Award of Dispute Resolution Professional. In Person Proceeding Information

Transcription

1 In the Matter of the Arbitration between Phoenix Physical Medicine a/a/o L.R. CLAIMANT(s), Forthright File No: NJ Proceeding Type: In Person Insurance Claim File No: Claimant Counsel: Legome & Associates, LLC v. Claimant Attorney File No: Respondent Counsel: Law Offices of Nicodemo & Connell Respondent Attorney File No: Accident Date: 10/14/2010 New Jersey Manufacturers Insurance Group RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Kate R. Wallen 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: L.R. A proceeding was conducted on: July 8, In Person Proceeding Information Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: The amount claimed was amended to $3, NJ Page 1 of 11

2 Findings of Fact and Conclusions of Law L.R. was involved in a motor vehicle accident on 10/14/10. The issues presented in this case brought on assignment are: (1) UCR of J1030, (2) whether documentation supports billing CPT on date of service 3/8/11, (3) medical necessity of trigger point injections and PENs on 4/12/11, 5/10/11, 5/17/11 and 6/14/11, and (4) whether PENs is a same or similar service for reimbursement purposes. No other issues were identified at the hearing or will be considered, including any other issues raised in either party s pre or post hearing submissions. The presentation of an issue and/or argument prior to the hearing does not place said issue and/or argument under my consideration unless orally argued and presented to the undersigned during the hearing. The parties were specifically asked at the hearing to identify the issues presented for determination and apart from the issues set forth above, did not identify any other issues. Claimant s attorney requested that the hearing be held open to respond to the IMEs submitted by Respondent in the 11/2/12 arbitration statement but I denied the request. Respondent objected and noted that Claimant had one and one-half years to respond. Claimant submitted a ledger of outstanding balances with documents including but not limited to records and reports of Phoenix Physical Medicine, arbitration awards by DRPs Foley, Reynolds, and McFadden, UCR documentation. Respondent submitted an arbitration statement with documents including but not limited to EOBs, internet information on Wasserman Medical Publishers RBRVS EZ-Fees 2012, audit report of Carol Myers, memorandum of Dr. Chorney dated 8/9/11, literature on PENS, acupuncture examining board laws, arbitration awards by other DRPs, IME of Dr. DeMarco dated 3/31/11, 4/7/11 response to precertification request, 7/21/11 IME report of Dr. DeMarco, 7/27/11 letter terminating physical medicine treatment, 2011 CPT manual for , memorandum of Dr. Chorney, 4/10/12 letter of Dr. Hutter. UCR of J1030 Claimant relies upon a certification of transmittal of medical billing and charging of usual and customary fee for services signed by Dr. Brody. In that, he states that all charges for services provided represent the usual and customary charge regardless of the type of insurance submitted they are to or the patient. He believes the amounts billed are reasonable given the years of experience, expertise, education and amount of time each procedure billed takes to perform. He also states that the office has taken measures to assure consistency, accuracy and reasonableness based on an assessment of the doctors experience, expertise, education, location and specific service performed. Claimant has submitted exemplar EOBs. These show that J3490 was billed and reimbursed at $31.00, J3301 was billed and reimbursed at $31.00, but I was unable to find any for J1030. Claimant billed J1030 on 2/28/11 and 4/12/11 at a rate of $ Respondent relies upon the EOB which reimbursed J1030 at $7.95 as the carrier s determination of usual customary and reasonable. Respondent also submitted 2012 RBRVS EZ-Fees, a database of NJ Page 2 of 11

3 Medicare s RBRVS published by Wasserman. That lists J1030, 40 MG methylprednisolone at $3.66 under the heading NJ Limiting. There is no explanation for the EOB reimbursement amount of $7.95. On the other hand, I find that there is insufficient evidence to support Claimant s billing of $55.00 when later months reveal billing of other injection substances under J3490 and J3301 at $ Based on the foregoing, I deny reimbursement of any additional amount for J1030. Whether documentation supports billing CPT on date of service 3/8/11 Respondent relies upon an audit report of Carol Myers, CPC, dated 4/28/11. She reviewed the report of 3/8/11 and felt that according to the report, the provider injected on 2 muscles, 1 on each side which supported reimbursement under CPT not CPT The report states the patient underwent a series of trigger point injections for the lumbosacral paraspinal muscles x 6 bilaterally using Sarapin The AMA CPT defines CPT as single or multiple trigger point(s), 3 or more muscles(s). Dr. Brody states that lumbosacral paraspinal muscles were given trigger point injections and 6 injections were given, 3 on each side. I do not know how Ms. Myers concluded that only 2 muscles, 1 on each side were injected. On the other hand, the report does not indicate that the 6 injections were provided to three different muscles contained within the lumbosacral spine. As Claimant has the burden of proof, I find that reimbursement is appropriate under the fee scheduled amount of CPT Medical necessity of trigger point injections and PENs on 4/12/11, 5/10/11, 5/17/11 and 6/14/11 The reports reveal that L.R., a 55 year old female, treated with a chiropractor following her accident of 10/14/10 but as of 2/28/11, she was still complaining of neck pain radiating to both shoulders, mid and low back pain and pain down the left leg with numbness and tingling through the left foot. Her pain I the upper body goes into the proximal arms. She was taking Flexeril and Naproxen and her pain level was rated at a 10. Dr. Brody found spasm and tenderness through the cervical paraspinal muscles in the suprascapular regions, with taut bands and trigger points. He noted severely restricted active cervical range of motion. He also found pain in the lumbosacral region and lower thoracic region. Sensation showed hyperesthesias in the left lateral leg and thigh. Spurling s maneuver was positive as was sitting root test. Dr. Brody recommended trigger point injections and MRI of the cervical spine. He recommended continued chiropractic care. EMG/NCV studies performed on 2/28/11 revealed left C5-T1 and right C5-6 radiculopathies as well as left L5-S1 and right L5 radiculopathies. There was also left median motor nerve compression at the level of the wrist and right tarsal tunnel syndrome. NJ Page 3 of 11

4 On 3/8/11, Dr. Brody provided trigger point injections to the lumbosacral muscles and PENS therapy for 20 minutes. She returned on 4/12/11 and noted her pain level was 9 out of 10 and she had a limited response so far to the trigger point injections and PENS but she wanted to try both to see if this could help control her pain. She had started working the day before the exam as a housekeeper and this was causing her a significant amount of pain. Dr. Brody provided her with trigger point injections and PENS. She advised Dr. Brody that the IME doctor told her he was going to approve an epidural injection. When L.R. returned on 5/10/11, her pain level was a 7 out of 10. She was on Naproxen, Flexeril and takes Aleve as needed. Dr. Brody provided trigger point injections to the lumbosacral area and PENS explaining that the patient was approved for epidural injections which she needed and his treatment was to help temporarily decrease her pain and facilitate mobility and function. At the visit of 5/17/11, L.R. reported her pain level was back to a 9/10. Her low back bothered her more than the neck and Dr. Yulo requested a trial of lumbar epidural injection. He proceeded with trigger point injections to the low back area to help the myofascial component of her pain pattern and help with pain control. On 6/14/11, she returned with a pain level at 6 out of 10 and reported that the trigger point injections and PENS therapy help her get through the work day. Dr. Brody provided trigger point injections and PENS focusing on the lumbar spine. The report of 8/2/11 by Dr. Yulo noted that the patient had over 95% pain relief with the single lumbar epidural she received the month prior on 7/12/11. They discharged her at that visit. Respondent relies upon the IMEs of Dr. DiMarco. In the first exam of 3/31/11, Dr. DiMarco did not find any areas of muscle spasm or palpable trigger points in the cervical paraspinals, upper trapezius muscles, thoracic paraspinals or lumbar paraspinals. He did feel that the patient may have sustained a lumbar strain and felt she had not yet reached MMI. He found mild tenderness to palpation of the left lumbar paraspinals and there was discomfort in the low back with passive straight leg raising of the left lower extremity to 45 degrees of hip flexion. He recommended a lumbar epidural steroid injection. At the IME of 7/21/11, Dr. DiMarco noted that the patient had received relief with the lumbar epidural injection and she advised it helped alleviate her pain. He noted she had good strength and active range of motion in both lower extremities and has symmetric patellar tendon and Achilles tendon reflexes. She did not have a positive straight leg raising test. He felt she was at maximum medical improvement. Under Miltner v. Safeco Ins. Co. of America, 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. The claimant must carry that burden by a preponderance of the evidence. State v. Seven Thousand Dollars, 136 N.J. 223 (1994). The necessity of medical treatment is a matter to be decided in the first instance, by the claimant s treating physician, and an objectively reasonable belief in the utility of a treatment or diagnostic method based upon the credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostic v. Allstate, 125 N.J. 491, 512 (1991). NJ Page 4 of 11

5 Pursuant to N.J.S.A. 39:6A-2(e), medical expenses means those reasonable and necessary expenses for treatment or services as provided by the policy. Medical expenses must be both reasonable and necessary to be compensable. Elkins v. New Jersey Manufacturers Insurance Company, 244 N.J.Super. 695 (App. Div. 1990). N.J.S.A. 39:6A-4(a) states that Medical treatments, diagnostic tests and services provided by the policy shall be rendered in accordance with commonly accepted protocols and professional standards and practices which are commonly accepted as being beneficial for the treatment of the covered injury. The Commissioner of Insurance designated care paths set forth in the subchapter Appendix to N.J.A.C. 11:3-4.1 et seq. as the standard course of medically necessary treatment, including diagnostic tests, for the identified injuries. Treatments that vary from the care paths shall be reimbursable only when warranted by reason of medical necessity. N.J.A.C. 11: As the Addendum to the Care Paths explains, they identify typical courses of intervention. There may be patients who require more or less treatment. However, cases that deviate from the Care Paths may be subject to more careful scrutiny and may require documentation of the special circumstances. Treatments must be based on patient need and professional judgment. Deviations may be justified by individual circumstances, such as pre-existing conditions and/or comorbidities. Pursuant to N.J.A.C. 11:3-4.2, a medically necessary treatment or 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 [applicable to spinal injuries]; (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 or treatment. Pursuant to N.J.A.C. 11:3-4.2, clinically supported means that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic test has: (1) personally examined the patient to ensure 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, neurological 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. After reviewing the documents presented, I find that the trigger point injections and PENs provided on 4/12/11 and 5/10/11 were medically necessary. The patient s pain levels showed a decrease and by 5/10/11, L.R. had been approved for epidurals. There was no explanation given as to why it took two months from then for it to be scheduled. However, at the 5/17/11 visit, the patient s pain levels went back up so clearly, a different form of treatment (epidurals) was warranted and they had already been approved. I find that the 8/2/11 office visit was an appropriate follow up visit after the epidurals were performed. Therefore, I award dates of service 4/12/11, 5/1011 and 8/2/11. Whether PENs is a same or similar service for reimbursement purposes Respondent asserts that CPT billed for the PENS therapy can be reimbursed under the similar fee scheduled CPT codes of in the amount of $ rather than the UCR amount of $ Claimant argues that PENS is not similar to acupuncture with electrical stimulation. NJ Page 5 of 11

6 I addressed this issue in Primary Care & Rehab a/s/o D.F. v. NJM, Forthright # (6/15/13) as follows: N.J.A.C. 11:3-29.4( e ) provides in part: Except as noted in ( e )1 and 2 below, the insurer s limit of liability for any medical expense benefit for any service or equipment not set forth in or covered by the fee schedules shall be a reasonable amount considering the fee schedule amount for similar services or equipment in the region where the service or equipment was provided N.J.A.C. 11:3-29.4(k) provides: CPT codes for procedures described in CPT as unlisted procedure or unlisted service (example: 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....in submitting bills for unlisted codes, the provider should base the fee on a comparable procedure.... This issue was previously addressed by me in a prior award dated 12/9/11 in the case of Primary Care & Rehab a/s/o D.V. v. New Jersey Manufacturers Ins. Group, Forthright # In that case, I concluded that [a]lthough acupuncture needles may be used, PENS is not acupuncture. The needles are not placed according to meridiens and the stimulation causes modulation of the nervous system, not the yin-yang. I did point out the difficulty with establishing a usual, customary and reasonable amount by the Respondent for CPT since that CPT code can be used for a multitude of procedures and thus there is no ability to reference Ingenix or Wasserman databases set forth in N.J.A.C. 11:3-29.4( e ). In this case, in addition to relying on N.J.A.C. 11: ( e ), Respondent s counsel also relies upon N.J.A.C. 11:3-29.4(k). Through N.J.A.C. 11:3-29.4(k), DOBI recognized the difficulty in determining a reasonable reimbursement rate for a non-fee scheduled CPT code for which there is no database to reference and gives the exact CPT code at issue in this case, CPT 64999, as an example, instructing the provider to base the fee on a comparable procedure. In this case, Claimant has argued that PENs is not a similar service to acupuncture with electric stimulation but has not provided any information regarding the basis of the fee looking to comparable procedures. Claimant generally objects to using the CPT codes for acupuncture with electrical stimulation because those codes can be billed by acupuncturists who are not medical doctors presumably affecting the calculation of what reimbursement rate is reasonable. Claimant has billed PENs at $ Applying the fee schedule for CPT and as Respondent asserts yields reimbursement of $ for the 20 minute procedure. After reviewing the arguments of counsel, the voluminous records submitted and the telephone testimony of Dr. Chorney in which he indicated that the procedure was similar to that provided under CPT codes and 97814, I find that reimbursement of CPT at the fee NJ Page 6 of 11

7 scheduled amount of $ (CPT and 97814) is appropriate. To the extent that the AMA has indicated the PENs procedure is appropriately billed under CPT 64999, this does give me pause as the series of CPT codes are contained in the nervous system section of the CPT book whereas the acupuncture codes are contained in the medicine section. Indeed, this distinction is raised by Dr. White in his 3/4/13 letter in which he states: If these opining physicians carefully read all of my peer-reviewed publications on this subject they would understand that my position has always been that the conceptual basis for PENS is related to both acupuncture (which involves electrical stimulation of percutaneously placed needle probes positioned at traditional Chinese acupoints) and transcutaneous electrical nerve stimulation (via continuous electrodes placed at the symptomatic dermatomes). Compared with the latter, the use of PENS has the advantage of by passing the resistance of the skin and delivering the electrical stimulus in closer proximity to the peripheral nerve endings located in the soft tissue, muscle and or periosteum of the affected (painful) region. I note that some providers may bill PENS under the nervous system code, CPT 64565, percutaneous implantation of a neurostimulator electrode, which has a fee scheduled amount of $278.04, also less than the amount billed in this case. See, e.g., Regional Orthopaedic Medicine Associates, PC a/s/o A.R. v. New Jersey Manufacturers Ins Group, Forthright # (DRP Knuetter, 8/20/12). DRP Knuetter ultimately found that reimbursement under CPT and was appropriate, as have DRPs Grant Keller, Carolyn Karbasian, Daivd Grabowski, Andrea Lardiere, Andrew Patriaco, Lisa Mundy, Caroline Granato, Christopher Carnelli, Matthew Miller and Karen Eisele-Grabowski. To the extent that the PENS procedure is provided by a medical doctor as opposed to acupuncture which can also be provided by a licensed acupuncturist with less training than a medical doctor, as asserted by both Dr. Tawadrous and Dr. White, I do not find that this is a basis for finding that the PENS procedure is not similar to acupuncture with electrical stimulation for reimbursement purposes. (The use of both acupuncture codes and which are time based for 15 minute intervals permits a recognition of the time based utilization of PENS set forth in Claimant s records as lasting 20 minutes.) Similarly, the stimulation of dermatomes, myotomes and/or sclerotomes which correspond to the specific sensory nerves originating from the site of the painful stimuli as opposed to stimulation of specific acupoints calls for application of different expertise in training, medical versus Oriental. Finally, a distinction is raised as to the placement of the needles, with PENS needles being placed more deeply into muscle, connective tissue and bone [periosteum] and acupuncture needles placed very superficially below the skin to affect Qi (chi) energy flow (or even being applied through a device such as an Acupen which does not insert any needle). I also do not find that this distinction is a basis for concluding that PENS is not similar to acupuncture with electric stimulation for reimbursement purposes. Furthermore, no comparable procedures have been referenced by Claimant as suggested by N.J.A.C. 11:29.4(k), so I conclude that Claimant has not met its burden of proof that reimbursement of $ for PENS billed under CPT is reasonable as opposed to $ under CPT codes and In this case, Claimant relies upon awards of DRP Patrick Foley in Center for Pain Management a/s/o R.F. v. New Jersey Manufacturers Ins Group, Forthright # (2/5/13), DRP Reynolds in Eastern Nerodiagnostic Associates a/s/o SD v. New Jersey Manufacturers Ins Group, Forthright # (8/19/13) and DRP McFadden in Primary Care & Rehab a/s/o M.M. v. New Jersey Manufacturers Ins Group, Forthright # (4/30/12). NJ Page 7 of 11

8 In addition to submitting arbitration awards in Respondent s favor by DRPs Grabowski, Patriaco, Mundy, Granato, Carnelli, Miller, Eisele-Grabowski, Wallen, and Keller, Respondent submitted the 2011 CPT Manual for , Audette J.F., Ryan, A.H., The Role of Acupuncture in Pain Management, Physical Medicine and Rehabilitation Clinics of North America, 15 (2004) , Cummings, T.M., Percutaneous Electrical Nerve Stimulation Electroacupuncture by Another Name? A Comprehensive Review, Acupunct Med 2001; 19(1):32-35; Paul F. White, Ph.d, MD, FANZCA, William F. Craig, MD et. al. Percutaneous Neuromodulation Therapy: Does the Location of Electrical Stimulation Effect the Acute Analgesic Response? Anesth Analg 2000; 91; I maintain my opinion that the PENS provided to L.R. was a similar service to acupuncture with electrical stimulation. Dr. Hutter performed both procedures and in his 4/10/12 report states that there is overlap between the two procedures. Dr. Korn described PENS as a modification of electroacupuncture. Dr. Barry Korn described PNS as a hybrid between electroacupuncture and transcutaneous electrical nerve stimulation. For all of the foregoing reasons, I award $1, with interest as calculated by Respondent. Attorney fees Under N.J.A.C. 11:3-5.6(e), pursuant to N.J.S.A. 39:6A-5.2(g), the costs of the proceedings shall be apportioned by the DRP and the award may include reasonable attorney s fees for a successful claimant in an amount consonant with the award. Where attorney s fees for a successful claimant are requested, the DRP shall make the following analysis consistent with the jurisprudence of this State to determine reasonable attorney s fees, and shall address each item below in the award: 1. Calculate the lodestar, which is the number of hours reasonably expended by the successful claimant s counsel in the arbitration multiplied by a reasonable hourly rate in accordance with the standards in Rule 1.5 of the Supreme Court s Rules of Professional Conduct ( i. The lodestar calculation shall exclude hours not reasonably expended; ii. If the DRP determines that the hours expended exceed those that competent counsel reasonably would have expended to achieve a comparable result, in the context of the damages prospectively recoverable, the interests vindicated, and the underlying statutory objectives, then the DRP shall reduce the hours expended in the lodestar calculation accordingly; and iii. The lodestar total calculation may also be reduced if the claimant has only achieved partial or limited success and the DRP determines that the lodestar total calculation is therefore an excessive amount. If the same evidence adduced to support a successful claim was also offered on an unsuccessful claim, the DRP should consider whether it is nevertheless reasonable to award legal fees for the time expended on the unsuccessful claim. 2. DRPs, in cases when the amount actually recovered is less than the attorney s fee request, shall also analyze whether the attorney s fees are consonant with the amount of the award. This analysis will focus on whether the amount of the attorney s fee request is compatible and/or NJ Page 8 of 11

9 consistent with the amount of the arbitration award. Additionally, where a request for attorney s fees is grossly disproportionate to the amount of the award, the DRP s review must make a heightened review of the lodestar calculation described in (e)1 above. An attorney fee may be awarded to a successful claimant in an amount consonant with the award and with Rule 1.5 of the Supreme Court s Rules of Professional Conduct. The court in Litton Industries v. IMO Industries, 200 N.J.372 (2009), stated: The next step in determining the amount of the award is to calculate the lodestar, which is that number of hours reasonably expended by the successful party's counsel in the litigation, multiplied by a reasonable hourly rate. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21, 860 A.2d 435 (2004). Rule of Professional Conduct 1.5(a) commands that [a] lawyer's fee shall be reasonable in all cases, not just fee-shifting cases, id. at 21-22, 860 A.2d 435 (quoting RPC 1.5(a)), and requires courts to consider: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent. In this case, Claimant has submitted a fee certification seeking a total amount of $3, representing 8.8 attorney hours at $ per hour. Claimant is a prevailing party and is entitled to an attorney fee as a matter of law. Counsel for Claimant did: - file a demand for arbitration, - prepare an arbitration statement, - review Respondent s submission, - appear at the Oral Hearing in person Some of the time included in the certification of services does appear to be for clerical tasks of a nonlegal nature. Therefore, I do reduce the number of hours under the lodestar analysis required by N.J.A.C. 11:3-5.6( e )(1). The Claimant has achieved partial success and therefore, I have taken into account whether or not the amount of hours should be reduced to reflect this. The amount awarded is less than this attorney fee request amount. Therefore, under N.J.A.C. 11:3-5.6( e )(2), I next perform an analysis of whether the attorney fee request is consonant with the amount of the arbitration award. I find that the attorney fee request amount is not compatible or consistent with the amount of the award and for the reasons set forth herein, the attorney fee request was rejected and a smaller amount of attorney fees which is consonant with the award is entered. I find that the attorney fee request of $3, is not grossly disproportionate to the award entered. A review of the lodestar calculation is performed pursuant to N.J.A.C. 11:3-5.6( e )(2) as follows: NJ Page 9 of 11

10 (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly the issues of medical necessity, UCR, coding of trigger point injections and same or similar service for PENS are not novel in the field of PIP; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer in assignment cases, it appears that the provider-clients assign many files to one attorney and this would affect the workload of the lawyer; (3) the fee customarily charged in the locality for similar legal services hourly rates of between $ $ per hour are charged by Claimant s attorneys in PIP matters brought on assignment; (4) the amount involved and the results obtained Claimant prevailed on some of the medical necessity of the treatment; (5) the time limitations imposed by the client or by the circumstances the nature of the PIP arbitration process results in time limitations when appearance at a hearing is necessary but the remainder of the work performed is performed in the office. (6) the nature and length of the professional relationship with the client this is unknown as neither side provided any information regarding this factor. (7) the experience, reputation, and ability of the lawyer or lawyers performing the services Claimant s attorney has been practicing for a number of years and is known to me to handle many PIP arbitrations filed on assignment on behalf of medical professionals. (8) whether the fee is fixed or contingent the award of an attorney fee in a PIP case is contingent upon success in obtaining payment or an award after the filing of the demand. After considering Claimant s attorney fee certification and respondent s comments, I find that the hourly rate and billable hours are excessive when the factors set forth above are considered. I find that an award of counsel fees in the amount of $1, is consonant with the award and RPC 1.5. See Enright v. Lubow, 215 N.J. Super. 306 (App. Div.), certif. den., 108 N.J. 193 (1987), Scullion v. State Farm, 345 N.J. Super. 431 (App. Div. 2001). The filing fee of $ is awarded as a cost. NJ Page 10 of 11

11 Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Phoenix Physical Medicine $3, $1, Phoenix Physical Medicine 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.: As 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: 07/12/14 NJ Page 11 of 11