Award of Dispute Resolution Professional. Hearing Information

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1 In the Matter of the Arbitration between Allied PT & Acupuncture a/s/o V.B. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: NJP66574 Claimant Counsel: Pacifico & Lawrence v. Claimant Attorney File No: DAG-1210 Respondent Counsel: Law Offices of David C. Harper Respondent Attorney File No: Accident Date: 11/27/2007 Mercury Indemnity Company of America RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Andrea L Lardiere Esq. I, The Dispute Resolution Professional assigned to the above matter, pursuant to the authority granted under the "Automobile Insurance Cost Reduction Act", N.J.S.A. 39:6A-5, et seq., the Administrative Code regulations, N.J.A.C. 11:3-5 et seq., and the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey of Forthright, having considered the evidence submitted by the parties, hereby render the following Award: Hereinafter, the injured person(s) shall be referred to as: V.B. An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: July 12, 2012 Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: None NJ Page 1 of 5

2 Findings of Fact and Conclusions of Law This arbitration arises as the result of an automobile accident that occurred on November 27, On that date, the assignor of the Claimant was an eligible recipient of PIP benefits from the Respondent when she suffered injuries as a result of the accident. The issue presented by the parties involves the medical necessity of Kinesio Taping from April 21, 2010 through June 7, 2010 and acupuncture treatment from April 21, 2010 through June 22, The following documentation was submitted by claimant for review and consideration: Demand for Arbitration with attachments, pre-hearing submission with attachments dated June 26, 2012 and Certification of Services. The following documentation was submitted by respondent for review and consideration: Pre-hearing submission with attachments dated June 2, I have also considered the oral arguments of counsel at the hearing. At the conclusion of the oral hearing, the parties declined to submit post-hearing arguments. The hearing was closed without objection on July 12, V.B. was involved in an automobile accident on November 27, He presented to Chiropractor Joseph D Agostini complaining of headaches, neck pain and stiffness, mid-back pain, lower back pain, bilateral arm pain and bilateral leg pain. He received a course of chiropractic treatment from Dr. D Agostini. MRI testing revealed disc bulging in the cervical and lumbar spine. He underwent EMG/NCV testing which revealed chronic left L5 lumbar radiculopathy. There appears to be a gap in treatment to July 21, 2009 when he came under the care of Dr. Ramnanan for pain management. He underwent facet joint injections on that date. There is another gap in treatment until another series of facet joint injections were performed on February 17, 2010 and March 12, In April 2010, he was referred to Claimant s facility for physical therapy, including strapping and acupuncture. With regard to Strapping, Respondent paid same but applied a pre-certification penalty to the charges. Claimant does not provide any of the pre-certification requests for this modality. Therefore, I will deny the claim for the balance. With regard to the Acupuncture, Dr. Pellmar reviewed the request on behalf of Respondent. He stated that at this late juncture over 2 years since the accident an IME was necessary before acupuncture could be approved. It does not appear an IME was ever scheduled. On May 27, 2010, Dr. Raskin reviewed another request for acupuncture and he opined that the patient had received maximum therapeutic improvements from acupuncture and it was palliative at that point, which was 30 months post accident. The claimant appealed this decision and Dr. Pellmar reviewed the appeal and noted no further information was provided to reverse the decision. Where there is a dispute as to medical necessity, the burden rests on the claimant to establish that the services for which he seeks PIP payments were reasonable, necessary and causally related to an automobile accident. See Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156 (Law Div. 1980). The claimant has the burden of proof to a preponderance of the evidence. See State v. Seven Thousand Dollars, 136 N.J. 233 (1994). NJ Page 2 of 5

3 Pursuant to N.J.A.C. 11:3-4.2, medically necessary or medical necessity means that the medical treatment or diagnostic test is consistent with the clinically supported symptoms, diagnosis or indications of the injured person, and: (1) The treatment is the most appropriate level of service that is in accordance with the standards of good practice and standard professional treatment protocols including the Care Paths as applicable; (2) The treatment of the injury is not primarily for the convenience of the injured person or provider; and (3) Does not include unnecessary testing and treatment. Pursuant to N.J.A.C. 11:3-4.2, clinically supported means that a health care provider prior to selecting or ordering the administration of a treatment or diagnostic test has: (1) Personally examined the patient to insure that the proper medical indications exist to justify ordering the treatment or test; (2) Physically examined the patient including making an assessment of any current and/or historical subjective complaints, observations, objective findings, neurologic indications, and physical tests; (3) Considered any and all previously performed tests that relate to the injury and the results and which are relevant to the proposed treatment or test; and (4) Recorded and documented these observations, positive and negative findings and conclusions on the patient s medical records. The necessity of medical treatment is a matter to be decided in the first instance by the claimant s treating physicians and an objectively reasonable belief in the utility of a treatment or diagnostic method based on the credible and reliable evidence of its medical value is enough to qualify the expense for PIP reimbursement. See Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491 (1991). Based on the evidence presented, I find that Claimant has established the medical necessity of the acupuncture through May 24, In his first review, Dr. Pellmar recommends that an IME be scheduled. This was never done. Dr. Raskin opined that acupuncture was palliative at this point. Therefore it is assumed that since an IME was never performed, and Dr. Raskin felt that MMI had been reached at that point, the acupuncture treatment rendered until that point should be awarded. Accordingly, I will award acupuncture from April 23, 2010 through May 24, Respondent paid for the acupuncture treatment on April 21, 2010 but applied a pre-certification penalty to the office visit also billed on that date. A pre-certification penalty does not apply to a first office visit. Accordingly, I will award $22.06 for April 21, I will award $ for dates of service April 23, 2010 through May 24, 2012, including the office visit also billed on May 24, The amount awarded is $1, subject to remaining co pay or deductible obligations of M.R. Interest is also awarded and shall be calculated by Respondent. Counsel for the claimant has made claim for attorney s fees and costs, and in connection therewith has submitted a Certification of Services wherein is sought counsel fees in the amount of $ together with costs of $ Counsel for the respondent has objected to an award of counsel fees in that amount, arguing that the hourly rate and the total number of hours billed are excessive. In N.J. Coalition of Health Care Professionals, Inc. v. N.J. Dep t of Banking & Ins., 323 N.J. Super. 207 (App. Div. 1999) the Court noted that an award of counsel fees to an insured who successfully obtains an Arbitration Award against an insurance carrier for payment of PIP Benefits has been the statutory and historical jurisprudence of our State. The Courts have construed that Rule 4:42-9(a)(6) which allows for an award of counsel fees in an action upon a liability or indemnity policy of insurance, in favor of a successful claimant to permit an award of attorney s fees and judicial actions brought under the PIP Statute. NJ Page 3 of 5

4 I find the claimant was successful and is entitled to award of counsel fees. In Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987) the Court indicated the factors to be considered in deciding whether to award attorney s fees include the insurer s good faith in refusing to pay the claim, the excessiveness of plaintiff s demands, the bona fides of the parties, the insurer s justification in litigating the issues, the insured s conduct as it contributes substantially to the need for litigation, the general conduct of the parties and the totality of the circumstances. As to Court pointed out in Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001), while the Enright factors are to be considered in making the threshold determination as to whether to award counsel fees, many of those factors are equally applicable in determining the amount of counsel fees to be awarded. The Court in Scullion clearly suggests that the proper determination of the amount of counsel fees to be awarded requires a line by line analysis of the various Certifications of Services to determine whether hours expended by counsel are excessive for what appear to be routine efforts. I have reviewed the line item entries reflected on the Certification of Services and note that this matter involved disputes regarding several different treatment modalities. I therefore find that an award of counsel fees in the amount of $1, is consonant with the amount at issue herein and is consistent with the requisites of RPC 1.5 as well as consistent with the degree of effort, expertise and experience required for a successful prosecution of this claim. I also award costs in the amount of $ Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Allied PT & Acupuncture $3, $1, Allied PT & Acupuncture Subject to co-pay and deductible 2. Income Continuation Benefits: Not in issue 3. Essential Services Benefits: Not in issue 4. Death or Funeral Expense Benefits: Not in issue 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h.: subject to Respondent s calculation Attorney's Fees and Costs I find that the Claimant did not prevail and I award no costs and fees. I find that the Claimant prevailed and I award the following costs and fees (payable to Claimant's attorney unless otherwise indicated) pursuant to N.J.S.A. 39:6A-5.2g: Costs: $ Attorney's Fees: $ 1, NJ Page 4 of 5

5 THIS AWARD is rendered in full satisfaction of all claims and issues presented in the arbitration proceeding. Entered in the State of New Jersey Date: 8/24/12 NJ Page 5 of 5

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