Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between Objective Diagnostic & Rehab Services a/s/o V.K. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: Law Offices of Sean Callagy v. Claimant Attorney File No: OBJ-IFA-K-001 Respondent Counsel: Dyer & Peterson, P.C. Respondent Attorney File No: Accident Date: 09/09/2008 IFA Insurance Co RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Deborah M. Cassella 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.K. An oral hearing was waived by the parties. An oral hearing was conducted on: 7/9/12 Hearing Information 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 8

2 Findings of Fact and Conclusions of Law This claim arises from a motor vehicle accident that occurred on 9/9/08 for which V.K. seeks PIP benefits. Nature of dispute: I. Issue: Whether claimant has standing to file a demand for dispute resolution by way of Assignment of Benefits executed by V.K.? II. Issue: Whether respondent properly applied a precertification penalty to dates of service from 4/21/09-4/30/09? III. Issue: Whether the physical therapy was medically necessary and reasonable? The following documents were submitted and reviewed: Claimant: 1. Demand with attachments. 2. Submission dated 3/25/ Submission dated 7/2/12. Respondent: 1. Submission dated 6/11/ Post hearing submission dated 8/6/12. Also considered were the arguments of counsel at the oral hearing on 2/8/11. I. Issue: Whether claimant has standing to file a demand for dispute resolution by way of Assignment of Benefits executed by C.S.? Claimant seeks reimbursement for physical therapy performed from 4/21/09-10/12/10. Respondent applied a 50% penalty to dates of service 4/21/09-4/30/09 and denied the remaining dats of service as not medically necessary or reasonable. However, respondent contends that claimant s failure to utilize the Internal Appeals Process in the Decision Point Review Plan following this denial renders the Assignment of Benefits executed by V.K. to be null and void, thus precluding claimant from proceeding with the present arbitration due to lack of standing and requiring dismissal of the within matter. Conversely, claimant argues there was substantial compliance with the DPRP requirements. Respondent relies on the letter sent to claimant dated 3/27/09, which directs the treating provider to respondents Decision Point Review Plan on the internet at The letter draws the provider s attention to specific sections including Section XII regarding respondent s Appeal Process. Respondent supplies a copy of the Insured s Copy of the DPRP. Section XII outlines the Appeals Process and specifically states as to Disputes involving Pre-Certification and Decision Point Review determinations: If a Decision Point review request or a request to pre-certify any medical treatment, tests, durable medical equipment or prescription drugs is denied, you are entitled to seek an appeal of such decision. If a health care provider has taken on an assignment of benefits, that health care provider is required to participate in this process prior to filing for formal dispute resolution or a lawsuit. (emphasis in the original). Respondent also supplies letters to claimant NJ Page 2 of 8

3 advising of the termination of chiropractic benefits and indicating that if claimant wished to appeal the decision, a formal appeal may be filed pursuant to the procedures outlined in respondent s DPRP at the above-referenced website. N.J.A.C. 11:3-4.7(d)(8) requires that informational materials for policyholders, injured persons and providers shall include particular information including an explanation of the alternatives available to the provider if reimbursement for a proposed treatment, diagnostic test or durable medical requirement is denied or modified, including the insurer s internal appeal process and how to use it. This section also requires an explanation of the insurer s restriction on assignment of benefits, if any, be set forth. It is well-settled that statutorily, "all choses in action arising on contract shall be assignable." N.J.S.A. 2A:25-1. The assignment of benefits allows plaintiff the contractual right to litigate the object of those assignments, namely, PIP claims. While an assignee's rights can be no greater than those of the assignor, neither can they be any less. See Tirgan v. Mega Life & Health Ins., 304 N.J. Super. 385, 391 (Law Div. 1997); Allstate Ins. Co. v. Lopez, 325 N.J. Super. 268, 278 (Law Div. 1999). In Coa. for Quality Health Care v. N.J. Dept. of Banking & Ins., 348 N.J. Super. 272, (App. Div. 2002), the court upheld the approval by DOBI of insurers policy provisions that imposed restrictions on assignments of PIP benefits to providers. The restrictions at issue included, but were not limited to: the provider s compliance with decision point review and pre-certification requirements; the required use of a dispute resolution process; the possibility of voiding a prior assignment based on subsequent conduct; and other alleged over burdensome activity. Id. The court found no abuse of discretion in the Commissioner s determination that these restrictions were reasonable; however, the insurer must be reasonable in applying these conditions. Id. As to what constitutes reasonableness, the court relied on the provision of N.J.A.C. 11:3-4.9 which specifically states that [i]nsurers may file for approval policy forms that include reasonable procedures for restrictions on the assignment of PIP benefits, consistent with the administration of coverage. This regulation provides that reasonable restrictions may include, but are not limited to: (1) a requirement that as a condition of assignment, the provider agrees to follow the requirements of the insurer s decision point review plan for making decision points review and pre-certification requests; (2) a requirement that as a condition of assignment, the provider shall hold the insured harmless for penalty co-payments imposed by the insurer based on the provider s failure to follow the requirements of the insurer s DPR plan; and/or (3) a requirement as a condition of assignment that the provider agree to submit disputes to alternate dispute resolution pursuant to N.J.A.C. 11:3-5. In this matter, based upon the weight of the record evidence and the governing regulations, it is clear that respondent has a reasonable right to restrict the assignment in PIP cases. Claimant sent several letters to respondent requesting an appeal of unpaid dates of service and the precertification penalty. In fact, by letter dated 4/23/10, claimant advised that no clinical rationale was provided by respondent in support of the denial and same was requested from claimant. As such, a conclusion can be reached that NJ Page 3 of 8

4 claimant substantially complied with the internal appeals process and claimant has standing to proceed with the within litigation. II. Issue: Whether respondent properly applied a precertification penalty to dates of service from 4/21/09-4/30/09? As referenced above, for dates of service 4/21/09-4/30/09, respondent applied a 50% penalty for failure to request precertification. Claimant offers a precertification request with Attending Provider Treatment Plan sent via facsimile on 4/27/09 to respondent. In accordance with N.J.A.C. 11:3-4.7(c)(4), the penalty is proper and no further reimbursement is owed for these dates. III. Issue: Whether the physical therapy was medically necessary and reasonable? This claim was consolidated for purposes of oral hearing with the demands filed on behalf of the primary and assistant physicians, ambulatory surgery center and anesthesiologist for fees incurred during left shoulder arthroscopic surgery and subsequent interim office examinations, which were denied by respondent as not causally related to the subject accident, medically necessary or reasonable. V.K. underwent physical therapy at the request of Dr. Reiter, as treating orthopedist and Dr. Stoller, as the orthopedic surgeon who performed the arthroscopic surgery. According to the documentation supplied by the parties in all companion matters, V.K. first presented to Dr. Maciak on 9/30/08 following the subject accident on 9/29/08 with subjective complaints of pain in the neck, upper back and low back. Physical examination revealed decreased ranges of motion. Various orthopedic testing was positive. A course of chiropractic treatment began. V.K. confirmed a prior injury to the right shoulder resulting in surgery to repair a rotator cuff tear. Complaints of right shoulder pain were noted on 12/4/08 by Dr. Maciak. V.K. first presented to Dr. Reiter on 12/2/08 following a motor vehicle accident on 9/9/08, upon referral of Dr. Maciak as treating chiropractor. At that time, he complained of neck pain radiating to the bilateral upper extremities with numbness and tingling and low back pain radiating to the bilateral lower extremities. Physical examination revealed decreased ranges of motion and abnormal neurological testing. Various orthopedic testing was positive. Dr. Reiter recommended Electrodiagnostic testing, which was performed on 1/13/09 and interpreted to reveal bilateral C6-7 and left L4-5 radiculopathy. Upon re-examination by Dr. Reiter on 3/10/09, pain management injections were recommended including cervical and lumber epidural injections. For the first time in his office note of 7/14/09, Dr. Reiter referenced subjective complaints of left shoulder pain and the healed mid clavicular fracture on x- ray such that [a]pparently the patient fractured the clavicle as a result of his accident in early September 2008 without realizing it. Dr. Reiter ordered an MRI and continued physical therapy. In support of the denial of physical therapy to the neck and low back, respondent provides the independent medical examination report of Dr. Ramnanan dated 4/9/09. Dr. Ramnanan noted subjective complaints of neck pain and left shoulder pain. Physical examination revealed full range of motion and negative orthopedic and neurologic testing. Dr. Ramnanan concluded the patient had reached maximum medical improvement from an anesthesiology/pain management point of view. Respondent also relies on the independent medical examination of Dr. Rubinfeld dated 11/23/09 with normal examination other NJ Page 4 of 8

5 than prominence of the mid clavicle. Dr. Rubinfeld concluded that no additional orthopedic treatment was necessary and V.K. had reached maximum medical improvement. In an addendum dated 2/16/10, Dr. Rubinfeld opined the left shoulder MRI findings were consistent with age related findings unrelated to the accident of record. Respondent also offers the PIP application with stated injuries to the neck only. Claimants in the companion matters provide the contemporaneous office notes and examination records from Dr. Stoller as referring physician for the physical therapy to the left shoulder. V.K. was referred to Dr. Stoller by Dr. Maciak as treating chiropractor on 5/5/09. V.K. first presented to Dr. Stoller for orthopedic consultation on 6/16/09. At that time, as related to the within matter, he complained of left clavicle pain. Dr. Stoller found body deformity without gross motion or movement. X-ray study revealed headed mid clavicle fracture without overlapping. V.K. was advised that a deformity is not uncommon and the fracture was healed. An MRI of the left shoulder performed upon referral of Dr. Reiter was interpreted to reveal full thickness tear of the anterior margin of the supraspinatus tendon, glenohumeral joint effusion and impingement of the rotator cuff. On 9/1/09, V.K. again was referred to Dr. Stoller by Dr. Reiter for left shoulder and left clavicle pain and treatment. Physical examination by Dr. Stoller on 9/8/09 revealed positive orthopedic testing to the left shoulder. Dr. Stoller ordered a CT scan of the left upper extremity which was performed on 10/7/09 and interpreted to reveal healed fracture of the clavicle and peritendonitis calcareous. Upon re-examination by Dr. Stoller on 12/8/09, arthoscopic surgery was recommended, which was ultimately performed on 2/11/10. When there is a dispute as to medical necessity, the burden of proof rests with the claimant to establish that the services for which PIP benefits are sought were reasonable, necessary, and causally related to an automobile accident. Miltner v. Safeco Ins. Co. of Am. 175 N.J. Super. 156, 158 (Law Div. 1980). Claimant must carry that burden by a preponderance of the evidence. State v. Seven Thousand Dollars, 136 N.J. 233 (1994). 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 credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491, 512 (1991). Where the medical testimony is in conflict, generally greater weight is given to the testimony of the treating physician. Albeit v. General Motors Corp., 46 N.J. Super. 475 (App. Div. 1957). Pursuant to N.J.S.A. 39:6A-2(m), medically necessary is defined as meaning that the treatment is consistent with the symptoms or diagnosis, and treatment of the injury (1) is not primarily for the convenience of the injured person or provider, (2) is the most appropriate standard or level of service which is in accordance with standards of good practice and standard professional treatment protocols, as such protocols may be recognized or designated by the Commissioner of Banking and Insurance, in consultation with the Commissioner of Health and Senior Services or with a professional licensing or certifying board in the Division of Consumer Affairs in the Department of Law and Public Safety, or by a nationally recognized professional organization, and (3) does not involve unnecessary diagnostic testing. NJ Page 5 of 8

6 N.J.A.C. 11:3-4.2 defines medically necessary or medical necessity as meaning 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 in the Appendix, 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 treatment or testing. N.J.A.C. 11:3-4.2 also defines clinically supported to mean that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic test has: (1) personally examined the patient to ensure 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, neurological 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. Based on the weight of the evidence, claimant has sustained the burden of proof as to the medical necessity and reasonableness of the physical therapy to the neck and back through 6/25/09 only. It is clear from a review of Dr. Reiter s office notes that the 4/21/09 and 6/16/09 office examinations addressed the neck and low back pain while the 7/14/09 and 7/28/09 examinations pertained to the subjective complaints of left shoulder pain, as the examination findings on the later dates of service were limited to the left shoulder with a reiteration of Dr. Reiter s recommendation that the patient undergo cervical and lumbar epidural injections. All claimants have failed to demonstrate a prima facie case that the left shoulder arthroscopic surgery and treatment was causally related to the subject accident and thus, it follows that the physical therapy to the left shoulder was not causally related to the motor vehicle accident. The hearing was held open specifically to allow claimant to identify the body region(s) to which physical therapy was performed on each date of service, but claimant failed to do so and it is not the responsibility of the undersigned to undertake such a requested task on claimant s behalf. As to the issue of causation, Dr. Stoller offers no opinion as to causal relationship in any of his treatment records relied upon by claimant. As noted above, Dr. Rubinfeld opined the left shoulder MRI findings were consistent with age related findings unrelated to the accident of record. The PIP application only identified injuries to the neck. There were no complaints of left shoulder or left clavicle pain in the record evidence until Dr. Reiter s office note of 7/14/09, at which time Dr. Reiter referenced subjective complaints of left shoulder pain and the healed mid clavicular fracture on x-ray such that [a]pparently the patient fractured the clavicle as a result of his accident in early September 2008 without realizing it. This does not constitute a medical opinion regarding causation but rather a subjective statement offered by the patient, which is insufficient to satisfy claimant s burden of proof, particularly given the unlikelihood of V.K. sustaining a clavicular fracture in the subject accident and being unaware, especially during the subsequent chiropractic and physical therapy treatment. However, given the persistent subjective complaints of radicular neck and low back pain coupled with the subjective findings on examination, a conclusion can be reached that the physical therapy through 6/25/09 was medically necessary and reasonable, after which time the re-evaluations by Dr. NJ Page 6 of 8

7 Reiter solely pertained to the left shoulder complaints. Dr. Reiter continued to recommend pain management injections to the cervical and lumbar spine which were being considered by V.K. and as V.K. had advanced to the next level of care with pain management, it is evident that conservative physical therapy no longer provided adequate benefit to justify a continuation of same. The fact that respondent paid date of service 11/24/09 albeit with a precertification request shall not constitute a bar to an otherwise viable medical necessity defense. There has been inadequate medical evidence submitted to contradict the treating provider s assertion that the physical therapy after 6/25/09 was medically necessary and reasonable. In the absence of same, claimant is awarded those benefits from 6/16/09-6/25/09 only. Finally, as claimant is found to be a prevailing party, it is also hereby determined that Claimant is entitled to an award of counsel fees and costs as per N.J.A.C. 11:3-5.6(d)(3). The fees and costs awarded below are calculated in conformity with the guidelines/provisions of R.P.C. 1.5 as well as the factors outlined in Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987) and Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001). Also considered were the fee certification of claimant s attorney and the objections stated by respondent s attorney at the hearing. In this case, claimant s attorney submits a fee certification in which a total of $ in legal fees are sought in bringing the matter to a successful conclusion. Costs are listed as the filing fee of $ and photocopying fees of $ Taking into consideration all of the above noted factors, $ in attorney fees and $ in costs are awarded. Based upon the result obtained, number and complexity of issues involved, arguments presented by both parties, preparation needed and level of preparedness of claimant s attorney at the time of the oral hearing, and claimant s failure to comply with instructions regarding post hearing submissions, the fees are fair and reasonable. Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Objective Diagnostic & Rehab Services $ $ Objective Diagnostic & Rehab Services Subject to any remaining deductible and co-payment. 2. Income Continuation Benefits: Not in issue 3. Essential Services Benefits: Not in issue 4. Death or Funeral Expense Benefits: Not in issue NJ Page 7 of 8

8 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h.: amount to be calculated by respondent. 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: 08/09/12 NJ Page 8 of 8