In the Matter of the Arbitration between. (Claimant) (Respondent)

Transcription

1 CASE NO. 18 Z A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS In the Matter of the Arbitration between (Claimant) AAA CASE NO.: 18 Z v. INS. CO. CLAIMS NO.: 33V22775D07063 PRUDENTIAL INSURANCE COMPANY DRP NAME: Maria I. Daniskas (Respondent) NATURE OF DISPUTE: Causality; precertification AWARD OF DISPUTE RESOLUTION PROFESSIONAL I, THE UNDERSIGNED DISPUTE RESOLUTION PROFESSIONAL (DRP), designated by the American Arbitration Association under the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey, adopted pursuant to the 1998 New Jersey Automobile Insurance Cost Reduction Act as governed by N.J.S.A. 39:6A-5, et. seq., and, I have been duly sworn and have considered such proofs and allegations as were submitted by the Parties. The Award is DETERMINED as follows: Injured Person(s) hereinafter referred to as: PM. 1. ORAL HEARING held on 2/2/ ALL PARTIES APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration were NOT AMENDED at the oral hearing (Amendments, if any, set forth below). STIPULATIONS were not made by the parties regarding the issues to be determined (Stipulations, if any, set forth below). 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: At issue are pain management treatments performed by Dr. Rudman at Morristown Memorial Hospital, as well as a cervical MRI performed on 5/9/02. Respondent contends that claimant has not established that the services were reasonable, medically and causally related to the accident. Additionally as to the MRI, respondent asserts that the provider failed to request pre-certification prior to the performance of the service. Claimant's orthopedic PIP benefits were terminated 5/13/02.

2 CASE NO. 18 Z Claimant PM was involved in a motor vehicle accident on 12/9/01. Prior to that time, she had been under the care of Dr. Gatto, of Tri-County Orthopaedic & Sports Medicine, Inc., since earlier in 2001 for cervical spine pain and right hand numbness. In the summer of 2001, electrodiagnostic studies confirmed carpal tunnel syndrome and "severe" right C7 radiculopathy, which necessitated a right carpal tunnel median nerve release by Dr. McBride of the same medical group. Three days after the motor vehicle accident, on 12/12/01, she was returned Tri-County Orthopaedic and was seen by Dr. Gatto. According to his report of that date, she was doing well after the surgery which "had helped her considerably in her hand complaints", but was involved in a motor vehicle accident over the weekend. She reported that since that time, she has had some increased stiffness and soreness in her neck, some pain in her thumbs bilaterally, which she thinks may be related to holding onto the steering wheel, tenderness in the right elbow, as well as tingling into the fourth and fifth digits of her right hand "which has been going on all along". She was diagnosed with mild acute exacerbation of a cervical strain post motor vehicle accident with contusion/strain bilaterally in the thumbs. On 6/17/02, she presented to Michael Rudman, M.D. for complaints of pain in her right neck and down her right upper extremity. According to the doctor's report of this visit, PM stated that "[s]he feels this may have started years after a car accident but it has been exacerbated many times she says secondary to her 'tough life'.she has had gonve through abuse in the past from her parents and boyfriends and has had intermittent neck pain and right upper extremity pain over the years." She also advised that she has recently undergone treatment geared to her neck and right upper extremity including chiropractic manipulation, physical theapy and a trial of anti-inflammatory medications. The doctor notes that an EMG had recently showed no significant radiculopathy, and that she had undergone right carpal tunnel surgery, which did improve her hand symptoms. The pain in her extremity was described as "more of an aching throbbing sensation and burnig particularly in her triceps and elbow. Dr. Rudman diagnosed her with right neck pain with right upper extremity radiculopathy with evidence of disc herniation at C6-7 on more recent MRI of May 2002 and status post right carpal tunnel surgery. He recommended a trial of injection therapy under fluoroscopic guidance. Dr. Rudman's 6/17/02 report does not mention the motor vehicle accident of 12/9/01, nor does the doctor's diagnosis section of the report attribute the injuries to that accident. The accompanying HICF form indicates that the injuries are not related to a motor vehicle accident. Claimant has submitted an undated certification of Dr. Rudman, wherein he relates the injuries to the subject accient. A review of the HICF forms submitted by Tri-County Orthopaedics, as well as Dr. Rudman, reveal that the first notation that the injuries were caused by the accident was on the HICF form dated 9/16/03. The first report of Dr. Rudman's to include a reference to the motor vehicle accident in the top reference portion of the report is that of 12/2/02..

3 CASE NO. 18 Z A cervical MRI performed on 4/20/01 revealed a "[r]eversal of the normal cervical curve, possibly relating to muscle spasm diiffuse ridging at C5-C6. Ridging and probably right sided disc hernation with a fragment extending caudal to the interspace, behind the body of C7 on the right." A subsequent MRI, performed at the same facility as the one on 4/20/01, revealed reversed cervical lordosis suggesting msucular spasm, disc ridge complex with mainly disc herniation, C5-6 with mild thecal sac indentation, disc herniation at C6-7, central to right paracentral with some thecal sac indentation and minimal foraminal extension, but without any definite compression on the exiting C7 nerve root, hemangioma C6. Respondent relied on the 4/11/02 IME of David Feldman, M.D., who determined that she had reached maximum medical benefit and there was no further need for physical therapy. PIP benefits for orthopedic treatment were terminated 5/13/02. At her IME< claimant admitted to a long history of neck and shoulder symptoms beginning perhaps over years ago. She also admitted that after the treament for the neck and carpal tunnel release her symptms went down to an 8 out of 10, and that now after the motor vehicle accident, her symptoms with respect to her neck shoulder are back down to the same level. Dr. FelHis impression was mild aggravation of cervical strain and thumb strain status post motor vehicle accident. He stated that there is a causal relationship of the accident and the conditions noted, that of the thumb strain and cervical strain. He also stated that "the symptoms now I feel are most likely related to her work, both as a dental assistant and massage therapist. She has a flexor tendonitis of the thumb, arthritis of the carpal metacarpal joint and tendonitis of the left and right forearm both aggravated I feel by her work as a dental assitant and as a massage therapist." He found no new findings. Respondent has also submitted a 4/27/01 report of Dr. Cho, wherein he states that the claimant complained of pain in her neck and scapular area which "has been bothering her for many years. However, two weeks ago, it become severe and is mostly on the right side. Once in a while, she has numbness on the left side. The neck and shoulder pain radiates down with tingling and numbness sensation, especially thumb, index and middle fingers on the right hand." He diagnosed possible double crushing syndrome of cervical radiculitis at C6-7 level with carpal tunnel syndrome on the right, as well as borderline degree of capal tunnel syndrome, involving sensory nerve only on the left. Having reviewed all the medical documentation submitted, I find that claimant has not maintained her burden of proof. I do not find that the pain management treatment of Dr. Rudman was causally related to the motor vehicle accident of 12/9/01. Dr. Rudman's contemporaneous report makes no mention of the accident, and the accompanyng HICF form indicates that that the injuries are not related to a motor vehicle accident. She had long standing cervical complaints associated with radiation and tingling and numbness in her thumb and fingers of her right hand. Prior to the accident, she had been diagnosed with cervical radiculitis at C6-7 with carpal tunnel syndrome and undergone carpal tunnel release in the summe of Although she experienced some degree of aggravation in those areas after the accident, as reported in the doctor's report of 12/12/01 as soreness and stiffness in neck and contusion and strain of the thumbs, it appears that this one of the

4 CASE NO. 18 Z many aggravations of her long standing problems. As a matter of fact, the next report of her treatment dated 6/17/02, she states to Dr. McBride that she has agggravated her condition many times. Moreover, it was not until 2003, that the motor vehicle accident date was even referenced at the top of page with the other pertinent information on the reports of the physicians at Tri-County. It was also not until 2003, that the HICF forms state that the services were related to a motor vehicle accident. Furthermore, I was also not persuaded by the certification of the claimant, the contents of which did not comport with the contemporaneous medical records. However, I do find that the cervical MRI was reasonable, medically necessary and causally related. Inasmuch as it is unrefuted that the provider requested pre-certifciation of the MRI on the day after it was performed, I award the bill subject to respondent's precertification penalty, as well as fee schedule, copayment and deductible. Claimant submitted a certification of services in the amount of $2,372. Having considered respondent's objections thereto, I find that $950 is a reasonable attorney's fee in this matter. Claimant waived interest. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Morristown $3, $0.00 Memorial Hospital Open MRI of $1, $1, provider Morristown Dr. Rudman $6, $0.00 Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. Subject to the application of fee schedule, copayments and deductibles, as well as respondent's pre-certification penalties. 6. INCOME CONTINUATION BENEFITS: Not In Issue 7. ESSENTIAL SERVICES BENEFITS: Not In Issue 8. DEATH BENEFITS: Not In Issue

5 CASE NO. 18 Z FUNERAL EXPENSE BENEFITS: Not In Issue 10. I find that the CLAIMANT did prevail, and I award the following COSTS/ATTORNEYS FEES under N.J.S.A. 39:6A-5.2 and INTEREST under N.J.S.A. 39:6A-5h. (A) Other COSTS as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $285 (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $950 (C) INTEREST is as follows: waived per the Claimant.. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. 4/2/04 Date Maria I. Daniskas, Esq.