Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between B.S.P. individually and Hong S. Pak as assignee CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: 238 PP UHD4296 F 004 Claimant Counsel: Fredson & Statmore, L.L.C. v. Claimant Attorney File No: Respondent Counsel: Malapero, Prisco, Klauber & Licata LLP Respondent Attorney File No: Accident Date: 07/28/2008 Travelers of New Jersey Insurance Company RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Matthew G. Miller 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: BP An oral hearing was waived by the parties. An oral hearing was conducted on: 02/08/2012 Hearing Information 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: The amount in dispute was amended to $4, Further, all arguments concerning the potential application of the N.J.A.C. 11:3-29.4(f)(1) multiple procedure reduction formula to CPT# by the respondent were explicitly waived by the respondent. NJ Page 1 of 8

2 Findings of Fact and Conclusions of Law This arbitration arises out of a motor vehicle accident that occurred on July 28, 2008 and concerns an amended $4, in unpaid benefits allegedly due and owing to Hong Sik Pak, M.D. for services rendered from July 31, 2008 March 2, The claim includes a 10/14/08 four (4) extremity EMG/NCV as well as physical therapy/evaluation and management ( E&M ) visits performed from 12/26/08 3/2/09. Also included in the claim was the denial of multiple units of CPT# (therapeutic activities) from 9/5/08 10/28/08. The respondent, Travelers Insurance Company ( TIC ) denied the treatment in question based upon a peer reviews authored by Jerome Pumo, Jr., D.O., John P. Nolan, D.O., Scott Metzger, M.D., Thomas F. Cuomo, M.D., Daniel S. Rosenberg, M.D. and an IME performed by Robert D. Brady, D.O., who collectively determined that the EMG/NCV, therapeutic activities and p.t. in question was not medically necessary. The subrogee argues that the treatment was sufficiently clinically supported so as to be medically necessary and sufficiently documented so as to be fully compensable. There are no other issues in dispute between the parties. Subrogor s Medicals Tracing the subrogor s medicals, it does not appear that she sought emergency attention before presenting to Dr. Pak on July 31, 2008 with complaints of headaches, neck pain radiating to the upper extremities with numbness, tingling and burning into both hands, lumbar pain radiating into the legs along with shoulder and knee pain. An exam revealed diffusely limited spinal range of motion ( ROM ) with tenderness and spasm. Straight leg raise ( SLR ) testing was positive at 50 bilaterally, deep tendon reflexes ( DTRs ) were diminished in the ankles and wrists and sensation was decreased in the C5-6-7 and L5-S1 distributions. She was diagnosed with soft-tissue injuries along with possible cervical and lumbosacral radiculopathy and thrice weekly p.t. was commenced. The subrogor was re-examined by Dr. Pak on 9/2/08 during visit #14 with continuing complaints of severe headaches and radiating neck and back pain. An exam was largely unchanged, save for some minor ROM improvements. P.T. was to continue and MRIs of the cervical and lumbosacral spines were requested. The MRIs were performed on September 23, 2008, with the cervical films being interpreted as revealing a left central herniated disc at C6-7 and a central HNP at C5-6. The lumbar film revealed a central HNP at L5-S1 along with a disc bulge at L3-4 with facet hypertrophy. The next re-exam took place during visit #24. BP s subjective complaints were largely unchanged. ROM was modestly improved at best and the balance of the exam was unchanged. The MRI results were noted, treatment was to continue and a four (4) EMG/NCV was prescribed. The EMG/NCV was performed on October 14, 2008 and was interpreted as revealing evidence of left C5-6 and S1-2 polyradiculopathies. NJ Page 2 of 8

3 The next re-exam took place during visit #30 on October 28, It was noted that her low back pain was now 10% better, but tingling persisted to all four (4) extremities. Her headaches were still severe, although diminished in duration. ROM continued its minimal improvement and was otherwise largely unchanged. P.T. was to continue on a thrice weekly basis. The next re-exam took place on 12/9/08 during visit #35. Her low back pain was still 10% BETTER and BP was complaining of persistent numbness and tingling that was a 5-8 in severity on the 1-10 VAS scale. ROM again was minimally improved and the balance of the exam was unchanged. P.T. frequency was to be reduced to twice weekly. 1/13/09 brought the next re-exam (visit #41). Pain levels were at a 6-7 with notes of persistent back pain and hip pain that was worsened by fatigue and stress. ROM continued its glacial progress and the balance of the exam was essentially unchanged. Treatment frequency was to be reduced to weekly. The final re-exam took place on 2/10/09 during visit #44. Pain levels were at 5-8 or 7-9 depending on the paragraph of the office note. Subjective radicular complaints continued. ROM was again nominally improved and the exam results were unchanged. Weekly treatment was to continue and BP was seen on two (2) more occasions by Dr. Pak; 2/16/09 & 2/23/09. The evidence reveals that the subrogor also saw Chang Kang, M.D. on 10/14/09 and had undergone acupuncture treatment as well. In October, 2009, Dr. Kang had recommended that BP undergo lumbar epidural ( LESI ) and lumbar facet joint injections ( LFJI ). An LESI was performed on 11/5/09. I have not been provided with any additional medicals by either party. The first relevant review of the case was performed by Dr. Pumo on August 19, 2008, who in addition to reviewing some coding issues that are not relevant to the issues presented in this case, also denied Dr. Pak s pre-certification request for CPT# 97530, arguing that there was no documentation of specific treatment areas, specific treatment plan, or specific evaluation relative to therapeutic activities. He reviewed the case again on September 4, 2008 and again denied the therapeutic activities for essentially the same reason as he had earlier. Dr. Nolan performed his first review of the case on October 6, He reviewed the 7/31/08 exam note and denied pre-certification for the EMG/NCV, arguing that (t)he clinical exam does not reflect motor, power loss, or reflex changes or any suggestion of a specific compression neuropathy. With the neurological exam and MRI findings, it appeared that the injury had been diagnosed and that the EMG/NCV would not change the proposed plan of treatment. plan. As for continued p.t., he also denied same, arguing that BP had already undergone eight (8) weeks with minimal improvement and that there was no reason to suggest that there would be any additional, significant progress. Dr. Pumo then reviewed the case again on 10/23/08. He reviewed the follow-up exam on 9/20/08 and noted that there was no indication of a significant change in treatment relative to the EMG/NCV studies and that there was no evidence of any additional clinical information that would support overturning the initial non-certification. NJ Page 3 of 8

4 Dr. Brady performed his IME on 12/2/08. He reviewed the MRI results, p.t. notes and Dr. Pak s reexams through 9/30/08 and noted BP s complaints of neck pain with numbness in the thumb and the radius of both forearms as well as low back pain. She did not know the results of the EMG/NCV and was undergoing acupuncture as well as p.t. The exam revealed some pain at end range of cervical ROM as well as patchy nondermatomal distribution on the right. There was tenderness to palpation on the right-sided cervical facet joints. Thoracic and lumbar examinations were within normal limits. He questioned the causal relationship of the HNPs to the accident and argued that the films should be reviewed. He argued that it (was) clear that the EMGs were not used to dictate the patient s care and that after twelve (12) weeks of p.t. without progressive improvement, further p.t. did not make sense. He further noted that the patient s complaints are mostly axial with symptoms that were more right sided, contrary to the MRI findings of a left-sided HNP. He concluded that BP had reached maximum medical improvement for both pain management and physiatry. Dr. Pumo reviewed the case again, this time on January 20, 2009, which was apparently in response to another appeal regarding the EMG/NCV. He noted the IME and argued that Dr. Pak s appeal did not include any clinical information to alter the previous denial. An acupuncture peer review was performed by Marian Marandato, L.Ac. on 2/3/09, who opined that continued treatment was necessary. Another review from Dr. Pumo took place on 2/10/09. He reviewed Dr. Pak s documentation through September 20, 2008 as well as the 12/2/08 IME. He upheld the denial of continued p.t. given the amount of time she had undergone treatment and the relatively negligible improvement noted. Dr. Nolan s review took place on February 26, 2009 and he again noted the negligible improvement reflected in the re-exam notes and upheld Dr. Brady s determination that PB had reached maximum medical improvement. There was an acupuncture performed by Diana Khodik, L.Ac. on April 19, 2009, although I have not been provided with same (although there is an inference that she had determined that BP had reached maximum acupunctural improvement). There was then a break in the reviews before Dr. Metzger performed a peer review on October 19, 2009 and noted an examination by Dr. Kang on 10/14/09 along with a request for the performance of CESIs and CFJIs. He questioned how the accident had occurred and the mechanism of injury and simply denied the request. Dr. Cuomo then reviewed the case on 10/22/09 with only very basic information. Nonetheless, he decided not to overturn the prior denial, but still felt that the MRI films should be reviewed. The final review with which I have been provided is from Dr. Rosenberg which was performed on 11/18/09. He reviewed a substantial number of records and concluded that there was nothing contained within any of those records that would alter Dr. Brady s conclusions from the 12/2/08 IME. Medical Necessity The burden of proof on the issue of whether treatment is reasonable and necessary and/or was causally NJ Page 4 of 8

5 related to the accident is the claimant s to show by a preponderance of the credible evidence. Miltner v. Safeco Ins. Co., 175 N.J. Super. 156 (Law Div. 1980). See Langley v. Allstate Ins. Co., 206 N.J. Super. 365 (App. Div. 1985). When there is a difference of medical opinion, generally, the treating provider is afforded greater weight. Mewes v. Union Bldg. & Constr. Co., 45 N.J. Super. 88 (App. Div. 1957); Albeit v. Gen. Motors Corp., 46 N.J. Super. 475 (App. Div. 1957); Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491 (1991). The necessity of medical treatment is a matter to be decided, the first instance, by the claimant s treating physician, and objectively reasonable belief in the utility of a treatment or diagnostic method based upon the credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics, supra, 125 N.J. at 512. Medically necessary is defined as treatment or a diagnostic test that is consistent with the clinically supported symptoms, diagnosis or indications of the injured person. In addition, that 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 and is not primarily for the convenience of the injured person or provider. N.J.A.C. 11: The term clinically supported is defined in N.J.A.C. 11:3-4.2 and essentially means that there must be sufficient medical evidence and analysis to justify the performance of the requested treatment. This includes a physical examination, a review of both subjective complaints and objective findings, prior tests and a record of these observations and conclusions. N.J.A.C. 11:3-4.5(b)(1) permits the performance of an EMG when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported finding reveal a loss of sensation, numbness and tingling. In addition, the treatment must be palliative or curative of a condition, not simply something that was provided for the patient s personal comfort. See Perun v. Utica Mut. Ins. Co., 280 N.J. Super. 280 (Law Div. 1994); see also Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990); see also Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984); see also N.J.A.C. 11: In support of his treatment, Dr. Pak authored a number of appeals in support of the performance of the therapeutic activities, the EMG/NCV testing and the p.t. As for the therapeutic activities, he advised that it; is indicated for this patient to do body mechanics education, postural review and proper activity body education. The patient needs to do therapeutic activity with physical therapy on one to one supervision, therefore this modality is medically necessary and indicated. With regards to the EMG/NCV testing, he noted the subrogor s most recent exam as well as the MRI test results and diagnoses. He concluded that, EMG/NCV of the upper and lower extremities is medically necessary and indicated to rule out any possibilities of radiculopathy. In later appeals, he further advised that the EMG/NCV findings will prove useful for future referrals for epidural and other pain management treatments that will help the condition of the patient. NJ Page 5 of 8

6 Finally, with regards to the continued p.t., he essentially wrote the same report on numerous occasions, arguing that; Physical therapy has been helping the patient to decrease pain levels, improve range of motion and activities of daily living, and therefore, continuation of physical therapy is medically necessary and well indicated for this patient. As the performance of CPT# 97530, which is therapeutic activities, direct (one-on-one) patient contact by the provider (use of dynamic activities to improve functional performance), each 15 minutes, I find that the subrogee s proofs are inadequate for me to conclude that same has been proven by a preponderance of the credible evidence to be reasonable and necessary. There is nothing contained within the re-exam notes or the appeal letters that demonstrate that why BP had to perform these separate non-cap activities. While the appeal letters noted that same were indicated, they did not advise as to what specific functional deficits this subrogor had, what specific exercises were being performed and how or why this code was medically necessary or the appropriate one to bill given BP s condition. At no point is BP s specific functional deficit even hinted at and Dr. Pak s explanation is simply inadequate, even in light of the dictates of Mewes, supra and Albeit, supra, for me to determine that these services, as coded, were reasonable and necessary. However, with regards to the EMG/NCV testing, while a very close call, I find that there is sufficient evidence for me to find that the necessity of same has been proven by a preponderance of the credible evidence. I appreciate the position of the defense experts regarding the utilization of the test results to determine future treatment. This is a much stronger position that the pure medical necessity argument. Contrary to a number of the peer reviews, I find that there were a sufficient number of questions regarding the correlation of the subrogor s subjective complaints, the objective (albeit somewhat vague) symptoms and the MRI results to justify the performance of the testing. The subrogor had been treating for about six (6) weeks at this point and with her continuing subjective complaints to go along with the objective evidence, the performance of the EMG/NCV was justified. As noted, I am more concerned with the future care aspect of the testing. While realizing that it appears that the subrogor s treatment did not change in the immediate future, it did confirm the diagnosis of radiculopathy. Further, while the defense experts did comment on the immediate necessity of the testing, there was little in the way of post-testing analysis save for the general discussions of BP having reached maximum medical improvement. While one would have liked to have seen more of an analysis by Dr. Park as to the testing, the fact is that there was little evidence that p.t. was working at this point and it would be logical for the subrogor to be tested so as determine what to do next. In all, the combination of all of these factors leads me to determine that the EMG/NCV testing performed on October 14, 2008 has been proven to have been, in light of Mewes, supra and Albeit, supra reasonable, necessary and causally related to the accident. Finally, as for the p.t., the defense case is much stronger. For practically the entire duration of the subrogor s treatment, her improvement was negligible. ROM improvement by essentially 10% from the onset of treatment to the 12/9 re-exam and the subrogor s pain levels, while fluctuating to some degree, reflected little improvement, similar to the objective findings on exam, which were essentially unchanged. NJ Page 6 of 8

7 Dr. Park s appeal letters were wholly unimpressive and I agree with the defense experts that there was simply no evidence that the continued p.t. was remotely effective. At the time of the termination of the subrogor s benefits, she had been seen on thirty-six (36) occasions, albeit over a five (5) month period. While it is understood that while the Care Paths identify typical courses of intervention 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 the special circumstances. Here, there simply were no special circumstances to justify the exceeding of the guidelines I simply cannot find that there is sufficient evidence contained within Dr. Pak s records for me to determine, even given the standards of Mewes, supra and Albeit, supra that he has proven by a preponderance of same that the unpaid p.t. sessions and E&M visits performed from December 16, March 2, Costs and Fees An award of attorney s fees to a successful claimant is not mandatory, but, per N.J.A.C. 11:3-5.6(d)(3), lies within the discretion of the DRP. In determining an appropriate amount of fees, it has been suggested that the most useful starting point is the number of hours reasonably expended on the litigation multiplied by reasonable hourly rate. H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. Super. 144, 157 (App. Div. 1996). However, per R.P.C. 1.5, the DRP is given discretion to adjust the fees upward or downward in his discretion. Id. at 158, 160. In making those adjustments, the trial court (or DRP) should consider the following: 1. The insurer s good faith in refusing to pay the demand; 2. [The] excessiveness of plaintiff s demand; 3. [The] bona fides of one or both of the parties; 4. The insurer s justification in litigating the issues; 5. The insured s conduct in contributing substantially to the necessity [of litigation]; 6. The general conduct of the parties; and 7. The totality of the circumstances. See Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001) quot., Enright v. Lubow, 215 N.J. Super. 306, 313 (App. Div. 1987). In the case at bar, the claimant has submitted a certification in the amount of $2, in fees and $ in costs. Having considered the respondent s objections and all relevant circumstances, I find that the claimant is entitled to $1,000.00, since same comports with the guidance provided by H.I.P., R.P.C. 1.5, Scullion and Enright and fully and fairly compensates counsel. The $ in costs is also awarded. Therefore, the DRP ORDERS: NJ Page 7 of 8

8 That TIC remit payment to Dr. Pak totaling $1, for the unpaid EMG/NCV performed on 10/14/08. The balance of the claim be and is hereby denied. 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Hong S. Pak $4, $1, Hong S. Pak This amount reflects proper Region III fee-scheduling and is subject only to prior payment to any remaining deductible or N.J.S.A. 39:6A-4.3(f) co-payment. It is not subject to any other reductions. 2. Income Continuation Benefits: Not in issue. 3. Essential Services Benefits: Not in issue. 4. Death or Funeral Expense Benefits: Not in issue. 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h.: to be calculated by the respondent. 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: 03/28/2012 NJ Page 8 of 8