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.: 30V271826VO State Farm Insurance Company 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: VO. 1. ORAL HEARING held on March 12, 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). Dr. Harvey Benn $13, Dr. Ira Adler $2, withdrawn. 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: VO was involved in a motor vehicle accident on September 6, The dates of insurance coverage in effect at the time of the accident were not provided by counsel. Accordingly, based on the date of the accident AICRA will be considered as applicable. Subsequent to the motor vehicle accident, VO was initially was seen by Dr. Boa, his family doctor. He had two visits to Dr. Boa. Thereafter he came under the care of Dr. Harvey Benn, who treated him from January 17, 2001 to March 5, Dr. Benn indicated that VO s injuries included, cervical,

2 CASE NO. 18 Z thoracic and lumbosacral spine strain and sprain; contused left shoulder, left hip, left thigh and left knee; tempromandibular joint dysfunction; left trochanteric bursitis and radiculitis. Treatment by Dr. Benn consisted of moist heat, traction, electrical stimulation and oral medication. The Benn s treatment plan included orthotics, durable medical equipment and orthopedic consultation. Dr. Benn referred VO to Dr. Ronald Brody, a physiatrist who saw him on March 19, The referral was for a physical medicine and rehabilitation consultation. At that time VO he complained of intermittent headaches and discomfort in the neck region radiating across to the left shoulder. He also complained of low back pain radiating into the lower extremity and indicated he was experiencing episodes of uncontrolled shaking in the left hand. Weakness in the left lower extremity was also noted. At the time of the visit he was taking anti-inflammatory medicine and was receiving treatment three times per week. Dr. Brody recommended EMG and nerve conduction study of the upper extremities and lower extremities. He also recommended a myofascial release program; moist heat, high voltage electro-galvanic stimulation and deep muscle massage; chiropractic care and trigger point injections for the cervical region and left trapezii. Dr. Brody saw VO again on April 24, At that time VO no longer had headaches and had some improvement in his neck. He still had intermittent left shoulder pain. There was less evidence of symptomatology in the left hand. His lower back pain radiated into the back of the thigh and he had increased discomfort when rotating his body. He also had episodic numbness and tingling in the left foot. Dr. Brody s recommendation on that date was EMG and nerve conduction study of the lower extremities; a myofascial release program; chiropractic care; trigger point injections for the lumbosacral region. The nerve conduction study and EMG testing were reported as abnormal. Dr. Brody indicated that the electrodiagnostic findings showed early evidence of S1 nerve root involvement. On May 7, 2001 a physiatric IME was conducted by Dr. Nolan. Dr. Nolan s diagnosis was cervical strain and sprain with persistent neck pain; lumbosacral strain and sprain with left lower extremity radiation and TMJ joint dysfunction. It was Dr. Nolan s opinion that based on his examination and review of VO s history that he had reached maximum medical improvement from the current treatment regiment. On June 3, 2001, Dr. Nolan offered a peer review which indicated that the MRI to the cervical and lumbar spine were not necessary. Physiatric benefits were terminated effective June 28, Subsequent to Dr. Nolan s IME conducted on May 7, 2001, Dr. Nolan was provided with additional documentation which included X-ray reports from Open MRI of Cherry Hill, MRI reports dated February 16, 2001 of the cervical and lumbar spine. In a report dated June 3, 2001 Dr. Nolan was of the opinion that there was no documentation of the need for the MRI of the cervical or lumbar spine. Dr. Nolan pointed out that VO did not have any documentation of loss of motor strength, loss of sensation, alteration in DTR s or significant documented reduction in range of motion. It was also his opinion that there was no indication to utilize passive modalities for injuries which occurred greater than four months prior to the initiation of VO s treatment regimen. On July 31, 2001, a peer review was conducted by William P. Anthony to address the necessity of medical equipment provided by Fairway Medical Services. In his report Dr. Anthony found Dr. Brody s evaluation of March 19, 2001 to have been medically reasonable and necessary. Dr. Anthony also found that the EMG and nerve conduction study performed by Dr. Brody for the left lower extremity was medically necessary and reasonable. In his report, Dr. Anthony was of the opinion that the back brace, knee brace and whirlpool were not medically necessary. He did find that the thermosphere, obus foam cushion and egg crate mattress were medically necessary. On October 11, 2001, Dr. Anthony authored a peer report addressing Dr. Benn s treatment of March 5, 2001 through June 27, In his report Dr. Anthony indicates that in reviewing the physical therapists notes by April 10, 2001, it was reported the patient s lower back and left hip are ok today. Dr. Anthony goes on to state that, given the patient s strain and sprain injuries with myofascial pain and possible trochanteric bursitis, at that point he should have reached maximum medical improvement and should have been discharged to a home program. Commenting on the EMG Dr. Anthony indicates that the patient had abnormal EMG according to Dr. Brody, but he was still of the opinion that VO had reached

3 CASE NO. 18 Z maximum medical improvement since he was asymptomatic at that point and the diagnosis assigned to the patient are actually irrelevant as the symptoms are what makes the difference in terms of treating the patient. Dr. Anthony was of the opinion that no further treatment at Dr. Benn s office was necessary beyond April 10, Claimant addresses Dr. Anthony s peer review report dated October 11, 2001, wherein Dr. Anthony noted that the physical therapists notes indicate that on April 10, 2001, VO was Ok today. Claimant argues that there was sufficient documentation to indicate that VO felt pain, soreness, achy and stiff over 75 other days. Claimant also questions the need for the repeated peer review reports pointing out that the reason given by Respondent was that medical notes from Dr. Benn were not available and were later made available five months later. Claimant points out that the peer review imposed an earlier cut-off dates and that Dr. Anthony in fact indicated that Dr. Benn s notes were illegible and therefore not a factor in his decision. Dr. Benn appeared at the hearing and testified that VO had serious injuries as a result of the accident and suffered from significant radicular symptoms throughout the course of treatment. He testified as to the supporting reports of corroborating physicians, in particular Dr. Brody. Having heard the argument of counsel and having reviewed the submitted documentation, I find that Claimant has met its burden of proof and that the treatment rendered by Dr. Benn was medically necessary and reasonable. Miltner v. Safeco Insurance Company of America, 175 N. J. Super. 156 (Law Div. 1980). Mewes v. Union Building and Construction Company, 45 N.J. Super. 89 (App. Div. 1957). In reference to the billing by Dr. Benn. An issue was raised as to 25% penalty for failure to comply with a pre-certification plan. Claimant argues that the record is unclear as to what if any violation of pre-certification procedures were committed by Dr. Benn, pointing out that neither the EOB s or Respondent at the time of the hearing could articulate what had prompted the incorrect application of the 25% penalty. Claimant also points out that Dr. Benn testified at the hearing that he routinely provided treatment plans for pre-certification to Respondent and that Respondent never responded. Documentation was produced which is a alleged to have been forwarded to Respondent. A usual and customary issue was also raised as to various deductions by Respondent in Dr. Benn s billing. The provider s billing represents its usual and customary charges. The Respondent has the burden to show the charges are not the providers usual and customary charges and are not reasonable. No evidence to that effect was provided. Cobo v Market Transition Facility, 293 N.J. Super 374,387 (App. Div. 1996). In reference to the billing by Diagnostic Imaging EOB s indicate that the sum of $1, has in fact been paid. Accordingly, I find the sum of $ to be payable to Diagnostic Imaging. No argument was advanced with reference to the awarded balance. In reference to the Durable Medical Equipment furnished by Fairway Medical Services, I find that the Claimant has met its burden of proof and that the medical equipment as prescribed by Dr. Benn was medically necessary and reasonable. Documentation in the form of EOBs indicates that partial payment was in fact paid by Respondent leaving a balance of $ which is subject to fee schedule and a 50% co-payment penalty. No argument was advanced by Claimant in reference to the co-payment penalty. No interest calculation or factual basis to support an award of interest has been submitted on behalf of Fairway Medical Services or Diagnostic Imaging. Dr. Harvey Benn is awarded interest in the amount $ Based on my review of the Certification of Services rendered in accordance with Rule 29, I am awarding the sum of $1, as counsel fees to Richard P. Console, Jr., Esquire and the sum of $2, in counsel fees to Andrew D. Stern, Esquire. 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:

4 CASE NO. 18 Z Awarded Provider Amount Claimed Amount Awarded Payable to Dr. Harvey Benn $13, $12, Dr. Harvey Benn Fairway Medical Service $1, $ Fairway Medical Service Diagnostic Imaging $2, $ Diagnostic Imaging Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. Award of Dr. Benn is a fee scheduled amount and is subject to deductibles and copayments. Award of beneftis for other providers is subject to fee schedule, co-payment 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): Richard P. Console, Jr., Esquire $1, Andrew D. Stern, Esquire $2, (C) INTEREST is as follows: Awarded in the amount of $ payable to Dr. Harvey Benn. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. June 25, 2002 Date Richard A. De Michele, Esq.

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