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

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.: Ohio Casualty Insurance Company DRP NAME: Joseph A. Di Donato (Respondent) NATURE OF DISPUTE: Reasonable and Necessary, Licensing 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 injured person. 1. ORAL HEARING held on May 9, ALL PARTIES APPEARED at the oral hearing(s). NO ONE 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). Claimant waived interest and amended the caption of the Demand to designate the proper name of the respondent. 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: The issues presented are (1) whether the MRI facility was licensed and (2) whether MRIs of the left knee and lumbosacral spine were medically necessary. The claims arose subsequent to the effective date of AICRA. The effective dates of the policy were 8/9/99 to 1/24/00. Claimant waived interest and amended the caption of the Demand to designate the proper name of the respondent.

2 CASE NO. 18 Z The following documentation was submitted by the claimant: Demand for Arbitration; medical bill in issue; prescription for MRIs; arbitration statement; narrative report by Valerie Rimerman, M.D. dated July 14, 2000; report of lumbosacral MRI dated 10/18/99; report of MRI of left knee dated 10/18/99; ambulatory care license issued to Diagnostic Medical Consultants, Inc. effective 8/27/99; letter from Michael Becker, President of Diagnostic Medical Consultants, Inc. dated 10/10/00; attorney letter dated 5/18/01; and Certification of Legal Services. Respondent submitted the following documentation: Copy of N.J.A.C 13:35-2.5; First Amended Complaint in the matter of The Prudential and Casualty Company of New Jersey v. Brunswick Imaging et al., Docket Number MRS-L ; transcript of examination under oath of the injured person; HCFA bill; Curriculum Vitae of Steven V. Brownstein, M.D.; IME report by Allen Glushakow, M.D. dated 12/19/00; and peer review report by Dr. Glushakow dated 10/6/00; and attorney letter dated 6/11/01. Claimant is the medical provider/assignee of the injured person, a twenty-nine year old female driver of an automobile involved in an accident on 10/5/99. Following the accident, she was taken to the emergency room of St. Elizabeth Hospital and thereafter received treatment from various medical providers. The diagnosed injuries included a focal disc herniation noted posterially at L15-S 1 with radiculopathy; interarticular joint effusion of the left knee; sprain and strain of the cervical spine with radiculopathy; and sprain and strain of the lumbosacral spine. By prescription of the treating physician, the claimant performed MRIs of the left knee and lumbosacral spine on 10/18/99. First, respondent argues that it has been unable to determine whether the MRI facility was properly licensed due to inconsistencies in the EUO testimony of the injured person as to the location of the facility. Secondly, it argues that the both MRIs were not medically necessary based upon the opinions of its IME physicians. The Curriculum Vitae of the claimant states that he is the medical director of Diagnostic Medical Consultants, Inc. An ambulatory care license for two mobile MRI units was issued to Diagnostic Medical Consultants, Inc. prior to the tests being performed on the injured person. According to the letter submitted by Michael Becker, President of Diagnostic Medical Consultants, Inc., the MRIs of the injured person were performed in one of the mobile units which was located at the offices of Dr. Lontai on Elmora Avenue in Elizabeth, NJ. The injured person testified during her EUO that she was treated by several doctors for her injuries, one of whom had offices on Morris Avenue in Elizabeth. The transcript indicates confusion on the part of the injured person. She referred to the MRIs as a Cat scan. She said it was done in Elizabeth. When asked where in Elizabeth she stated "on Morris. That's where they take x-rays but I don't know." She did not recall the name of the testing place and a recess in testimony was taken. When the testimony resumed, she said that the place was "Elmora." The injured person was never asked if the testing was done in a mobile unit or at a fixed location. Based on the foregoing, I find by a preponderance of the evidence that the testing occurred in a licensed mobile MRI unit parked on Elmora Avenue.

3 CASE NO. 18 Z Magnetic Resonance Imaging is of value in the diagnosis and treatment of injuries to numerous parts of the body when used in accordance with the guidelines contained in the American College of Radiology, Appropriateness Criteria. N.J.A.C. 11:3-4.5(b)5. Claimant's attorney has recited excerpts from the Appropriateness Criteria, which are uncontroverted by the respondent, and their application to the facts of this case. Portions of claimant's analysis are set forth below: The ACR Appropriateness Criteria, pertaining to Acute Trauma to the Knee, states as follows: "Decision rules for the evaluation of soft tissue injuries are being investigated and are not yet published. Most common soft tissue injuries (meniscal and ligamentous disruption) are best evaluated by MR." Absent published criteria, the Petitioner relies on traditional analyses of medical necessity. In the present matter, [injured person] presented herself to Valery Rimerman, M.D. with complaints of left knee pain. Physical examination revealed tenderness over the left prepatellar. Extension and flexion were restricted. Clinical impression included left knee contusion, and MR1 was ordered to rule out more significant injury. [Injured person] was eventually referred to an orthopaedic surgeon, who performed left knee lateral release on January 19, 2000, and diagnosed patellofemoral syndrome. Of note, Dr. Glushakow s IME report does indicate that [injured person] was suffering from chondromalacia of the left knee. Although Dr. Glushakow stated that this was unrelated to the subject accident, he fails to articulate any factual basis for the assertion. The ACR Appropriateness Criteria, pertaining to Acute Low Back Pain, states as follows: "The most common indication for the use of [MRI] procedures... is the clinical setting of LPB [Lower Back Pain] complicated by radiating pain (radiculopathy, sciatica) or cauda eguina syndrome (bilateral leg weakness, urinary retention, saddle anesthesia), usually due to herniated disc and/or canal stenosis." Variant 4 of the Appropriateness Criteria, entitled Acute Low Back Pain - Radiculopathy" indicates an MRI appropriateness rating of 8, with 9 being most appropriate. ACR defines "Radiculopathy" as dysfunction of a nerve root usually caused by compression off the root. In the present matter, [injured person]'s initial complaints to Dr. Rimerman included persistent lower back pain with stiffness and radiating pain into the left lower extremity. Physical evaluation revealed a decreased lordosis, restricted range of motion, muscle spasm and tenderness. EMG studies of the lower

4 CASE NO. 18 Z extremities were positive for left lumbosacral radiculopathy at the L5-S1 level. Therefore, MRI testing of the lumbar spine was clearly indicated by the ACR Appropriateness Criteria (recent trauma causing acute lower back pain with radicular symptoms), and properly ordered. Indeed, the MRI was positive for a herniated disc at the L5-S1. level. Having reviewed the medical documentation, I agree with the claimant's analysis and I conclude that the testing was medically necessary and supported by the clinical findings. The award issues in favor of the claimant subject to the medical fee schedule. Costs and attorneys fees are also awarded. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Steven Brownstein, M.D. $2, $2, Steven Brownstein, M.D. 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 medical fee schedule. 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): $1,500.00

5 CASE NO. 18 Z (C) INTEREST is as follows: waived per the Claimant.. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. July 3, 2001 Date Joseph A. Di Donato, Esq.