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.: F GE Property & Casualty Insurance DRP NAME: James H. Garrabrandt (Respondent) NATURE OF DISPUTE: Medical Necessity of MRI & EMG/NCV 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: BL. 1. ORAL HEARING held on January 8, ALL PARTIES APPEARED at the oral hearing(s). Claimant 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). The Amount Claimed was amended to $2, FINDINGS OF FACTS AND CONCLUSIONS OF LAW: This matter arose out of a motor vehicle accident that occurred on October 30, This is an AICRA case. Claimant seeks reimbursement in the amount of $2, for several dates of service. November 8, 2002 Claimant billed $ for a cervical MRI performed on BL on November 8, 2002.

2 CASE NO. 18 Z Respondent denied payment on the basis of a physician advisor determination that the cervical MRI was not medically necessary. The medical necessity of the subject MRI is, then, at issue in this case. N.J.A.C. 11:3-4.5(b)(5) governs compensability of MRI tests administered as the result of injuries arising from an automobile accident, references guidelines of the American College of Radiology, Appropriateness Criteria and indicates that such testing is used to evaluate injuries in numerous areas of the body, particularly to assess nerve root compression and/or motor loss. The Care Paths specifically indicate that an MRI is appropriate during the clinical and diagnostic evaluation of injuries to the cervical spine, especially if there exists abnormal neurologic findings. In Care Path 1 for soft tissue injuries to the cervical spine, an MRI may be administered if there are abnormal neurologic findings (ie: radiculopathy) and typically following a course of four weeks conservative treatment with no improvement in symptoms. In Care Paths 2 for soft tissue injuries to the cervical spine with symptoms of radiculopathy, a minimum of two weeks conservative treatment without improvement in symptoms is recommended before administering an MRI. In NJ Coalition of Health Care v. DOBI, 323 N.J. Super. 207 (App. Div. 1999) at 247, the Court found that "[F]or cervical, thoracic and lumbar-sacral spine injuries, the first step in treating a patient involves, and logically so, a clinical evaluation by the appropriate health-care provider. Such an evaluation may include x-rays, CT scan, and an MRI, if necessary." Generally, though, an MRI is not normally performed within five days of the insured event. However, clinically supported indication of neurological gross motor deficits, incontinence or acute nerve root compression with neurologic symptoms may justify MRI testing during the acute phase immediately post injury. N.J.A.C. 11:3-4.5(5). As gleaned from excerpts from The American College of Radiology, Appropriateness Criteria, A cervical MRI is appropriate when there is persistent cervical pain or other symptoms of a cervical injury, and certainly is warranted where there are radicular symptoms/findings. In the American College of Radiology, ACR Appropriateness Criteria, Cervical Spine Trauma Summary of Literature Review:... There is good evidence that there is no need to examine

3 CASE NO. 18 Z patients radiologically if they present no symptoms. There is significant likelihood of fracture in patients with neurologic compromise, motor dysfunction, and altered sensorium. Patients with persistent cervical pain and suspected ligamentous injury and with normal radiological examination should have flexion and extension views, particularly if there is prevertebral soft tissue swelling. Filming in the erect position is preferred because it better demonstrates instability. For cervical injuries, therefore, if a patient presents with persistent neck pain or neurologic symptoms following trauma, MRI testing is appropriate. If any ligamentous injury is suspected, or the patient is sensorium impaired (such as numbness, tingling, loss of sensation, etc.), again, such testing was given a 9 out of 9 on the appropriateness scale. Cervical MRI testing is appropriate when there has been persistent pain with, or without radicular complaints/findings and is certainly warranted when neurologic findings/complaints exist. In a Physician Advisor Determination Summary Report dated January 6, 2003, Dr. Robert Null notes that BL was involved in a motor vehicle accident on October 30, 2002 and complained of headaches and neck pain. There was no neurologic exam noted with possible radiculopathy. A cervical spine MRI was done. There was inadequate clinical data submitted to justify the medical necessity of the MRI. Claimant relies upon a report rendered by the treating physician, Dr. Leonard Joachim, in support of its contention that the cervical MRI was medically necessary. In a report dated November 11, 2002, Dr. Joachim indicates that BL was examined on November 4, 2002 following her involvement in a motor vehicle accident on October 30, Current complaints include those of daily headaches, dizziness and lightheadedness, neck pain radiating into both shoulders with arm dysesthesia interfering with her activities of daily living and sleep during the night. Examination of the cervical spine reveals palpable spasms and hardness greater than 3 inches midline of the cervical spine and decreased range of motion on flexion and extension with paracervical, trapezoid and interscapular muscle spasm. Flexion and extension maneuvers also elicits pain radiating into both shoulders. Palpation of trapezii demonstrates bilateral trigger point that elicit complaints of radiating pain into the ipsilateral extremity. As explained by Dr. Joachim, the patient complains of cervical spine pain with radiation more than 3" past the midline. This pattern is consistent with a radicular origin for pain syndrome. In light of the history of trauma, there is a strong probability that there is compromise of the neural elements of the spine. Neurological consultation is medically necessary for the expert diagnosis and disease management to prevent further

4 CASE NO. 18 Z compromise of the peripheral nervous system that may be responsible for the pain syndrome the patient exhibits. Dr. Joachim notes that BL has not responded to the therapy and anti-inflammatory medications for neck pain. The persistence of the cervical pain and cervical limitiation of range of motion are suggestive of a possible cervical disc herniation. He recommends an MRI to rule out this diagnosis and guide his future treatment. He indicates that he consulted with a neurologist with regard to this patient, and prior to seeing her for consultation, he has requested that an MRI of the cervical spine be obtained. It should, however, be noted that at the time of the recommendation for MRI testing, BL was only five days post accident. An MRI is not normally performed within five days of the insured event. However, clinically supported indication of neurological gross motor deficits, incontinence or acute nerve root compression with neurologic symptoms may justify MRI testing during the acute phase immediately post injury. N.J.A.C. 11:3-4.5(5). BL was not exhibiting any symptomatology of neurological gross motor deficits, incontinence or acute nerve root compression during her examination by Dr. Joachim on November 4, That, alone, constitutes a sufficient basis for determining that the cervical MRI performed on BL on November 8, 2002 was not medically necessary. In addition, BL was not complaining of persistent, or severe pain during her examination on November 4, There were complaints of radiating pain, but only into the shoulders, not down into the upper extremities. There was no indication that any ligamentous injury was suspected, or that BL was exhibiting any symptoms of being sensorium impaired (such as numbness, tingling, loss of sensation). At the time of the recommendation for MRIs, as well, there had not been sufficient treatment to determine whether the patient's symptoms would resolve under a regimen of conservative care. The MRIs were administered prior to any re-examination of BL and prior to her undergoing at least two weeks of conservative treatment. There is no evidence of persistent pain with, or without radicular complaints/findings following a course of conservative treatment and, therefore, the cervical MRI testing was inappropriate. The subject MRI testing did not meet the guidelines set forth in the cited passage from the Coalition II case, supra., Administrative Code provisions, Care Paths and The American College of Radiology, Appropriateness Criteria and was, therefore, not medically necessary. The MRI testing was not medically necessary and, therefore, is not reimbursable. February 11, 2003

5 CASE NO. 18 Z Claimant billed $1, for EMG/NCV testing performed on BL's lower extremities on February 11, Respondent denied payment for this particular date of service on the basis of a physician advisor determination that the EMG/NCV testing was not medically necessary. Claimant contends, however, that the testing should be paid in full because Respondent did not respond to its request for pre-certification within 72 hours of receipt of it. Respondent disagrees; and, in the alternative, argues that a request for pre-certification of the EMG/NCV testing was not properly submitted by, or on behalf of the injured person and, therefore, it is entitled to impose an additional co-payment of 50% on the eligible charges for the EMG/NCV testing if it is found to be medically necessary. Was a decision point review notice/request for pre-certification of the EMG/NCV testing properly submitted to Respondent prior to the date of testing? Claimant produced a fax cover sheet dated January 30, 2003, with reference to "8 sheets" being submitted. The "8 sheets" are not identified; nor has a January 21, 2003 report referred to on the fax cover sheet been produced as evidence in this case. It cannot be determined if those sheets constituted an appropriate decision point review/request for pre-certification of EMG/NCV testing. There are no telephone, or fax numbers listed on the fax cover sheet and, therefore, no indication as to the destination of any faxed materials. Without a fax transmittal confirmation sheet, though, there is no proof that any materials were faxed to Respondent in conjunction with a decision point review notice of proposed EMG/NCV testing. The testing was, then, performed without sufficient proof of an attempt at precertification and, therefore, a 50% pre-certification penalty shall be imposed upon the eligible charges for the EMG/NCV testing should it be found to have been medically necessary. The imposition of the 50% pre-certification penalty would reduce the eligible charges for the EMG/NCV testing to $ The medical necessity of the EMG/NCV testing is at issue in this case. N.J.A.C. 11:3-4.5(b)(1) reads, in pertinent part, Needle electromyography (needle 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. Additionally, N.J.A.C. 11:3-4.5(b)(2) provides, in pertinent part, Nerve conduction velocity (NCV) and H-reflex study are reimbursable

6 CASE NO. 18 Z when used to evaluate neuropathies and/or signs of atrophy,... The guidelines of Care Path 6 contemplate diagnostic evaluation, which includes EMG, when there has been no improvement in symptomatology following 2 to 4 weeks of conservative treatment. In a Physician Advisor Determination Summary Report dated February 19, 2003, Dr. Jeffrey Lakin indicates that the patient was involved in a motor vehicle accident on October 30, The patient still complains of lower back pain despite physical therapy, and also neck pain. The patient has attended physical therapy for 36 sessions. What is requested is bilateral lower extremity EMG/NCV. Dr. Lakin concludes that there is a lack of documentation to support the use of EMG/NCV of the lower extremities in this clinical setting. Dr. Lakin reached that same conclusion during his testimony at the hearing. Respondent also provided a report dated January 23, 2004 and rendered by Dr. Robert H. Null regarding the EMG/NCV testing by way of post-hearing submission in this case. Claimant objects to the submission of the report. Respondent was given the opportunity to respond to all of Claimant's submissions by way of post-hearing submission, it was not contemplated by the DRP that the opportunity would include, nor was any specific provision made for the submission of another medical expert report on the issue of the medical necessity of EMG/NCV testing. Dr. Null's report has not been accepted as, or admitted into evidence in this case. In a Supplemental Report dated February 10, 2003, the treating physician, Dr. Adrian Didita, indicates that on February 4, 2003, BL reported that low back pain is slowly improving. The patient was recently evaluated by a neurologist and she is scheduled for nerve conduction and EMG studies of the lower extremities. Examination of the lumbosacral spine reveals palpable spasm and hardness greater than 3" midline of the lumbosacral spine with decreased range of motion on flexion and extension wit persistent paralumbar muscle spasm. Straight leg raise bilaterally, greater than 45 degrees, elicits low back pain radiating into the gluteus. In a report dated December 5, 2003, Dr. Stanley L. Malkin, the treating neurologist, indicates that he saw the patient on January 21, 2003, at which time he took a detailed neurological history and performed a comprehensive neurological examination. Dr. Malkin indicates that he ordered the EMG/NCV testing of BL's lower extremities because the patient had experienced back pain for nearly three months post accident, was unresponsive to physical therapy and had undergone a normal lumbar MRI. The neurological examination demonstrated straight leg impairment bilaterally and absent Achilles' reflexes bilaterally (supplied by the S1 nerve root). In view of the history of

7 CASE NO. 18 Z three months of back pain non-responsive to physical therapy and physical findings consistent with a bilateral S1 radiculopathy, Dr. Malkin felt it necessary to obtain objective data to allow him to decide to recommend the invasive procedure of lumbar epidural steroid injections. He could not refer this patient for that procedure on the basis of the clinical status alone in the presence of a normal MRI of the lumbar spine. The EMG/NCV testing was being used in the evaluation and diagnosis of radicular syndrome where there had been a non-responsiveness to nearly three months of physical therapy and to obtain objective data to decide on a course of invasive treatment for BL. Inasmuch as it meets the guidelines of the above-cited Administrative Code provisions and the applicable Care Path, the EMG/NCV testing was medically necessary and, therefore, Claimant is entitled to reimbursement for it. Following the imposition of a 50% pre-certification penalty on the eligible charges, Claimant is entitled to reimbursement in the amount of $ for the EMG/NCV testing performed on BL's lower extremities on February 11, February 19, 2003 and February 21, 2003 Claimant billed $ for physical therapy performed on BL on Febuary 19, 2003 and subject to the $90.00 daily cap and $99.00 under CPT for an office visit conducted on February 21, Respondent paid Claimant for date of service February 19, 2003; but, contends that it did not receive a bill for date of service February 21, Although it is included on its billing Statement for services rendered to BL, there is no HICF for, or any documentation regarding the February 21, 2003 office visit of record in this case and, therefore, Claimant is not entitled to reimbursement for it. August 15, 2003 Claimant seeks reimbursement in the amount of $49.99 for an office visit conducted on August 15, There is no entry on Claimant's billing Statement for services rendered to BL, or HICF for; nor is there any documentation of record regarding the August 15, 2003 office visit and, therefore, Claimant is not entitled to reimbursement for it. Medical expense benefits are awarded as outlined in detail hereinabove and set forth in Paragraph 5, below. Claimant's counsel made an application for attorney's fees in this matter.

8 CASE NO. 18 Z N.J.A.C. 11:3-5.6(d)3 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." Claimant has been successful herein and, therefore, Claimant's counsel is entitled to an attorney's fee. With respect to attorney's fees, the Certification of Services has been reviewed and Respondent's argument that the fees sought by Claimant's counsel are excessive has been taken into consideration, as well. As set forth in RPC 1.5, consideration has been given, but not limited to, the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the fees customarily charged in the locality for similar legal services, the amount involved and the results obtained, as well as the experience, reputation and ability of the lawyer performing the service. An attorney's fee of $1, is consonant with the amount of the Award and in keeping with the guidelines of RPC 1.5. Claimant seeks reimbursement of costs. N.J.A.C. 11:3-5.6(d)2 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." In keeping with N.J.A.C. 11:3-5.6(d)2, Claimant's arbitration filing fee of $ shall be apportioned against Respondent. Costs are awarded in the amount of $ and are to be paid to counsel of record for Claimant. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Sall Myers Medical Associates $2, $675.66* Sall Myers Medical Associates

9 CASE NO. 18 Z Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. *Net Award 6. INCOME CONTINUATION BENEFITS: Not In Issue 7. ESSENTIAL SERVICES BENEFITS: Not In Issue 8. 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): $1, (C) INTEREST is as follows: waived per the Claimant.. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. April 8, 2004 Date James H. Garrabrandt, Esq.