Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between Dr. Arthur C. Rothman MD a/s/o JMI CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: Law Offices of Thomas A. Sarlo v. Claimant Attorney File No: Respondent Counsel: Law Office of Cindy L. Thompson Respondent Attorney File No: 09P1389 (TV) Accident Date: 09/15/2005 GEICO Insurance Company RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Scott M. Noonan 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: JMK An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: December 15, 2011 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: See findings of fact and conclusions of law. NJ Page 1 of 10

2 Findings of Fact and Conclusions of Law This matter arises from a September 15, 2005 automobile accident where JMK was injured. For the injuries sustained in the involved noted date of loss JMK has been provided personal injury protection coverage through an automobile insurance policy issued by GEICO. The issues in this matter, as presented by the parties at the hearing are whether the treatment in question was medically necessary and causally related to the accident, the usual, customary and reasonable rates for the non fee schedule codes billed and the application of the multiple procedure reduction formula. No other issues were presented by the parties. The following documentation was submitted by the claimant for review and consideration: - demand for arbitration dated August 26, 2009 with attached exhibits; - pre-hearing submission dated December 14, 2011 with attached exhibits; and - post-hearing submission dated January 3, 2012 with attached exhibits. The following documentation was submitted by respondent for review and consideration: - pre-hearing submission dated September 28, 2010 with attached records; - pre-hearing submission dated September 24, 2010 with attached exhibits; - pre-hearing submission dated October 14, 2011 with attached exhibits; and - post-hearing submission January 23, In rendering the decision for this matter, in addition to considering the claimants and respondent s respective submissions, two MR reports by Dr. Ramnanan, report of Dr. Brady, reports of Dr. Waldman, reports of Dr. Prakhina, EOB records, Wasserman records, claimant s exemplar records, operative reports, examination reports, awards of pother DRPS, transcript of deposition of JMK, and all other submitted records by counsel in the December 15, 2011 hearing. The claimant, Dr Arthur Rothman, seeks reimbursement of a post-hearing adjusted demand, in the amount of $33, for dates of service from March 21, 2009 through November 18, At issue in this matter id a March 221, 2009 initial office examination billed under code 99204; an April 4, 2009 three level lumbar discogram and guidance with an epidural billed under three units of code 62290, three units of code and one unit of code 62319; an April 16, 2009 three level cervical discogram and guidance with and epidural billed under three units of code 62291, three units of code and one unit of 64479; a May 7, 2009 follow up examination; a June 4, 2009 lumbar percutaneous diskectomy with post operative discogram billed under one units of and one unit of 62290; and a follow up office examination billed under code on November 18, The respondent relies upon an IME by Dr. Brady performed on November 8, 2007 that determined the patient at MMI for pain management with respect to her neck and back; and a MRO by Dr. Ramnanan that determined that there was no indication for epidural steroid injections on April 9, 2009, discography on April 16, 2009 or the percutaneous lumbar diskectomy on June 4, Dr. Ramnanan determined that the procedures were not reasonable, medically necessary nor related to the accident of September 25, NJ Page 2 of 10

3 The respondent also referenced a physiatry IME report by Dr. Zemel on March 22, 2008 that found the patient at MMI for his specialty, Dr. Zemel did not the impression was of cervical sprain/strain, lumbar sprain/strain and post right shoulder surgery. The detemriantion was that h ere was no disability and that there was a cause and effect relationship between the original complaints and the accident. In response to assertions made at the time of the hearing the respondent objected to the claimant s input of and consideration of the MRO review of Dr. Ramnanan that was dated November 1, 2010 that was authored for another matter that involved the same date of loss for the patient. The respondent asserts that the November 1, 2100 MRO is only relevant to the case where it had been requested and not the within matter. It is stated to have been conducted with regard to a completely different care involved a different case name, records and Forthright number. The respondent states that upon her attempts to consolidate the matter with the other matter where Dr. Ramnanan had authored the requested November 1, 2010 MRO report, it was that claimant in this matter who had refused to consolidate this matter with that other matter. As such, this matter and the other matter, which involved Hudson Crossings, had its own MRO request that resulted in its own MRO report which was based upon its own set of records, which were not the same and therefore the provider could not have issued the exact same reports. The respondent asserts that if the claimant wanted that MRO considered the claimant should have consent to the request. The assertion is simple, one cannot rely on an MRO from another matter to rebut or respond to the MRO requested in the matter at hand. Respondent also relies upon Wasserman records for the UCR rates for the dates of service in question. Respondent also asserts that for the discography, the epidural and the radiographic component of the discography all are subject to multiple procedure reduction to 100% for the first procedure, 50% for the second procedure and 25% for the procedures thereafter. The claimant argues that patient was involved in the September 5, 2005 accident and then underwent a number of procedure with Dr. Park including a September 8, 2006 cervical epidural injection, October 20, 2006 right cervical facet median branch block, November 3, 2006 left cervical facet medial branch block, November 17, 2006 right radiofrequency thermoblation cervical facet joint and a December 8, 2006 left radiofreqency thermoblation of the right lumbar facet joint. The patient also underwent a course of care with Dr. Chee Gap Kim. On March 3, 2009 the patient presented to Dr. Rothman for a follow up evaluation as Dr. Rothman had previously treated the patient and performed an EMG/NCV. Dr. Rothman then referred the patient to Dr. Waldman for pain management evaluation on March 12, Dr. Waldman examined the patient and opined that the patient failed to respond to conservative care and prior pain management procedures and was a candidate for both a lumbar discogram and a cervical discogram, which was noted to be the only test to correlate disc morphology with pain generation in a provocative manner. The claimant noted that the patient underwent the lumbar discogram on April 9, 2009 and same was positive for concordant pain at L5/S1 and the patient was then given an L5/S1 epidural injection. The claimant noted that the patient underwent the cervical discogram on April 16, 2009 and same was positive for concordant pain at C4/5 and the patient was then given a C4/5 epidural injection. NJ Page 3 of 10

4 After a follow up evaluation of May 7, 2009 it was determined that the patient should undergo a lumbar percutaneous diskectomy, which was performed on June 4, 2009 with a postoperative discogram. In addressing the respondent s reports the claimant notes that Dr. Prakhina s report of May 31, 2007 limited the examination to the cervical region and there was no examination of the lumbar spine. Dr. Prakhina did note the patient as remaining symptomatic. And that MMI had not been achieved. As to Dr. Brady s exam of November 8, 2007 the claimant noted that the injuries were causally related to the accident and that further pain management to the neck and back was denied. Dr. Brady did not review Dr. Prakhina s exam, which was performed only a couple of months earlier and determined the patient was not at MMI. As to the report from Dr. Zemel dated March 22, 2008 the claimant argues that Dr. Zemel states the patient s injuries are causally related to the accident and that no further physiatry care is needed. There was no opinion as to pain management. As to the MRO report, the claimant references a second MRO report prepared by Dr. Ramnanan within less than a month of the report the respondent relies on that was prepared for a case involving the same date of loss, same patient and same care in question. The respondent only submitted the November 23, 2010 report and the claimant provided the November 1, 2010 report prepared for the other matter. The claimant notes that in the November 1, 2010 MRO report Dr. Ramnanan reviewed Dr. Prakhina s report as to the neck and back when in fact Dr. Prakhina only examined and addressed the neck. Also it was noted that Dr. Ramnanan s review was limited solely to the lumbar epidural injection performed following the discogram on April 4, 2009 in that he noted same are not typically performed post discogram. The claimant states he did not address the discogram. In the second MRO, for the within matter dated November 23, 2010 Dr. Ramnanan addresses causation and medical necessity as to all pain management. HE finds there is no indication for the epidural injection of April 9, 2009, discography of on April 16, 2009 and lumbar diskectomy on June 4, The claimant notes that Dr. Ramnanan does not address the lumbar discography and only addresses the second procedure, the epidural. There was stated to be no opinion just a concluding statement without analysis or support. The claimant also relies upon a rebuttal to the MRO report authored by Dr. Waldman and the transcript of the patient s deposition where is she is stated to establish the causal relation of the neck and back injuries to the accident. As to the multiple procedure reduction the claimant concedes that same apply to the discograms, but not to the radiologic portion as they are radiologic codes and therefore not subject to such reduction. A very well versed award from DRP Miller is provided to support the proposition. As to the question of UCR the claimant provides a series of exemplar records. The claimant also noted that the dates of service pre-date the new fee schedule and therefore same has not application to the within matter. Referenced is DOBI Bulleting for the position that the implementation of the new fee schedule is from August 10, 2009 forward and not retrospectively applied. Pursuant to N.J.S.A. 39:6A-4(a), post-aicra, standard automobile policies in New Jersey must afford personal injury protection PIP coverage for reasonable, necessary and appropriate treatment to persons sustaining bodily injury as the result of an automobile accident. The statutes and regulatory codes NJ Page 4 of 10

5 require that the No-Fault Act be given liberal construction in favor of its intended purpose of effecting broad protection for accident victims. N.J.S.A. 39:6A-16 and N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327 (2004). Where there is a dispute concerning medical necessity, it is the claimant s burden 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. 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 objectively reasonable belief that the utility of the treatment or diagnostic method based upon 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 NJ. 491 (1991). Where a conflict exists between medical experts, generally greater weight is given to the opinion of the treating physician. See Mewes v. Union Bldg. & Const. Co., 45 N.J. Super. 88 (App. Div. 1957); Bialko v. H. Baker Milk Co., 38 N.J. Super. 169 (App. Div. 1955). 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 involve 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. I am aware of the arguments that the prior court decisions supporting this opinion predate the current version of the PIP law in New Jersey, AICRA; however, there have been no decisions overturning those determinations and holdings. The holdings in the decisions pre-dating AICA remain good and effective decisions for consideration today. 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). Generally, the physician treating the patient is in a better position to express an opinion as to the cause and outcome that one making an examination in order to provide expert testimony. Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 233 (App. Div. 1962). Where a conflict exists between medical experts, generally greater weight is given to the opinion of the treating physician. Mewes v. Union Bldg. & Const. Co., 45 N.J. Super. 88 (App. Div. 1957); Bialko v. H. Baker Milk Co., 38 N.J. Super. 169 (App. Div. 1955). NJ Page 5 of 10

6 Forthright Rule 15 provides that the detemriantion of the health care consultant (MRO) on the dispute referred shall be presumed to be correct by the DRP, which presumption may be rebutted by a preponderance of the evidence. Should the DRP find the decision of the health care consultant is not correct, the reason supporting that finding shall be set for the in the decision. Dr. Ramnanan issued a November 23, 2010 MRO report. He also issued a report in a related matter that addresses the same care in question for the same patient for the same date of loss; however the focus is on the MRO authored relative tot the within matter. The MRO itself lists 30 documents reviewed, provided on paragraph of discussion of the history of treatment and IME reviews then a short paragraph on his conclusion and provides the sentence causally related medical necessity has not been shown, and then states the IME of November 8, 2007 provides no indication for the procedures. Understanding that Rule 15, states that the MRO is presumed correct that presumption as to causation is clearly rebutted in this matter. I will note that I am not sure what the phrase causally related medical necessity has not been shown, means and all that is known is that it is not explained or supported by any analysis. The MRO of November 23, 2010 speaks solely in terms of unsupported conclusion. All of the other reviewers, claimant and the respondent found the injuries to the back and neck to be causally related to the accident. In that regard the IME report that the MRO relies upon for its position rebuts the very finding. Further, I find Dr. Waldman s rebuttal and records rebuts the issue of causation or lack of causation. This is further supported by the deposition transcript where the patient s testimony clearly indicates injury to the neck and back from the accident and no other outside source. As such the MRO conclusion as to lack of medical necessity is not supported. As to medical necessity, I find similarly that the claimant s records and the totality of the record submitted support the medical necessity of the care in question to a greater weight of the evidence as to the three procedures in question and initial examination. I find the MRO has been rebutted and that Dr. Waldman s rebuttal to the MRO is perusaive in noted that the patient did not receive any relief from the epidural and facet injection provided and that the patient had confirmed disc herniations at L4/5 and L5/S1 with a L5/S1 radiculopathy confirmed by EMG/ The continued symptomology and positive findings supported the provocative testing of both the cervical and lumbar spines, which was noted to have been positive in both regards. Also referenced was the post discogram CT that documented the L5/S1 herniation and annular tear at L4/5, 2hicuh was stated to be causally related to the accident as there had been no interval change since the MRIs post accident. Dr. Waldman noted that Dr. Brady was not qualified to review his care provided. What is noted is that Dr. Brady s IME report is of such a quality that even though same is typed it is very hard to impossible to read due to background artifacts probably from the original format of the IME. I find it difficult to place any persuasiveness on a report that cannot be read in total, which is also problematic as the MRO reviewer appears to have adopted the IME findings of Dr. Brady as binding or foundational. The MRO versus MRO issue aside, it is odd that different conclusions were reached, but this may also be due to the questions asked of the MRO reviewer. The MRO from the other matter appears to only address the question of the post discogram epidural. The question of whether that would presume that the discogram itself was not in question is unknown; however, that does appear to be the case. As to the question of multiple procedure reduction, the claimant does concede the application of same to and 62291, which as discussed at the hearing would have been the finding of this reviewer. Therefore the first will be at 100%, second at 50% and third at 25% However, same is not applicable to the radiologic codes, which as they are radiologic codes and not procedure codes are not subject to NJ Page 6 of 10

7 reduction per multiple procedure reduction. What is also noted as asserted by the respondent at the hearing is that the epidural injections performed with the discograms are also subject to multiple procedure reduction as same are not identified as add on codes immune from the multiple procedure reduction formula. On the issue of UCR both the claimant and the respondent rely relies upon Cobo v. Mkt. Transition Facility, 293 N.J. Super. 374 (App. Div. 1996) for the position that that the billed rates are correct and for the position that the billed rates are excessive N.J.A.C. 11:3-29.4(e) establishes that the insurer s limit of liability for any medical expense benefits for any service not set forth in the New Jersey Fee Schedule is to be a reasonable amount considering the Fee Schedule for similar services or equipment in the region where the services or equipment was provided. The Code further provides that where the New Jersey Fee Schedule does not contain a reference to similar services, the insurer s limit of liability for any medical expense benefit for any service that is not set forth in the New Jersey Fee Schedule shall not exceed that usual, customary and reasonable fee. The Appellate Division in Cobo v. Market Transition Facility, 293 N.J. Super. 374 (App. Div. 1996), citing 24 NJR 1348 (April 6, 1992), stated the following: 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 fee has been billed. In this matter the respondent references Wasserman and parts of the decision In Re Adoption of N.J.A.C. 11:3-29 as binding and determinative. The claimant argues that same has no bearing on this matter as the dates of service predate the effective date of In Re Adoption and the application of same is not retrospective per DOBI Bulletin As to references of the application of the determinations made in In Re Adoption of N.J.A.C. 11:3-29 and the references to the reliance on the new fees schedule as evidence of reasonableness for dates of service that predate same, a question of application is presented whether the dates of service in question predates the enforcement date. The application is to be after the August 10, 2009 date. As the dates of service in question, February 9, 2009, precede the decision in, In Re Adoption of N.J.A.C. 11:3-29, that which was billed prior to the new fee schedule s enforcement date cannot be held subject to same as it goes against general legal principles of equity and common sense that matters can be decided with rules that did not exist until approximately six months from after the treatment occurred on February 9, In review of the number of records the claimant s appear to be of the kind that would be applicable to the dates of service in question and therefore are perusaive to a greater weight of the evidence as determinative of UCR Rate for the billed service in question. NJ Page 7 of 10

8 Upon consideration of the argument of counsel and the totality of the greater weight of the evidence presented, I find that the evidence supports the billed amounts as the accepted UCR rates for the involved codes noting $1, for CPT code 62290, $1,456 for CPT code 62291, $ for CPT code 72297, $11, for CPT ode $1,500 for CPT code 64479, $1, for CPT code 62319, and $9, for CPT code Therefore, the claimant is awarded the billed office exams of March 21, 2009, May 7, 2009 and November 18, The claimant is awarded the April 9, 2009 date of service at $1, for the first 62290, $ for he second 62290, $360 for the third 62290, $561 for each and $ for the as same is the fourth lumbar procedure performed and subject tot multiple procedure reduction for a total of $4, The claimant is awarded the April 16, 2009 date of service at $1, for the first 62290, $ for he second 62290, $364 for the third 62290, $1560 for each and $375 for the as same is the fourth lumbar procedure performed and subject tot multiple procedure reduction for a total of $7, The claimant is awarded the June 4, 2009 procedure in the amount of $9,455 for the and is awarded fifty percent of as same is also subject to reduction as noted by the respondent in the amount of $720 for a total of $10,175. The claimant is awarded a total reimbursement of $22, for dates of service from March 21, 2009 through to November 18, The award in this matter is subject to reduction for any prior payments made for the dates of service in issue. The award in this matter is subject to any remaining deductible and co-pay for JMK. Interest was demanded and is awarded in an amount to be calculated by the parties in accord with the two dates of service awarded to the claimant. The claimant is entitled to an award of fees and costs as the prevailing party in this matter. The attorney for the claimant has submitted a Fee Certification setting forth 10.7 hours at a rate of $ per hour for a total award of $2, and NAF filing fees in the amount of $ The respondent objected to the claimant s fee certification noting that the claimant s demand should be dismissed and if not dismissed the amount of hours billed was too high and the hourly rate was excessive, with less hours needed to address the matter. N.J.A.C. 11:3-5.6(d)(3) provides that the 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. The undersigned DRP is mandated to consider R.P.C. 1.5 when calculating an award of counsel fees. Rule 1.5 provides that a lawyer s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and NJ Page 8 of 10

9 difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent. In Enright v. Lubow, 215 N.J. Super. 306 (App. Div.), certif. den. 108 N.J. 193 (1987), the court set forth certain basic factors to be included in the determination for an award attorney s fees; 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 are to be considered in making the threshold determination as to whether to award counsel fees, many of those factors are also applicable in making the threshold determination of the amount of the counsel fee 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 time and hours expended by counsel are excessive for what appears to be routine efforts. I have reviewed the line item entries reflected in the claimant counsel s Certification of Services and find that an award of counsel fees in the amount of $1, is consonant with the amount in issue the award, counsel s appearance and the efforts performed to achieve same. Based upon the applicable case law, and the above documented reasoning, I find that the determined award is consistent with the requisites of RPC 1.5 for the successful prosecution of the claim presented in the Demand for Arbitration. The claimant is awarded $ for reimbursement of NAF filing costs. Therefore, the DRP ORDERS: 1. Medical Expense Benefits: awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Dr. Arthur Rothman, MD $33, $22, Dr. Arthur Rothman, MD 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. NJ Page 9 of 10

10 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, 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: 03/08/12 NJ Page 10 of 10