Award of Dispute Resolution Professional. In Person Proceeding Information

Transcription

1 In the Matter of the Arbitration between Advanced Spine and Pain a/s/o T.B. CLAIMANT(s), Forthright File No: NJ Proceeding Type: In Person Insurance Claim File No: NJP79872 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: 05/24/2009 Mercury Indemnity Company of America RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Nina L. Pettersen, 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: The Patient A proceeding was conducted on: 03/14/14 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: Claimant amended the Demand for Arbitration to $6, Respondent withdrew their crosswalk argument. NJ Page 1 of 15

2 Findings of Fact and Conclusions of Law This matter arose out of a motor vehicle accident that occurred on May 24, 2009, and is, therefore, subject to AICRA. Claimant filed this demand on behalf of the patient for reimbursement for services provided from June 1, 2011 through September 11, The demand seeks reimbursement in the amount of $6, I have reviewed all the submissions of the parties and heard arguments on behalf of the parties at the arbitration hearing on March 14, The following issues were presented by the parties for determination at the arbitration hearing. ISSUE(S) IN DISPUTE: 1. Whether the Pain Management treatment performed from 06/01/11 to 09/11/13 was medically necessary? No other issues were identified at the hearing or will be considered. 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 failure to orally argue and present an issue and/or argument during the hearing constitutes a waiver of same. Evidence Considered: In making my determination, I considered the following documentation submitted by the parties: Claimant s Demand for Arbitration with attachments dated 11/28/12, 12/03/12, 02/05/13, 03/08/13, 04/19/13, 06/28/13, 07/31/13, 08/09/13, 08/14/13, 09/19/13, 11/25/13, Arbitration Summary dated 03/07/14 and Certification of Counsel Fees and Costs dated 03/14/14; Respondent s pre-hearing submission dated 02/21/14 and 02/27/14. At the conclusion of the oral hearing of this matter, the parties were specifically asked whether they had supplemental evidence they intended to submit. Both parties replied that they did not. FACTS CLAIMANT S ARGUMENTS: Claimant relied on various medical records and reports. Claimant argued that the patient was involved in a motor vehicle accident on 05/26/09 in which he was the driver of a vehicle that was rear ended at a light. He impacted his head, neck and lower back. He immediately experienced pain in the head, neck and back. He was taken to the hospital where he was treated and released. Patient presented to Dr. Pathakar on 06/01/11 with complaints of neck pain radiating into the left upper extremity and elbow, low back pain radiating into the posterior and lateral thighs bilaterally. Examination revealed cervical ROM to be reduced by 10-15%, positive Spurling's, moderate tenderness and tightness was noted on the cervical paraspinal muscles. Lumbar ROM was reduced by 10-15%, moderate tenderness was noted on the lumbar facet joints from L3 to the S1 bilaterally. Lumbar MRI showed grade 1 anterolisthesis at L5 and Sl with bulge at L4-5 and L5-Sl, L5- Sl broad herniation across the disc margin. Cervical MRI showed C3-4 spurring in both foramina and to the right at C4-5, C5-6 broad herniation, C6-7 and C7-TI central herniation. Upper EMG showed left C5-6 radiculopathy. Dr. Pathakar's impression is displacement of the cervical discs, cervicalgia, cervical radiculopathy, displacement of the lumbar discs, lumbar facet arthropathy, myofascial pain syndrome. As such, it was recommended he undergo bilateral lumbar and cervical facet joints. NJ Page 2 of 15

3 On 09/23/11 the patient underwent medial branch nerve blocks of the lumbar spine as well as radiofrequency of the lumbar spine on 02/03/12. On 03/09/12 he underwent cervical medial branch nerve blocks. He returned on 04/11/12 at which time he noted a 50-60% pain relief in the cervical spine and 40-50% improvement in the lumbar spine. It was recommended he see Dr. Glass for possible surgery and to continue home exercises and medication (Percocet). On 09/12/12 it was recommended that he proceed with cervical radiofrequency. However, the patient preferred conservative treatment. The patient last treated on 09/11/13 at which time he was instructed to continue medications, stretching, home exercise, applying heat and ice. TESTIMONY OF THE PATIENT From this DOA, the patient injured his neck and back. He did have a prior MVA in Because of this accident in 2009, his injuries are worse, already treating, worse sleeping and sexually. Dr. Patharkar performed epidurals which wore off. Dr. Patharkar burned his nerves which helped him at that time. Before the patient started this treatment, he had improvement. At first after the accident, he was uncomfortable, he could not drive or travel. After his treatment with Dr. Patharkar, he was able to go to work, he did not have to stretch and get out of the truck. The patient recalled attending the IME with Dr. Antebi and testified that he did not spend much time with him. He recalled waiting in the waiting room and touching his toes. On Cross Examination, the patient testified that he treated with Dr. Perkins for Pain Management, he had injections in the neck and back, but he never had his nerves burned. Dr. Perkins did two injections. The first one lasted two weeks. He was told that the more injections you get, the longer they last. Dr. Patharkar burned his nerve, he felt much better for a longer period of time. The patient testified that he did not undergo surgery. He is a music producer. The patient s testified that his back is still messed up. He is on pain medication. He will not get any more epidurals. On re-direct, the patient testified that Dr. Glass recommended back surgery before the nerve burning. RESPONDENT S ARGUMENTS: Respondent relied on various medical records and reports. Respondent argued that the patient was involved in a motor vehicle accident on May 26, 2009 and started treatment soon thereafter. The patient initially underwent pain management treatment with injections before presenting to Dr. Morris Antebi for an Independent Medical Examination. Following the examination, all pain management benefits were terminated. The Patient then initiated a course of pain management treatment with the Claimant on June 1, The dates of service at issue in this demand are 06/01/11-09/11/13. All treatment was denied by Respondent as not medically necessary. With regard to medical necessity, Respondent argued that the patient was examined by Dr. Morris Antebi on August 3, 2010 for purposes of an Independent Medical Examination. At the time of the accident, the patient stated that he was the driver of a vehicle that was rear-ended by another vehicle in May Following the accident he drove himself to Pomona Hospital and South Jersey Regional Medical Center with complaints of neck and back pain. Respondent argued that it was noted in the patient's history that he was also involved in a motor vehicle accident on April 21, In that accident, the patient was also rear-ended by another vehicle, suffering from low back pain in that accident. Following the 2008 accident, the patient underwent a NJ Page 3 of 15

4 course of chiropractic care with Dr. Victor Rossi and then was referred to Dr. Perkins, a pain management specialist, as well as Dr. Glass. The patient indicated that Dr. Perkins gave him two epidural injections which helped him and that he stopped seeing the pain management doctor approximately 3 months prior to the May 26, 2009 accident. Respondent argued that with regard to the present accident, the patient stated that he returned to Dr. Rossi, who was providing him with chiropractic treatment. In addition, the patient presented to Dr. Russell Abrams for a neurological examination and was advised to continue chiropractic treatment and prescribed medication to deal with the pain. Dr. Abrams also recommended lumbar epidural injections as well as a neurosurgical referral to Dr. Glass. According to the patient, Dr. Perkins again performed lumbar epidural injections as well as cervical epidural injections. The patient advised Dr. Antebi that he was still symptomatic with pain in his neck on the left side, headache and pain in the low back in the groin area. The neck pain was described as constant, rated 9-10/10 and nothing relieved the pain. The physical examination of the patient revealed no neurological deficits in the upper extremities. Sensory examination was performed without finding any deficits. There was no tenderness in the neck or paraspinal muscles. Range of motion in his lumbar spine was remarkable with a negative examination. The review of the medical records revealed the following injections performed by Dr. Perkins: 03/11/10- cervical epidural injection at C6-7 04/01/10 - cervical epidural injection at C6-7 04/29/10- right C4-5, C5-6 and C6-7 facet nerve block injection 05/06/10 - left C4-5, C5-6 and C6-7 facet nerve block injection The records also revealed that the patient underwent bilateral lumbar facet injections at L4-5 and L5-S1 with recommendation for RFL at these levels with trigger points. Following the examination, Dr. Antebi diagnosed the patient with resolved whiplash-associated disorder, noting a negative examination without any objective findings. Dr. Antebi concluded that no additional pain management treatment was medically necessary and that the patient had reached maximum medical improvement. Respondent argued that on August 5, 2011, Dr. Antebi prepared an Appeal report following the patient s return to pain management treatment with Claimant. Dr. Antebi reviewed the initial evaluation by Dr. Patharkar on 06/01/11 and noted that it was now 27 months post-accident and that the patient had reached maximum medical improvement by August Based on the prior examination, Dr. Antebi concluded that the new examinations did nothing to change his prior opinion and upheld the conclusions reached in his original IME. Dr. Antebi prepared a second Appeal report on February 2, Again, the materials that were provided did not lead Dr. Antebi to alter his original conclusion that maximum medical improvement had been reached. All requests for treatment from were denied based on the termination of benefits. NJ Page 4 of 15

5 The New Jersey Legislature enacted the Automobile Insurance Cost Reduction Act (AICRA) in part to reduce the costs of insurance coverage by eliminating fraud and the propensity for overutilization of services. See Coalition for Quality Health Care vs. N.J. Dept. of Banking and Ins., 348 N.J. Super. 242, at 316 (App. Div. 2002) and N.J.A.C. 11:3-4.8(a). The holding in Coalition for Quality Health Care confirmed that there was nothing in the code that limited or impeded the individual's freedom to choose a particular physician or hospital but does serve to limit the inefficient or unbridled use of PIP medical expense benefits. Treatment is defined by the Administrative Code to be "Medically Necessary", if, that 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 testing or treatment. According 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, neurologic 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. Respondent argued that the reviewing physician must be afforded the same weight as any contrary opinions of the treating doctor in this matter. Cross-walk On 09/23/11 and 03/09/12, the patient performed facet medial branch injections, ultimately billed as CPT Codes through Prior to 2010, facet injections were billed as CPT Codes Pursuant to the Current Procedural Terminology; Professional Edition (2010), "CPT Codes have been deleted. To report, see ". Thus, CPT Codes have replaced CPT Codes As a result of this replacement coding, CPT Codes are not specifically enumerated on the PIP fee schedule effective 08/10/09. However, facet injections are listed on the "new" medical fee schedule under there "old" CPT Code of 64470, 64472, and In addition, the patient performed bilateral lumbar facet medial branch radio frequency ablation NJ Page 5 of 15

6 ["RFA") -C7, ultimately billed as CPT Codes and Prior to 2012, facet RFA injections were billed as CPT Codes Effective January 1, 2012 CPT codes 64622, 64623, 64626, & have been deleted from the AMA CPT 2012 Manual and have been replaced with CPT codes 64633, 64634, 64635, and CPT As noted on page 331 of the 2012 CPT Manual Professional Edition: " have been deleted. For image guided neurolysis of facet joint nerve (s), see " As a result of this replacement coding, CPT Codes and are not specifically enumerated on the PIP fee schedule effective 08/10/09. However, RFA is listed on the "new" medical fee schedule under there "old" CPT Code of and N.J.A.C 11:3-29.4( )(3)states as follows: 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, providers must report the procedure with modifier "-50" as a single line item. Reimbursement for bilateral surgeries reported with the modifier "-SO" shall be 150 percent of the eligible charge. N.J.A.C. 11:3-29.4(e) establishes that, [T]the insurer's limit of liability for any medical expense benefit for any services or equipment not set forth in or not covered by the fee schedule shall be a reasonable amount considering the fee schedule amount for similar services or equipment in the region where the service or equipment was provide.... Where the fee schedule does not contain a reference to similar services or equipment as set forth in the preceding sentence, the insurer's limit of liability for any medical expense benefit for any service or equipment not set forth in the fee schedules shall not exceed the usual, customary and reasonable fee. (emphasis added) CPT codes are clearly "similar services" to CPT codes , as the former are codes which supersede the latter for the same services. Thus, for the facet injections performed on 9/23/11 and 3/9/12, Claimant is only entitled to the fee schedule allowance for CPT codes 64470, 64472, and at the bilateral rate, where applicable. Similarly, CPT codes and are clearly a "similar service" to CPT codes and 64623, as the former are codes which again merely supersede the latter for the same services. Thus, for the facet radio frequency ablation performed on 2/3/12, Claimant is only entitled to the fee schedule allowance for CPT codes and 64623, at the bilateral rate. This issue was addressed by the Department of Banking and Insurance via a "Frequently Asked Question" as follows: NJ Page 6 of 15

7 Q. The CPT code for the service performed has been changed since the fee schedule rule was last amended. For example, CPT codes through for facet joint injections have been deleted and replaced by codes through in the 2010 edition of the CPT manual. How should facet joint injections be billed and paid? A. The provider should always bill the actual and correct CPT code that he or she is providing. The amount that the insurer pays for the service is determined by whether the service is similar to one already on the fee schedule as required by N.J.A.C. 11:3-29.4(e). That is the standard for determining whether the fee for a CPT code that is on the fee schedule can be used to set a fee for a code that is not on the fee schedule. The answer depends on the circumstances of each case. In the case of Facet joint injections, although the descriptions of the procedures have been revised and reorganized and the new codes have been placed in a new subsection of the CPT code book entitled Paravertebral Spinal Nerves and Branches, the Department notes that the Work RVU's for the new codes are very similar to those for the deleted codes. The Department also notes that because fluoroscopic guidance is included in the bundled paravertebral facet joint injection code, 77003, the fluoroscopic guidance code, should not be billed with these codes. / dobi/pipinfo/medfeeqa.htm Attached - Hare Code Review reports regarding the cross-walking of the facet injections and radiofrequency ablation, should the DRP conclude that same is medically necessary. In Respondent s supplemental submission, they provided a copy of the Termination of Benefits letter regarding Pain Management following the IME with Dr. Morris Antebi on August 3, The effective date of the termination is September 1, LAW MEDICAL NECESSITY When confronted with a dispute as to the services provided, the burden rests upon the claimant to establish that the medical expenses for which it seeks PIP benefits were reasonable, necessary and causally related to an automobile accident. See Miltner v. Safeco Insurance Co. of America, 175 N.J. Super. 156 (Law Div. 1980). 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 statute 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 courses of care based on professional recognized standards. The Care Paths identify typical courses of intervention. That is, the Care Paths were created 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 NJ Page 7 of 15

8 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 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. 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. Thermographic Diagnostics v. Allstate, 125 N.J. 491 (1991). 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. See also N.J.A.C. 11:3-4.2 which states 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: 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. In addition, N.J.A.C. 11:3-4.2 Definitions, state in pertinent part: "Clinically supported" means that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic test has: Personally examined the patient to ensure that the proper medical indications exist to justify ordering the treatment or test; Physically examined the patient including making an assessment of any current and/or historical subjective complaints, observations, objective findings, neurologic indications, and physical tests; 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 Recorded and documented these observations, positive and negative findings and conclusions on the patient's medical records. Case law in this state is clear that where there is a conflict of testimony of medical experts, generally greater weight is to be given to the testimony of the treating physician. Mewes v. Union Bldg. & Const. Co., 45 N.J. Super. 88 (App. Div. 1957); Bialko v. H. Baker Milk Company, 38 N.J. Super. 169 (App. Div. 1955); Abelit v. General Motors Corporation, 46 N.J. Super. 475 (App. Div. 1957). While it is true the treating physician s opinion is not automatically accorded conclusive weight, Black & Decker Disability Plan v. Nord, 123 S. Ct (2003), (relating to ERISA Plans), it is accorded an appropriate measure of deference. NJ Page 8 of 15

9 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). Pursuant to N.J.A.C. 11:3-4.2, Diagnostic test means a medical service or procedure utilizing biomechanical, neurological, neurodiagnostic, radiological, vascular or any means, other than bioanalysis, intended to assist in establishing a medical, dental, physical therapy, chiropractic or psychological diagnosis, for the purpose of recommending or developing a course of treatment for the tested patient to be implemented by the treating practitioner or by the consultant. Pursuant to N.J.A.C. 11:3-4.5(b)(1), the personal injury protection medical expense benefits coverage shall provide for reimbursement of 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. Nerve conduction velocity (NCV) and H-reflex Study are reimbursable when used to evaluate neuropathies and/or signs of atrophy, but not within 21 days following the traumatic injury. Needle electromyography (needle EMG), nerve conduction velocity (NCV) and H-reflex study has been determined to have value in the evaluation of injuries, the diagnosis and development of a treatment plan for persons injured in a covered accident when medically necessary and consistent with clinically supported findings. Somasensory evoked potential (SSEP), visual evoked potential (VEP), brain audio evoked potential (BAEP), or brain evoked potential (BEP), nerve conduction velocity (NCV) and H-reflex studies are reimbursable when used to evaluate neuropathies and/or signs of atrophy, but not within 21 days following the traumatic injury. See N.J.A.C. 11:3-4.5(b)(2). Electroencephalogram (EEG) also has value when used to evaluate head injuries, where there are clinically supported findings of an altered level of sensorium and/or a suspicion of seizure disorder. This test, if indicated by clinically supported findings, can be administered immediately following the insured event. When medically necessary, repeat testing is not normally conducted more than four times per year. See N.J.A.C. 11:3-4.5(b)(3) The utility of MRI testing is recognized in N.J.A.C. 11:3-4.5(b)(5) when used in accordance with the guidelines contained in the American College of Radiology, Appropriateness Criteria to evaluate injuries in numerous parts of the body, particularly the assessment of nerve root compression and/or motor loss. MRI is not normally performed within five days of the insured event. However, clinically supported indication of neurological gross motor deficits, incontinence or acute nerve root compression with neurologic symptoms may justify MRI testing during the acute phase immediately post injury. ANALYSIS AND FINDINGS Having considered all the evidence and arguments presented in this case, I find that Claimant has proven, by a preponderance of the evidence, that the treatment provided from 06/01/11-09/11/13 was medically necessary in this matter. With respect to medical necessity, said finding is based upon and supported by: the documented subjective complaints (head, neck pain that radiates into the left upper extremity to the elbow region and lower back pain that radiates into the posterior and lateral thighs bilaterally; pain is aching, sharp, throbbing pain with numbness and burning sensation that is present throughout the day); the documented positive objective physical examination findings (decreased ROM in neck, positive Spurlings, tenderness in the cervical facet joints from C2-C7 bilaterally, more on the left side, moderate tenderness and tightness on the cervical paraspinal muscles; moderate tenderness and NJ Page 9 of 15

10 tightness noted in the lumbosacral spine, paravertebral muscles, moderate tenderness was noted on the lumbar facet joints from L3-S1, bilaterally, ROM reduced 10-15%); MRIs (C3-4 spurring in both foramina and to the right at C4-5, C5-6 broad disc herniation; C6-7 central disc herniation and C7-T1 central disc herniation; (10/03/08)grade 1 anterolisthesis at L5-S1 with disc bulging at L4-5 and L5-S1, bilateral neural foraminal narrowing at these levels, (7/15/09) L5-S1 mild broad herniation across the disc margin); EMG/NCS findings (left C5-6 radiculopathy with evidence of denervation with subsequent innervation on the left side biceps, brachioradialis and paraspinal muscles), EEG (abnormal due to excessive slowing activity on spectral analysis which can be seen in post concussive syndrome) and the diagnosed injuries. The DOA in this matter is 05/24/09. Dr. Panaia referred the patient for treatment. The patient had chiropractic treatment with Dr. Rossi, TPI/PENS with Dr. Abrams and was seen by Dr. Glass, an orthopedic surgeon. Claimant indicated that the patient was involved in another MVA in 1999 and had neck and lower back pain. In addition, the patient was involved in another MVA on 04/21/08 where he suffered neck and lower back pain and was in treatment when this MVA occurred on 05/24/09. The patient had epidural injections as well as facet joint injections in 2008 by Dr. Perkins. His pain was at a 2/10 on the visual analog scale until the most recent MVA in 2009 which aggravated and exacerbated his lower back and neck pain. Interventional procedures included 11/20/08, bilateral lumbar facet injections L4-5, L5-S1; 01/15/09, bilateral lumbar facet injections L4-5, L5-S1; 01/14/10, Interlaminar lumbar epidural L5-S1; and 2010, left cervical facet C3-4, C4-5, C5-6 injection. Dr. Patharkar s impression was displacement of cervical discs, cervicalgia and cervical radiculopathy on EMG, displacement of lumbar discs on MRI, lumbar back pain syndrome, lumbar facet arthropathy/syndrome, myofascial pain syndrome. Dr. Patharkar indicated that he would repeat lumbar medial branch block at bilateral lumbar facet joints at L3-4, L4-5 and L5-S1 because he had a very good response to the prior injections by Dr. Perkins. In addition, Dr. Patharkar recommended repeat medial branch nerve block at cervical facet joints of left C3-4, C4-5, C5-6 as the patient had good response to the initial done by Dr. Perkins. In addition, based upon the testimony, Claimant s treatment improved the patient s condition. Also, on 11/18/11, the patient stated that he had 100% pain relief of symptoms for several days with an increase in ROM and activity. On 04/11/12, the patient stated that he had about 50%-60% pain relief for the duration of approximately 2-3 weeks. On 09/12/12, the patient indicated that he had moderate to significant pain relief for a short duration from the medial branch nerve block at the cervical facet joints. Thereafter, Claimant treated the patient refilling medication and recommended continued chiropractic care. Respondent provided the IME by Dr. Antebi dated 08/03/10. The patient complained of pain in his neck on the left side, headache and pain in his lower back and groin area. Dr. Antebi examined the patient s musculoskeletal system which revealed no neurological deficit in the upper extremities. Dr. Antebi tested him for the muscles innervated by the nerve roots of C4 throughout C8, without finding any deficits. Dr. Antebi did not find any tenderness in his neck or in his paraspinal muscles, in his neck or in the shoulder part of the trapezii. The flexion of the back was 90 degrees. Dr. Antebi did not find any tenderness in his lumbar paraspinal muscles bilaterally. Dr. Antebi found the physical examination was entirely and absolutely negative. Respondent s TOB is September 1, Dr. Antebi also provided supplemental reports dated 08/05/11 and 02/02/12. I did not find Dr. Antebi s IME or supplemental reports to be persuasive. Based on both the patient s subjective and objective findings (see above) as well as his testimony, I am awarding the treatment. In addition, it was clear from reviewing the records that the patient benefitted from the treatment. Based on the above, I am awarding $6, pursuant to New Jersey Fee Schedule, copay and deductible. NJ Page 10 of 15

11 ATTORNEY S FEES and COSTS Claimant s counsel has submitted a fee certification which itemizes 5.4 hours of work at the sought-rate of $ per hour totaling $1, Claimant also seeks reimbursement of costs in the amount of $ Respondent argues that Claimant seeks too many hours at too high a rate in light of the putative lack of complexity presented in this matter. Pursuant to N.J.A.C. 11:3-5.6(e): 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 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. One of the most recent state supreme court cases addressing counsel fees is Litton Indus. v. IMO Indus., 200 N.J. 372 (2009). In that case the Court stated: We have applied the same test for reasonable attorneys' fees in contract cases that we use in other attorneys' fee award cases in New Jersey. See N. Bergen, supra, 158 N.J. at 570, 730A.2d 843. In determining the reasonableness of an attorneys' fee award, the threshold issue "is whether the party seeking the fee prevailed in the litigation." Ibid. In that regard, the party must establish that the "`lawsuit was causally related to securing the relief obtained; a fee award is justified if [the party's] efforts are a necessary and important factor in obtaining the relief.'" Ibid.(quoting NJ Page 11 of 15

12 Singer v. State, 95 N.J. 487, 494, 472 A.2d 138, cert. denied, 469 U.S. 832, 105 S.Ct.121, 83 L.Ed.2d 64 (1984)). [* * * ] 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 RPC1.5(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. [RPC 1.5(a).] The computation of the lodestar mandates that the trial court determine the reasonableness of the hourly rate of "the prevailing attorney in comparison to rates `for similar services by lawyers of reasonably comparable skill, experience, and reputation' in the community." Furst, supra,182 N.J. at 22, 860 A.2d 435 (quoting Rendine, supra, 141 N.J. at 337, 661 A.2d 1202). Further, the court must consider the degree of success in determining the reasonableness of the time expended. Furst, supra, 182 N.J. at 23, 860 A.2d 435. Thus, when a party has succeeded on only some of its claims for relief, the trial court should reduce the lodestar to account for the limited success. Ibid. Moreover, if the same evidence adduced to support a successful claim was also offered on an unsuccessful claim, the court should consider whether it is nevertheless reasonable to award legal fees for the time expended on the unsuccessful claim. Beyond the lodestar amount, in cases in which the fee requested far exceeds the damages recovered, "the trial court should consider the damages sought and the damages actually recovered." Packard-Bamberger & Co., supra, 167 N.J. at 446, 771 A.2d In addition to that proportionality analysis, the court must evaluate the reasonableness of the total fee requested as compared to the amount of the jury award. That is, when the amount actually recovered is less than the attorney's fee request, the court must consider that fact in determining the overall reasonableness of the attorney's fee award. Ibid. To be sure, there is no precise formula for that portion of the reasonableness analysis. The ultimate goal is to approve a reasonable attorney's fee that is not excessive. Although the Court cautioned about the proportionality of an attorneys fee and the amount in dispute, it also recognized that in Litton it was dealing with a contract case. The Court acknowledged the difference in contract cases when it wrote: NJ Page 12 of 15

13 Unlike the traditional fee-shifting case in which enhancement has some relevancy as a type of encouragement to represent a party, see Rendine, supra, 141 N.J. at 339, 661 A.2d 1202 (1995), the opposite applies in a contract case. That is, although enhancement is not a concern, the relationship between the fee requested and the damages recovered is a factor to be considered by the trial court because the notion of proportionality is integral to contract fee-shifting to meet the reasonable expectation of the parties. It has been well established by New Jersey s Courts that Rule 4:42-9(a)(6) allows for an award of counsel fees in an action upon a liability or indemnity policy of insurance, in favor of a successful claimant 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. for Health Care Prof ls. v. N.J. Dept. 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 jurisprudence of our State. Pursuant to N.J.A.C. 11:3-5.6(d)(3), a DRP s award may include 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 as quoted in Litton, supra. The definition of a successful claimant is given a liberal interpretation so as to include settlements effectuated prior to trial. Olewinski v. Aetna Cas. & Sur., 234 N.J. Super. 429 (Law Div. 1988). See also Brewster v. Keystone Ins. Co., 238 N.J. Super. 580 (App. Div. 1990). In Olewinski, supra, the PIP claim was settled during a conference prior to the trial. On the issue of whether the claimant was successful for the purposes of an award of counsel fees, the Court concluded that attorneys fees should be allowed when a case is settled at any time after the commencement of suit..." Id In Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987) the Court indicated the factors to be considered in deciding whether to award attorney s fees include the insurer s good faith in refusing to pay the claim, the excessiveness of plaintiff s demands, the bona fides of the parties, the insurer s justification in litigating the issues, the insured s conduct as it contributes substantially to the need for litigation, the general conduct of the parties and the totality of the circumstances. In Rendine v. Pantzer, 141 N.J. 292 (1995), our state supreme court stated: both as a matter of economic reality and simple fairness, we have concluded that a counsel fee awarded under a fee shifting statute cannot be reasonable unless the lodestar, calculated as if the attorney s compensation were guaranteed irrespective of result, is adjusted to reflect the actual risk that the attorney will not receive payment if the suit does not succeed. Id at 338. As a general principle I find the hourly rate sought by Claimant s attorney is not unreasonable given the experience possessed by counsel and the degree of work/skill required to prosecute the present matter. However, an attorney s fee is also a product of the complexity of the service being rendered. For example, an experienced attorney might be worth $X per hour in the provision of legal fees, but that same rate might not be reasonable for time spent by that attorney making photocopies as s/he is not utilizing that degree of knowledge/skill. I have considered the criteria and standards set forth herein. I am mindful of the requirement that any amount awarded as counsel fees must be consonant with the NJ Page 13 of 15

14 amount at issue. I find that counsel for claimant has experience in handling PIP arbitrations. I have taken into consideration that the issues in dispute was medical necessity of services totaling $6, which included 25 DOS. 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 $ NJ Page 14 of 15

15 Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Advanced Spine and Pain $6, *$6, Advanced Spine and Pain *Subject to New Jersey Fee Schedule, copay and deductible. 2. Income Continuation Benefits: Not in issue. 3. Essential Services Benefits: Not in issue. 4. Death or Funeral Expense Benefits: Not in issue. 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h.: Respondent to pay Claimant $ 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: 04/28/14 NJ Page 15 of 15