Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between COMPREHENSIVE PAIN MANAGEMENT A/S/O C.H. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: NJP84042 Claimant Counsel: Law Office of David J. Karbasian, Esquire, PC v. Claimant Attorney File No: Respondent Counsel: Law Offices of David C. Harper Respondent Attorney File No: Accident Date: 12/08/2009 Mercury Indemnity Company of America RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: David A. Grabowski, 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: Patient An oral hearing was waived by the parties. An oral hearing was conducted on: 6/13/12 Hearing 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: See below. NJ Page 1 of 11

2 Findings of Fact and Conclusions of Law This matter arose out of a motor vehicle accident that occurred on 12/8/09 and is, therefore, subject to AICRA. I have reviewed and considered all of the evidence submitted, as well as all of the arguments put forth by the parties. Issue(s) Claimant, Comprehensive Pain Management is seeking reimbursement in the amount of $3, with respect to various medical services performed from 10/4/10 through 6/24/11. Issues raised include medical necessity, alleged improper billing (failure to utilize appropriate modifiers) and the multiple procedure reduction formula (MPRF). Facts As indicated above, the subject accident occurred on 12/8/09. Following said accident, patient came under the care of various medical providers, including the pain management care of Alan D. Carr, D.O. (Comprehensive Pain Management) on 8/17/10. At that time, patient complained of ongoing neck and back pain with shooting pains into her anal region. Dr. Carr noted that patient saw Dr. Zabinski who prescribed physical therapy for three (3) months and treated her with Darvocet for pain. Patient advised that the physical therapy only provided temporary relief. A physical examination revealed various positive objective findings, including: decreased cervical range of motion; upper extremity DTRs at +1/4; upper extremity strength at 4/5; significant pain upon facet palpation in the regions of C3-4, C4-5, C5-6 and C6-7; small trigger point formations along the bilateral rhomboid majors, as well as tightness and tautness along the scalenus and trapezius muscle groups; positive Cervical Compression and Rotation testing bilaterally; lower extremity strength at 4/5; Seated Leg Raise testing at 90 degrees with significant crepitus in the bilateral patellar region; patellar DTRs at +1/4 on the right and +2/4 on the left; positive Lasegue s testing bilaterally; positive Fabere Patrick s testing on the right; trigger point formation in the lower lumbar region; significant pain upon facet palpation in the regions of L3-4, L4-5 and L5-S1 and into the PSIS on the right. Dr. Carr indicated that an MRI of the cervical spine performed on 6/14/10 revealed: cervicothoracic scoliosis with concavity to the right; C3-4 midline spondylosis; C4-5 anterolisthesis; C5-6 anterolisthesis with under covering of the disc; a small broad based central disc protrusion slightly effacing the thecal sac at C5-6; a moderate sized broad based central disc herniation at C6-7. Dr. Carr indicated that an MRI of the lumbar spine performed on 6/14/10 revealed a disc herniation at L4-5 with right facet arthrosis at L5-S1. Following his examination, Dr. Carr diagnosed patient with: cervical facet syndrome; cervical HNP; lumbar facet syndrome; and lumbar radiculopathy. Dr. Carr recommended bilateral cervical facet joint injections at the levels of C3-4, C4-5, C5-6 and C6-7. Dr. Carr prescribed Ibuprofen 600 mg, Flexeril 10 mg, Tramadol 50 mg and Lidoderm patches. C6-7. On 10/4/10, Dr. Carr performed bilateral cervical facet joint injections at C3-4, C4-5, C5-6 and At a follow-up evaluation with Dr. Carr on 10/11/10, patient reported 50-60% relief of the pain with les discomfort. However, patient complained of continued neck pain. Following the 10/11/10 NJ Page 2 of 11

3 evaluation, Dr. Carr recommended cervical medial branch nerve blocks. Dr. Carr indicated that if there was substantial improvement, he would consider cervical RFLs. Dr. Carr performed bilateral cervical medial branch nerve blocks at C3, C4 and C5 on 11/15/10. At a follow-up evaluation with Dr. Carr on 11/23/10, patient reported less neck pain but ongoing trigger points in the left scapular girdle along the paravertebral musculature. Following a physical examination, Dr. Carr recommended trigger point injections into the scapular girdle region. At a follow-up evaluation with Dr. Carr on 12/28/10, patient complained of ongoing neck pain through the left shoulder. A physical examination revealed trigger points through the trapezius, rhomboid major, supraspinatus and anterior scalene with decreased cervical range of motion. On 12/28/10, Dr. Carr performed trigger point injections into the muscle groups indicated above. Following the injections, Dr. Carr noted marked improvement with decreased pain and cervical range of motion in the 90 th percentile. Dr. Carr indicated that he would see patient in three (3) weeks for additional trigger point injections. At a re-evaluation with Dr. Carr on 1/18/11, patient complained of neck pain on the left side radiating up into the base of the left skull. A physical examination revealed trigger point formation along the left scalenus and into the left trapezius base with most of the pain localized to the left occiput region. After diagnosing patient with cervical myofacial pain syndrome, Dr. Carr performed trigger point injections to the left sclaenus and trapezius muscle groups followed by direct acupressure technique until myofascial release was obtained. Following the trigger point injections, patient reported 100% myofascial release with improved cervical range of motion without tautness, tenderness or pulling in the occiput region. Dr. Carr recommended repeat trigger point injections. At a re-evaluation with Dr. Carr on 3/11/11, patient complained of neck pain with significant tautness and tenderness and trigger point formation in the left trapezius muscle group. Following a physical examination which revealed various positive objective findings, Dr. Carr performed trigger point injections into the left scalenus and left trapezius muscle groups followed by direct acupressure technique until myofascial release was obtained. Following the trigger point injections, patient reported 90% relief of her immediate discomfort in the left trapezius base with full cervical range of motion. Dr. Carr recommended repeat trigger point injections. At a re-evaluation with Dr. Carr on 4/8/11, patient complained of left-sided neck pain with intermittent numbness and tingling radiating into the fingers of her left hand, as well as a constant sensation of sponginess in the fingertips. Following a physical examination which revealed various positive objective findings, Dr. Carr performed trigger point injections into the left scalenus and left trapezius muscle groups followed by direct acupressure technique until myofascial release was obtained. Following the trigger point injections, patient reported 100% relief of her tightness and tenderness along the base of the neck and shoulder girdle with improved cervical range of motion. Dr. Carr recommended cervical epidural steroid injections. At a re-evaluation with Dr. Carr on 6/24/11, patient complained of left-sided neck pain with left upper extremity radicular features. Following a physical examination which revealed various positive objective findings, Dr. Carr once again recommended cervical epidural steroid injections, which Dr. NJ Page 3 of 11

4 Carr indicated were previously approved. Dr. Carr also prescribed Tizanidine and Tylenol with Codeine. With respect to the right-sided cervical facet joint injections performed on 10/4/10, Dr. Carr billed one (1) unit of CPT 64490, one (1) unit of CPT 64491, one (1) unit of CPT and one (1) additional unit of CPT With respect to the left-sided cervical facet joint injections performed on 10/4/10, Dr. Carr billed one (1) unit of CPT 64490, one (1) unit of CPT 64491, one (1) unit of CPT and one (1) additional unit of CPT Respondent paid Dr. Carr for one (1) unit of CPT 64490, one (1) unit of CPT 64491and one (1) unit of CPT With respect to the right-sided cervical medial branch nerve blocks performed on 11/15/10, Dr. Carr billed one (1) unit of CPT 64490, one (1) unit of CPT and one (1) unit of CPT With respect to the left-sided cervical facet joint injections performed on 11/15/10, Dr. Carr billed one (1) unit of CPT 64490, one (1) unit of CPT and one (1) unit of CPT Respondent paid Dr. Carr for (1) unit of CPT 64490, one (1) unit of CPT and one (1) unit of CPT Respondent paid Dr. Carr for the trigger point injections (CPT 20553) performed on 12/28/10. Respondent did not pay for the office visit (CPT 99213), osteopathic manipulation (CPT 98925) and special supplies (CPT 99070) performed/supplied on 12/28/10. Respondent paid Dr. Carr for the trigger point injections (CPT 20552) and special supplies (CPT 99070) performed/supplied on 3/11/11. Respondent did not pay for the office visit (CPT 99213) performed on 3/11/11. Respondent paid Dr. Carr for the trigger point injections (CPT 20552) and special supplies (CPT 99070) performed/supplied on 4/8/11/11. Respondent did not pay for the office visit (CPT 99213) performed on 4/8/11. Respondent did not pay for the office visit (CPT 99213) performed on 6/24/ 11. In response to an appeal with respect to date of service 10/4/10, a letter was sent to claimant dated 11/18/10 from Premier Prizm Solutions advising, Incomplete documentation submitted to support appeal. Please submit corrected billing for additional consideration. Billing should include modifier 50 for each line item with 1 unit billed per line item for bilateral billing. No further reimbursement can be recommended at this time. In response to an appeal with respect to date of service 11/15/10, a letter was sent to claimant dated 1/12/11 from Premier Prizm Solutions advising, Incomplete documentation submitted to support appeal. Codes when performed bilaterally should be billed as , , unit each on a single line. Submit corrected claim for processing. At respondent s request, a Physician Advisor Review (PAR) was completed by Richard A. Domsky, M.D. on 12/2/10 addressing Dr. Carr s request for trigger point injections (CPT 20552), osteopathic manipulation (CPT 98926), special supplies (CPT 99070) and an office visit (CPT 99213). Dr. Domsky indicated that: patient complained of neck pain; patient was status post cervical medial branch nerve blocks with limited relief; examination revealed left-sided TPIs and tenderness; no cervical MRI documented; the request for the TPIs was appropriate, medically necessary and approved; there is NJ Page 4 of 11

5 no medical necessity for the OMT; you cannot charge for supplies as these charges are included in the injection codes. In a letter to Dr. Carr dated 12/3/10, it was advised that the requested trigger point injections and office visit were approved and that the requested osteopathic manipulation and special supplies were denied. At respondent s request, a pain management IME was performed by Morris E. Antebi, M.D. on 5/3/11. At that time, patient complained of neck pain with radiation into the left upper extremity. Following what was reported to be a normal physical examination and after reviewing various medical records (set forth in his report), Dr. Antebi diagnosed patient with a resolved whiplash associated disorder and opined that patient reached MMI. Via letter dated 5/13/11, respondent advised that pain management benefits were terminated effective 5/27/11. Submitted into evidence by respondent is what appears to be some type of audit entitled Billing and Coding Guidelines. With respect to paravertebral facet joint injections, this document indicates that, Each CPT cod listed (single level, second level, third level and any additional levels may be billed with a Modifier 50 when an injecting a level bilaterally. For one level unilateral or bilateral CPT codes or should be used. If the facet joint injection is performed at more than one level unilateral or bilateral CPT codes 64491, 64492, or should be used for additional levels. For bilateral procedures Modifier 50 should be appended to the procedure codes with number of services of one. Law With respect to medical necessity, claimant has the burden of proof to a preponderance of the evidence. Where there is a dispute, the burden rests on the claimant to establish that the services for which he seeks PIP payments were reasonable, necessary and causally related to an automobile accident. Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156, 158 (Law Div. 1980). The necessity of medical treatment is a matter to be decided in the first instance by the claimant s treating physicians, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on the credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Medical expenses have been considered necessary even if the services only provide temporary relief from symptoms and will neither cure nor repair a medical condition or problem. Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984). The necessity of medical treatment is a matter to be decided in the first instance by the claimant s treating physicians, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491 (1991). While the fact that a treatment is only intended to provide relief from symptoms is not alone a reason to deny benefits, such treatment must still be reasonable and necessary. Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990). In New Jersey, every standard automobile liability insurance policy shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault. Personal NJ Page 5 of 11

6 injury protection coverage means and includes payment of medical expense benefits, which must also be in accordance with the benefit plan provided in the policy and approved for reasonable, necessary and appropriate treatment. N.J.S.A. 39:6A-4. Medical expenses must be both reasonable and necessary to be compensable. Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990). Pursuant to N.J.S.A. 39:6A-2(e), medical expenses means reasonable and necessary expenses for treatment or services as provided by the policy. Pursuant to N.J.S.A. 39:6A-2(m), medically necessary means that the treatment is consistent with the symptoms or diagnosis, and treatment of the injury (1) is not primarily for the convenience of the injured person or provider, (2) is the most appropriate standard or level of service which is in accordance with standards of good practice and standard professional treatment protocols, and (3) does not involve unnecessary diagnostic testing. The regulatory definition of medically necessary is defined under N.J.A.C. 11: Pursuant to this provision, 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; (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. N.J.S.A. 39:6A-4(a) provides for the payment of medical expense benefits in accordance with a benefit plan provided in the policy and approved by the commissioner for reasonable, necessary and appropriate treatment. This statutory provision also indicates 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. Protocols shall be deemed to establish guidelines as to standard appropriate treatment for injuries sustained in automobile accidents. Those guidelines are set forth in the Care Paths. The Care Paths are recommended extensive courses of care based on professional recognized standards. The Care Paths identify typical courses of intervention. That is, the Care Paths were promulgated to establish the typical treatment protocols for neck and back injuries as a measuring stick to help determine whether treatment is medically necessary. 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 special circumstances to justify the deviations. Deviations may be justified by individual circumstances, such as pre-existing conditions and/or comorbidities. The Care Paths encourage result oriented medical treatment practices. The guidelines established in the Care Paths are designed to avoid the continuation of treatment and therapy, week after week, over many months and years without any observable improvement. Such practice is not only wasteful, but may cause a patient to suffer unnecessarily before more effective and beneficial care might be available from a different type of treatment. The Care Paths, then, do not deprive the patient of the NJ Page 6 of 11

7 opportunity to seek the treatment of choice, but rather they encourage alternative choices if a treatment plan becomes unproductive. Comments of DOBI, December 21, Pursuant to N.J.A.C. 11:3-4.6(c), treatments that vary from the Care Paths shall be reimbursable only when warranted by reason of medical necessity. With respect to causal connection, the Appellate Division has recently held that an individual seeking Personal Injury Protection Benefits (PIP) must prove by a preponderance of the evidence that the injuries for which treatment was rendered and for which reimbursement is sought were proximately caused by the particular automobile accident triggering coverage under the policy of insurance. Bowe v. N.J. Mfrs. Ins. Co., 367 N.J. Super. 128 (App. Div. 2004). Pursuant to N.J.S.A. 39:6A-4, every standard automobile liability insurance policy shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured, and members of his family residing in his household, who sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile. The phrase bodily injury as a result of an accident in N.J.S.A. 39:6A-4 requires an insured seeking PIP benefits to causally link the medical treatment to the injuries sustained in a particular accident. This phrase is the functional equivalent of caused by or by reason of, which the Supreme Court has found to be indistinguishable from the concept of proximate cause. If a carrier asserts as a defense to a PIP claim that the treatment for which the insured is seeking benefits is exclusively related to a pre-existing condition, the insured has the burden of proving that the treatment at issue is causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury independent of that pre-existing injury or condition. In either case, the treatment must have resulted from the particular automobile accident triggering coverage. In a case alleging an aggravation of a pre-existing injury or condition, a PIP claimant must present objective medical evidence from which a medical professional can form an opinion that the trauma suffered in a particular accident caused the aggravation. This opinion must, at the very least, be based on an evaluation of the medical records of the claimant prior to the particular accident. Once that causal 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. Thus, in a PIP case, a plaintiff need not prove the percentage of her injury caused by the particular accident triggering coverage. To prevail on a PIP claim, a plaintiff need only prove that her pre-existing injury or condition was aggravated by the accident for which coverage is sought. This interpretation is consistent with Legislature s intent to provide PIP claimants with the broadest possible coverage. Pursuant to N.J.A.C. 11:3-29.4(f), the following shall apply to multiple and bilateral surgeries (CPT through 69999), co-surgeries and assistant surgeons: (1) For multiple surgeries, rank the surgical procedures in descending order by the fee amount, using the fee schedule or UCR amount, as appropriate. The highest valued procedure is reimbursed at 100 percent of the eligible charge. Additional procedures are reported with the modifier -51 and are reimbursed at 50% of the eligible charge. If any of the multiple surgeries are bilateral surgeries using the modifier -50, consider the bilateral procedure at 150 percent as one payment amount, rank this with the remaining procedures, and apply the appropriate multiple surgery reductions; (3) the terminology for some procedure codes includes the terms bilateral or unilateral or bilateral. The payment adjustment rules for bilateral surgeries do not apply to procedures identified by CPT as bilateral or unilateral or bilateral since the fee schedule reflects any additional work required for bilateral surgeries. If a procedure is not identified by its terminology as a bilateral procedure (or unilateral or bilateral) and is performed bilaterally, NJ Page 7 of 11

8 providers must report the procedure wit modifier -50 as a single line item. Reimbursement for bilateral surgeries reported with modifier -50 shall be 150 percent of the eligible charge. CPT is defined as, Injection(s), diagnostic or therapeutic agent, paravertebral facet (zypapophyseal) joint (or nerves innervating that joint) with image guidance (fluoroscopy or CT), cervical or thoracic; single level. CPT second level. CPT third and any additional level(s). Pursuant to N.J.A.C. 11:3-29.4(n), follow-up evaluation and management services for the reexamination of an established patient shall be reimbursed in addition to physical medicine and rehabilitation procedures only when any of the circumstances set forth in (o)(1) through (4) below is present and not more than twice in any 30 day period. Modifier-25 shall be added to an evaluation and management service when a significant separately identifiable evaluation and management service is provided and documented as medically necessary as follows: 1. There is a definite measurable change in the patient s condition requiring significant change in the treatment plan; 2. The patient fails to respond to treatment, requiring a change in the treatment plan; 3. The patient s condition becomes permanent and stationary, or the patient is ready for discharge; or 4. It is medically necessary to provide evaluation services over and above those normally provided during the therapeutic services. Pursuant to N.J.A.C. 11:3-29.4(g), 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. Analysis/Findings After considering the evidence submitted, I am awarding claimant $ with respect to the bilateral cervical facet joint injections at C3-4, C4-5, C5-6 and C6-7 performed on 10/4/10. The Operative Report clearly indicates that bilateral injections were performed. Respondent clearly is aware that bilateral injections were performed. I find that the failure to utilize modifier -50 is not a total disqualifier from claimant receiving compensation from respondent when it is crystal clear that bilateral injections were performed. No legal authority was submitted by respondent indicating that the failure to utilize modifier -50 is a complete disqualifier to compensation. Now let me tell you how I arrived at the $ amount awarded. Simply put, I applied N.J.A.C. 11:3-29.4(f) set forth above. For the bilateral procedures, claimant would be entitled to $1, %) with respect to CPT Claimant would be entitled to $ % subject to a reduction of 50%) with respect to CPT Claimant would be entitled to $ % subject to a reduction of 50%) with respect to CPT Therefore, in total, claimant would be entitled to $1, with respect to the bilateral cervical facet joint injections at C3-4, C4-5, C5-6 and C6-7 performed on 10/4/10. Respondent already paid claimant $1, ($ ). I get the $ NJ Page 8 of 11

9 by subtracting the $1, already paid by respondent from the $1, that claimant would be entitled to pursuant to N.J.A.C. 11:3-29.4(f). I agree with respondent that claimant is NOT entitled to reimbursement for the 4 th injection level (C6-7) as CPT includes the third level and any additional level(s). As indicated above, CPT is defined as Injection(s), diagnostic or therapeutic agent, paravertebral facet (zypapophyseal) joint (or nerves innervating that joint) with image guidance (fluoroscopy or CT), cervical or thoracic; third and any additional level(s). Applying the same exact rationale/calculations as with date of service 10/4/10 (set forth above), I am also awarding claimant $ with respect to the bilateral cervical medial branch nerve blocks at C3, C4 and C5 performed on 11/15/10. I am awarding claimant $ ($56.85 x 3) with respect to the follow-up office visits (CPT 99213) performed on 12/28/10, 3/11/11 and 4/8/11. I find that the failure to utilize modifier -25 is not a total disqualifier from claimant receiving compensation from respondent when it is crystal clear that Dr. Carr performed office visits separate and apart from the TPIs performed on these three dates of service. No legal authority was submitted by respondent indicating that the failure to utilize modifier - 25 is a complete disqualifier to compensation. After considering the evidence submitted, I find that claimant is not entitled to reimbursement with respect to the OMT (CPT 98925) performed on 12/28/10. There is no indication as to why the OMT in addition to the TPIS was medically necessary. It is also noted that Dr. Carr did not bill for OMT in conjunction with the TPIs performed on 3/11/11 and 4/8/11. Why not? Based upon the foregoing, as well as the PAR of Dr. Domsky, nothing is awarded to claimant with respect to the OMT (CPT 98925) performed on 12/28/10. I find that claimant is not entitled to the special supplies (CPT 99070) billed on 12/28/10. I find that billing separately for the supplies used in conjunction with the performance of the TPIs represents improper unbundling and fragmented billing. After considering the evidence submitted, I find that claimant has proven by a preponderance of the evidence that the follow-up office visit performed on 6/24/11 was medically necessary. Said finding is based upon and supported by: the documented ongoing subjective complaint; the documented ongoing positive objective physical examination findings; the MRI findings; the diagnosed injuries; and the fact that Dr. Carr was still recommending additional treatment (cervical epidural steroid injections) and prescribing medication. Therefore, I am awarding claimant $56.85 with respect to the follow-up office visit (CPT 99213) performed on 6/24/11. Attorneys Fees & Costs New Jersey s Courts have long construed 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 in judicial actions brought under the PIP statute. Craig & Pomeroy, New Jersey Auto Insurance Law (GANN LAW BOOKS) (case citations omitted). In N.J. Coal. of Health Care Prof ls, Inc. v. N.J. Dep t of Banking & Ins., 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 juris prudence of our State. Pursuant to N.J.A.C. 11:3-5.6(d)(3), a DRP s award may include NJ Page 9 of 11

10 attorney s fees for a successful claimant in an amount consonant with the award and with Rule 1.5 of the Supreme Court s Rules of Professional Conduct. RPC 1.5 states that a lawyer s fee should be reasonable. After considering the Certification of claimant s counsel and the comments of respondent s counsel in response to same, I find that an award of counsel fees in the amount of $1, is consonant with the amount awarded and consistent with the requisites of RPC 1.5 and the criteria set forth in Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987), as well as, Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001). Pursuant to N.J.A.C. 11:3-5.6(d)(2), the award shall apportion the costs of the proceedings in a reasonable and equitable manner consistent with the resolution of the issues in dispute. I therefore award costs in the amount of $ Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Comprehensive Pain Management $3, $ Comprehensive Pain Management 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.: Interest is awarded and is to be calculated by respondent. Attorney's Fees and Costs NJ Page 10 of 11

11 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: 07/30/12 NJ Page 11 of 11