CASE NO. 18 Z 600 07327 03 2 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 600 07327 03 v. INS. CO. CLAIMS NO.: 1874118795 Allstate Ins Co. DRP NAME: James H. Garrabrandt (Respondent) NATURE OF DISPUTE: Non-Payment of Bills, Medical Necessity 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: GV. 1. ORAL HEARING held on January 27, 2004. 2. ALL PARTIES APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration were NOT AMENDED 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). 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: This matter arose out of a motor vehicle accident that occurred on November 21, 2002 and is, therefore, subject to AICRA. In the Demand for Arbitration, Claimant sought reimbursement in the amount of $5,732.23 for various dates of service.
CASE NO. 18 Z 600 07327 03 3 Respondent produced documentation showing, and Claimant acknowledges receipt of payments for certain of those dates of service made after the filing of the Demand for Arbitration. Those payments account for $2,782.43 of the Amount Claimed. Claimant now seeks reimbursement in the amount of $2,949.80 and itemized as follows: DOS January 14, 2003 - lumbar MRI - $819.09 and MRI of the right knee - $599.05 DOS January 28, 2003 and February 5, 2003 - downcoding of CPT 99245 to CPT 99205 resulting in a shortfall in reimbursement of $40.67 for each office visit DOS March 5, 2003 - EMG/NCV testing of lower extremities - $1,351.32 DOS March 12, 2003 - office visit billed under CPT 99215 - $99.00 DOS January 14, 2003 The medical necessity of the lumbar MRI and MRI of the right knee perfomed on GV on January 14, 2003 is not at issue in this case. Respondent contends, however, the MRIs are subject to a 50% out of network penalty. It is undisputed that Claimant is not a member of Respondent's network of pre-approved vendors for diagnostic testing. Nor is there any proof of record that Respondent failed to comply with the requirements of its own Decision Point Review/Pre-Certification Plan as it relates to its insured's use of voluntary networks for diagnostic testing. Claimant was notified of the 50% co-payment if an out of network provider was utilized. The imposition of a 50% out-of-network co-payment on the eligible charges for those MRIs is proper in this case. Claimant is, then, entitled to reimbursement in the amount of $409.55 for the lumbar MRI and $299.53 for the MRI of the right knee. DOS January 28, 2003 and February 5, 2003 Claimant billed $195.00 under CPT 99245 for each of the office visits conducted on January 28, 2003 and February 5, 2003. Respondent downcoded CPT 99245 to CPT 99205 to reflect the level service rendered and reimbursed Claimant $154.33 for each of those office visits. Claimant seeks reimbursement of the difference of $40.67 per office visit. The documentation submitted by Claimant, when scrutinized against the descriptions for CPT codes 99245 and 99205 contained in the CPT Manual, however, only supports billing for those office visits under CPT 99205. Claimant is, therefore, not entitled to any further reimbursement for those office visits. DOS March 5, 2003 Claimant billed $1,351.32 for EMG/NCV testing performed on GV's lower extremities on March 5, 2003.
CASE NO. 18 Z 600 07327 03 4 Two physicians performed physician advisor reviews at the behest of Respondent and recommended denial of certification of the testing. In a report dated February 21, 2003, Dr. Jeffrey Lakin concluded that the patient has no evidence of any peripheral nerve entrapment, has a normal neurological examination, and in this clinical setting there is no need for EMG/NCV of bilateral lower extremities. This is well supported by the literature. Claimant appealed the denial of certification. In a report dated March 24, 2003, and in responding to the appeal, Dr. Jerome Pumo similarly determined that there is no documentation of radicular signs or symptoms to require an EMG/NCV of the lower extremities. In a report dated October 23, 2003, Dr. Lynne Carmickle found that the electrodiagnostic testing and the neurological consultation were not medically necessary. She indicates that GV was not noted to have any complaints consistent with neurological dysfunction, such as weakness, numbness, tingling or radiating pain from the neck or low back into the upper or lower extremities. Nor did GV have any motor or sensory deficits or reflex asymmetry that would be consistent with lumbosacral radiculopathy or peripheral nerve injury or entrapment in the extremities. 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 when used to evaluate neuropathies and/or signs of atrophy,... In a report dated December 31, 2002, Dr. Paul Misthos of Claimant notes that GV complains of persistent lower back pain that is aggravated by sitting and prolonged standing. The back pain radiates into the right buttock and is associated with numbness and weakness in both legs. Spasm and decreased range of motion is noted in the lumbosacral spine and lateral bending and rotation of the lumbar spine elicits severe shooting pain down the ipsilateral leg and also paresthesias involving the ipsilateral thigh and calf down to the heel of the feet. Dr. Misthos felt that neurological consultation is medically necessary to provide expert diagnosis and disease management to prevent further compromise of the peripheral nervous system that may be responsible for the pain syndrome the patient exhibits. As gleaned from a report dated January 14, 2003, and signed by Dr. Roger E. Mosesson, an MRI study of the lumbosacral spine conducted on January 14, 2003 revealed a
CASE NO. 18 Z 600 07327 03 5 herniation of the L5-S1 disc which touches the anterior aspect of the thecal sac and which may touch both L5 root sleeves just caudal to their separation from the sac. Clinical correlation is necessary. In a report dated January 29, 2003, and following his examination of GV on January 22, 2003, Dr. Misthos notes that GV is still reporting persistent low back pain, which is aggravated by prolonged bending, sitting and standing. The back pain continues to radiate into the buttocks and legs and continues to be associated with numbness and weakness in both legs. Examination of the lumbosacral spine reveals flattening of the normal curvature, palpable spasm and decreased range of motion and bending and rotation of the lumbar spine elicits severe shooting pain down the ipsilateral leg and also paresthesias involving the ipsilateral thigh and calf down to the heel of the feet. His suggestion is that GV continue with physical therapy and in view of the persistent back pain be evaluated by a neurologist. In a report dated February 3, 2003, and following his neurological examination of GV on January 28, 2003, Dr. Stanley L. Malkin of Claimant notes that since the accident, GV has experienced low back pain. The back pain is best supine and worst sitting or standing. It is exacerbated by bending or lifting. The back pain has persisted with only a modest response to physical therapy. Dr. Malkin notes the results of the lumbar MRI performed on January 14, 2003. Physical examination revealed back spasms. No sensory, or motor deficits are noted in the report; but, Dr. Malkin recommends electrodiagnostic studies of the lower extremities, including a needle EMG examination, to further define the patient's lumbar radiculopathy in anticipation of possible lumbar epidural steroid injections in view of the back pain that has persisted for more than 2 months following the accident and the disc herniation seen on the MRI of the lumbar spine. On the date of the EMG/NCV testing, GV presented with lower back pain radiating to both lower extremities. Greater weight has been given to the reports rendered, and opinions expressed by the treating physicians than to those of the various peer review physicians on the issue of the medical necessity of the EMG/NCV testing performed on GV's lower extremities on March 5, 2003. Those reports are replete with references to persistent back pain, radiating back pain and shooting back pain, as well as spasm, decreased range of motion and numbness and weakness in both legs. The EMG/NCV testing was used in the evaluation and diagnosis of radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling and to further define GV's lumbar radiculopathy in anticipation of possible lumbar epidural steroid injections in view of the back pain that had persisted for more than 2 months following the accident and the disc herniation seen on the MRI of the lumbar spine.
CASE NO. 18 Z 600 07327 03 6 The EMG/NCV testing performed on GV's lower extremities on March 5, 2003, revealed evidence of left L4-5 radiculopathy. Inasmuch as it met the guidelines of the above-cited Administrative Code provisions, the EMG/NCV testing was medically necessary and, therefore, Claimant is entitled to reimbursement for it. Claimant is entitled to reimbursement in the amount of $1,351.32. DOS March 12, 2003 Claimant billed $99.00 under CPT 99215 for an office visit conducted on March 12, 2003. There is no EOB of record for the non-payment of this date of service. Claimant is entitled to reimbursement in the amount of $99.00. Claimant's counsel seeks attorney's fees in this case. 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." With respect to attorney's fees in this matter, the Certification of Services submitted by Claimant's counsel has been reviewed. 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 $1,500.00 is consonant with the amount of the Award, coupled with the payments made to Claimant after the filing of the Demand for Arbitration, and in keeping with the guidelines of RPC 1.5. Claimant seeks costs in the amount of $337.23 (AAA filing fee - $325.00; photocopies - $7.35 and postage - $4.88). 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." Consistent with the provisions of N.J.A.C. 11:3-5.6(d)2, costs are apportioned against Respondent and awarded in the amount of $337.23. 5. MEDICAL EXPENSE BENEFITS:
CASE NO. 18 Z 600 07327 03 7 Awarded Provider Amount Claimed Amount Awarded Payable to Sall Myers Medical Associates $5,732.23 $2,159.40* Sall Myers Medical Associates 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 medical 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. (A) Other COSTS as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $337.73 (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1,500.00 (C) INTEREST is as follows: waived per the Claimant.. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 10, 2004 Date James H. Garrabrandt, Esq.