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) State Farm (Respondent) AAA CASE NO.: 18 Z v. INS. CO. CLAIMS NO.: 30V DRP NAME: James H. Garrabrandt NATURE OF DISPUTE: Accident Related, Causation, Reasonable and Necessary 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: CO. 1. ORAL HEARING held on August 8, 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). The Amount of Claim was amended from $ to $ FINDINGS OF FACTS AND CONCLUSIONS OF LAW: This matter arises out of an accident that occurred on December 28, As a result of her involvement in the accident, CO sustained injuries to her neck, lower back and knee, suffered headaches and anxiety and claims to have developed bilateral TMJ, as well.

2 CASE NO. 18 Z On June 26, 2000, CO began a course of treatment with Claimant, Dr. Omar F. Suarez, for her TMJ symptomatology, which continued through January 24, Claimant seeks payment of an outstanding balance of $ in billing for the treatment rendered to CO. The majority of the bills submitted by Claimant were paid; but now, Respondent contends that (i) CO did not sustain a TMJ injury in the accident, (ii) the treatment was, therefore, not reasonable and necessary, (iii) previous bills were paid in error and (iv) there is no basis for making payments on the outstanding bills. In support of its position, Respondent relies heavily on a report rendered by Dr. Philip R. Geron, D.M.D., F.A.A.O.M.S. of Westfield Surgery Associates; while Claimant counters with his own reports and a report rendered by Dr. Anthony J. Ferrara, D.M.D., an oral and maxillo facial surgeon. By way of background, and as gleaned from the various documents of record, information relating to the alleged TMJ injury is as follows: CO was taken by ambulance from the scene of the accident to Columbus Hospital. As noted on the EMS Medical Incident Report Form, there was no obvious head injury. There were no contusions, no abrasions, no missing or broken teeth. The ears, nose and mouth were normal. There were no complaints of head, face, jaw or dental injuries. CO does complain of having a headache. There is, though, a reference to CO's vehicle having sustained heavy rear-end damage in the accident. In the records from Columbus Hospital, there are no complaints of any pain, or discomfort involving the ears, nose, mouth, jaw or throat; but, CO does report having a headache. During her deposition, CO does not recall striking any part of her body inside the vehicle during the accident with the exception of her knees. She does testify that the following day, she began feeling discomfort to her jaw. Either the following day, or the second day, she is not sure. Following the accident, CO began a course of treatment with Dr. Ingrid Catania, a chiropractor, with whom she had been treating for injuries she sustained in a prior accident that had occurred on May 17, A review of Dr. Catania's records regarding her treatment of CO for the injuries sustained in the December 28, 1999 accident does not reveal any reference to complaints of jaw pain, or injury to CO's jaw. At deposition, though, CO testified that when she first went to Dr. Catania, she had some pain in her jaw. On January 6, 2000, CO treated with Dr. Louis Hunter, a dentist, for the replacement of a crown that had fallen out of her mouth one week after the accident. There is no mention of jaw pain, or other TMJ symptomatology in Dr. Hunter's records.

3 CASE NO. 18 Z CO began treating with Rehabilitation Center of Bloomfield on January 10, In his review of records submitted by Bloomfield Rehabilitation, Dr. Geron notes that CO now indicates that she complained about her mouth, neck and back after the accident and she described the breaking of an implant. In a report dated August 31, 2001, Dr. Enrique Hernandez, indicates that CO first presented for a neurologic evaluation on January 4, 2000, returned for trigger point injections in her lower back on March 21, 2000 and April 15, 2000, re-evaluation in the beginning of September, 2000 and trigger point injections in her lower back on October 2, There is no mention of jaw pain, or injury to CO's jaw. On June 26, 2000, CO consulted with Claimant on a referral from a Dr. Kramer, a psychologist, who was apparently associated with Dr. Enrique Hernandez, a neurologist at the time of the referral. No records from Dr. Kramer were provided of record in this case. When she consulted with Dr. Suarez, CO reported difficulty chewing, pain on yawning and a sensation that her jaws tire easily. An MRI of the right temporomandibular joint obtained on June 25, 2001, showed that the joint had a normal appearance with no evidence of fracture or dislocation of the mandibular condyle. There was no evidence of erosion of the mandibular head or narrowing of the temporomandibular joint space. There was no evidence of any joint effusion. There was, however, an anterior displacement of the meniscus. The meniscus did not reduce with mouth opening. An MRI of the left temporomandibular joint obtained on June 25, 2001, showed that the joint had a normal appearance with no evidence of fracture or dislocation of the mandibular condyle. There was no evidence of erosion of the mandibular head or narrowing of the temporomandibular joint space. There was no evidence of any joint effusion. There was, however, an anterior displacement of the meniscus. The meniscus reduced with mouth opening. CO may have been involved in as many as five accidents prior to her involvement in the December 28, 1999 accident; but, she denies having sustained any injuries to her mouth, or jaws in any of those prior accidents. No records were produced to refute CO's denial of any prior injuries to her mouth, or jaws; or that she ever exhibited any TMJ symptomatology prior to the December 28, 1999 accident. Now to the issue of whether or not the TMJ condition of which CO complains is causally related to the accident of December 28, In his report dated March 14, 2002, Dr. Philip R. Geron states that prior to his examining her, CO claimed to have the following maxillofacial complaints as a result of her involvement in the December 28, 1999 accident. Headaches started next day. Jaw pain on both sides started a week later in the mornings when I awoke. My jaw locked open a week later while yawning, self-reduced. Jaw clicking was noticed after my jaw locked open, both sides. My cap fell off a couple of days after accident.

4 CASE NO. 18 Z Dr. Geron advises that CO admitted to clenching her teeth during sleep and occasionally during the day. She claimed she cannot control this activity as she is unaware of it. She becomes aware of it when it starts to hurt, and then she will try to stop. She did claim that her jaw symptoms are aggravated or triggered by stress and inclement weather. On oral and maxillofacial examination, Dr. Geron notes that CO displays normal facial symmetry; a number of teeth are missing and some of been replaced with implants; there is notable attrition on the unrestored teeth related to CO's teeth clenching and grinding activities; there is dental migration; there is posterior bite collapse due to missing, migrated and unrestored or shifted teeth; CO's wear facets on the upper and lower front teeth line up in a lock-and-key pattern when she notably protrudes her jaw forward, confirming the cause of wear and tear; CO was able to open her mouth widely without effort or any deviations or reflections; jaw reflex was normal; resistive clenching, opening and protrusive forces did not produce a painful response; there were no clinically audible jaw sounds; there was crepitus upon right side early opening and late closing; there was no clinical jaw locking; there is severe masseter hypertrophy consistent with notable parafunctional habits of long standing; CO reported no pain in the jaw joints or ligaments upon direct provocation and insertion of a lower orthotic device, which opened the bite and compensated for same, completely eliminated jaw noises detected on the right side. Dr. Geron points up the fact that CO did not strike her mouth, face, teeth, or jaw in the accident and then opines that sustaining a true jaw joint injury without a direct mandibular impact has a negligible probability. He then alludes to recent research that has proven that there is no causal relationship between (whiplash) mild to moderate cervical sprains and TMJ injury. The relationship of cervical sprain and acute jaw muscle spasms is speculative. Dr. Geron does not, however, specifically identify the source of the research, or where it can be accessed. Dr. Geron suggests that if CO had sustained a jaw joint injury, dislocation, or associated similar condition, she would have had acute, severe, localized jaw joint pain with loss of function, including inability to open the mouth or close the teeth normally and inability to chew. Symptoms would have been similar to that of a fractured jaw. These symptoms would have started immediately post-trauma and would be maximized 24 hours later. The probability of one not knowing about such a condition immediately thereafter would also be negligible. Dr. Geron opines that the timeliness of CO's jaw therapy as referred by a psychologist, Dr. Kramer, is unreasonable and not related to the accident. According to Dr. Geron, there are many causes for CO's facial complaints such as those reported by her which have nothing to do with an accident in which there was no trauma to the head, face, or jaw. Dr. Geron then states that his review of x-rays showed that the clenching and grinding activities described by CO constitute a long-standing habit which clearly predates the accident. Dr. Geron explains that chronic bruxism is a common cause of masticatory

5 CASE NO. 18 Z muscle fatigue, spasm and pain. Parafunctional activities including clenching and grinding can cause joint inflammation and over time can cause subsequent internal joint changes, including stretched ligaments, disc alteration, thinning, perforation and associated sounds. Bruxism can also cause referred muscle contraction headaches, especially in the temporal area. The main cause of bruxism is emotional stress or tension, not trauma. Dr. Geron also notes the CO has a notable malocclusion, partly congenital and partly related to missing and migrated teeth. The detrimental effects of parafunctional activities are amplied by the presence of occlusal disharmony. A malocclusion can perpetuate parafunctional habits. Dr. Geron continues, since the occlusion directly affects condylar position and function, a relative degree of condylar compensatory function is a common finding in patients with a malocclusion. Compensation can involve the ligaments and discs producing jaw sounds. Imbalances in the occlusion also exacerbate masticatory muscle imbalances which predispose them to symptoms. Dr. Geron notes that CO also has some slight condylar asymmetry which is pre-existing and would also account for the disc findings on the MRI's. He then states that MRI's do not describe what caused a finding, just it's presence. Dr. Geron states that jaw deviation or sounds, such as clicking, are a common finding (50%) among the healthy non-patient population and, as such, are a variant of normal. Jaw sounds and pain or locking are insignificant, according to Dr. Geron, and are not indicated for treatment and while TMJ clicking is common, the progression to a potentially more serious disc status is relatively uncommon. Dr. Geron further notes that CO has a tongue thrust and associated altered swallow mechanism associated with the malocclusion. Imbalances in the swallow and tongue mechanism also will be associated with imbalances in masticatory muscles and can perpetuate symptoms. Dr. Geron also notes that CO had a periodontally related infection on the upper right side with notable bone loss and a periapical infection on the upper left side. According to Dr. Geron, inflamed or infected teeth are the primary dental cause of direct and referred pains in the jaws. If the infection is active, it can also cause facial pains, headaches, swelling and affect jaw function. With respect to CO's claims of jaw locking episodes and self-treatment, Dr. Geron explains that acute onset jaw locking is extremely painful and cannot be self-treated and requires professional treatment by a dentist, physician, or similar professional. And, if anything, it indicates that CO opened wider than average which is not something caused by trauma. Dr. Geron suggests that CO's complaints of monthly severe headaches are consistent with migraine headaches and often migraine headaches are associated with secondary maxillofacial symptoms. Dr. Geron also notes that CO has a forward-head posture with

6 CASE NO. 18 Z rounded shoulders. These conditions predispose her to paraspinal symptoms with referred headaches and/or facial pain. Dr. Geron's oral/maxillofacial diagnosis is that CO did not strike her head, face, or jaw; she did not meet forensic criteria of injury to the head, face, or jaws based upon all information available; the headache CO had initially of an acute nature resolved long ago (the headaches reported at this time are subjective and have other cause, if present) and CO did not sustain any open lockjaw or disc displacement as a result of this event. According to Dr. Geron, CO did not require any dental or jaw therapy as a result of the accident. No further jaw treatment indicated. No occlusal stabilization or rehabilitation with orthodontics or prosthodontics is indicated with regard to the accident; nor is the need for TMJ surgery indicated with regard to same. Dr. Geron concludes his report with an oral/maxillofacial prognosis that CO sustained no temporary or permanent dental, maxillofacial, or associated headache injury, impairment, disability, or functional loss with regard to the December 28, 1999 accident and her overall prognosis in this area is very good. By way of report dated August 3, 2002, Dr. Omar F. Suarez, D.M.D., the Claimant, herein, rebuts the IME report of Dr. Philip R. Geron. Dr. Suarez states that CO has been under his care for a traumatically induced temporomandibular joint disorder related to a motor vehicle accident which occurred on December 28, 1999 and that her initial temporomandibular findings were documented in his initial narrative report. In his initial narrative report dated August 25, 2000, Dr. Suarez indicates that CO presented to his office on June 26, 2000 for the evaluation of pain in her jaw areas accompanied by the sensation that her jaws tire easily and at times are very tight. She also reports ringing in her ears. CO told Dr. Suarez that on December 28, 1999, she had been involved in a motor vehicle collision during which she sustained rapid body movements and hit her head against the headrest. Upon discharge from a hospital, she sought a consultation with Dr. Enrique Hernandez, a neurologist, and also was under the care of Dr. John Kramer, a psychologist. Dr. Suarez then states that Dr.. Kramer subsequently referred CO to him for evaluation of her facial complaints. No mention is made of CO treating with a chiropractor, Dr. Ingrid Catania, following the accident. In his initial narrative report, Dr. Suarez notes that signs and symptoms in addition to CO's chief complaints, include bilateral clicking sounds in her temporomandibular joint, difficulty chewing, pain on yawning, and a sensation that her jaws tire easily, ringing and buzzing sounds in both ears and neck, shoulder and back pain, as well.

7 CASE NO. 18 Z Dr. Suarez notes that during his examination of the temporomandibular joints and associated structures the bilateral temporalis and bilateral masseter muscles were tender to palpation with more tenderness on the right than the left. The temporomandibular bilaterally were tender to palpation. Both joints were also positive to auscultation. CO's maximum opening on vertical was 40 mm with a deflection to the right. Superior oblique lateral transcranial films show that the condylar morphology was smooth and symmetrical, but there is hypotranslation of the right condyle and hyperextension of the left condyle. This would, according to Dr. Suarez, coincide and correspond to the clinical findings of a deflection to the right. Dr. Suarez' dental diagnostic impression was traumatic arthropathy bilateral TMJ; synovitis and capsulitis of the bilateral temporomandibular joint; myositis of the muscles found tender to palpation and disc displacement with recapture of the bilateral TMJ, more severe on the right. Based on the clinical signs and symptoms, the history which he obtained from CO, as well as radiographic evidence, Dr. Suarez was of the opinion that it is well within reasonable medical certainty that CO's present temporomandibular status is related to the motor vehicle accident of December 28, Returning to his rebuttal report, Dr. Suarez takes exception to Dr. Geron's comment that "[i]n fact recent research has proven that there is no causal relationship between (whiplash), mild to moderate cervical sprain and TMJ injury. The relationship of cervical sprain and acute jaw muscle spasms is speculative." According to Dr. Suarez, there are several things wrong with this statement. The subject research shows that there is a correlation statistically between people with TMJ injuries and cervical sprains, but the degree of cervical sprain would not dictate the degree of TMJ injury. No specific link can be attributed to mild to moderate cervical sprain and TMJ injury. There was, however, no explanation of what is defined as mild to moderate. On the other hand, explains Dr. Suarez, there is an abundance of literature that treats this matter more objectively and more fairly. In essence the profession has been struggling for years to try to identify exactly when, and under what parameters, does a TMJ injury occur in an acceleration/deceleration type of injury. Despite the fact that the patient does not suffer any direct contact in this mechanism of injury there are nonetheless a significant number of people who develop symptoms that they did not have before, such as clicking of the joints, pain and tenderness in the TM joints and tenderness in the muscles. This is a ligamentous injury. It is an over stretching of the temporomandibular joints. It is part of deflection. In whiplash, the jaw is the tip of the whip and the neck is the whip. It is a very fast and abrupt whipping action that can cause damage and stretching of ligaments that cannot regain their integrity even with an adequate amount of treatment and passing of time. The temporomandibular joint is a synovial joint and is governed by ligaments and tendons that restrict its movement. When these ligaments are affected the joint is affected. It is the compromise of these ligaments that is mandatory in order for there to be a disc displacement of the temporomandibular joint. The disc displacement is characterized clinically by the presence of joint sounds or clicking.

8 CASE NO. 18 Z Dr. Suarez takes exception to Dr. Geron's statement that the period between the accident and the manifestation of symptoms should be no longer than 24 hours. According to Dr. Suarez, this is not the case. He explains that as with most ligamentous type injuries, it can take months for the signs and symptoms of a TMJ injury to manifest and when they do, the patient may complain of a subtle change in awareness, which progressively becomes worse to the point where the patient makes it a priority to seek treatment and remedy for the condition. Dr. Suarez states that this, in fact, was the case of CO. Dr. Suarez then directs his attention to Dr. Geron's observation that CO did not mention having any TMJ symptoms to the various doctors with whom she treated prior to the dental consult. Dr. Suarez states that the fact of the matter is that CO had commented to the awareness of jaw pain and clicking to Dr. Hernandez and then to Dr. Kramer who eventually referred her to him for evaluation. According to Dr. Suarez, Dr. Geron seems to imply that if a denial of a causal relationship would not withstand scrutiny then there are many other things that the TMJ condition could be blamed on; namely, hyperfunction, bruxism, malocclusion, parafunctional habits, imbalances in the bite and condylar asymmetry. Dr. Suarez finds that these statements are anecdotal. Dr. Geron runs the gamut of all possibilities of things that could cause some kind of awareness in the orofacial region where, according to Dr. Suarez, in fact, we are overlooking the crucial part of the history that there was a traumatic event which precipitated the TMJ symptoms. Both joints were involved; both joints have clicking and tenderness. Dr. Suarez states that he has obtained positive MRI's of the right and left temporomandibular joints indicating that both have a disc displacement. Dr. Suarez then states that more recently he received a letter from Dr. Ferrera indicating that he has evaluated CO and her temporomandibular joint symptoms are increasing to the point where she is a surgical candidate. In summary, Dr. Suarez disagrees with the statements made by Dr. Geron and finds those statements to be misleading. It is Dr. Suarez' opinion that CO was injured, treated properly; but, had an insufficient response to conservative treatment and will require surgical intervention in order to provide CO with more relief than she has been able to obtain through consevative care. On August 2, 2001, and following a referral by Dr. Suarez, CO was examined by Dr. Anthony J. Ferrara, D.M.D., P.A., an oral and maxillo facial surgeon. In a report dated August 2, 2001, Dr. Ferrara notes that CO's chief complaints since the MVA (although he does not give any timeframe for the actual inception of those complaints) have been chronic bitemporal headaches; jaw pain localized to the jaw joints bilaterally; clicking and popping upon jaw movement; restricted jaw opening; restricted diet; episodes of jaw locking in the open position; residual neck pain and chronic significant lower back pain.

9 CASE NO. 18 Z On examination, Dr. Ferrara finds no evidence of any fractured or mobile teeth. There is slight attrition in the mandibular central and lateral incisors on the occlusal edges. No other clinical evidence of clenching or bruxism. There is no deviation of the mandibular midline in centric. Gingiva, buccal, mucosa and tongue are grossly within normal limits. Condylar palpations produced pain; auscultations of the TMJ's produced positive opening clicks of the right and left TMJ's; masticatory muscle palpations produced pain; mandibular excursions (protrusive, left lateral and right lateral) produced pain, as did resistive forces on opening, closing and protrusive movements of the jaws. Dr. Ferrara acknowledges the positive MRI findings of left and right TMJ with anterior displacement of the meniscus. Dr. Ferrara's impressions are residual bilateral traumatic temporomandibular joints with ligament sprain; chronic synovitis, meniscitis, retrodiscitis bilateral temporomandibular joints with acute exacerbations, right side slightly more significant; chronic clicking and popping upon jaw movement bilateral temporomandibular joints; internal derangement bilateral temporomandibular joints with anteriorly displaced discs, right side without reduction and left side with reduction in open mouth; episodes of TMJ open lock secondary to stretched TMJ ligaments, reduced by patient; restricted mandibular function with limited opening secondary to TMJ open lock and bilateral TMJ pain; restricted diet secondary to bilateral TMJ pain; residual cervical sprain and chronic lumbosacral pain. Dr. Ferrara concludes his report with the following recommendations: will consult with Dr. Suarez referable to course of conservative TMJ treatment; bilateral temporomandibular joint diagnostic arthroscopy with possible surgical arthroscopy or arthroplasty with possible surgical arthroscopy or arthroplasty pending operative findings and continued conservative therapy with orthotic use. Findings: The reports rendered by the treating dentist, Dr. Omar F. Suarez, and the report rendered by the consulting dental surgeon, Dr. Anthony J. Ferrara, have been given greater weight by the DRP than the report rendered by the IME dental surgeon, Dr. Philip R. Geron. There is sufficient evidence of record in this case to establish that (i) CO suffered TMJ injuries causally related to the December 28, 2000 accident and (ii) the treatment for those injuries was reasonable and necessary. Having established the causal relationship between the accident and the TMJ injuries, as well as the reasonableness and necessity of the treatment for those injuries, Claimant is entitled to receive payment of the remaining balance on its bill for services rendered. The outstanding amount of $955.00, then, is to be paid by Respondent.

10 CASE NO. 18 Z With respect to attorney's fees in this matter, the Certification of Services submitted by Claimant's counsel has been carefully reviewed. Respondent's argument that the attorney's fees being 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 a locality of 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 $ is consonant with the amount of the Award and in keeping with the guidelines of RPC MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Dr. Suarez $ $ Dr. Suarez 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 prevailing dental fee schedule and any applicable deductible and copayment. 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.

11 CASE NO. 18 Z (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 per the Claimant. $. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. September 17, 2002 Date James H. Garrabrandt, Esq.