pain worsened and she returned to Dr. Perrone because the pain was interfering with her daily activities. He referred her to Dr. Ragukonis for pain management consultation. Dr. Ragukonis recommended surgery. The patient specifically denied any intervening injury or accident. In this regard, it is noted that Dr. Malanga s review indeed notes that a chiropractic IME had been performed in Claimant also asserts that it detrimentally relied upon an approval of care and an IME by an orthopedist post-surgically recommending additional treatment that did not suggest causality was at issue. Retrospective denials are not permitted. Under Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156 (Law Div. 1980), where there is a dispute as to PIP benefits, 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. Claimant must NJ Page 4 of 10

5 carry that burden by a preponderance of the evidence. See, State v Seven Thousand Dollars, 136 N.J. 233 (1994). 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, Inc. v. Allstate Ins. Co., 125 N.J. 491 (1991). Pursuant to the 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 [applicable to spinal injuries]. N.J.A.C. 11: See also N.J.S.A. 39:6A-2(m)(medically necessary care does not included unnecessary diagnostic testing). The Care Paths encourage result oriented medical treatment practices. The Care Paths identify typical courses of intervention and deviations may be justified by individual circumstances such as pre-existing conditions and/or co-morbidities. Deviations are subject to greater scrutiny and may require documentation of special circumstances. As to causation, N.J.S.A. 39:6A-4 includes the phrase "bodily injury as a result of an accident." (Emphasis supplied). This requires a PIP claimant to causally link the medical care received to injuries resulting from the subject accident. As such, if the treatment is solely related to the pre-existing condition, an insurer may decline PIP benefits. An insured therefore, has the burden of demonstrating that the treatment at issue is causally related to an aggravation of the pre-existing condition or a new injury, either of which must have resulted from the accident at issue. Bowe v. N.J. Mfrs. Ins. Co., 367 N.J. Super. 128, 138 (App. Div. 2004). If that link is established, a PIP carrier is liable for the cost of the post-accident treatment up to the coverage limits of the policy, even if that treatment addresses, in whole or in part, the pre-existing injury or condition. Id. at 139. Based on the weight of the credible evidence, I find that claimants have overcome the presumption of correctness and have sustained its burden on the medical necessity and causality of lumbar surgery at issue, but not all codes billed warrant reimbursement or are clinically supported. There was an obvious gap in care, but there is no evidence to suggest an intervening event. The patient explained the basis for discontinuing treatment. A gap alone is not evidence of the lack of a causal connection to the accident. Both physicians involved in the surgery opined that they believed the patient s current symptoms were causally related to the accident. There is also no indication of injury prior to this accident. The patient maintains the symptoms commenced following the accident and continued to presentation with claimant. Once she presented to claimant and was advised to treat irrespective of payment, she was compliant with treatment recommendations and followed through with her care. I find that there is adequate explanation as to the gap in care and that there is sufficient evidence to connect the injuries/symptoms upon presentation to claimant and the accident. The patient presented with significant injury to 2 disc levels and her symptoms initially responded to conservative care and epidurals but did not provide lasting relief. The patient did undergo additional physical therapy before surgery contrary to Dr. Malanga s assertion. There would be no basis to again perform additional epidurals as they did not provide significant relief to this patient. The discograms on 9/16/09 determined that both abnormal disc levels were sources of discogenic pain rather than simply relying upon MRIs. Thus, surgery was needed at both levels, but this procedure could have ruled out the need for surgery at one or both levels. Respondent inconsistently handled this matter in approving services NJ Page 5 of 10

6 and the alleged gap was not new information unavailable to the respondent. It is also noted that the orthopedic surgeon reviewing the patient post-surgery did not suggest causality was at issue. As such, I do not find the denials in this matter to be persuasive. As to intra-operative monitoring, both Dr. Floriani and Dr. Malanga assert there would be no need for such services and that there was no rationale for the procedure. However, medical articles and a letter of medical necessity from the surgeon are supplied explaining that the monitoring and interpretive services are medically appropriate in connection with spine surgeries, including an endoscopic discectomy in the spine. The surgeon is able to ensure that there is no harm to the patient s spinal roots during the procedure. Specifically, the nerve roots are monitored to assess whether the nerve roots are functioning properly during the procedure and the neural structures cannot be visualized through the naked eye or x- rays. This type of monitoring has been used for more than 30 years. There is no contrary medical literature or citation presorted in the peer reports, IME or MRO. A rationale is presented. Thus, I find these procedures are supported as medically necessary and appropriate. It is noted that although Dr. Malanga questions Dr. Ragukonis as the sole surgeon in this matter, it is clear that he acted as a cosurgeon with spine surgeon Dr. Quartararo. As to accompanying procedures, Dr. Quartararo asserts that the patient needed discograms during the procedure for tissue identification. However, there is no mention of facet pain in the medical records and/or exams or indication that the patient underwent prior facet injections to support the need for a rhizotomy in this patient. No rationale was presented. Similarly, there was no mention of Vitoss or bone graft substitute with bone marrow aspiration in the operative report to support billing of CPT code Although an explanation of this code is supplied, there is no such mention in the operative report. Additionally, the rationale for a PRP injection is not explained in the records discussing the need for surgery and/or the operative report. As such, I find that billing of CPT codes 64623, 64622, (unlisted) and (unlisted) are not supported. N.J.A.C. 11:3-29.4(k) states that: CPT codes for procedures described in CPT as unlisted procedure or unlisted service (example: #64999 Unlisted procedure nervous system) are not reimbursable without documentation from the provider describing the procedure or service performed, demonstrating its medical appropriateness and indicating why it is not duplicative of a code for a listed procedure or service. Documentation may include the existence of temporary or AMA Category III or HCPCS codes for the procedure or information in the AMA CPT Assistant publication. In submitting bills for unlisted codes, the provider should base the fee on a comparable procedure. It is never appropriate for the provider to bill an unlisted code for a list of services that have CPT codes. Providers that intend to use unlisted codes in non-emergency situations are encouraged to notify the insurer in advance through the precertification process. Based on the information submitted by the provider, the insurer shall determine whether the CPT coding is appropriate. II. Respondent, however, also relies upon coding materials to support the denial of various codes as well as lack of actual documentation in the operative report. NCCI edits are coding methodologies created by the Centers for Medicare and Medicaid Services (CMS) to instill correct coding guidelines as to coding combinations reported on claims with CPT and HCPCS Level II codes. Certain codes are not paid separately when billed with other codes except under NJ Page 6 of 10

7 certain circumstances. These guidelines are incorporated to the New Jersey regulations addressing coding/billing. N.J.A.C. 11:3-29.4(g), as in effect for the services in question, states that "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 is prohibited. Such practice is commonly referred to as "unbundling" or "fragmented" "billing". Providers and payors shall use the National Correct Coding Initiative Edits, incorporated herein by reference as updated quarterly by CMS and available at http/: Certain coding edits are found in a column format. One first looks to the Column 1 code (referred Comprehensive) and then to Column 2 (referred Component) NCCI column edits, to decide whether CPT and/or HCPCS codes billed/coded together by the same physician for the same patient on the same date of service are eligible for separate reimbursement. Each NCCI edit has an assigned indicator (meaning the last column or column 3) that decides whether the various codes may be reimbursed separately when provided on the same date. Modifiers may be appended to HCPCS/CPT codes only if the clinical circumstances justify the use of the modifier. A modifier should not be appended to a HCPCS/CPT code solely to by-pass an NCCI edit if the clinical circumstances do not justify its use. Within column 3, an indicator of "0" indicates that allowable NCCI-associated modifiers cannot be used to bypass the edit. Thus, it is not possible to obtain reimbursement for both codes billed by the provider on the same date in any circumstance. An indicator of "1" means that a correctly coded and the use of modifier -59 or other approved modifiers (such as modifier-25) can be used to allow submitted services or procedures. Thus, the provider may be reimbursed for both codes if billed with the modifier and that modifier is supported as appropriate in the records. An indicator of "9" indicates that the edit has been deleted, and the modifier indicator is not relevant. Modifier-59 can be used to bypass an edit with 1 indicated in column 2. Respondent supplies materials as to the use of modifier-59 properly. In this respect, respondent notes that the provider did not bill this modifier. Modifier -59 can be used to describe a distinct and separate service from other services. This generally means that the code with the modifier was performed on a different anatomic site or separate patient encounter. Regardless, a medical rationale for billing separate procedures must be presented. In the case at hand, CPT codes and are the primary procedures or column one codes. As to CPT codes (not denied above) 77295, 62290, 69990, 20926, and 76000, three of these codes have an indicator of 0 and thus, cannot be billed separately under any circumstance, namely 62290, and CPT codes and permit billing with an appropriately substantiated modifier justifying separate reimbursement, e.g. an indicator of 1 appears in column 3. The only modifier used was modifier-62 which denotes the services were performed by a co-surgeon. This, however, does not permit separate reimbursement under the NCCI edits. As such, CPT codes 77295, 62290, 69990, 20926, and are denied. NJ Page 7 of 10

8 Claimants Ragukonis and Quartararo acknowledge the application of the co-surgeon regulation reduction with both surgeons being afforded payment at 62.5%. N.J.A.C. 11:3-29.4(f)(4) advises that co-surgeon billing must utilize modifier-62 and is payable at 62.5% of the fee schedule or usual and customary fee. As to usual and customary fees, each claimant supplies EOBs and HICFs to support its billing rates. Ingenix materials are in evidence as to the surgical codes. N.J.A.C. 11:3-29.4(e)(1), in part, states that: For the purpose of this subchapter, determination of the usual, reasonable and customary fee means that the provider submits to the insurer his or her usual and customary fee. The insurer determines the reasonableness of the provider s fee by comparison of its experience with that provider and with other providers in the region. The insurer may use national databases of fees, such as those published by Ingenix ( or Wasserman ( for example, to determine the reasonableness of fees for the provider s geographic region or zip code. Respondent notes that the Ingenix materials do not support the billing of Dr. Quartararo. Dr. Quartararo also billed far in excess of Dr. Ragukonis despite both physicians being considered co-surgeons in this case. Based on the weight of the evidence on the issue of UCR as to the surgeons, I find that the UCR as to CPT is to be considered $24,000 and $8,400 for CPT Thus, each surgeon is owed $15,000 plus $5,250 for these codes respectively. It is noted that CPT is modifier-51 exempt or not subject to multiple procedures reductions. Dr. Quartararo also billed for the lumbar brace to be used post-surgically. This would be an appropriate supply given the surgery and is awarded at $1,500 per the proofs presented. Dr. Ragukonis billed for office visits post-surgery on 1/19/10, 3/11/10 and 4/22/10. Per N.J.A.C. 11:3-29.4(j), follow- up exams are considered part of the global fee for 90 days following surgery. Thus, only date of service 4/22/10 is owed. Per the fee schedule, the anesthesiologist is owed $ The monitoring ad interpretive services providers have sustained their burden as to UCR on CPT The remainder of services are payable at the fee schedule. The surgical center is owed $25,000 for covered services per its usual and customary rates. CPT is denied as noted above. Quest Diagnostics is owed $ subject to the fee schedule. No other issues are raised. NJ Page 8 of 10

9 I find that the claimant to be a prevailing party and I award attorney s fees and costs. In determining the proper amount of fees, "the most useful starting point... is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. Super. 144, 157 (App. Div. 1996). The fees awarded are in conformity with guidelines/factors set forth in R.P.C Depending on the evaluation of these factors, the fact finder is given discretion to adjust the fees upward or downward in its discretion. Id. at 158, 160; see Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987); Scullion v. State Farm Ins. Co.,.345 N.J. Super. 431, (App. Div. 2001). Having reviewed the Certification of Services submitted by claimant and considered the opposition of respondent; I award $850 in fees and $ in filing costs. This represents a reduction in the hours billed based on respondent's arguments. Specifically, consideration has been given, but not limited to, the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the fees customarily charged in the locality for similar legal services, the amount involved and the results obtained, as well as the experience, reputation and ability of the lawyer performing the service. Claimant's counsel has considerable experience in this area. This matter involved a lengthy hearing and testimony, but this claimant was an ancillary provider and the claim was not great. Counsel appeared telephonically. Thus, based on the issues and preparation involved, the fees are appropriate. Interest is mandatory on overdue claims. N.J.S.A. 39:6A-5(h). Respondent is to calculate interest upon payment per its receipt of the bills and statutorily mandated rates. Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Accurate Monitoring Subject to co-payment and deductible. $ $ Accurate Monitoring 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.: Respondent is to calculate interest upon payment per its receipt of the bills and statutorily mandated rates. NJ Page 9 of 10

10 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: $ 850 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: 09/18/12. NJ Page 10 of 10