CASE NO. 18 Z 600 17093 02 2 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 600 17093 02 v. INS. CO. CLAIMS NO.: LA114598405 Liberty Mutual Insurance Company DRP NAME: James H. Garrabrandt (Respondent) NATURE OF DISPUTE: Documentation for Office Visits, Electrodiagnostic Testing, Medical Necessity 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: JJ. 1. DOCUMENT SUBMISSION only.. 2. NO ONE APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration were AMENDED and permitted by the DRP at the oral hearing (Amendments, if any, set forth below). STIPULATIONS were 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: This matter was processed as document submission only. Claimant submitted the following documents: Demand for Arbitration, Declarations Page of JJ's auto insurance policy, HICF's, various reports rendered by Dr. Kavita Sinha, MRI reports rendered by Dr. Howard Kessler, reports of EMG/NCV testing and EMG/NCV test results.
CASE NO. 18 Z 600 17093 02 3 Respondent submitted the following documents: Denial of Benefits, Peer Review Report of Dr. Ira M. Turner, Addendum to Peer Review Report of Dr. Ira M. Turner and reports of Dr. Kavita Sinha. This matter arose out of a motor vehicle accident that occurred on November 20, 2000. The accident happened in the State of New York; but, involved a New Jersey resident, driving her New Jersey registered automobile and the automobile was insured under an auto insurance policy issued by Respondent and in full force and effect on the date of the accident. This matter is, therefore, subject to the provisions of the New Jersey Automobile Insurance Cost Reduction Act. Injured in the accident, JJ underwent EMG/NCV testing performed by Dr. Kavita Sinha of Claimant, Neuroscience Associates, M.D., on January 23, 2001. Respondent denied payment of bills for office visits conducted prior, and subsequent to the electrodiagnostic testing and the testing, as well. Claimant seeks reimbursement for office visits conducted on November 28, 2000 (CPT 99245 - $250.00), January 2, 2001 (CPT 99215 - $100.00), January 23, 2001 (CPT 215 - $100.00), February 20, 2001 (CPT 99215 - $100.00), March 20, 2001 (CPT 99215 - $100.00, April 17, 2001 (CPT 99215 - $100.000 and June 5, 2001 (CPT 99214 - $100.00) and the EMG/NCV testing performed on JJ's upper and lower extremities on January 23, 2001 (various CPT codes - $4,080.00). The total reimbursement sought by Claimant is $4,930.00. Whether there is sufficient documentation to support the claim for reimbursement for office visits and whether the EMG/NCV testing performed on JJ's upper and lower extremities was medically necessary are the issues in this case. Office Visits Claimant has submitted reports for office visits conducted on November 28, 2000, January 2, 2001, February 20, 2001, March 20, 2001, April 17, 2001 and June 5, 2001. Those reports constitute sufficient documentation that the office visits were conducted and of what was done during those office visits and, therefore, Claimant is entitled to reimbursement for those dates of service. Charges for those dates of service total $750.00. Claimant shall be reimbursed $750.00, subject to the prevailing medical fee schedule and any applicable deductible and co-payments.
CASE NO. 18 Z 600 17093 02 4 Claimant has not submitted a report, or office notes for an office visit on January 23, 2001. As pointed out by Dr. Ira M. Turner in his Peer Review report dated February 28, 2001, "I am asked about an office visit on the same date as the EMG/NCV, but no report of such an office visit was available. I can therefore only assume that the claimant was there strictly for four extremity EMG/NCV. The bill for the office visit on 1/23/01 should be denied." In an Addendum dated May 2, 2001, Dr. Turner states, "... I still have not seen any note regarding an office visit of 1/23/01. I am therefor unable to recommend reimbursement for that. It appears that the claimant just had EMG/NCV performed on that date." In the absence of a report, or office notes regarding an office visit, Claimant is not entitled to reimbursement for its billing under CPT 99215 for date of service January 23, 2001. Medical Necessity The medical necessity of the EMG/NCV testing performed on JJ's upper and lower extremities on January 23, 2001 is at issue in this case. As set forth, in pertinent part, in N.J.A.C. 11:3-4.5 Diagnostic tests, (b) The personal injury protection medical expense benefits coverage shall provide for reimbursement of 1. Needle electromyography (needle EMG) when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling. 2. Nerve conduction velocity study is reimbursable when used to evaluate neuropathies and/or signs of atrophy. On an Examination Form dated November 28, 2000, Dr. Kavita Sinha, a neurologist with Claimant, Neuroscience Associates, M.D., notes that JJ is experiencing headaches, cervical pain and stiffness, with radiculitis on the right and lumbar pain and stiffness, with radiculitis on the right and paresthesia. In a Re-Examination Report dated January 2, 2001, Dr. Sinha again notes that JJ is experiencing headaches, but improved, cervical pain and stiffness, with radiculitis on the right and lumbar pain and stiffness, with radiculitis on the right and paresthesia. MRI's performed on January 23, 2001, and as reported by Dr. Howard Kessler, revealed cervical levoscoliosis and a disc bulge at L4-5.
CASE NO. 18 Z 600 17093 02 5 In the EMG/NCV report dated January 23, 2001, Dr. Sinha indicates that prior to the testing, JJ was complaining of persistent neck pain radiating to the upper arm and low back pain radiating down her right leg to her toes. As contained in the EMG/NCV report, the testing revealed evidence of an active, recovering radiculopathy on the right at the level of C5-6 and an active, recovering bilateral radiculopathy at the level L5-S1; left side more than right. In his report dated February 28, 2001, the peer review physician, Dr. Ira M. Turner, a neurologist, states that "[w]hile the EMG/NCV did show abnormalities, it is unclear from the available reports as to why they were done. Certainly, it appears that there was no indication that these in anyway were going to alter how the claimant was treated from the available data. Unfortunately, I am unable to recommend reimbursement for these studies on a necessity basis even though they did clearly show abnormalities." Dr. Turner had only reviewed the EMG/NCV report prior to expressing his opinion that the testing was not medically necessary. In an Addendum dated May 2, 2001, and after reviewing the other reports rendered by Dr. Sinha prior to the EMG/NCV testing, Dr. Turner again states that "there appears to have been no indication for EMG/NCV." Generally, the physician treating the patient is in a better position to express an opinion as to the cause and effect than one making an examination in order to give expert testimony. Celeste v Progressive Silk Finishing Co., 72 N.J. Super. 233 (App. Div. 1962). Where medical testimony is in conflict, greater weight ordinarily will be given to the testimony of the treating physician. Albelit v General Motors, Corp., 46 N.J. Super. 475 (App. Div. 1957). Greater weight has been given to the report rendered, and opinions expressed by the treating physician, Dr. Shinha, than to those of the peer review physician, Dr. Turner. Given the positive MRI findings, the presence of radicular symptoms and postitive neurological deficits (ie: parethesias) on examination by Dr. Sinha and that it was being used in the evaluation and diagnosis of radicular syndrome, Claimant has established that the subject electrodiagnostic testing performed on JJ on January 23, 2001 was medically necessary. Claimant is entitled to reimbursement for date of service January 23, 2001 in the amount of $4,080.00, subject to the prevailing medical fee schedule and any applicable deductible and co-payments. Medical expense benefits are awarded as outlined, hereinabove and set forth in Paragraph 5, below.
CASE NO. 18 Z 600 17093 02 6 With respect to attorney's fees in this matter, the Certification of Services submitted by Claimants' counsel has been reviewed. Respondent's argument that the attorney's fees being sought by Claimants' counsel are excessive has been taken into consideration, as well.. As set forth in RPC 1.5, 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. An attorney's fee of $1,050.00 is consonant with the amount of the Award and in keeping with the other guidelines of RPC 1.5. Costs are awarded in the amount of $275.00 (AAA filing fee - $275.00). 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Neuroscience Associates, M.D. $4,930.00 $4,830.00* Neuroscience Associates, M.D. Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. *Subject to the prevailing medical fee schedule and any applicable deductible and copayments. Respondent shall receive credit for any payments it may have already made to Claimant for any of the dates of service included in the Amount Awarded. 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
CASE NO. 18 Z 600 17093 02 7 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): $275.00 (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1,050.00 (C) INTEREST is as follows: waived per the Claimant. No demand for, or calculation of interest was submitted by Claimant and, therefore, any claim for interest is deemed to be waived.. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 11, 2003 Date James H. Garrabrandt, Esq.