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 AWARD OF DISPUTE RESOLUTION PROFESSIONAL

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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.: 2921P FARM FAMILY CASUALTY INSURANCE COMPANY DRP NAME: Richard A. De Michele (Respondent) NATURE OF DISPUTE: Medical Expense Benefit 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: MA. 1. ORAL HEARING held on June 25, ALL PARTIES APPEARED at the oral hearing(s) for Claimant. ALL PARTIES appeared telephonically. 3. Claims in the Demand for Arbitration were AMENDED and permitted by the DRP 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). Dennis Scardigli, M.D. $3, Psychophsysiological Assessment Treatment Center $ to be paid 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: MA was involved in a motor vehicle on September 21, Insurance coverage in effect at that time was for the period September 17, 1999 to March 17, Accordingly, AICRA is applicable.

2 CASE NO. 18 Z MA did not receive emergency treatment as a result of the accident. The following day he was experiencing neck pain and called Respondent. He was told to see a physician which he did about one week later. He was evaluated for neck, back pain and pain radiating down into his right leg. Due to the illness of his mother in Pakistan he left the country and went to Pakistan for approximately five months. Shortly after his return he came under the care of Dr. Dennis Scardigli from July 10, 2000 through March 20, Dr. Scardigli conducted a physical exam and his impression was concussion and lumbosacral sprain. A referral was made to Physical Therapy Consultation where MA was placed on a course of physical therapy. He was referred to Phychophysiological Assessment and Treatment Center as a result of his complaints of memory disturbances. In a report dated October 25, 2000 Dr. Scardigili reported that physical therapy and ecological treatment was continuing and he noted that EMG and NCV studies had been performed which indicated L5 radiculopathy. At the time of the report AM complained of inability to sleep, poor concentration, bad dreams and episodes of crying. Range of motion of the low back was approximately fifty percent of normal and spasm was noted. Neurological assessment on October 26, 2000 and November 22, 2000 indicated herniation at L5-S1 and disc bulging at L3-L4. Dr. Scardigili noted in his report dated January 10, 2001, AM was only working 16 hours a week indicating it was all he could tolerate. MA was referred to South Jersey Diagnostics for various testing which included posture and autovertebral analysis. It was Dr. Scardigili s testimony that these tests assisted the physical therapist in developing the treatment regimen and measuring the patient s progress. Testing done on July 10, 2000 revealed abnormalities and they were repeated on August 7, A referral was also made to Dr. Eby L. Banas for symptoms of dizziness, headaches, ringing in the right ear, neck, mid and low back pain, shoulder pain and pain shooting down the right leg. Dr. Banas prescribed medication and recommended continued therapy. An MRI of the lumbar spine was ordered. EMG/NCV testing of the lower extremities revealed right L5 radiculopathy. MA was referred to Derek P. Aita, a licensed psychologist for neuropsychological evaluation to assess his level of cognitive functioning. Dr. Aita in his report indicated that Neuropsychological test results revealed deficits with cognitive flexibility, concept formation and abstract reasoning. His diagnosis was adjustment disorder with mixed features and post concussion syndrome related to the accident on September 25, He recommended cognitive rehabilitation therapy, short term counseling for depression and continued follow-up by medical specialists. An orthopedic IME was conducted by Jack Goldstein, D.O. on November 13, Physical examination revealed normal range of motion with no spasm or tenderness in the neck. Neurological examination of the upper extremities were normal. Lumbosacral spine showed normal ranges of motion and no evidence of radiculopathy. Dr. Goldstein noted in his report that he was provided with a letter from the trauma center

3 CASE NO. 18 Z in Islamabad, Pakistan with a note by a psychiatrist named Dr. Qureshi indicating depressive illness and amnesia. There was also a note from a trauma surgeon indicating severe low back pain. There was indication that the patient was hospitalized for fortyeight (48) days in Pakistan. Dr. Goldstein also reviewed an evaluation report by orthopedic surgeon, Lawrence L. Barr who rendered a diagnosis of post traumatic cervical strain and sprain with bilateral trapezious myofascitis, post traumatic lumbosacral strain with herniated disc at L5-S1 and bulging disc L3-4 and L4-5. It was Dr. Goldstein s opinion that Dr. Scardigili s evaluations and treament were excessive and that MA had reached maximum medical improvement. Dr. Goldstein concluded that MA need no further evaluations or treatment, no further consultations with specialist and that he could continue with over the counter medication. Dr. Goldstein found specifically that MA was not disabled and could resume his full time job as baker and perform all activities of daily living. He found that the treatment rendered after AM returned from Pakistan was excessive but related to the motor vehicle accident. An orthopedic IME was also conducted by Dr. Robert Taffett on November 9, Dr. Taffett found on examination of the cervical spine there was tenderness in the mid line at the cervicothoracic junction. Dr. Taffett also found mild restriction of the cervical spine motion and. Dr. Taffett s diagnosis was lumbar spine strain with lumbar disc herniation. It was Dr. Taffett s opinion that MA needed an additional six more weeks of physical therapy at which time he would maximum medical improvement to be obtained. He found that MA s activities are limited with respect to lifting greater than 20 pounds and recommended that he remain out of work unless sedentary was available until he completed a course of physical therapy and reached maximum medical improvement. A neurological peer review was conducted by Dr. Lynne Carmickle. Dr. Carmickle in her report indicated on the basis of information provided, I see no medical necessity for the electrodiagnostic testing performed by Dr. Banas on September 28, The patient had MRI of the lumbar spine on September 15, In my estimation this contains sufficient clinical information to direct the course of his treatment. Dr. Banas did not make any new clinical recommendations as a result of this testing and hence the studies had absolutely no impact on the care of the patient and therefore was not medically necessary. In her report Dr. Carmickle also noted that there were inconsistencies as indicated in the test reports and felt that with these inconsistencies it was impossible to utilize the report in the management of the patient s condition. Accordingly, she considered the testing was not medically necessary. She felt that causal relationship of the patient s complaints of the accident had not been adequately established and after testing was not utilized towards directing the management of the patient s lumbar condition and hence there was not need for the extensive testing performed. Dr. Banas in responding to the neurological peer review report, notes that the peer review report made no mention as to the non-necessity of neurologic evaluation and treatment and focused mainly on the EMG and NCV studies. He points out that the result of any test that may necessitate any recommendation can be determined only after the test. He felt that if the necessity of the test was determined by its results that it would be

4 CASE NO. 18 Z contradictory to the purpose of the testing. In reference to the discrepancy between the diagnostic testing, he points out that the discrepancy can only be discovered after the diagnostic studies are done. He concluded that a test that does not coincide with other diagnostic studies is as important as the one that coincides with the results of the other testing. A neurological peer review was conducted by Dr. Johnnie Robinton. He indicated in his report dated November 3, 2000 that based on a review of the records and description of the accident it unclear to see why an MRI of the brain or any of the extensive psychological testing was performed. He also indicated it would appear that there was no significant head trauma which might have resulted in any sort of cognitive difficulties. He went on to state that given the results of the examinations he concluded that the MRI of the brain was neither reasonable nor medically necessary. He did find that the MRI of the lumbar spine to be reasonable and medically necessary. Based on Dr. Robinton s peer review, Respondent declined payment for the MRI of the brain. Having heard the argument of counsel and reviewed the submitted documentation, I find Claimant has met its burden of proof and that the treatment rendered by Dr. Dennis Scardiglia, South Jersey Diagnostics, Dr. Eby L. Banas and the treatment rendered by Trauma Center in Pakistan was medically necessary and reasonable. Miltner v. Safeco Insurance Company of America, 175 N.J. Super. 156 (Law Div. 1980). Mewes v. Union Building and Construction Company, 45 N.J. Super. 89 (App. Div. 1957). It is to be noted that MA contacted respondent the day after the accident complaining of various injuries and was told to see a physician. Upon his return from Pakistan, he was seen by Dr. Scardiglia who diagnosed his various injuries. Having heard the arguments of counsel and reviewed the submitted documentation, I find Claimant has met its burden of proof and the treatment rendered by Dr. Eby L. Banas and South Jersey Radiology was medically necessary and reasonable. Miltner v. Safeco Insurance Company of America, 175 N.J. Super. 156 (Law Div. 1980). Mewes v. Union Building and Construction Company, 45 N.J. Super. 89 (App. Div. 1957). Dr. Banas response to the neurological peer review report of Dr. Carmickle is to be noted. In reference to the medical treatment received by MA in Pakistan, MA testified in detail as to his physical and mental condition while in Pakistan and the treatment received. He was seen immediately upon his return to the United States by Dr. Scardiglia who treated him aggressively thereafter. The medical records from Pakistan show positive findings upon x-ray of the back as well as a diagnosis of depression. Treatment by Dr. Scardiglia substantiated in nature those diagnoses. I find that Claimant has met its burden of proof and that the treatment rendered in Pakistan was medically necessary and reasonable. Miltner v. Safeco Insurance Company of America, 175 N.J. Super. 156 (Law. Div. 1980).

5 CASE NO. 18 Z In reference to income continuation benefits, Claimant in a post-arbitration submission indicated that Respondent agreed that the wage loss claim would be paid. Having reviewed the submitted documentation and having heard the testimony of MA, I find that income continuation benefits are payable as claimed. No interest calculation or factual basis to support an award of interest has been submitted. Claimant has not met its burden of proof in that regard. Based on my review of the certification of legal services rendered, and in accordance with rule 29, I am awarding the sum of $1, in counsel fees. This award of counsel fees is consonant with the amount in issue and with Rule 1.5 of the Rules of Professional Conduct. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Dennis Scardigli, M.D. $3, $3, Dennis Scardigli, M.D. South Jersey Diagnostics $1, $1, South Jersey Diagnostics Dr. Eby L. Banas $ $ Dr. Eby L. Banas South Jersey $1, $1, South Jersey Radiology Radiology MA (Pakistan) $6, $6, MA Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. The award to Dr. Scardigli in a net award after application of the fee schedule and prior payments. Remaining awards are subject to fee schedule, deductions and co-payments. 6. INCOME CONTINUATION BENEFITS: $6, ESSENTIAL SERVICES BENEFITS: Not In Issue 8. DEATH BENEFITS: Not In Issue 9. FUNERAL EXPENSE BENEFITS: Not In Issue

6 CASE NO. 18 Z 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): $ (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1, (C) INTEREST is as follows: Not In Issue. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. August 28, 2002 Date Richard A. De Michele, Esq.