Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between Neurology & Pain Treatment Center a/s/o J.A. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: NJP86737 Claimant Counsel: Law Office of Raffi T. Khorozian, P.C. v. Claimant Attorney File No: R1163 Respondent Counsel: Law Offices of David C. Harper Respondent Attorney File No: Accident Date: 05/04/2010 Mercury Indemnity Company of America RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Jennifer M. Campbell 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: J.A. An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: March 26, 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: The claim was amended to $5, at the time of the hearing. NJ Page 1 of 14

2 Findings of Fact and Conclusions of Law This matter arises from an automobile accident that occurred on April 5, 2010, involving J.A. On that date, J.A. was insured under an insurance policy issued by Respondent. Claimant, Neurology & Pain Treatment Center, proceeds by way of an assignment from J.A. The present action was filed by claimant, Neurology & Pain Treatment Center, for reimbursement of PIP medical benefits in the amount of $12, for date of service 4/8/10 to 7/7/10. The claim was amended to $5, at the time of the hearing. Issues: The issues presented by the parties at the hearing are as follows: 1. Whether Respondent properly down-coded the office visits on 4/8/10, 4/19/10, 7/20/10 and 5/27/ Whether the EMG/NCV testing of the bilateral upper and lower extremities performed on 4/27/10 was reasonable, medically necessary and causally related to the motor vehicle accident? 3. Whether the VNG testing performed on 4/28/10 was reasonable, medically necessary and causally related to the motor vehicle accident and if so, is Claimant entitled to the amount billed as the usual, customary and reasonable fees for services rendered; 4. Whether Claimant is owed reimbursement for CPT code for dates of service 6/9/10 and 6/23/10. The following documentation was submitted by Claimant for review and consideration: -Demand for Arbitration with attachments; -Pre-hearing submission with attachments dated 3/21/12; -Certification of Services; The following documentation was submitted by Respondent for review and consideration: -Pre-hearing submission with attachments dated 3/6/12; I have also considered the oral arguments of counsel. At the conclusion of the oral hearing, the parties declined the opportunity to provide post hearing submissions with respect to the issues raised at the hearing. The hearing was closed without objection on March 26, ISSUE #1- Whether Respondent properly down-coded the office visits on 4/8/10, 4/19/10, 7/20/10 and 5/27/10. Date of Service 4/8/10-initial examination- down-code from to 99204: Claimant asserts that Respondent improperly down-coded the initial office on 4/8/10 from CPT code to CPT Claimant billed the initial office visit under CPT 99245, which NJ Fee schedule allows $ Respondent down-coded to and issued payment in the amount of $ leaving a difference of $ NJ Page 2 of 14

3 Claimant argues that CPT includes- A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Claimant has submitted the Neurological Consultation record of Dr. Maria Alvarez-Prieto, M.D. dated 4/8/10. Claimant argues the treating physician s report includes the three components requested to support the CPT code of In support of the down-code, Respondent argues- The CPT Manual defines CPT as an office consultation for a new or established patient which requires these three components: 1. A comprehensive history; 2. A comprehensive examination; and 3. Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problems and the patient's and/or family's needs. Usually, the presenting problems are of moderate severity. Physicians typically spend 80 minutes face-to-face with the patient and/or family. The CPT Manual defines CPT as an office consultation for a new or established patient which requires these three components: 1. A comprehensive history; 2. A comprehensive examination; and 3. Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problems and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. In determining the level of complexity of medical decision making, the CPT Evaluation and Management Guidelines take three factors into consideration: the number of diagnosis or management options; the amount and/or complexity of data to be reviewed; and, the risk of complications and/or morbidity or mortality. Two of these three components must meet or exceed the stated requirements to qualify for a particular level of E/M service. Medical decision making of high complexity requires two of three of the following: 1. An extensive number of diagnoses or management options; 2. An extensive amount and/or complexity of data to be reviewed; and 3. A high risk of complications and/or morbidity or mortality. Medical decision making of moderate complexity requires two of three of the following: 1. A multiple number of diagnoses or management options; 2. A moderate amount and/or complexity of data to be reviewed; and 3. A moderate risk of complications and/or morbidity or mortality. NJ Page 3 of 14

4 Based on the weight of the credible evidence and the arguments of counsel, I find that Respondent s recoding of the initial office visit was proper. I am persuaded by the Respondent s arguments that the required complexity for medical decision making was not met in this case. I find that Dr. Alvarez- Prieto s diagnosis of status post head injury, status post cervical contusion and sprain, status post thoracic contusion and sprain and status post lumbar contusion and sprain and rule out HNP as well as her recommendation of continued chiropractic care and home exercise does not meet the requirements of medical decision making of a high complexity as is required in order to bill CPT code Therefore, since only two of the three requirements for the examination have been satisfied Claimant has not sustained their burden of proving that CPT code was the proper CPT code to be billed. I find that reimbursement for CPT code was proper. The claim for date of service 4/8/10 is denied. Dates of Service 4/19/10 and 7/20/10- down-code from to 99213: Claimant asserts that Respondent improperly down-coded the re-evaluations on 4/19/10 and 7/20/10 and also improperly applied a 50% pre-cert penalty for date of service 7/20/10. Claimant billed the reevaluations under CPT 99214, which NJ Fee schedule allows $ Respondent down-coded to CPT code and issued payment in the amount of $59.87 for dates of service 4/19/10 leaving a balance of the difference of $ Respondent paid $29.93 for date of service 7/20/10 taking a 50% pre-cert penalty. Claimant alleges a balance due of $ Claimant has submitted the Neurological follow-up evaluation record of Dr. Maria Alvarez-Prieto, M.D. dated 4/19/10 and 7/20/10. Claimant argues the treating physician s report includes the three components requested to support the CPT code of In regard to the down coding applied to the re-examinations the claimant also requests the fee schedule amount and provides supporting documentation. In support of the down-code, Respondent argues- The CPT Manual defines CPT as an office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: 1. A detailed history; 2. A detailed examination; and 3. Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problems and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. The CPT Manual defines CPT as an office or other outpatient visit for the evaluation and management of new patient, which requires these 3 key components: I. An expanded problem focused history; 2. An expanded problem focused examination; and 3. Medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problems and the patient's and/or family's needs. Usually, the presenting problems are of moderate NJ Page 4 of 14

5 severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. In determining the level of complexity of medical decision making, the CPT Evaluation and Management Guidelines take three factors into consideration: the number of diagnosis or management options; the amount and/or complexity of data to be reviewed; and, the risk of complications and/or morbidity or mortality. Two of these three components must meet or exceed the stated requirements to qualify for a particular level of E/M service. Medical decision making of moderate complexity requires two of three of the following: I. A multiple number of diagnoses or management options; 2. A moderate amount and/or complexity of data to be reviewed; and 3. A moderate risk of complications and/or morbidity or mortality. Medical decision making of tow complexity requires two of three of the following: 1. A limited number of diagnoses or management options; 2. A limited amount and/or complexity of data to be reviewed; and 3. A low risk of complications and/or morbidity or mortality. In addition, Respondent argues that they properly applied a 50% pre-certification penalty to date of service 7/20/10. The pre-certification penalty clearly applies to services performed outside of the requested time-frame even if such services are deemed to be medically necessary for later dates of service. One of the goals behind N.J.A.C. 11:3-4.4(d) is to ensure respondent an opportunity to consider the medical necessity of the proposed treatment. Respondent was denied this opportunity when Claimant rendered treatment outside of the dates previously requested. Claimant failed to submit an APTP for an office examination for this date of service. As clearly stated in N.J.A.C. 11:3-4.4(d), the pre-certification penalty applies to this date of service because Respondent was denied the timely opportunity to review medical necessity. Respondent properly assessed a pre-certification penalty when reimbursing Claimant for this date of service. Based on the weight of the credible evidence and the arguments of counsel, I find that Respondent s recoding of the re-evaluations on 4/19/10 and 7/20/10 was improper. I find that Claimant s Neurological Follow-up Evaluations for dates of service 4/19/10 and 7/20/10 support the billing of CPT code I find that the records satisfy the requirements of a detailed history, detailed examination and medical decision making of a moderate complexity. I award $33.70 for date of service 4/19/10. For date of service 7/20/10 I find that the pre-cert penalty was proper, as I have not been provided with documents evidencing that claimant sought pre-cert for that date of service. Therefore, for date of service an additional $16.85 is owed ($93.57 x.5=$46.78-$29.93=$ Date of service 5/27/10- Down-code from to Claimant asserts that Respondent improperly down-coded the office visit on 5/27/10 from CPT code to CPT Claimant billed the office visit under CPT 99205, which NJ Fee schedule allows $ Respondent down-coded to and issued payment in the amount of $ leaving a difference of $ Claimant has submitted the evaluation record of Dr. Allan Weissman, M.D. dated 5/27/10. Claimant argues the physician s record supports the billing of CPT code of In regard to the down coding NJ Page 5 of 14

6 applied to the re-examinations the claimant also requests the fee schedule amount and provides supporting documentation. In support of the down-code, Respondent argues- The CPT Manual defines CPT as an office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: 1. A comprehensive history; 2. A comprehensive examination; 3. and medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problems and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. The CPT Manual defines CPT as an office or other outpatient visit for the evaluation and management of new patient, which requires these 3 key components: I. A detailed history; 2. A detailed examination; and 3. Medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problems and the patient's and/or family's needs. Usually, the presenting problems are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. In determining the level of complexity of medical decision making, the CPT Evaluation and Management Guidelines take three factors into consideration: the number of diagnosis or management options; the amount and/or complexity of data to be reviewed; and, the risk of complications and/or morbidity or mortality. Two of these three components must meet or exceed the stated requirements to qualify for a particular level of E/M service. Medical decision making of high complexity requires two of three of the following: 1. An extensive number of diagnoses or management options; 2. An extensive amount and/or complexity of data to be reviewed; and 3. A high risk of complications and/or morbidity or mortality. Medical decision making of low complexity requires two of three of the following: 1. A limited number of diagnoses or management options; 2. A limited amount and/or complexity of data to be reviewed; and 3. A low risk of complications and/or morbidity or mortality. Based on the weight of the credible evidence and the arguments of counsel, I find that Respondent s recoding of the office visit on 5/27/10 was proper. I am persuaded by the Respondent s arguments that the NJ Page 6 of 14

7 required complexity for medical decision making was not met in this case. I find that Dr. Weissman s office note does not support the billing of CPT code I find that reimbursement for CPT code was proper. The claim for date of service 5/27/10 is denied. ISSUE #2- Whether the EMG/NCV testing of the bilateral upper and lower extremities performed on 4/27/10 was reasonable, medically necessary and causally related to the motor vehicle accident? Claimant s argument- In regard to the medical necessity the EMG testing of the bilateral upper and lower extremities and studies of the bilateral upper and lower extremities. The claimant also relies upon examinations and office records. The patient presented to claimant with initial complaint of neck pain with pain radiating to the bilateral shoulders and lower back pain with pain radiating to the bilateral lower extremities with numbness, tingling and weakness in the left leg and left foot. Objective findings revealed tenderness and spasm of the cervical spine with range of motion decreased with pain by 30%. Trigger points were noted in the trapezii bilaterally. Lumbar tenderness and spasm with range of motion decreased by 20%. Trigger points were noted in the L5-S1 para lumbar muscles bilaterally. There was positive straight leg raising test. MRI studies revealed disc bulging of the C4/5 and C617 discs and disc bulging of the L4/5 and L5/S1. Dr. Alvarez-Prieto requested precertification for EMG/NCV testing of the bilateral upper and lower extremities. The testing was denied based on a Medical Director Review by Dr. McAlarney. The testing was performed on April 28, Claimant has not provided a copy of the EMG/NCV test results. However, Dr. Alvarez-Prieto s 7/22/10 report states that the EMG/NCV studies revealed evidence of a left L5 lumbar radiculopathy. Claimant also relies upon N.J.S.A. 11:3-4.5., (1) EMG studies when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling. EMG is a related test, which is often performed simultaneously with NCV to determine distal latency (muscular contraction) and to identify muscular disorder as a contributing cause of weakness. By placing a recording electrode into a skeletal muscle one can monitor the electrical activity of a skeletal muscle in a way very similar to electrocardiography. EMG/NCV gives unique information of functioning nerves and it's pathological state which an MRI alone does not provide. A combination of the MRI and EMG/NCV is vital to determine the course of the patient's care. NCV tests are comparative studies in which you specifically check the motor unit involved and the sensory portion of the injured nerve making this a valid and valuable test to assist in the diagnosing of a particular patient. NCV can be useful in differentiating types of neuropathy. It is also used to monitor the never injury and response to treatment. It is always best to compare the conduction velocity of the suspected side with the contra lateral nerve conduction velocity. Respondent s argument- NJ Page 7 of 14

8 In support of the denial Respondent relies on the PAR report of Dr. McAlarney. On April 22, 2010, Dr. McAlarney conducted a PAR. Dr. McAlarney determined that the EMG/NCV and nystagmus tests were not medically necessary. He stated: Re: EMG/NCS the claimant has not yet been treated with a trial of therapy for four weeks duration. There is no progressive neurological deficit. Planning EMG/NCS testing at this time will not impact on the claimant's management. On April 27, 2010, Dr. McAlarney conducted a neurology internal appeal. He again denied medical necessity for both tests. The patient's symptoms did not warrant the tests and, therefore, the tests were requested prematurely. Respondent properly notified Claimant of the medical necessity denials via decision point reviews. Where there is a dispute concerning medical necessity, the burden rests with the claimant to establish by a preponderance of the evidence 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). 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). While it is true the treating physician s opinion is not automatically accorded conclusive weight, it is accorded an appropriate measure of deference. Black & Decker Disability Plan v. Nord, 123 S.Ct (2003). Medical expenses have been considered necessary even if the services only provide temporary relief from symptoms and will neither cure nor repair a medical condition or problem. Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984). Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695, (App. Div. 1990). See also Perun v. Utica Mut. Ins. Co., 280 N.J. Super. 280 (Law Div. 1994). NJ Page 8 of 14

9 Certain diagnostic tests have been determined to have value in the evaluation of injuries and the diagnosis and development of a treatment plan for persons injured in a covered accident, when medically necessary and consistent with clinically supported findings. N.J.A.C. 11:3-4.5(b). Pursuant to N.J.A.C. 11:3-4.5(b)(1), needle electromyography testing (needle EMG) is reimbursable when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling. A needle EMG is not indicated in the evaluation of TMJ/D and is contraindicated in the presence of infection on the skin or cellulitis. This test should not normally be performed within 14 days of the traumatic event and should not be repeated where initial results are negative. Only one follow up exam is appropriate. Care Paths 2 and 6, Appendix to N.J.A.C. 11:3-4, provide that EMG s may be performed after 2 to 4 weeks of conservative therapy if there is a progressive neurological deficit and no improvement in symptoms. If the diagnosis of radiculopathy is obvious and specific on clinical examination, EMG testing is not recommended. Pursuant to N.J.A.C. 11:3-4.5(b)(2), nerve conduction velocity (NCV) and H-reflex Study are reimbursable when used to evaluate neuropathies and/or signs of atrophy, but not within 21 days following the traumatic injury. Based on the evidence presented and the arguments of counsel and applying the above standards to the facts of this case, I find that Claimant has not sustained its burden of proof with regard to the EMG/NCV testing. Claimant has failed to establish the medical necessity of the EMG/NCV testing performed on 4/28/10. The testing is performed 22 days after the subject accident. I agree with Dr. McAlarney that no progressive neurological deficit has been shown to warrant the testing as of 4/28/10. Claimant has failed to establishe the medical necessity of the testing and the claim for the EMG/NCV testing on 4/27/10 denied. ISSUE #3- Whether the VNG testing performed on 4/28/10 was reasonable, medically necessary and causally related to the motor vehicle accident and if so, is Claimant entitled to the amount billed as the usual, customary and reasonable fees for services rendered; Claimant s argument- In regard to the VNG testing the claimant relies upon J.A. s positive subjective and objective findings. The testing was ordered due to the patient's persistent symptoms. In regard to the medical necessity of the VNG testing the claimant relies upon the initial examination and re-examinations wherein the patient reported that upon impact of the motor vehicle accident the patient reported that he sustained a hyperextension/flexion injury to his head neck and spine. He reported that he felt dizziness for 20 for about 20 minutes post the motor vehicle accident and immediately developed persistent headaches. He was taken by ambulance to the hospital. He also stated that he has severe headaches since the onset of the motor vehicle accident rating a 10 of 10. He stated the headaches were associated with blurry vision and was located in the bilateral temporal region and is throbbing in quality described as his "feels the room spine." He stated that episodes occur at least twice weekly, last from minutes to seconds and is associated with loss of balance. In fact the patient was on state disability due to the severe headaches. NJ Page 9 of 14

10 In regard to the UCR rate for claimant outstanding fees, annexed hereto claimant offers explanation of benefits supporting it's UCR rate. Our Courts have instructed that in New Jersey, "usual and customary" rates of compensation for services and procedures not subject to the New Jersey fee schedule are established by the provider of the medical treatment in question. In Cobo v. Market Transition Facility, 293 N.J. Super. 374 (App. Div. 1996), the Appellate Division determined that "reasonable and customary" rates of compensation are established by the provider of the services in question, and are a product of the reasonable charges routinely invoiced, and paid to, the service provider. The provider, in submitting the billings, makes the initial determination as to what his or her usual, customary and reasonable fee is. It is incumbent on the insurer, based on its experience with the particular provider or other providers in the region, to determine whether, in fact the usual, customary and reasonable has been billed. The effectiveness of the of the medical fee schedules in reducing the cost of auto insurance in New Jersey is dependent upon adherence by insurers to this review process." The scheme envisions that the health care provider will set its own customary fee, not the insurer or the insurer's auditor. But, at the same time, the insurer has a mandate to review the provider's bills to ensure that it has billed its customary and reasonable rate. Id. at 386. Respondent s argument- In support of the denial Respondent relies on the PAR report of Dr. McAlarney. On April 22, 2010, Dr. McAlarney conducted a PAR. Dr. McAlarney determined that the EMG/NCV and nystagmus tests were not medically necessary. He stated: Re: VNG. This is planned prematurely. In the management of the acute onset of dizziness, of paramount concern is to rule out any life threatening conditions. In the case of possible head trauma, an imaging study of the brain would rule out a brain hemorrhage. After ruling out life threatening conditions, the patient with the acute onset of dizziness would be treated with the judicious use of medications and could also be treated with vestibular/physical therapy. The patient would also be encouraged to resume activity of daily living as much as possible in order to promote the early use of the central vestibular compensation system. Performing VNG testing would not directly drive the management of the patient with the acute onset of dizziness. Sometimes VNG testing may be of value in the management of chronic dizziness i.e. those whose symptoms persist beyond twelve weeks, especially in the setting of an abnormal eye movement exam, a scenario that does not apply here. On April 27, 2010, Dr. McAlarney conducted a neurology internal appeal. He again denied medical necessity for both tests. The patient's symptoms did not warrant the tests and, therefore, the tests were requested prematurely. Respondent properly notified Claimant of the medical necessity denials via decision point reviews. Where there is a dispute concerning medical necessity, the burden rests with the claimant to establish by a preponderance of the evidence 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). NJ Page 10 of 14

11 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). While it is true the treating physician s opinion is not automatically accorded conclusive weight, it is accorded an appropriate measure of deference. Black & Decker Disability Plan v. Nord, 123 S.Ct (2003). Medical expenses have been considered necessary even if the services only provide temporary relief from symptoms and will neither cure nor repair a medical condition or problem. Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984). Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695, (App. Div. 1990). See also Perun v. Utica Mut. Ins. Co., 280 N.J. Super. 280 (Law Div. 1994). Based on the evidence presented and the arguments of counsel, I find that Claimant has failed to sustain its burden of proof as to the necessity of the vestibular testing performed on 4/28/10. Claimant supplies the records for J.A. The office note dated 4/8/10 indicates he sustained a hyper flexion/hyperextension injury to his head, neck and spine. He was examined on 4/19/10 complaining of headaches, dizziness, vertigo, neck pain and stiffness, mid-back pain and stiffness, low back pain and stiffness. These are circled on the form. Under plan VNG is checked as well as EMG/NCV upper and lower extremity. I have not been provided with the VNG report on the date of the testing. Therefore, I am unable to determine her complaints at that time. The neurological follow-up evaluation note dated 5/10/10 under test results states, VNG 4/28/10 normal. Without the VNG report on the date of test it is impossible to determine if J.A. s complaints at that time were such that it would warrant the testing. The mechanism of injury was that of a hyperextension/hyperflexion. There was no concussion or loss of consciousness indicated in the records. Although there was subjective complaints of dizziness and headaches there were not sufficient objective findings to support the medical necessity of the VNG testing. The claim is denied. ISSUE #4- NJ Page 11 of 14

12 Whether Claimant is owed reimbursement for CPT code for dates of service 6/9/10 and 6/23/10. Claimant argues they are owed reimbursement for CPT code (fluro guidance) billed on 6/9/10 and 6/23/10. Claimant billed CPT along with CPT (epidural injection). Claimant also argues that Respondent paid for CPT code and CPT on 7/7/10. Claimant argues that Respondent paid CPT on the third injection but not on the first two. Respondent relies on N.J.A.C. 11:3-29.4(g) prohibits "artificially separating or partitioning what is inherently one total procedure into subparts that are integral to the whole for the purpose of increasing medical fees." This practice is commonly referred to as "unbundling." The 2009 CPT Manual states that CPT code is included in CPT codes On 6/9/10, 6/23/10 and 7/7/10, Claimant billed CPT code along with CPT code Billing for fluoroscopic guidance along with CPT code is a clear violation of N.J.A.C. 11:329.4(g) and, therefore, Claimant is not entitled to further reimbursement for Based on the evidence presented and argument of counsel, I find that Claimant is owed reimbursement for CPT code for date of service 6/10/10 and 6/23/10. Respondent denied CPT code on the first two dates of service but paid it on the third date of service. Respondent has provided no explanation as to why they paid CPT code on the last date of service but denied the first two dates of service. Therefore, since Respondent reimbursed CPT code on date of service 7/7/10 when it was billed with CPT code 62311, I will award CPT code on the other two dates of service. Claimant is awarded $ for CPT code for each date of service 6/10/10 and 6/23/10. Based upon the foregoing, Claimant is entitled to payment in the amount of $ The award is subject to the fee schedule, co-pay and deductible. Interest is awarded. I find the claimant was successful and is entitled to award of counsel fees. 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 $1, together with costs of $ Respondent has entered an objection to both the total number of hours billed as well as the hourly billing rate. Respondent further argues that any such fee awarded must be reasonably related to the amount of effort expended in attempting to secure payment and in proportion to the amount of bills sought to be recovered. In N.J. Coal. of Health Care Prof l, 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. 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 the Court pointed out in Scullion v. State Farm Ins. Co., 345 N.J. Super 431 (App. Div. 2001), while the Enright factors NJ Page 12 of 14

13 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 am mindful of the requirement that any award of counsel fees must be consonant with the amount at issue. I therefore find that an award of counsel fees in the amount of $ is consonant with the amount at issue herein and is consistent with the requisites of R.P.C. 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 $ for the filing fee as the additional costs have not been proven. Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Neurology & Pain Treatment Center $5, $ Neurology & Pain Treatment Center *Award is subject to NJ Fee schedule, 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.: 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: $ 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: 04/25/12 NJ Page 13 of 14

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