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.: 33W23806 Prudential Insurance Co. DRP NAME: Richard A. De Michele (Respondent) NATURE OF DISPUTE: Medical Expense Benefits 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: AB, GB, JB. 1. ORAL HEARING held on January 27, 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). AB $6, GB $5, JB $4, FINDINGS OF FACTS AND CONCLUSIONS OF LAW: AB, GB and JB were involved in a motor vehicle accident on October 3, Dates of insurance coverage in effect at the time were not provided by either counsel. Accordingly, based on the date of the accident, AICRA will be considered as applicable. There are two issues raised by Respondent in this matter; medical necessity and breach of contract.

2 CASE NO. 18 Z AB On October 5, 2002, AB was initially seen by David L. Stephens, D.C. at Spinal Adjustment. AB s initial complaints were low back and cervical pain. Upon examination, Dr. Stephens noted that AB demonstrated decreased intersegmental motion of the cervical and lumbar spine. Dr. Stephens diagnosis was cervical strain/sprain, cervicalgia, lumbalgia, lumbosacral strain and sprain, subluxation of multiple cervical vertebrae and subluxation of the lumbar spine and thoracic subluxation. MRI testing indicated that AB suffered disc bulges at C5-C6 and C6-C7. Dr. Stephens treatment plan consisted of chiropractic manipulation, electric muscle stimulation and massage. On a re-examination on December 9, 2002, Dr. Stephens stated that AB continued to complain of mild intermittent lumbar and right S-1 pain. On May 5, 2003, AB was reexamined by Dr. Stephens at which time he continued to complain of mild occasional lumbar pain. Dr. Stephens diagnosis was cervicalgia, cervical disc syndrome, lumbalgia, lumbosacral strain and sprain, cervical strain and sprain and subluxation of the lumbar spine along with disc bulges at C5-C6 and C6-C7. Dr. Stephens recommended additional chiropractic treatment. MRI of the cervical spine completed by Perth Amboy Diagnostic Imagery on October 8, 2002 revealed disc bulges at C5-C6 and C6-C7. MRI of the lumbar spine taken on October 8, 2002 indicated dorsal lumbar schmoral nodes, transitionalized lumbosacral vertebral, L5. On March 13, 2003, a chiropractic IME was conducted by Dr. Louis W. Barile, D.C. At the time of the examination, AB complained of occasional low back pain. AB indicated that neck pain had improved but lower back pain did not. Dr. Barile indicated that clinical examination revealed no objective findings relative to the spine. He also indicated that examination of the spine found minimal subjective complaints without objective findings. He was of the opinion that AB had reached maximum medical improvement relative to chiropractic care. Respondent terminated chiropractic benefits as of April 15, Having heard the argument of counsel and having reviewed the submitted documentation, I find claimant has not met his burden of proof and that the chiropractic treatment rendered post cut off was not medically necessary or reasonable. Miltner v. Safeco Insurance Company of America, 175 N.J. Super. 156 (Law. Div. 1980). GB On October 10, 2002, GB came under the care of David L. Stephens, D.C. at. At that time, GB complained of headaches, blurry vision, cervical pain in the right shoulder and arm, and mid back and lumbar pain. Dr. Stephens diagnosis was cervical sprain/strain, cervicalgia, lumbalgia, cervicocranial syndrome, lumbosacral strain/sprain, thoracic pain, subluxation of multiple cervical vertebrae and subluxation of the lumbar spine, thoracic subluxation and bulging annuli at L2-L3 confirmed by MRI testing. Dr. Stephens treatment plan consisted of chiropractic manipulation, electric muscle stimulation and massage. On May 5, 2003, GB was reexamined by Dr. Stephens. Upon palpation of the cervical and lumbar paraspinal musculature, he noted a severe amount of muscle spasm, hypertonicity and tenderness.

3 CASE NO. 18 Z His diagnosis on the date was cervical strain/sprain, cervicalgia, lumbalgia, lumbar disc syndrome, lumbosacral strain and sprain, subluxation of multiple cervical vertebrae, subluxation of lumbar spine and thoracic subluxation. MRI results indicated bulging annuli at L2-L3. On March 13, 2003, a chiropractic IME was conducted by Dr. Barile. At the time of the examination, GB reported pains in lower back and neck. At the time, GB indicated improvement under the chiropractic care administered. In his report, Dr. Barile indicated that based on his examination of the spine, he found subjective complaints without objective findings other than the MRI finding of a herniated disc with evidence of stenosis. He also noted that clinical examination did not reveal a radiculopathy and that the patient had complete ranges of motions without restriction. It was his opinion that GB had reached maximum medical improvement relative to chiropractic care. It was reported that chiropractic benefits were terminated for GB on or about March 13, Having heard the argument of counsel and having reviewed the submitted documentation, I find claimant has not met his burden of proof and that the chiropractic treatment rendered post cut off was not medically necessary or reasonable. Miltner v. Safeco Insurance Company of America, 175 N.J. Super. 156 (Law. Div. 1980). JB JB was initially seen by David L. Stephens, D.C. at. Initial examination was October 7, Dr. Stephens diagnosis was cervical strain and sprain, cervicalgia, cervical brachial radiculitis, subluxation of multiple cervical vertebrae, and subluxation of lumbar spine. Treatment plan consisted of chiropractic manipulation, electric muscle stimulation and massage followed by later re-evaluation. On June 5, 2003, JB was re-examined by Dr. Stephens. At that time, JB continued to complain of increased cervical pain and left trapezius pain. At that time, Dr. Stephens rendered a diagnosis of cervical strain/sprain, cervicalgia and cervical subluxation and thoracic subluxation. Dr. Stephens recommended continued chiropractic manipulation, electric muscle stimulation and massage. JB was re-examined by Dr. Stephens on July 7, Dr. Stephens prognosis remained guarded. Having heard the arguments of counsel and having received the submitted documentation I find claimant has met his burden of proof and the care and treatment rendered was medically necessary and reasonable. Miltner v. Safeco Insurance Company of America, 175 N.J. Super 156 (Law Div. 1980). Respondent Submitted no medical documentation in defense of the claim. Respondent also raises the defense that claimants materially breached the terms of the insurance contract by continuously and willfully refusing to submit to EUOs. AB was scheduled for an examination under oath on December 18, 2003 and January 19, The scheduled examination on December 18, 2003 was adjourned by claimant s counsel. The scheduled examination on January 19, 2004 was no explanation as to the reason thereof.

4 CASE NO. 18 Z In reference to GB, the examination under oath was scheduled for December 18, 2003 which was adjourned by claimant. A re-examination was scheduled for January 19, 2004 which not completed. An examination under oath was scheduled for JB on December 18, 2003, which was adjourned by claimant s counsel. The examination under oath was re-scheduled for January 19, 2004 which was not completed with any explanation as to the reason thereof. Respondent argues that claimant s failure to attend the examinations under oath is in violation of claimant s duty of cooperation as established in N.J.A.F.I.U.A v. Jallah, 256 NJ 134 (1992) and is prejudiced respondent s ability to defend this matter. Respondent points out that the Jallah court also declared no fraud must be shown before the right to an EUO was created. In response, claimant argues that no notice was sent to counsel for claimant and there was no proof that a notice was sent to claimants. Counsel for claimant advanced no argument in reference to issue of examination under oath other than to indicate he was not counsel for claimant at the time of the first notice. Noting that the EUO s were just recently scheduled and no action was taken before the scheduled arbitration. I do not find that claimant s willfully and continuously refused to submit an EUO. 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 AB JB GB $6, $3, $4, $4, $5, $2,955.00

5 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. Award is subject to fee schedule, co-payments and deductibles. 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: Awarded in the amount of AB $85.05 JB $89.08 GB $81.62 This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 4, 2004 Date Richard A. De Michele, Esq.