Award of Dispute Resolution Professional. Hearing Information

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1 In the Matter of the Arbitration between Xcalibur Chiropractic a/s/o M.P. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: NJP87566 Claimant Counsel: Console & Hollawell v. Claimant Attorney File No: Respondent Counsel: Law Offices of David C. Harper Respondent Attorney File No: Accident Date: 05/16/2010 Mercury Indemnity Company of America RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: David A. Grabowski, 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: Patient An oral hearing was waived by the parties. An oral hearing was conducted on: 10/11/12 Hearing Information Claimant or claimant's counsel appeared by telephone. Respondent or respondent's counsel appeared by telephone. The following amendments and/or stipulations were made by the parties at the hearing: See below. NJ Page 1 of 7

2 Findings of Fact and Conclusions of Law This matter arose out of a motor vehicle accident that occurred on 5/16/10 and is, therefore, subject to AICRA. I have reviewed and considered all of the evidence submitted, as well as all of the arguments put forth by the parties. Issue(s) Xcalibur Chiropractic is seeking reimbursement in the amount of $2, with respect to chiropractic services rendered in the treatment period from 6/1/10 through 6/4/11, as well as durable medical equipment (a lumbar brace) provided to patient on 9/25/10. The issues were clarified at the oral hearing conducted in this matter on 10/11/12. With respect to the chiropractic treatment/bills at issue regarding dates of service 6/1/10 through 4/9/11, respondent argues lack of documentation. With respect to the durable medical equipment (a lumbar brace) provided to patient on 9/25/10 and the chiropractic services rendered on 5/7/11 and 6/4/11, respondent argues that same were not medically necessary. Facts As indicated above, the subject accident occurred on 5/16/10. Patient came under the care of Dr. Xerxes Oshidar, D.C. (Xcalibur Chiropractic) on 5/21/10. At that time, patient complained of low back pain radiating into the left hip and mid back pain radiating into the interscapular regions. Patient also complained of pain with various activities of daily living (standing, sitting, walking, lifting, bending, walking stairs, doing chores and hygiene). A physical examination revealed: decreased lumbar range of motion; thoracic and lumbar region spasm and rigger points; positive Yeoman s testing bilaterally; positive Ely s testing bilaterally; positive Straight Leg raise testing on the left; positive Kemp s testing on the left; positive Milgram s testing; dysfunctional muscle groups (left hamstring, left gluts and left piriformis). Following his initial examination, Dr. Oshidar diagnosed patient with thoracic subluxation complexes; thoracic strain/sprain; lumbosacral/si subluxation complexes; lumbar strain/sprain; lumbar radiculitis; and sacroiliac joint pain. Dr. Oshidar recommended a course of chiropractic manipulation with adjunctive physiotherapy modalities. Records from Xcalibur Chiropractic reveal both subjective and objective improvement in patient s condition. Submitted into evidence were records from Alfred Tawadrous, M.D. (Primary Care & Rehabilitation) with respect to evaluations, trigger point injections (TPIs), percutaneous electrical nerve stimulation (PENS) and fluoromethane spray and stretch technique (FSST) rendered from 6/7/10 through 12/8/10. Throughout the course of his treatment, Dr. Tawadrous recommended additional chiropractic care to increase range of motion and the mobility of the spine. Submitted into evidence were various reports from Alexander M. Pendino, D.O. At the 8/9/10 initial evaluation with Dr. Pendino, patient complained of mid-interscapular pain, low back pain and numbness/tingling in the hands. Dr. Pendino noted that an MRI of the thoracic spine performed on 7/15/10 revealed: left-sided paramedian disc herniations at T5-6 and T6-7; bilateral paramedian disc herniations at T8-10; and a broad right paramedian disc herniation at T1-2 impinging the thecal sac. Dr. Pendino noted that an MRI of the lumbar spine performed on 7/15/10 revealed: annular disc bulging from L2-S1; central tears from L3-4 through L5-S1 with encroachment of the neural foramina, most prominent at the right L4 nerve root. Patient reported symptomatic improvement from the TPIs and NJ Page 2 of 7

3 PENS. Following a physical examination which revealed various positive objective findings, Dr. Pendino diagnosed patient with: thoracic and lumbar myofascial pain syndrome; HNPs at T5-6, T6-7, T8-9, T1-2; C6-7 and C7-T1 posterior disc displacement by thoracic MRI; L2-S1 disc bulging with annular tear L3-, L4-5 and L5-S1 with neural foraminal encroachment; and bilateral hand paresthesias (rule out carpal tunnel syndrome and cervical radiculopathy). Dr. Pendino recommended upper and lower extremity EMG/NCV testing. Upper extremity EMG/NCV testing performed by Dr. Pendino on 8/23/10 revealed right-sided C7 radiculopathy and bilateral carpal tunnel syndrome. Lower extremity EMG/NCV testing performed by Dr. Pendino on 9/27/10 revealed right-sided L4, L5 and S1 radiculopathy. At a follow-up evaluation with Dr. Pendino on 11/9/10, it was noted that patient was making good progress with pain management and chiropractic therapy and Dr. Pendino recommended additional pain management and chiropractic treatment. Reports were submitted into evidence with respect to evaluations performed by Lawrence Barr, D.O. (Garden State Orthopedic) and Young J. Lee, M.D. (Advanced Spine and Pain). Dr. Barr diagnosed patient with: thoracic strain/sprain; herniated disc at T1-2; annular tears at L3-4, L4-5 and L5-S1; lumbosacral strain/sprain; and right lower extremity radicular complaints. Dr. Lee diagnosed patient with: displacement of thoracic and lumbar discs; clinical lumbar radiculopathy; thoracic and lumbar strain/sprain; facet syndrome; and myofascial pain syndrome. Dr. Lee recommended: thoracic and lumbar epidural steroid injections and ongoing chiropractic treatment. Dr. Lee performed the recommended thoracic and lumbar epidural steroid injections. Submitted into evidence by respondent were numerous Physician Advisor Reviews (PARs) and a report with respect to a chiropractic IME performed by Gene Wentzel, D.C. on 11/22/10. Respondent paid for most of the services rendered through 4/9/11. As indicated above, with respect to the services/bills at issue from 6/1/10 through 4/9/11, respondent raises the issue of lack of documentation. With respect to the durable medical equipment (a lumbar brace) provided to patient on 9/25/10 and the chiropractic services rendered on 5/7/11 and 6/4/11, respondent argues that same were not medically necessary. Law With respect to medical necessity, claimant has the burden of proof to a preponderance of the evidence. Where there is a dispute, 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. Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156, 158 (Law Div. 1980). 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 purposes. 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). 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 NJ Page 3 of 7

4 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 (1991). While the fact that a treatment is only intended to provide relief from symptoms is not alone a reason to deny benefits, such treatment must still be reasonable and necessary. Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. New Jersey Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990). In New Jersey, every standard automobile liability insurance policy shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault. Personal injury protection coverage means and includes payment of medical expense benefits, which must also be in accordance with the benefit plan provided in the policy and approved for reasonable, necessary and appropriate treatment. N.J.S.A. 39:6A-4. Medical expenses must be both reasonable and necessary to be compensable. Elkins v. New Jersey Mfrs. Ins. Co., 244 N.J. Super. 695, 700 (App. Div. 1990). Pursuant to N.J.S.A. 39:6A-2(e), medical expenses means reasonable and necessary expenses for treatment or services as provided by the policy. Pursuant to N.J.S.A. 39:6A-2(m), medically necessary means 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, and (3) does not involve unnecessary diagnostic testing. The regulatory definition of medically necessary is defined under N.J.A.C. 11: Pursuant to this provision, 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; (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 or treatment. Pursuant to N.J.A.C. 11:3-4.2, clinically supported means 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. N.J.S.A. 39:6A-4(a) provides for the payment of medical expense benefits in accordance with a benefit plan provided in the policy and approved by the commissioner for reasonable, necessary and appropriate treatment. This statutory provision also indicates that medical treatments, diagnostic tests and services provided by the policy shall be rendered in accordance with commonly accepted protocols and professional standards and practices. Protocols shall be deemed to establish guidelines as to standard appropriate treatment for injuries sustained in automobile accidents. Those guidelines are set forth in the Care Paths. The Care Paths are recommended extensive courses of care based on professional recognized standards. The Care Paths identify typical courses of intervention. That is, the Care Paths were promulgated to establish the typical treatment protocols for neck and back injuries as a NJ Page 4 of 7

5 measuring stick to help determine whether treatment is medically necessary. There may be patients who require more or less treatment. However, cases that deviate from the Care Paths may be subject to more careful scrutiny and may require documentation of special circumstances to justify the deviations. Deviations may be justified by individual circumstances, such as pre-existing conditions and/or comorbidities. The Care Paths encourage result oriented medical treatment practices. The guidelines established in the Care Paths are designed to avoid the continuation of treatment and therapy, week after week, over many months and years without any observable improvement. Such practice is not only wasteful, but may cause a patient to suffer unnecessarily before more effective and beneficial care might be available from a different type of treatment. The Care Paths, then, do not deprive the patient of the opportunity to seek the treatment of choice, but rather they encourage alternative choices if a treatment plan becomes unproductive. Comments of DOBI, December 21, Pursuant to N.J.A.C. 11:3-4.6(c), treatments that vary from the Care Paths shall be reimbursable only when warranted by reason of medical necessity. With respect to causal connection, the Appellate Division has recently held that an individual seeking Personal Injury Protection Benefits (PIP) must prove by a preponderance of the evidence that the injuries for which treatment was rendered and for which reimbursement is sought were proximately caused by the particular automobile accident triggering coverage under the policy of insurance. Bowe v. New Jersey Mfrs. Ins. Co.,, 367 N.J. Super. 128 (App. Div. 2004). Pursuant to N.J.S.A. 39:6A-4, every standard automobile liability insurance policy shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured, and members of his family residing in his household, who sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile. The phrase bodily injury as a result of an accident in N.J.S.A. 39:6A-4 requires an insured seeking PIP benefits to causally link the medical treatment to the injuries sustained in a particular accident. This phrase is the functional equivalent of caused by or by reason of, which the Supreme Court has found to be indistinguishable from the concept of proximate cause. If a carrier asserts as a defense to a PIP claim that the treatment for which the insured is seeking benefits is exclusively related to a pre-existing or condition, the insured has the burden of proving that the treatment at issue is causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury independent of that pre-existing injury or condition. In either case, the treatment must have resulted from the particular automobile accident triggering coverage. In a case alleging an aggravation of a pre-existing injury or condition, a PIP claimant must present objective medical evidence from which a medical professional can form an opinion that the trauma suffered in a particular accident caused the aggravation. This opinion must, at the very least, be based on an evaluation of the medical records of the claimant prior to the particular accident. Once that causal link is established, a PIP carrier is liable for the cost of the post-accident treatment up to the coverage limits of the policy, even if that treatment addresses, in whole or in part, the pre-existing injury or condition. Thus, in a PIP case, a plaintiff need not prove the percentage of her injury caused by the particular accident triggering coverage. To prevail on a PIP claim, a plaintiff need only prove that her pre-existing injury or condition was aggravated by the accident for which coverage is sought. This interpretation is consistent with Legislature s intent to provide PIP claimants with the broadest possible coverage. Analysis/Findings NJ Page 5 of 7

6 After considering the evidence submitted, I find that claimant has proven by a preponderance of the evidence that all of the chiropractic services at issue was medically necessary and supported by sufficient documentation. I also find that the lumbar brace was medically necessary. Said finding is based upon and supported by: the documented subjective complaints; the documented positive objective physical examination findings; the thoracic and lumbar MRI findings; the upper and lower extremity EMG/NCV findings; the diagnosed injuries; the documented improvement; the recommendations of Dr. Tawadrous, Dr. Pendino, Dr. Barr and Dr. Lee for additional chiropractic care; the records submitted into evidence with respect to Dr. Oshidar, Dr. Tawadrous, Dr. Pendino, Dr. Barr and Dr. Lee; the fact that respondent paid for most of the chiropractic treatment rendered through 4/9/11 (even though some of the treatment was denied via PAR); and the fact that most of the chiropractic treatment rendered through 4/9/11 was ultimately approved by respondent. Attorney s Fees/Costs New Jersey s Courts have long construed 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 in judicial actions brought under the PIP statute. Craig & Pomeroy, New Jersey Auto Insurance Law (GANN LAW BOOKS) (case citations omitted). In N. J. Coal. for Quality Health Care 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 juris prudence of our State. Pursuant to N.J.A.C. 11:3-5.6(d)(3), a DRP s award 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. RPC 1.5 states that a lawyer s fee should be reasonable. After considering the Certification of claimant s counsel and the comments of respondent s counsel in response to same, I find that an award of counsel fees in the amount of $ is consonant with the amount awarded and consistent with the requisites of RPC 1.5 and the criteria set forth in Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987), as well as Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001). Pursuant to N.J.A.C. 11:3-5.6(d)(2), the award shall apportion the costs of the proceedings in a reasonable and equitable manner consistent with the resolution of the issues in dispute. I therefore 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 Xcalibur Chiropractic $2, $2,963.45* Xcalibur Chiropractic NJ Page 6 of 7

7 *subject to co-pay, deductible, appropriate application of the fee schedule and daily cap and any payments already made by respondent. 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 not awarded pursuant to N.J.S.A. 39:6A-5h.: $0.00 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: 11/26/12 NJ Page 7 of 7

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