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.: CONTINENTAL DRP NAME: John J. Fannan INSURANCE COMPANY NATURE OF DISPUTE: Medical Necessity, Improper Referral, Other (Respondent) 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: The Patient 1. Oral Hearings were held on: January 21, ALL PARTIES APPEARED at the oral hearing(s). COUNSEL FOR THE RESPONDENT appeared telephonically. 3. Claims in the Demand for Arbitration WERE NOT amended at the oral hearing as permitted by the DRP (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: I find the Patient was injured as the result of an automobile accident which occurred on June 14, I further find that the Patient was eligible to make claim for PIP benefits pursuant to the terms and conditions of a policy of automobile insurance issued to her by the respondent. The patient came under the care of Dr. Zevin, a chiropractor, who referred her to the Convery Medical Group (Dr. Nagendra) for a neurological evaluation. The initial

2 CASE NO. 18 Z examination by Dr. Nagendra conducted on August 28, 2001 indicated the patient complained of severe and persistent headaches, neck pain which radiated to both shoulders and arms with associated numbness and tingling in her right hand. The patient also complained of deep pain and muscle stiffness of the lower back with radiation down both legs bilaterally, with pain associated with numbness, weakness and tingling in her feet bilaterally. A physical examination conducted by Dr. Nagendra revealed ranges of motion of both the cervical and lumbar spines were restricted and palpation elicited tenderness in the paracervical, superscapular and upper trapezius muscles on both sides as well as in the lower lumbar paravertebral muscles and sacral region. A number of orthopedic tests administered produced positive results. A neurological examination performed by Dr. Nagendra revealed that muscle powers of the upper and lower extremities were diminished bilaterally. Based upon this examination Dr. Nagendra formed the following clinical impression: cervical sprain/strain, probable cervical radiculopathy, lumbar sprain/strain and probable lumbar radiculopathy. He indicated his plan of treatment included EMG/NCV Testing of the upper and lower extremities to objectively localize and find the extent of the nerve injury. MRIs were performed at the request of Dr. Zevin in June 2001 which revealed noncompressive disc bulges at L3-L4 and L4-S5 as well as facet hypertrophy at L4-L5 and L5-S1. The cervical MRI revealed disc protrusion at C3-C4 with mild thecal sac contact and a disc bulge at C5-C6 without neural compression. Dr. Nagendra s Request for Pre- Certification of the EMG/NCV Testing was certified by Alta Services on November 12, 2001, and the tests conducted on December 8, It is the bill for that testing ($2,964.00) which is open and unpaid and is at issue in this arbitration. Further, on April 1, 2002, the patient was referred to the Raritan Pain Management & Rehab Center for a program of physical therapy which Dr. Nagendra prescribed at a rate of 3 times per week for six weeks. On that visit of April 1, 2002, Dr. Nagendra noted the patient was still complaining of neck pain radiating into both shoulders and arms with severe numbness and tingling in both hands as well as deep pain and muscle stiffness of the lower back radiating to the hips and both legs with numbness and tingling of both feet. The patient treated at Raritan Pain Management from April 1, 2002 through May 8, 2002 and it is the bill for these treatments ($2,955.00) which is also open and unpaid and forms the second issue in this arbitration. The respondent presents a number of defenses. Initially it is asserted the symptoms as recorded by Dr. Nagendra have not been demonstrated to have actually existed. Additionally, it is argued the testing by Dr. Nagendra was not performed in accordance with medical standards and thus is not valid. Further, it is argued that the testing performed by Dr. Nagendra was performed at the office of the chiropractor in contravention of NJAC 13:44E-3.9. The respondent also points to an IME report prepared by Dr. Buchwald, a neurologist, on December 17, 2001 which concluded the EMG studies of the upper and lower extremities were not indicated, as well as an IME of Dr. Feintuch, a chiropractor, on December 10, 2001 who concluded maximum chiropractic benefit had been reached and no further treatments were needed. Additionally, the testing administered was reviewed by Dr. Carmickle on December 10,

3 CASE NO. 18 Z and Dr. Spitz on December 19, Dr. Carmickle concluded the EMG Testing was misinterpreted. Therefore, even if medically necessary, it was inappropriate and was a serious deviation from the customary standards of medical practice. Dr. Spitz concludes the testing was incomplete in that Dr. Nagendra failed to test the requisite five limb muscles in both the cervical and lumbar EMGs. Dr. Spitz also concludes Dr. Nagendra s diagnosis of right carpal tunnel syndrome can only be characterized as willful material misrepresentation of fact. Finally, the respondent points to the testimony of the patient when taken during the course of two sessions of Examination Under Oath, as inconsistent with the symptoms reported by Dr. Nagendra as forming the basis for the testing. The following documents have been submitted for review and consideration: Demand for Arbitration; Medical Bills (HCFA Forms); Reports of Dr. Nagendra; Patient s Medical History Form; MRI Reports; Assignment; Electrodiagnostic test results; Dr. Nagendra s letter of medical necessity; Report of Dr. Nagendra for Raritan Pain Management & Rehab Center; Correspondence from Alta Services certifying EMG/NCV Testing; Correspondence from Alta Services denying Certification to lumbar epidural injections, office visits and physical therapy; Physical therapy initial evaluation form; Daily Physical Therapy progress notes; Certification of Services; Report of Dr. Buchwald; Report of Dr. Feintuch; Report of Dr. Carmickle; Report of Dr. Spitz; Transcript of Patient EUO (3/4/03); Transcript of Patient EUO (9/5/03); Patient s recorded statement (12/2/01). With respect to the contention that the testing performed by Dr. Nagendra was in fact performed at the offices of the chiropractor in contravention of NJAC 13:44E-3.9, the respondent has produced medical billings (HCFA Forms) which at item 32 ( name and address of facility where services were rendered ) lists Convery Medical Group, 1107 Convery Blvd., Perth Amboy, NJ. This is the address not of the chiropractor but of the neurologic group. No evidence to the contrary has been offered by the respondent. This defense is rejected as without evidentiary support..

4 CASE NO. 18 Z Further, NJAC 11:3-4.8(e)(2) declares that a Utilization Management Decision shall not retrospectively deny payment for treatment provided when prior approval has been obtained, unless the approval was based on fraudulent information submitted by the person receiving treatment or the provider. New Jersey Law as to the standard of proof which applies to legal fraud claims is that same must be proven by clear and convincing evidence. Lithuanian Commerce Corp., Ltd. vs. Sara Lee Hosiery, 214 F. Supp. 2d 453, (USDC, NJ 2002). In her recorded statement, the patient responded that she had hurt her neck and back. In her Examination Under Oath, the patient when questioned about the form she signed which indicated her hips, lower back, neck and shoulder hurt, responded by saying all of that hurt, all of that. When they gave me therapy, it was for all of that. The deposition transcript testimony of the patient, utilizing the services of a Spanish Interpreter, does reflect the patient experienced a measure of difficulty in explaining herself with precision. Certainly that inability does not rise the level of legal fraud. Additionally, Dr. Spitz would appear to indicate that the diagnosis with which he differs, rises to the level of a willful material misrepresentation of fact. That claim is frankly outrageous and does not establish the presence of legal fraud. Further, I note the examination of Dr. Feintuch on December 10, 2001, indicates the patient was complaining of neck, upper and lower back pain as well as right shoulder pain. Dr. Feintuch noted that shoulder ranges of motion were restricted by 40% in the right shoulder and that pain was alleged at the middle and end points as well as in both shoulder movements. Muscle testing of the upper extremities was 3 right fair and 4 left good. Dr. Feintuch also noted hypoesthesia at C2 on the left limited to the posterior aspect of the cervical spine. I note further, the report of Dr. Buchwald indicates that there was no evidence for cervical or lumbosacral radiculopathy on Dr. Nagendra s examination as recorded by him on August 28, However, that examination specifically records the presence of radiating pain into the shoulders and arms as well as down both legs bilaterally with associated numbness and tingling to right hand and numbness, weakness and tingling of the feet bilaterally. Dr. Nagendra also recorded diminished bilateral muscle powers of both the upper and lower extremities and recorded positive findings to several orthopedic tests administered. Clearly, the Administrative Code places a heavy burden upon any respondent who seeks to retrospectively deny payment for treatment provided where that treatment has previously been approved. The respondent must, in such cases, show the approval was granted premised on fraudulent information. The reviews of Dr. Carmickle and Dr. Spitz, neither of whom actually saw the patient, and both of whom performed their reviews two years after the testing was administered, are not sufficient. Further, where there is an issue of medical necessity, the claimant has the burden of proof to a preponderance of the evidence. Where there is a dispute, the burden rests on the claimant to establish that the services for which he seeks PIP Payment were reasonable, necessary and causally related to an automobile accident. Miltner v. Safeco Insurance Company of America, 175 N.J. Super 156 (Law Div. 1980). 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 the credible and reliable evidence of it's medical value is enough to

5 CASE NO. 18 Z qualify the expense for PIP Purposes. Medical expenses have been considered necessary even if the services only provide temporary relief from symptoms and will neither cure nor repair a medical condition or problem. Miskofsky v. Ohio Casualty Insurance Company, 203 N.J. Super 400 (Law Div. 1984). 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 the credible and reliable evidence of it's medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics v. Allstate, 125 N.J. 491 (1991). While the fact that a treatment is only intended to provide relief from symptoms is not alone a reason to deny benefits, such treatment must still be reasonable and necessary. Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. New Jersey Manufacturers Insurance Co., 244 N.J. Super 695 (App. Div. 1990). N.J.A.C. 11:4-2 defines medical necessity as medical treatment or diagnostic testing which is consistent with "clinically supported symptoms." Clinically supported is further defined as a personal examination in which the physician makes an assessment of subjective testing, complaints, observations, objective findings, neurologic indications and physical tests. Nowhere does the regulation require that the physician make an objective findings in order to administer a diagnostic test. Rather, the regulations clearly contemplate that such findings (or the lack thereof) are only a portion of a physician's assessment of the patient in his decision making process. In fact, the regulations require the recording and documentation of positive and negative findings and conclusions on the patient's medical records. Additionally, pursuant to Case Law developed in this State, where there is a conflict of testimony of medical experts, generally greater weight is to be given to the testimony of the treating physician. Mewes v. Union Building & Construction Company, 45 NJ Super 89 (App. Div. 1957); Biaco v. H. Baker Milk Company, 38 NJ Super 109 (App. Div. 1955); Abelit v. General Motors Corporation, 46 NJ Super 475 (App. Div. 1957). Finally, as the Court pointed out in Miskofsky, treating physicians enjoy wide discretionary latitude in determining the extent of treatment needed for a particular patient. It is not unusual to witness a genuine dichotomy of medical opinion as to type and extent of treatment needed for a particular injury. I find the reports and records submitted by the claimant have established to a preponderance of the evidence that the testing which was administered was reasonable, medically necessary and for a condition or conditions causally related to the subject accident and was prescribed in accordance with the American College of Radiology Appropriateness Criteria or the other requirements of the Administrative Code. I further find that the reports and records submitted by the claimant have established to a preponderance of the evidence that the physical therapy performed by the claimants Raritan Pain Management & Rehab Center was similarly reasonable, medically necessary and for a condition or conditions causally related to the subject accident.

6 CASE NO. 18 Z In reviewing the actual billing submitted, and in applying thereto the New Jersey Fee Schedule, including the Daily Maximum Allowable Fee of $90.00 set forth in NJAC 11:3-29.4(m), the claims of the claimants are awarded as follows: 1. Convery Medical Group - $1,889.70; and 2. Raritan Pain Management & Rehab Center - $1, Inasmuch as no calculation of interest has been provided, the claim for interest is deemed to have been waived. I further find the claimant was successful and is entitled to an award of counsel fees. Counsel for the claimant has submitted a Certification of Services wherein is sought counsel fees in the amount of $2, together with costs of $ Counsel for the respondent has entered a strenuous objection to an award of counsel fees in this amount, arguing that both the total number of hours billed (8.25) and the hourly billing rate ($250.00) are excessive under the circumstances. I note that while the billings did not reflect that actual attendance of claimant s counsel at the EUOs, there was an entry indicating those transcripts were reviewed. I have reviewed the line item entries and find that an award of counsel fees in the amount of $1, is consonant with the amount at issue herein and is consistent with the requisites of RPC 1.5 as well as consistent with the degree of effort, expertise and experience required for a successful prosecution of this claim. I also award costs in the amount of $ I further find the award of counsel fees in that amount to be consistent with the mandates of the Court in Enright v. Lubow, 215 NJ Super 306, (App. Div.), cert. Denied 108 NJ 193 (1987) as well as of Scullion v. State Farm, 345 N.J. Super 431 (App. Div. 2001). This matter was the subject of an oral hearing conducted on January 21, The hearing was held open to afford the parties the opportunity to make additional submissions, and was declared closed of February 04, MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Convery Med. Group Raritan Pain Mgmt. & Rehab Center $ $ $ $ Convery Med. Group Raritan Pain Mgmt. & Rehab Ctr. Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. 6. INCOME CONTINUATION BENEFITS: Not in Issue 7. ESSENTIAL SERVICES BENEFITS: Not in Issue

7 CASE NO. 18 Z DEATH BENEFITS: Not in Issue 9. 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): $ (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $ (C) INTEREST is as follows: Waived. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 29, 2004 Date John J. Fannan, Esq.