Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between Pain Management Associates of Central Jersey a/s/o P.,T. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: Law Office of Raffi T. Khorozian, P.C. v. Claimant Attorney File No: P53378 Respondent Counsel: Law Offices of Gregory J. Sutton Respondent Attorney File No: Accident Date: 05/26/2009 USAA Insurance Company RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Richard T. Zimmerman, 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: TP. An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: February 1, Claimant or claimant's counsel appeared by telephone. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: At the Oral Hearing, Respondent s Attorney withdrew all issues regarding the Assignment of Benefits from TP to Claimant in this Case. Counsel for the parties then stipulated that the only remaining issues are: whether Respondent had failed to make the full payments, pursuant to the PIP Physicians Fee Schedule North, for the approved left upper EMG/NCV studies undergone by TP on 10/2/2009; and the NJ Page 1 of 9

2 medical necessity of the 10/2/2009 NCV studies of the right upper extremity, as well as of the 10/2/2009 EMG/NCV studies of the bilateral lower extremities, also undergone by TP. The 2/10/2012 post-oral Hearing submission from Claimant s Attorney reduced the Demand in this Case to $3,017.88, which included: $ as the balance owed for the approved left upper extremity EMG/NCV studies undergone by TP on 10/2/2009; $ for the disputed 10/2/2009 NCV studies of the right upper extremity undergone by TP; and $2, for the disputed 10/2/2009 EMG/NCV studies of the bilateral lower extremities undergone by TP. The 2/10/2012 post-oral Hearing submission from Respondent s Attorney conceded that $125.89, as now demanded, is owed to Claimant as the balance between what Respondent allowed for the approved 10/2/2009 EMG/NCV studies of the left upper extremity that were undergone by TP and the amount provided for in the PIP Physicians Fee Schedule North for those services, which was less than the Claimant had billed. NJ Page 2 of 9

3 Findings of Fact and Conclusions of Law In addition to the Demand for Arbitration, the Response and the argument of counsel at the Oral Hearing, I have reviewed and considered the following submissions with respect to this Case: On behalf of Claimant: 1/12/2010 with documents attached; 1/26/2012 with Arbitration Summary, Exhibits and Forthright Rule 22 compliant PIP Arbitration Attorney Fee Certification attached; and 2/10/2012 with Arbitration Summary and amended Forthright Rule 22 compliant PIP Arbitration Attorney Fee Certification attached. On behalf of Respondent: 3/9/2010 with Discovery Demands attached; 1/3/2011 with Exhibits attached; 1/11/2012 with Arbitration Summary attached; and 2/10/2012 post-oral Hearing submission. The demand in this Case is as stated, above, in the stipulations and/or amendments section of this Award, following an automobile accident that took place on 5/26/2009. The only issues, which now remain, on behalf of Respondent, are also as stated, above, in the stipulations and/or amendments section of this Award. The Attorneys for the parties have each submitted an Arbitration Statement and Arbitration Summary, citing authorities, with attached exhibits and/or documents, to support their contentions in this Case. I have read and considered every submission and have also considered the argument of counsel. The determinations in this Case are my opinions, by a preponderance of the credible record evidence filed in this matter. Because of the concession, which was made to Claimant by Respondent, of the $ shortfall in payments, for approved electrodiagnostic studies, undergone by TP on 10/2/2009, even if the Claimant is not entitled to any further recovery in this Case, consideration shall be given to the application of Claimant s Attorney for a Fee and Costs to also be paid by Respondent. Respondent s Attorney filed copies of the 9/29/2009 Physician Advisor (PA) review by Todd Stitik, M.D., contained in Respondent s Advancer Case Notes, together with the 10/6/2009 PA review from Thomas Bonazinga, M.D. This latter peer review followed the appeal from Romilla Anwar, M.D., a pain management specialist with Claimant, after Respondent s denial of the requested EMG/NCV studies of the bilateral lower extremities, EMG study of the left upper extremity and NCV studies of the bilateral lower extremities, to be undergone by TP, based upon the recommendations of Dr. Stitik. The Advancer Case Note of Dr. Stitik s PA report, states, in pertinent part: TR was involved in a motor vehicle accident on 05/26/2009. EIP is the 33 year old female who was the restrained passanger (sic) of the vehicle involved in 5/26/09 MVA. EIP stated a vehicle infront (sic) of the vehicle she was traveling in made an illegal uturn that is when they impacted that vehicle with the Rt. passanger (sic) sude (sic) of their vehicle. Airbags did not deploy, no loc, EIP stated she did not hit head on impact. Police NJ Page 3 of 9

4 were on the scene no tickets issued. Care is being rendered by a physician and an office visit took place on 5/26/09. At the time of that visit, discomfort in the upper and lower limb sslows (sic) the neck and back were reported. The MRI resultts (sic) were reviewed. Requests for EMG testing has (sic) been made. Additional documentation was provided in the form of chiropractic office notes which only document axial spine pain..: Rationale: This recommendation is supported by generally accepted standards of care and NJAC 11:3-4 which provides for medically necessary, causally-related and clinically supported treatment and diagnostic testing Generally accepted electrodiagnostic testing guidelines for electrodiagnostic evaluation also support this opinion. Recommendation: Is EMG: Bilateral Lower Extremities & Left Upper Extremity; NCV Bilateral Upper & Bilateral Lower Extremities medically necessary as related to MVA? no, there is a discrepancy between the documented symptoms within the virology (sic) office notes compared to the two previous 55 notes. Specifically, the neurology notes document discomfort in the upper and lower limbs whereas the chiropractic Notes document axial spine pain only. Perhaps an independent medical evaluation should be considered in order to help resolve this discrepancy. The Advancer Case Note of Dr. Bonazinga s PA report, on appeal, states, in pertinent part: Clinical Summary: This is a 33 yo female passenger in a 5/26/09 mva co NP to the L shoulder with numbness and tingling in the LUE and LBP to the BLE with numbness and tingling. Exam noted + L FCT, + L shoulder depression, L head distracting, + bilateral Laseques and SLR, L shoulder grip and thumb abd., and bilateral ankle flexor weakness, hyperesthesia at the L UE and BLE. C MRI noted C56 & C67 HNPs and L MRI noted L34 and L45 HNPs. In view of the exam information along with the C and L MRI results and history, further eval with LUE emg-nct is clinically supported as MN as related to the mva but RUE nct and BLE emg-nct is not. The LUE emg-nct results should be considered before deciding about any RUE nct. The L MRI results together with the other information available for this review appears to be sufficient to evaluate for lumbar radiculopathy. Based on the info avail. for this review, it appears that the BLE emg-nct would not be able to significantly alter management related to the mva. The documentation available for this review does not clinically support medical necessity for BLE emg-nct as related to the mva. This recommendation is supported by the NJAC 11: 3-4 guidelines. I called Dr. RA office and told Jessica of this decision, disclaimer, my name, AIS #, & NCM MS name and ext...: Rationale: The documentation available for this clinically supports medical necessity for LUE emg-nct but it does not for RUE nct or BLE emg-nct as related to the mva. This recommendation is supported by the N.J.A.C. 11: 3-4 guidelines. NJ Page 4 of 9

5 Records Reviewed: TCM ref., Dr. RA 9/18/09 note, Dr. WF notes 7/01, 6/30, 7/30, 6/01, 7/29, & 10/01/09, C & L MRI reports 8/14/09 and APTP were the records available for this review & were reviewed. Respondent s counsel argued that the opinion of Dr. Bonazinga only agreed with the Claimant s request for the EMG/NCV studies of the left upper extremity and that Respondent was only responsible for the payment now stipulated to. Claimant s attorney submitted copies of all of this Claimant s records of examinations and treatment of TP, including the 101/2009 appeal of the Respondent s denial of all electrodiagnostic testing, which resulted from the recommendations of Dr. Stitik. Also provided was a copy of the 8/14/2009 reports of the cervical and lumbar MRI studies that were undergone by TP. It was noted that the patient clearly complained of neck pain radiating to the left shoulder with numbness and tingling sensations in the left upper extremities. There is mid to lower back pain radiating to the bilateral lower extremities with numbness and tingling sensations in the bilateral lower extremities. The pain is described as constant and aching. Physical examinations of the patient resulted in findings that included tenderness of Suprascapular and Trapezius muscles. The range of movement of the Lumbar Spine is limited in all direction with back muscles tenderness. The Foraminal compression test is positive on the left side. The shoulder depression is positive on the left side. The head distraction test is positive on the left side. The Laseque s is positive bilaterally. The straight leg raising test is positive bilaterally. There was bilateral weakness in some of the lower extremity and left upper extremity motor examinations. There is hypoesthesia in the left arm and flexor forearm, as well as in the bilateral aspect of the posterior legs. In addition, Deep Tendon Reflex weakness was demonstrated as Biceps: R1+ L1+,Triceps R1+ L1+, Brachioradialis R1+ L1+, Knee Reflex R1+ L1+ and Ankle Reflex R1+ L1+. The MRI studies were summarized as indicating disc herniations at the C5-6 and C6-7 levels and at the L3-4 and L4-5 levels, which were indicated to have thecal sac deformities. Claimant s counsel noted that Dr. Anwar found the disputed testing was medically necessary for TP to document any evidence of cervical or lumbar radiculopathy versus neuropathy, as this cannot be done based upon physical examination, neither can be done by MRI alone since the MRI is a anatomical test. The rationale for the requested NCV testing of both upper and lower extremities and EMG testing of the bilateral lower and left upper extremities, was stated to be: to establish or document nerve root injury as we base for the patient s persisting symptoms of radiating pain with numbness and tingling sensation and to plan the proper treatment; total duration of the treatment for example; duration of disability and mode of pain management like epidural injections, facet joint injections and PLDD. Claimant s Attorney also included the reports of ea h of the electrodiagnostic studies that were undergone by TP with Claimant on 10/2/2009. Which included the following explanation of these tests: Nerve conduction studies (NCS) are a component of the electrodiagnosis procedure used to assess the objective functional status of the peripheral nerves to measure nerve conduction. The response of the nerve is monitored by applying appropriate recording electrodes on the skin at standardized distances from the point of stimulation. The standard parameters assessed are distal latency, amplitude, duration and morphology. A nerve conduction study registers the NJ Page 5 of 9

6 extent of nerve response to external stimulation of peripheral axons (amplitude) which is correlated to the number of fibers in a given peripheral nerve and the degree of synchrony vs. temporal dispersion. NCS also registers how quickly a nerve responds (distal latency) which will vary with distance between the stimulation and recording sites, as well as how fast the stimulation travels through the nerve (nerve conduction velocity), which is correlated to the degree and grade of myelination and the size of the fastest fiber diameters. The motor and sensory NCS provide information about the peripheral axons. The F-wave and H-reflex provide information about the motor unit which is the anatomical and physiologic entity consisting of an alpha motor neuron and muscle fibers that it innervates. In addition, the H- reflex also assesses the function of the afferent fibers entering the dorsal horn. A cervical and lumbar study consists of testing the branches, cords, roots, and trunks of the upper and lower extremities and routinely consists of testing the Median, Ulnar, Peroneal and Tibial motor, F-waves, H-reflex and Median, Ulnar, Sural or Superficial Peroneal sensory nerves. Nerve conduction studies are commonly performed to confirm a suspected diagnosis of the peripheral nervous system. Common diagnosis consists of Carpal Tunnel Syndrome and other focal entrapment neuropathies, peripheral neuropathies, hereditary sensory motor neuropathies, axonal degeneration, demyelination diseases, radiculopathies, and brachioplexopathies. Electromyography studies (EMG) are a component of the electro diagnosis procedure used to assess the objective functional status of the skeletal muscles. The physician inserts a small needle into a muscle to record the electrical activity of a muscle including fibs, psw, and poly phasic giant units, etc.. The electrical activity of the muscle is fed into the recording instrument and the physician then analyzes it by looking at the signal on the screen and listening to the sounds the activity makes through the speaker. EMG studies are commonly performed to confirm a suspected diagnosis of neuromuscular dissorders (sic) including discogenic and non discogenic radiculopathies, EMG disease, all kinds of neuropathies, leprosy, myasthenia gravis, botulism, tick paralysis, toxic and traumatic exposures, myofacial syndromes, Guillain-Barre syndrome, and side effects and overdose of medicine. In the State of New Jersey, the burden is on the Claimant to establish the medical necessity, reasonableness and causal relationship to the accident related injur(y)(ies) of each of the services for which payment is sought from Respondent in PIP disputes. Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156, 158 (Law Div. 1980). The necessity of medical treatment is a matter to be decided, in the first instance, by the 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 is enough to qualify the expense for PIP purposes. Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491, 512 (1991). Further, the treating physician enjoys wide discretion in determining the extent of treatment needed for a particular patient since it is not unusual for there to be a genuine dichotomy of medical opinion as to the type and extent of treatment needed for a particular injury. Elkins v. N.J. Mfrs. Ins. Co., 203 N.J. Super. 695, 701 (App. Div. 1990). It is also clearly established that the testimony of the treating physician is to be given greater weight when there is a dispute over the necessity and reasonableness of the medical services to be rendered. Mewes v. Union Bldg. & Constr. Co., 45 N.J. Super. 89 (App. Div. 1957). However, a treating physician s opinion is not automatically accorded conclusive weight. Black & Decker Disability Plan v. Nord, 123 S.Ct. 1965, 1970 (2003). The PIP NJ Page 6 of 9

7 insurance carrier has a duty to provide payment in full for treatment, which results in the alleviation of pain to the patient, even without regard to the curative aspect of that treatment. Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400, (Law Div. 1984). N.J.A.C. 11:3-4.5(b) states, in pertinent part, that personal injury protection medical expense coverage shall provide for reimbursement of the following diagnostic tests, which have 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: 1. Needle electromyography (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 and 2. nerve conduction velocity are reimbursable when used to evaluate neuropathies and/or signs of atrophy but not within 21 days following the traumatic injury. Having reviewed and considered the submissions in this Case, as well as having considered the argument of counsel for the parties, herein, it is my opinion, by a preponderance of the credible record evidence, filed in this matter, that the 10/2/2009 NCV study of the contra-indicated right upper extremity, undergone 10/2/2009 by TP, was medically necessary, as a result of the automobile accident that occurred on 5/26/2009, as a control to be certain as to whether or not a positive left NCV study was normal for this patient. It is also my opinion, by a preponderance of the credible record evidence, filed in this Case, that the 10/2/2009 EMG/NCV studies of the bilateral lower extremities were medically necessary as a result of injuries sustained in the 5/26/2009 automobile accident. This patient s subjective complaints included lower back pain, radiating to the bilateral lower extremities with numbness and tingling, therein. These were supported by an 8/14/209 MRI of the lumbar spine that showed posterior central disc herniations, L3-L4 and L4-L5, with thecal sac deformities and objective findings in the form of positive Laseque s test and positive straight leg raising test bilaterally. Claimant, then, has prevailed in this Case, with respect to each of the disputed electrodiagnostic tests that were undergone by TP on 10/2/2009. Accordingly, in addition to the $ already stipulated to, on behalf of Respondent, the Respondent shall pay Claimant $2,891.99, which is a total of $3,017.88, as now demanded, to be paid, by Respondent to Claimant, subject to the application of any remaining PIP deductible and patient copayments. Claimant s Attorney demanded interest in this matter, on any recovery, to be calculated and paid by Respondent to Claimant, pursuant to N.J.S.A. 39:6A-5g and h. Claimant has prevailed in this Case in the total amount of $3, Accordingly, since interest cannot be calculated until the payment of any Award, interest is also awarded in an amount to be calculated and paid, by Respondent to Claimant, at the time of the payment of the Award, herein, pursuant to N.J.S.A. 39:6A-5g and h. Claimant s Attorney submitted a Forthright Rule 22 compliant PIP Arbitration Attorney Fee Certification, which was amended to request an Attorney Fee in the amount of $1, and Costs in the amount of $240.90, consisting of $ for the Forthright filing fee and $15.90 for certified mail postage to provide discovery in this Case. Respondent s Attorney stated that the hours specified were more than were necessary for this Case and that the rate of payment requested by Claimant s counsel is excessive. NJ Page 7 of 9

8 N.J.A.C. 11:3-5.6(d) provides that the decision of the dispute resolution professional "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. R.P.C. 1.5 provides that: (a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (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. This matter involved the remaining issue of the medical necessity of certain 10/2/2009 electrodiagnostic studies that were undergone by TP, which was raised on behalf of Respondent, as set forth and discussed above. This were addressed by Claimant s counsel in pre-oral Hearing submissions as well as during the argument of counsel at that Hearing. An award of attorney fees of $1,425.00, is consonant with the amount of the Award in this Case, reflective of the issues involved and the time required by Claimant s counsel to present this matter, is generally in keeping with the guidelines of R.P.C. 1.5 and the mandates of the Court 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) and is, in my opinion, appropriate in this matter. Claimant s Attorney also seeks costs in this matter. N.J.A.C. 11:3-5.6(d) provides that "the award shall apportion the costs of the proceedings, regardless of who initiated the proceedings, in a reasonable and equitable manner consistent with the resolution of the issues in dispute." The NAF filing fee of $ and $15.90 for certified mail postage to provide discovery in this Case are reimbursable. Therefore, Respondent shall also pay the amount of $ to Claimant s Attorney, for Costs. Therefore, the DRP ORDERS: NJ Page 8 of 9

9 Disposition of Claims Submitted 1. Medical Expense Benefits: Awarded: Medical Provider Amount Claimed Amount Awarded Payable To Pain Management Associates of Central Jersey $3, $3, Pain Management Associates of Central Jersey This Award is subject to the application of any remaining PIP deductible and patient co-payments. 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 in an amount to be calculated by Respondent and paid, by Respondent to Claimant, at the time of the payment of the Award, herein, pursuant to N.J.S.A. 39:6A-5g and h. 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: 04/12/12 NJ Page 9 of 9