Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between NEUROMECHANICAL PAIN MANAGEMENT ASSOC, PC a/s/o D.K. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: Zwerling & Deshpande v. Claimant Attorney File No: ZDMDM-KEN Respondent Counsel: Law Offices of Cindy L. Thompson Respondent Attorney File No: 10P0661-KM Accident Date: 12/14/2008 GEICO Insurance Company RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Sergio G. Carro 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: DK An oral hearing was waived by the parties. An oral hearing was conducted on: 6/11/12 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: The Demand was amended to the sum of $6, NJ Page 1 of 7

2 Findings of Fact and Conclusions of Law This dispute arises from an automobile accident of 12/14/08 in which the patient assignor, DK, sustained bodily injuries. The Demand seeks to compel payment of medical expense benefits pursuant to the No- Fault/PIP provisions of an automobile insurance policy issued by Respondent. More particularly, Claimant demands payment of $6, for serial manipulation under anesthesia (MUA) procedures performed 10/15/09, 10/16/09 and 10/17/09. The following issues were presented for determination: (1) whether the MUA procedures were medically necessary, including the sub-issue of whether Respondent s denial was timely; and (2) whether Claimant correctly bills as a co-surgeon versus a primary surgeon for the MUAs. No other issue was presented to the DRP at the time of hearing for determination in this Award. There is no dispute that DK was involved in an automobile accident on 12/14/08 or that she is eligible for PIP benefits under an automobile insurance policy issued by Respondent. At the time of accident, DK was the driver of her vehicle when it was struck in the driver s side rear by another. DK did not go to a hospital following the accident. She did eventually commence a course of conservative chiropractic care with Dr. Stephen Levine, DC of Central Medical Associates on 2/27/09. It appears that DK underwent chiropractic treatment and trigger point injections. Cervical and lumbar MRI studies revealed disc bulges at C6-7 and L4-5. On 10/8/09 DK presented to Dr. John Piazza, DC of Neuromechanical Pain Management Associates. DK indicated that her neck pain was improved since the accident but back pain was worse. Low back pain was rated 8/10 in intensity. DK complained of numbness and tingling on positions. She complained of tightness in her right knee and cramping on the back of her leg. Examination noted tenderness in the cervical spine with hypertonicity and painful range of motion. Upper extremity neurological assessment was normal. Subluxations were noted. In the thoracic spine there was muscle spasm noted. In the lumbar spine there was tenderness and painful ranges of motion. Diagnostic impressions included cervical and lumbar disc dysfunction with pelvic dysfunction. Serial spinal and pelvic MUA was recommended for intractable pain and biomechanical dysfunction. A pre-certification request for the subject MUA procedures was submitted to Respondent on 10/9/09. The request was reviewed on behalf of Respondent by Dr. Xerxes Oshidar, DC on 10/15/09. Dr. Oshidar denied the MUA procedures as not medically necessary without comment. An internal appeal of the denial was reviewed on 10/21/09 by Dr. John Cecchini, DC. Dr. Cecchini similarly denied the appeal without comment. Curiously, another internal appeal review was prepared by Dr. Steven Goldman, DC. Dr. Goldman actually prepared a report. He opined that the medical records reviewed from Dr. Piazza did not document or support the medical necessity of MUAs. He further opined that the medical record failed to identify any specific pathology in the spinal regions or in the pelvis that would warrant MUA. Respondent also obtained MRO review in this case. The MRO report was prepared by Vincent Amato, DC on 10/5/10. Dr. Amato opined that performance of MUA in this case was a clear deviation from guidelines and protocols as set forth by the National Academy of MUA Physicians. More specifically, NJ Page 2 of 7

3 Dr. Amato commented that the medical record described no condition for which MUA would be appropriate. Dr. Amato further noted that nowhere in the chiropractic record was there any indication that there was difficulty with achieving full cavitation during in-office manipulation of the patient s spine. Thus, he opined, there would be nothing gained by adding anesthesia to the manipulative therapy. Additionally, Dr. Amato noted that the medical record indicated the patient had last received chiropractic manipulative therapy six months before the MUA procedures were performed which would be a clear deviation form the NAMUAP protocols which require that the patient undergo manipulative therapy during the two to six week period prior to recommending MUA. Lastly, Dr. Amato noted that the NAMUAP protocols require interim examinations between the first and second and between the second and third MUA procedures in order to ascertain the appropriateness of proceeding to the next MUA. Such interim exams were not performed in this case. Where there is a dispute as to medical necessity, the burden lies with the Claimant to establish that the services for which PIP benefits are sought 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). That burden must be carried by the preponderance of the evidence. State v. Seven Thousand Dollars, 136 N.J. 233 (1994). Historically, the necessity of medical treatment was a matter to be decided in the first instance by the patient s treating physicians and an objectively reasonable belief in the utility of a treatment or diagnostic method based upon credible and reliable evidence of its medical value was enough to qualify the expense for PIP purposes. Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491, 512 (1991). However, the AICRA legislation of 1999 specifically defined medically necessary at N.J.S. 39:6A-2(m) as meaning 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, as such protocols may be recognized or designated by the Commissioner of Banking and Insurance, in consultation with the Commissioner of Health and Senior Services or with a professional licensing or certifying board in the Division of Consumer Affairs in the Department of Law and Public Safety, or by a nationally recognized professional organization, and (3) does not involve unnecessary diagnostic testing. Thus, the Supreme Court s holding in Thermographic must be considered in conjunction with the later promulgation of the Care Path guidelines and associated regulations. N.J.A.C. 11:3-4.2 indicates that 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. NJ Page 3 of 7

4 N.J.A.C. 11:3-4.2 defines medically necessary or medical necessity as meaning 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 in the Appendix, as applicable; 2. The treatment of the injury is not primarily for the convenience of the injured person or provider; and 3. Does not include unnecessary treatment or testing. N.J.A.C. 11: defines medically necessary to mean: 1. The medical treatment or diagnostic test is consistent with the clinically supported symptoms, diagnosis or indications of the injured person; 2. The treatment is the most appropriate level of service that is in accordance with the standards of good practice and the provisions of N.J.A.C. 11:3-4, as applicable; 3. The treatment is not primarily for the convenience of the injured person or provider; 4. The treatment is not unnecessary; and 5. The treatment does not include unnecessary testing. With respect to the MRO report prepared by Dr. Amato, the opinions of the MRO are afforded a presumption of correctness by operation of N.J.A.C. 11:3-5.8(b). This regulation states that the findings of a medical review organization shall be presumed to be correct, but may be rebutted by a preponderance of the evidence submitted to the dispute resolution professional. The National Academy of MUA Physicians (NAMUAP) protocols identify the typical patient candidate for MUA as having received chiropractic care from four weeks to four months and still exhibiting the following: (1) the patient has responded favorably to conservative, noninvasive chiropractic and medical treatments but continues to experience intractable pain and/or biomechanical dysfunction; (2) sufficient care has been rendered prior to recommending MUA; (3) manipulative procedures have been utilized in the clinical setting prior to recommending MUA; (4) the patient s level of reproduced pain interferes with lifestyle (sleep, daily functional activities, work habits, etc.); (5) when medical pain management parameters for immediate acute care protocols are met, and if it is recommended by the medical pain management specialist, the MUA procedure can be used in conjunction with medical pain management for treatment of acute pain; and (6) diagnosed conditions must fall within recognized categories of conditions responsive to MUA which are identified as the following: (a) patients whereby manipulation of the spine or other articulations is the treatment of choice, however, the patient s pain threshold inhibits the effectiveness of conservative manipulation; (b) patients whereby manipulations of the spine or other articulations is the treatment of choice, however, due to involuntary contraction of the supporting tissues (splinting mechanism), patient treatment is delayed or may be prolonged; (c) patients whereby manipulation of the spine or other articulations is the treatment of choice, however due to the extent of the injury mechanism, conservative manipulation has been minimally effective in 2-6 weeks of care and a greater degree of movement of the affected joints is needed; (d) patients whereby manipulation of the spine or other articulations is the treatment of choice, however, due to the chronicity of the problem and/or the fibrous tissue adhesions present, conservative manipulation is incomplete; and (e) when the patient is considered for spinal disc surgery; MUA is an alternative and/or interim NJ Page 4 of 7

5 treatment and may be used as a therapeutic and/or diagnostic tool in the overall consideration of the patient s condition. The NAMUAP guidelines also indicate that every condition treated must be diagnosed and justified by the clinical documentation in order to establish medical necessity. Documentation of the patient s progress and response to treatment are part of the working diagnosis. Those diagnoses that are most responsive to MUA include, but are not limited to, the following: (1) sclerotogenous pain from the medial branch of the dorsal rami; (2) cervical, thoracic and lumbar myofascial pain syndromes; (3) intervertebral disc syndromes without fragment, sequestrain or significant osseous encroachment, with or without radiculopathy; (4) cervical brachial pain syndrome; (5) chronic recurrent headaches; (6) failed back surgeries that do not involve hypermobile motion units and have been responsive to clinical therapeutic trials of manipulation; (7) adhesive capsulitis relative to articular motion of the appendicular skeleton; (8) paravertebral muscle contraction related to functional biomechanical dysfunction syndromes; (9) nerve entrapment in lumbar facet articulation/facet syndrome with chronic fibrotic adhesions; and (10) disc protrusion as indicated by MRI. The NAMUAP protocols also indicate that interim examinations must be performed prior to proceeding to the second or third MUA procedures. The purpose of the re-examinations is to determine whether the patient realizes sufficient benefits from the first and then the second MUA prior to proceeding to the next. Specifically, the protocols indicate that if the patient regains 80% or more of normal biomechanical function during the first procedure and retains at least 80% of functional improvement during post MUA evaluation, then serial MUA (i.e. the second or third MUA) is usually unnecessary if post MUA therapy and rehabilitation is performed. If the patient regains 50-70% or less of normal biomechanical function during the first procedure and retains only 50-70% of improvement during the post MUA evaluations, a second MUA is recommended. If the patient continues to improve with the second MUA, however does not achieve at least 80% improvement in function, then a third MUA is recommended and has been found to be of significant benefit. If the patient shows a 10-15% improvement during the first MUA and continues to show a 10-15% functional improvement during post MUA evaluations, it is recommended that additional evaluation be completed to establish the appropriateness of additional MUAs. Since most patients gain between 50% to 70% improvement during the first day of a serial MUA treatment plan, a small improvement in function may indicate more extensive involvement. This is important since MUA has been found to be both therapeutic and diagnostic by surgeons in establishing evidence for surgical intervention. The protocols further indicate that MUA should be followed by conventional chiropractic treatment. The protocols call for daily treatment for the first week following the MUA, twice weekly treatment for the next two weeks and two to three times per week treatment for the next four weeks. N.J.A.C. 11:3-4.7(c)(4) requires that a PIP carrier have procedures for the prompt review, not to exceed three business days, of decision point review and pre-certification requests by insureds or providers. All determination on treatments or tests shall be based on medical necessity and shall not encourage over or underutilization of benefits. Denials of decision point review or pre-certification requests on the basis of medical necessity shall be the determination of a physician or, in the case of treatment rendered by a dentist, by a dentist. N.J.A.C. 11:3-4.7(g) states that [a]n insurer shall not retrospectively deny payment for treatment, diagnostic testing or durable medical equipment on the basis of medical necessity where a decision point NJ Page 5 of 7

6 review or precertification request for that treatment or testing was properly submitted to the insurer unless the request involved fraud or misrepresentation, as defined in N.J.A.C. 11:16-6.2, by the provider or the person receiving the treatment, diagnostic testing or durable medical equipment. Based on the foregoing, it is hereby determined that Respondent s medical necessity denial was improperly late for the 10/15/09 MUA. Pre-certification was submitted on 10/9/09, a Friday, such that the reply was due on 10/14/09. The first MUA was performed on 10/15/09 at an ambulatory surgical center while Respondent was forwarding the denial. As such, Respondent s medical necessity defense is precluded as to the 10/15/09 MUA. With respect to the 10/16/09 and 10/17/09 MUA procedures, it is hereby determined that Claimant has not established medical necessity by the preponderance of the evidence and has not overcome the presumptively correct determination of the MRO. Nothing in the medical record in evidence indicates that there was any difficulty in achieving cavitation during in-office manipulation of the patient. Nothing in the medical record documents any difficulty at all in performing chiropractic manipulation of the patient without the aid of anesthesia. Additionally, the patient had undergone trigger point injections demonstrating the manipulative therapy was no longer the treatment of choice since it had clearly been deemed insufficient and the patient was moved on to more invasive therapies. Accordingly, the second and third MUAs are denied. With respect to Dr. Piazza s billing as a co-surgeon, the issue is perhaps more pertinent in combination with the billing of Dr. Okoyo who also billed as a co-surgeon. Nevertheless, co-surgery means that two surgeons are performing distinct and separate parts of the same overall procedure. For example, one surgeon may perform the approach for a surgery while another performs the definitive procedure. Obviously, the key component here is that each surgeon performs distinct and separate parts of the same procedure. They are not assisting each other. In this case, the procedures performed were MUAs. The operative report describes no distinct and separate part of the MUA performed by either Dr. Piazza or Dr. Okoyo. As such, Dr. Piazza is awarded the MUAs of 10/15/09 as the primary and Dr. Okoyo is awarded the MUAs as an assistant. Finally, as Claimant is found to be a prevailing party, it is also hereby determined that Claimant is entitled to an award of counsel fees and costs as per N.J.S.A. 39:6A-5(g). The fees and costs awarded below are calculated with due regard to the provisions of RPC 1.5 as well as the factors outlined in Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987) and Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001). Those factors include: (1) the insurer s good faith in refusing to pay the claim; (2) the excessiveness of plaintiff s demands; (3) the bona fides of the parties; (4) the insurer s justification in litigating the issues; (5) the insured s conduct as it contributes substantially to the need for litigation; (6) the general conduct of the parties; and (7) the totality of the circumstances. Also considered were the fee certification of Claimant s counsel and the objections thereto proffered by Respondent s counsel at hearing. NJ Page 6 of 7

7 Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Neuromechanical Pain Mgmt. Assocs., P.C. $6, $2, Neuromechanical Pain Mgmt. Assocs., P.C. 2. Income Continuation Benefits: Not in issue 3. Essential Services Benefits: Not in issue 4. Death or Funeral Expense Benefits: Not in issue 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h.: to be calculated by Respondent in the usual course as mandated by statute. 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: 07/26/2012 NJ Page 7 of 7