Award of Dispute Resolution Professional

Transcription

1 D.M. In the Matter of the Arbitration between CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: Dansky Katz Ringold York v. Claimant Attorney File No: Respondent Counsel: Law Offices Green, Lundgren & Ryan Respondent Attorney File No: Accident Date: 03/30/2007 Allstate New Jersey RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Karen Eisele-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: Claimant. An oral hearing was waived by the parties. An oral hearing was conducted on: 3/27/12. 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: Claimant amended her Demand to include a claim for reimbursement to Pisker Chiropractic (amount noted below). The parties stipulated that the outstanding balances claimed as to all providers, except Regional Orthopedics and Pisker Chiropractic, had been paid by claimant s workers compensation carrier. NJ Page 1 of 13

2 FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter arose out of a motor vehicle accident that occurred on 3/30/07. I find that on the date of the accident the injured patient was a covered person under the Respondent s policy of insurance, and is subject to the AICRA Statute. I have reviewed and considered all of the evidence submitted, as well as all of the arguments put forth by the parties. Issue(s) The threshold issue in this matter is whether the collateral source rules acts to set-off the claim for PIP benefits. Also in issue in this matter is: the medical necessity of chiropractic treatment, EMG/NCV testing of the lower extremities, and follow-up office visits; and whether a 50% precertification penalty is appropriate for EMG/NCV testing. Facts The subject accident apparently occurred during the course of claimant s employment. Respondent claims that the bills for the majority of the providers claimed were submitted to and paid by the workers compensation carrier. Respondent argues that PIP reimbursement is now barred by the fact that the bills were collectible under workers compensation insurance. Claimant stipulated that all claims except for those of Regional Orthopedics and Pisker Chiropractic were paid by the workers compensation carrier. Claimant, however, argued that PIP remains primary and that the PIP carrier has the right to subrogate against the workers compensation carrier. Claimant submitted billing records and a Certification from an employee of Regional Orthopedics indicating that the bills for the services in issue were submitted to the workers compensation carrier, without response. With regard to Regional Orthopedics, claimant is seeking reimbursement for office visits on 3/19/08, 5/1/08 and 11/19/08, as well as EMG/NCV testing performed on 10/30/08. Claimant is seeking reimbursement to Pisker Chiropractic for treatment provided 7/14/08-9/29/10. Immediately following the accident claimant had come under the care of orthopedist, Robert Ponzio, D.O., who referred patient for diagnostic testing and physical therapy. Physical therapy lasted through July of 2007, and was followed by chiropractic treatment at Pisker. Pisker s treatment provided through early July of 2008 appears to have been paid by the workers compensation carrier. On 3/10/08 claimant presented to Barry Gleimer, D.O. of Regional Orthopedics. Dr. Gleimer s report of that date reads as follows: SUBJECTIVE: [Claimant] is a 38-year-old female being seen for orthopedic evaluation of neck, upper, mid, and low back pain. She has bilateral upper and lower extremity radiation/paresthesias. She relates that on 03/30/07 she was the driver of a minivan when while stopped, she was struck in the rear by a car. The car got hit by a truck and she sustained the second impact. Her hands were on the steering wheel. She felt her head and neck snap back and she did brace against the impact with her hands outstretched on the wheel. There were three vehicles involved. The patient sustained two impacts. She did NJ Page 2 of 13

3 not sustain loss of consciousness. The patient was seen at South Jersey Health Care and subsequently at Kennedy Hospital/Washington Township. She was evaluated, treated, and released. X-rays were reportedly obtained. She has come under the care of several physicians including Dr. Kuptsow, Workers' Compensation physician and Dr. Ponzio who also saw her for Workers' Compensation. She was seen by these physicians in April or May of 2007 respectively. She did undergo multiple diagnostic studies including the x- rays of her low back and MRI's of her cervical and lumbar spine as well as EMG of her upper extremities. She did undergo therapy including heat, electrical stimulation and exercise, but she relates that this only afforded some transient improvement. She was out of work for a four month interval. She was in therapy from April through July of 2007 REVIEW OF SYSTEMS: Positive for current musculoskeletal complaints, shortness of breath, GI complaints, and insomnia, otherwise, unremarkable and noncontributory. The patient does relate difficulty with standing, sitting, bending, and lifting activities. She has difficulty with household chores and cooking. OBJECTIVE: Physical examination at this time otherwise reveals alert and co-operative 38year-old female On review of the lumbar MRI there is a disc herniation at the L4-L5 level with accompanying annular tear. Cervical MRI reveals disc herniations as well at the C5-C6 and C6-C7 levels. EMG/NCS testing was positive for C5, C6, and C7 radiculopathy. This is present bilaterally. There was no carpal tunnel syndrome noted. Her lower extremity EMG was obtained, although she does have a disc herniation and lower extremity complaints. On physical examination of the cervical spine there is spasm and tenderness. Motion is 80% of normal. Upper extremities reveal DTR's to be intact. Tinel's sign is negative at both wrists. Adson's sign is negative. Spurling's sign produces local neck pain with interscapular radiation. Lumbar spine reveals motion to be present at 80% of normal. SLR is positive for back pain. There is mild buttocks radiation. DTR's to patella and Achilles are intact. Gait is physiologic. No gross atrophy is noted. She has pain on forward flexion and extension. She has pain to the thoracolumbar junction as well as interscapular region of her thoracic spine as well. ASSESSMENT: 1. Cervical, Thoracic, lumbar strain/sprain. 2. Cervical radiculopathy bilaterally C5, C6 and C7. 3. Clinical lumbar radiculopathy. 4. Cervical disc herniation at C5-C6 and C6-C7. 5. Lumbar disc herniation with annular tear at L4-L5. COMMENT/RECOMMENDATION/TREATMENT PLAN: The patient did undergo an appropriate interval of therapy and although she did have some improvement with regards to the muscular and ligamentous complaints, she still has pain persistent from her disc injuries and radiculopathy. Accordingly, I have recommended pain management. I have discussed this at length with her and she is agreeable to the same and we will refer her for this. I have explained to the patient that her injuries with regard to her disc herniations are permanent in nature. I will see her back following the pain management. On 5/1/08 claimant returned to Regional Orthopedics for pain management evaluation by Moshen Kalliny, M.D., who reported: NJ Page 3 of 13

4 Subsequent to this incident, she had complains of neck and lower back pain. She presents with complains of tingling in the entire arms and the shoulder all the way down to the hand, left more than the right. The patient is complaining of pain mainly in the back of the neck, but the pain is primarily in the back and also the neck by the upper extremities. But the lower back is the main presentation. Pain score today is 8-9/10 She was seen at South Jersey Health Care at Kennedy Washington Township. The patient reports that her main complaint, when questioned, was the back more primary than the neck. The pain is constant with intermittent episodes related to the motor vehicle accident. It is worsened by standing, sitting, walking, driving, reaching objects, change in weather and coughing. Standing, sitting, lying down and application of heat may alleviate her pain. She denies any major weakness, loss of feeling, bowel or bladder incontinence. Sleep cycle is reduced. Prior therapy includes pain medication, physical therapy, MRI, EMG/NCS OBJECTIVE: This is a pleasant female, 38-year-old. VS: H 5 7", W 272, T 37, BP 140/80, P 82. Examination of the head is normocephalic. Cranial nerves II-XII are grossly intact. Examination of the cervical spine revealed tenderness over the cervical facets, anatomical land marks and tenderness over C5-T1 bilaterally. Extension of the neck backwards, as well as extreme rotation and bending side to side, provokes pain. Spurling's test is negative. Upper extremities: Muscle bulk, power and tone are intact. Motor power is intact with minimal diminished right arm abduction to resisted testing, as well as right elbow flexion. Sensory testing is diminished at C5-C6 and C6-C7 bilaterally. Deep tendon reflexes are 1+/5 for the biceps, triceps and brachioradialis bilaterally. Examination of thoracolumbar spine shows preservation of the thoracolumbar curvature with bilateral myospasm. Range of motion is about 80% to lumbosacral area. There is tenderness over the sacroiliac joints bilaterally and tenderness over lumbar facets anatomical landmarks from L3-S1 on direct deep palpation. Straight leg raising is positive for lower back component discomfort with no major radicular component. Sensory testing at lower extremity right side diminished at L4-L5 on the dermatomal distribution on the right side. No atrophy or fasciculations. Dorsiflexion is intact but diminished right hip abduction and knee extension to resisted testing. The patient is able to heel walk and tiptoe with no major difficulty. DIAGNOSTIC STUDIES: MRI of the cervical spine, dated 04/30/07. Impression: 1. Disc herniation at C5-C6 and C6-C7. 2. Disc bulge at C2-C3. 3. Fluid with the left maxillary sinus. MRI of the lumbosacral area, dated May 8, Impression: Disc herniation at L4-L5. At L4-L5 there is a small disc herniation, which is central and extends towards to the right side, impinging upon the anterior aspect of the thecal sac, causing mild central stenosis and, upon existing the right L4 in the neural foramen, there is also small torn annulus located in the midline and inferior aspect. EMG/nerve conduction studies, dated June 14, 2007, indicated electrodiagnostic evidence of recent bilateral C5-C6 with C7 radiculopathy. ASSESSMENT: 1. Multiple cervical disc herniations with cervical spine stenosis. 2. Cervical radiculopathy. 3. Cervical facet arthropathy from C5-T1. 4. Lumbar disc herniation with lumbar radiculopathy. NJ Page 4 of 13

5 PLAN OF TREATMENT: The patient will be scheduled for right transforaminal L4 nerve root block with fluoroscopic guidance and monitored anesthesia care and the patient will be evaluated for the outcome. This will be considered a diagnostic and therapeutic measure. The patient understood the plan of treatment and to be scheduled for the procedure. Claimant returned to Regional Orthopedics on 10/30/08 for EMG/NCV testing of the lower extremities, which was performed by John Ashby, M.D., who reported: Subsequently, she had physical therapy as well as acupuncture. She attended acupuncture one time weekly and that was helpful in reducing pain. Physical therapy was also helpful in improving range of motion of her neck and back areas. She takes Motrin 800 mg one tablet at bedtime and it is helping her get a better night's sleep. She has returned to work as a family services specialist as of July of last year. She is not required to lift objects weighing more than 20 pounds on a regular basis. She complains of persistent low back pain with a sharp radiation to the left buttocks, left posterolateral thigh and leg. She has similar radiation of back pain to the right lower limb though not as severe as to the left She is referred for electrodiagnostic evaluation for a possible lumbosacral radiculopathy and/or nerve entrapment in the lower limbs. PHYSICAL EXAMINATION: Physical exam shows slow but steady gait without focal antalgia. Trunk range of motion is impaired to about 70% of normal. Pain on end range of trunk flexion and re-extension of the trunk from the flexed position. Manual muscle testing is within normal limits in the lower limbs including normal ankle dorsiflexion and normal plantarflexion strength bilaterally, and normal heel and toe walking bilaterally, Sensation to pinprick and light touch is significantly impaired over the right lateral leg and foot as compared to the left side. Dorsalis pedis pulses are palpable on both sides. I identify no significant leg length discrepancy or calf atrophy. Knee jerk and ankle jerk reflexes are symmetric at +2 bilaterally. There is tenderness to deep palpation in lumbar paraspinal muscles bilaterally IMPRESSION: 1. Chronic S1 radiculitis left, with L5 radiculitis left side worse than the right. 2. Chronic lumbar muscular strain. RECOMMENDATIONS: 1. Review of plane film as well as MRI of the lumbosacral spine looking for any discal bulge or hernia or degenerative disc disease or spinal stenosis or facet joint hypertrophy at multiple levels in the lumbosacral spine. If plane film and MRI are negative for instability or tumor, then a warm shower daily followed by slow, sustained trunk flexion exercise in the supine position with knees bent. 2. Mild nonsteroidal anti-inflammatory medication may be continued in the form of Motrin 800 mg one tablet at bedtime. This should be taken with food. 3. Multivitamin including B6 and B12 taken as part of a comprehensive vitamin supplement on a regular basis. 4. Review of home exercise program and physical therapy including abdominal and lumbar muscle strengthening and trunk stabilization exercises using Physioball, General aerobic conditioning activities using the large muscle groups in the lower limbs. Instruction on proper body mechanics and posture of the lumbosacral spine. NJ Page 5 of 13

6 Lastly, if the above interventions are not successful, then consideration for trigger point injection to the lumbar muscles versus acupuncture or massage therapy. If the above are not helpful, then consideration for epidural steroid injection to the lumbar spine. Claimant returned to Dr. Gleimer on 11/19/08, at which time Dr. Gleimer reported: SUBJECTIVE: [Claimant] is being seen for reevaluation. She is still experiencing low back pain. She has radicular complaints to her upper and lower extremities. Lower extremity complaints are noted predominately left sided. OBJECTIVE: Cervical/thoracic spine reveals spasm, tenderness, and motion to 85% of normal. Lumbar ROM is 80% of normal. SLR is positive for back pain. There is still buttocks radiation bilaterally, somewhat more to the left than the right side. DTRs are grossly intact to the lower extremities as well. Gait is physiologic. No gross atrophy is noted. EMG to the lower extremities was positive for L5 and S1 radiculitis to the left, lesser degree right, at the L5 level. ASSESSMENT: 1. Cervical, thoracic, and lumbar strain/sprain. 2. Cervical radiculopathy bilaterally C5, C6, and C7. 3. Lumbar radiculitis L5 and S1 left greater than right. 4. Cervical disc herniation C5-C6 and C6-C7. 5. Lumbar disc herniation with annular tear L4-L5. RECOMMENDATION/TREATMENT PLAN: Patient has been seen by Dr. Kalliny for pain management. She is attempting conservative/noninvasive methods thus far and is continuing with physical therapy, chiropractic treatment, and acupuncture. We will see her back in 6-8 weeks for reevaluation. If she has any problems, we will see her back sooner. If she does not have sufficient improvement, then we would again recommend pain management. Patient had treated at Pisker Chiropractic prior to the subject accident. On 8/29/07 she returned to Pisker for chiropractic treatment. On 2/6/08 Stephen Pisker, D.C. reported: [Claimant] is now treating in our office for injuries she sustained in an auto accident on 3/30/07. She was injured when she was rear ended by a car and a truck. MRI's of her cervical spine reveal herniated discs at C5-C6, C5-C7 with nerve impingement. She also has disc bulging at C2-C3. In June of 07, she had needle EMG performed. The results indicate bilateral C5, C6, and C7 radiculopathy. D.M. has been treating with an orthopedist and receiving physical therapy for many months prior to coming to our office. Prior Chiropractic care, [Claimant] had treated in our office in August of 2006 for low back pain. She was treated a total of 11 visits from 8/06 to 3/07. She was not experiencing neck pain during this time. Chief Complaint 8/29/07 Headaches, neck pain, bilateral numbness down the arms into the fingers, pain in the hips, trouble walking with her knees occasionally giving out. Her pain level is a 7-8 on the VAS in all areas. Examination: NJ Page 6 of 13

7 Pain and limitation by 50% on all ROM's in the cervical and lumbar spine. There are taut and tender muscle fibers in the cervical, thoracic, and lumbar regions. Sotohall and Kemp's orthopedic test is positive for nerve and joint irritation in the cervico-thoracic and lumbar spine regions respectively. There is increased sensation in the C6-C7 dermatome on the left. Diagnosis: Posttraumatic stretching and tearing of the muscles and ligaments of the cervical, thoracic, lumbar spine. Cervical spine Disc Herniation secondary to MVA on 3/30/07. Treatment: Treatment is palliative and restorative consisting of spinal adjustments, gentle spinal traction, soft tissue reorganization techniques, and cold laser therapy. The purpose of treatment is to assist the healing process in her neuromusculoskeletal system. Home exercises consisting of light stretching, strengthening and spinal molding have been prescribed to her. In light of the fact that we are 11 months post accident and [Claimant] still has significant subjective and objective findings. It is my professional opinion, based on treating similar cases over the past 16 years that she has sustained a permanent injury to her cervical spine. The ongoing level of irritation to her joints, tissues and nerves causes ongoing inflammation. This will result in increasing levels of fibrous tissue and subsequent aberrant movement patterns which will cause additional pain and disability. I am recommending continued chiropractic treatment to minimize this destructive cycle. Based on my review of the facts of the accident along with the presenting complaints and injuries, I can say with a high degree of chiropractic probability that the injuries that [Claimant] suffers from are caused by the MVA on 3/30/07. Dr. Pisker s reevaluations reveal the following with regard to range of motion (in degrees): 12/24/07 3/7/08 7/14 2/9/09 11/3/09 CERVICAL FLEX EXT LLF R LF LR RR Pain LUMBAR FLEX EXT LLF R LF Pain NJ Page 7 of 13

8 Respondent presented no medical opinions regarding medical necessity. Law Claimant has the burden of proving 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 (Law Div. 1980). See also Bowe v. N.J. Mfrs. Ins. Co., 367 N.J. Super. 128 (App. Div. 2004) declaring that claimant must also prove by a preponderance of the evidence that the injuries for which treatment was rendered were proximately caused by the particular automobile accident triggering coverage under the policy of insurance. 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). In Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984), overruled on other grounds, the court rejected the PIP carrier s argument that further palliative treatment (designed for the temporary relief of symptoms only) should be deemed unnecessary and not compensable. Nonetheless, the treatment must still be reasonable and necessary. Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990). Medically necessary, is defined by statute as treatment that 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. N.J.S.A. 39:6A-2(m); See also, N.J.A.C. 11:3-4.2 which additionally prohibits unnecessary treatment. A diagnostic test is a medical service or procedure using 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. N.J.A.C. 11: Diagnostic testing must be clinically supported to be reimbursable. Clinically supported has been defined as requiring 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.A.C. 11: NJ Page 8 of 13

9 Needle electromyography (needle EMG) shall be reimbursable by PIP when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling. This test should not normally be performed within 14 days of the traumatic event and should not be repeated where the initial results are negative. Only one follow up exam is appropriate. N.J.A.C. 11:3-4.5(b)(1). 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. N.J.A.C. 11:3-4.5(b)(2). N.J.S.A. 39:6A-6 provides: The benefits provided in sections 4 and 10 of P.L. 1972, c. 70 (C. 39:6A-4 and 39:6A- 10), the medical expense benefits provided in section 4 of P.L. 1998, c. 21 (C. 39:6A-3.1) and the benefits provided in section 45 of P.L. 2003, c. 89 (C. 39:6A-3.3) shall be payable as loss accrues, upon written notice of such loss and without regard to collateral sources, except that benefits, collectible under workers compensation insurance, employees temporary disability benefit statutes, Medicare provided under federal law to active and retired military personnel shall be deducted from the benefits collectible under sections 4 and 10 of P.L. 1972, c. 70 (C. 39:6A-4 and 39:6A-10), the medical expense benefits provided in section 4 of P.L. 1998, c. 21 (C. 39:6A-3.1) and the benefits provided in section 45 of P.L. 2003, c. 89 (C. 39:6A-3.3) Only those benefits expressly listed in the section can be set off against PIP benefits; all other collateral sources regardless of their amount or their nature may not be used to reduce PIP payments. O Boyle v. Prudential, 241 N.J. Super. 503, (App. Div. 1990); Curts v. Atlantic Mut. Ins. Co., 246 N.J. Super. 385 (App. Div. 1991).. Once medical treatment is determined to be reasonable, medically necessary and causally related to an injury in the accident in question, the PIP carrier is obligated by Statute to pay such benefits as they become due. Speiser v Harleysville Ins. Co., 237 N.J. Super. 507 (App. Div. 1990). Once the PIP insurer's obligation to pay medical benefits is established, the obligation is primary. See Aetna Cas./Sur. Co. v Para Mfrg. Co., 176 N.J. Super. 532 (App. Div. 1980). Where there is available to an injured party both PIP benefits and Workers' Compensation benefits, the initial source of recovery is from the PIP carrier which is required to pay all benefits when due. Heatherington by Heatherington v Briarwood Coachlight, 253 N.J. Super 485 (App. Div. 1992). In Solimano v. Consolidated Mutual Ins. Co., 146 N.J. Super. 393 (Law Div. 1977), the court rejected defendant s argument that the insured should dispose of her potential workers compensation claim before obtaining PIP benefits. Id at 397. In Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25 (App. Div.) (1979), the Appellate Division concluded: NJ Page 9 of 13

10 [W]here a claimant injured in an automobile accident makes no effort to assert the right to payment of his ostensibly compensable medical expenses in the workers compensation proceedings prior to final judgement therein, he is barred from making a PIP claim thereafter for such expenses. The Wagner court went on to note that this ruling was limited to the present situation where the workers compensation case was asserted first and actually went to judgment before the PIP claim was presented. The Wagner court specifically declined to express approval or disapproval of the result reached in the Solimano case. The 1983 amendments to the No Fault Act incorporated the Solimano-Aetna holdings by expressly providing that any PIP insurer may bring its own action for benefits whenever it has paid benefits otherwise collectible under workers compensation benefits and its insured has failed to file his own claim for such collateral source benefits. In Olivero v. N.J. Mfrs. Ins. Co., 199 N.J. Super. 191 (App. Div. 1985), a prior determination had been made by the Division of Workers Compensation that the injured minor was entitled to workman s compensation benefits. A PIP claim was also filed. The PIP carrier defended against the claim arguing that the child s entitlement to workman s compensation benefits had already been determined. The Appellate Division held that regardless of the prior history of the case, PIP benefits remain primary in any case involving an automobile accident and the PIP carrier must pay those benefits without regard to whether there is or is not workers compensation coverage. The Olivero Court recognized a right by the PIP carrier to intervene in the ongoing workers compensation proceedings to protect its right to recover the PIP payments from the compensation carrier. (See also Aetna Cas./Sur. Co. v. Para Mfg. Co., supra). In Speiser v. Harleysville Ins. Co., supra, a PIP carrier was ordered to pay medical expense benefits for a work-related injury where the workers compensation carrier had refused to pay for a doctor chosen by the insured. The court concluded that the PIP carrier s obligation to pay was primary, and the PIP carrier had to first exhaust its remedies against the workers compensation carrier before it could raise this issue as a defense. Analysis/Findings Collateral Source Rule Respondent argued that since State of NJ Lien, Kennedy Health System, Emrg Phys Assoc of SJ, Ponzio Orthopedic, SJ Hosp Occupational Health, Dr. Francis C Meeter, One Call Medical, Radiology Assoc of NJ, and Robert J Romalino, PT had all been previously paid by the workers compensation carrier, those amounts shall be deducted from the benefits collectible under PIP per N.J.S.A. 39:6A-6, the so-called collateral source rule. I agree. The collateral source Rule is clear and unambiguous in that regard. As such, no reimbursement is awarded for State of NJ Lien, Kennedy Health System, Emrg Phys Assoc of SJ, Ponzio Orthopedic, SJ Hosp Occupational Health, Dr. Francis C Meeter, One Call Medical, Radiology Assoc of NJ, and Robert J Romalino, PT. Respondent additionally argued that the claims as to Regional Orthopedics and Pisker Chiropractic are barred by the collateral source rule because these claimed expenses could have been submitted to the workers compensation carrier for payment, and are therefore collectible under NJ Page 10 of 13

11 workers compensation insurance. Respondent relies on the holding in Wagner v. Transamerica, supra. I disagree. The Wagner case was decided in 1979 prior to the 1983 No Fault amendments which provided the PIP carrier the right to bring its own action against the workers compensation carrier for reimbursement of PIP benefits. Following the 1983 amendments, the Appellate Division, in Olivero, noted that the prior history of the case did not matter; PIP is primary. Considering the comments by the Appellate Division in Olivero, I do not believe that the Court would have rendered a different decision had there not first been a formal denial of coverage by the workman s compensation carrier. Nonetheless, claimant has presented evidence that the Regional Orthopedics bills were submitted to the workers compensation carrier; which factually distinguishes this case from Wagner. For the foregoing reasons, I find that the balances claimed for Regional Orthopedics and Pisker Chiropractic that were not paid by the workers compensation carrier, are not barred by the collateral source rule. Chiropractic Treatment-Medical Necessity After considering the evidence submitted and the arguments put forth by the parties, I find that claimant has failed to prove by a preponderance of the evidence that the chiropractic treatment rendered 7/14/08-9/29/10 was medically necessary. The treatment in issue falls outside the guidelines provided by the Care Paths, particularly considering the prior course of conservative treatment. The burden of justifying the deviation from the Care Paths lies with claimant. Such treatment may be warranted upon a finding of improvement with the treatment. The records provided do not reflect continued improvement with the chiropractic treatment provided during this time. Claimant continued with subjective complaints, and range of motion findings do not show marked improvement during that time. For the foregoing reasons, I find that claimant has failed to meet her burden. Accordingly, nothing is awarded for the chiropractic treatment in issue. EMG/NCV testing According to the 10/30/08 report of Dr. Ashby, EMG/NCV testing was performed on the referral of Dr. Gleimer. However, Dr. Gleimer s last and only examination report which pre-dates the testing (3/19/08) does not discuss a need for EMG/NCV testing. Rather, Dr. Gleimer recommended pain management. Claimant then presented to Dr. Kalliny on 5/1/08 for a pain management evaluation. Dr. Kalliny recommended a transforaminal nerve root injection at L4, without recommendation for EMG/NCV testing. Nearly 6 months later, EMG/NCV testing was performed, but pain management treatment was not. As such, claimant has not shown that the EMG/NCV testing was performed 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. (See, N.J.A.C. 11:3-4.2). Considering the foregoing, no reimbursement is awarded to Regional Orthopedics for the 10/30/08 EMG/NCV testing. In light of this finding, I need not address respondent s request for a 50% (precertification) penalty. I do find that the 3/18/08, 5/1/08 and 11/19/08 office visits were medically necessary to address claimant s continuing complaints, and therefore reimbursement for same is awarded. Attorney s Fees/Costs 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. New Jersey courts have consistently relied upon this Rule to permit an award of attorney s fees in judicial actions brought under the PIP statute. N.J. NJ Page 11 of 13

12 Coal. of Health Care Prof ls, Inc. v. N.J. Dep t of Banking & Ins., 323 N.J. Super. 207 (App. Div. 1999). N.J.A.C. 11:3-5.6(d)(3), permits a DRP s award to 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. 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 $ 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 Regional Orthopedics $2, $ Regional Orthopedics Pisker Chiropractic $7, n/a State of NJ -Lien $101, n/a Kennedy Health System Emrg Phys Assoc of SJ $2, n/a $ n/a Ponzio Orthopedic $ n/a SJ Hosp Occupational Health Dr. Francis C Meeter $ n/a $ n/a One Call Medical $2, n/a Radiology Assoc of NJ Robert J Romalino, PT $ n/a $13, n/a Subject to fee schedule, co-pay and deductible. 2. Income Continuation Benefits: Not in issue NJ Page 12 of 13

13 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 not awarded pursuant to N.J.S.A. 39:6A-5h.: 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: $ 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: 05/23/12 NJ Page 13 of 13