Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between Hudson Pain Management, Osteopathic Medicine a/s/o C. B. CLAIMANT(s), Forum File No: NJ Insurance Claim File No: v. Claimant Attorney File No: Respondent Attorney File No: HCH Accident Date: 07/03/2008 Palisades Safety & Ins. Company RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Andrea Lardiere Esq. I, The Dispute Resolution Professional assigned to the above matter, pursuant to the authority granted under the "Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-5, et seq., the Administrative Code regulations, N.J.A.C. 11:3-5 et seq., and the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey of The National Arbitration Forum, having considered the evidence submitted by the parties, hereby render the following Award: Hereinafter, the injured person(s) shall be referred to as: C.B. An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: May 26, 2010 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.

2 Findings of Fact and Conclusions of Law This arbitration arises as the result of an automobile accident that occurred on July 3, On that date, the assignor of the Claimant was an eligible recipient of PIP benefits from the Respondent when she suffered injuries as a result of the accident. The issues presented by the parties are as follows: 1) Was the chiropractic/physical therapy treatment (including CPT 97530) rendered from November 12, 2008 through January 14, 2009 medically necessary? 2) Was the denial of CPT proper? 3) Was the denial of CPT Spinal Decompression proper? The following documentation was submitted by claimant for review and consideration: Demand for Arbitration with attachments, pre-hearing submission with attachments dated November 6, 2009 and Certification of Services. The following documentation was submitted by respondent for review and consideration: Pre-hearing submission with attachments dated May 17, I have also considered the oral arguments of counsel. At the conclusion of the oral hearing, the parties declined to file post-hearing submissions. The hearing was closed without objection on May 26, C.B. was a passenger of a vehicle that was involved in an accident on July 3, She sustained injuries to her neck, low back, right shoulder and right knee. She came under the care of Claimant s facility on July 8, 2008 and began to receive chiropractic and physical therapy treatment. She also received three cervical epidural injections, the last one being done on October 11, MRIs showed herniated discs at multiple levels in the cervical spine and a disc bulge in the lumbar spine. EMG/NCV studies revealed left sided L5-S1 radiculopathy and bilateral C6 and left C7 radiculopathy. Chiropractic/Physical Therapy treatment Respondent paid for chiropractic and physical therapy treatment through December 3, 2008 with the exception of CPT codes 97530, and On November 14, 2008, the patient was examined on behalf of Respondent by Dr. Andrew Kaufman. The patient reported only 50% improvement with the cervical epidural injections and she still complained of neck and shoulder pain. Therefore, Dr. Kaufman opined that she had reached MMI as it relates to interventional pain therapy for the neck and he recommended that she be evaluated by a neuro or orthopedic surgeon. With respect to the lumbar spine, she reported approximately 60% improvement during the last month and a half. He did not recommend lumbar epidural injections. He opined that the patient had reached MMI as it relates to chiropractic care and physical therapy. Respondent also provides the peer review report of Dr. Daniel Cardellichio who reviewed the medical necessity of chiropractic care beyond November 17, 2008, which included cold laser, decompression therapy, therapeutic activities and physical capacity testing. Dr. Cardellichio opined that a review of the re-examinations of September 8, October 7, November 10 and December 8, 2008 reveal the presence of positive orthopedic testing in the cervical and lumbar spine and an abnormal neurologic component in the manual muscle testing in the right lower extremity. This would be indicative of a lack of response to chiropractic care after approximately four months of treatment. There were no further exams after NJ Page 2 of 6

3 December 8, 2008 so without same, a chiropractor would be unable to monitor the patient s progress and determine the medical necessity of continued care. In addition, there was no evidence of atypical circumstances or co-morbidities that would warrant a deviation from the care path guidelines. Therefore he opined that continued chiropractic care was not medically necessary. Claimant argues that the patient was referred to Rey Bello, MD for a neurological consultation on December 15, After the examination, Dr. Bello recommended continued chiropractic treatment and EMG/NCV studies of the upper extremities to evaluate for possible nerve root compression. The testing revealed bilateral C6 and left C7 radiculopathy with active denervation. Claimant also argues that a review of the SOAP notes through the end of treatment reveals that the patient was progressing with continued treatment and that her pain steadily decreased. CPT Respondent denied CPT based on various physician advisor reviews and the peer review of Dr. Cardellichio who states that there is no functional deficit to support CPT The chiropractor is required to document the specific functional deficit and the type of dynamic activities that will be utilized. Claimant provides the treatment notes from this date which lists the exercises performed, what parts of the body they are performed on, the resistance and the reps performed. The form also states the functional loss and the amount of time spent one-on-one with the chiropractor (15 minutes). CPT Claimant claims $ for this code on August 4, 6, 12 and 13, This code is defined as Laser/Photo Therapy. Respondent argues that since this is an unlisted procedure, per N.J.A.C. 11:3-29.4(l), the record must reflect what procedure was actually performed, why it was medically appropriate and why it is not duplicative of a code for a listed procedure or service. Respondent argues that Claimant has not submitted anything to explain this procedure or illustrate why it was medically necessary. Respondent states that based on the documentation submitted by Claimant, the modality actually administered more closely aligned with code 97026, an infrared modality not requiring direct patient contact by the provider. Respondent provides the peer review from Dr. Cardellichio who commented on this procedure. Claimant provides a letter of medical necessity for this procedure and states that it was performed to accelerate tissue repair, decrease edema and inflammation and minimize the patient s pain. Claimant also provides the daily Laser Treatment Logs and exemplar EOBs to demonstrate that the amount charged of $ is its UCR for this code. CPT Claimant claims $ for this code on 20 occasions from August 27, 2008 through October 29, With respect to the charges for spinal decompression, Dr. Cardellichio states that under New Jersey PIP guidelines, CPT would be utilized instead of CPT Respondent provides several arbitration awards wherein the DRP agreed with the position of the American Chiropractic Association who opined that decompression therapy is appropriately billed as CPT 97012, which falls under the cap. Claimant provides a letter of appeal from Dr. Coreth. He states that CPT (mechanical traction) is intended to identify a procedure that creates a force to allow for separation between joint surfaces. Spinal decompression therapy introduces a negative pressure (decompression) to the inside of the lumbar spinal disc which then helps to retract the bulging or herniated nucleus pulposis. The primary goal of spinal decompression is not to create separation between joint surfaces. Therefore, Dr. Coreth states that CPT would be the incorrect code to use for spinal decompression. He refers to the NJ Page 3 of 6

4 MRI of the lumbar spine wherein the patient sustained a disc bulge at L5-S1. Therefore, this corroborates the medical necessity of the non-surgical spinal disc decompression therapy. He also provides exemplar EOBs showing payments received from other insurances for the same procedures. Claimant also provides peer reviewed literature from the Journal of Medicine which conducted an independent peer reviewed study to conclude that spinal decompression through the DRX9000 achieved substantial reduction in back pain through the decompression process. Where there is a dispute as to medical necessity, the burden rests on the claimant to establish that the services for which he seeks PIP payments were reasonable, necessary and causally related to an automobile accident. See Miltner v. Safeco Insurance Company of America, 175 N.J. Super. 156 (Law Div. 1980). The claimant has the burden of proof to a preponderance of the evidence. See State v. Seven Thousand Dollars, 136 N.J. 233 (1994). 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 v. Allstate Ins. Co., 125 N.J. 491 (1991). With respect to continued chiropractic/physical therapy, including CPT 97530, I find that Claimant has established the medical necessity of same. I am persuaded by Dr. Bello s opinion that the patient required continued treatment as of the time of his examination in December Furthermore the SOAP notes indicate that the patient was feeling more confident performing ADLs with continued treatment and was progressing with continued treatment. Respondent does not provide the letter sent to Claimant after Dr. Kaufman s examination and therefore I cannot determine if Claimant was advised of this cut-off. Therefore, I find that Claimant has established that continued treatment was medically necessary. I also find that Claimant has established the use of CPT As mentioned above, the functional deficits, exercises performed, repetitions, etc were documented by Dr. Coreth. He also documents the time spent one-on-one with the patient. The patient was having difficulty with activities of daily living and weakness in the muscles of her spine. Therefore I do find that Claimant has satisfied the criteria of CPT in this case. NJ Page 4 of 6

5 With respect to CPT 97039, I find that Claimant has failed to establish the medical necessity of this treatment. There is absolutely no documentation regarding the indications for the patient to receive this treatment. The letter of necessity is generic. There are spaces intentionally left on this letter where the provider is supposed to insert the patient s name and date of accident, but these are not filled in. While the Laser Treatment Logs document that this procedure was performed, there is no explanation of why it was done to the areas treated on a particular day or how the patient responded to it. Therefore, this code is denied. I further find that Claimant has failed to establish that the spinal decompression separately billed under CPT was medically necessary. I have reviewed the graphs provided by Claimant which document that starting pain factor and ending pain factor of the patient in response to this treatment. On every date of service, the starting and ending pain factor was the same, a 5. Therefore, it is clear that this type of treatment had no effect on the patient. Furthermore, while this treatment may generally be a beneficial treatment for people with chronic low back pain, I do not find any reference specifically to this patient which would indicate why she was a candidate for spinal decompression. Dr. Coreth refers to her lumbar disc bulge as an indicator in his letter of appeal, but in the literature which he provides, it states that it is a treatment modality for the management of pain and disability for patients suffering with incapacitating low back pain and sciatica. I do not find that this was the patient s presentation at the time she received this modality. The demand is therefore awarded in the amount of $ representing outstanding office visits, physical therapy (including CPT 97530) and manipulative therapy from November 12, 2008 through January 14, The remainder of the demand is denied. I find that claimant was successful and is entitled to an award of counsel fees and costs. 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. 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 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.), cert. denied, 108 N.J. 193 (1987), the court set out seven basic factors to be included in the determination to award attorney s fees: (1) the insurer s good faith in refusing to pay the claim; (2) the excessiveness of plaintiff s demands; (3) the bona fides of the parties; (4) the insurer s justification in litigating the issues; (5) the insured s conduct as it contributes substantially to the need for litigation; (6) the general conduct of the parties; and (7) the totality of the circumstances. Id. at 313. See also Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001). Counsel for claimant has submitted a Certification of Services seeking a counsel fee of $ and costs of $ Counsel for respondent has objected to the number of hours billed (8.7) and the NJ Page 5 of 6

6 hourly billing rate ($250.00). I have reviewed the Certification of Services and find that an award of $ is consonant with the award, Rule 1.5 and the applicable case law. I also award costs of $ representing reimbursement of the filing fee, as the additional costs were neither itemized nor proven. Therefore, the DRP ORDERS: Disposition of Claims Submitted 1. Medical Expense Benefits: Awarded: Medical Provider Amount Claimed Amount Awarded Payable To Hudson East Pain Management $11, $ Hudson East Pain Management Subject to NJ Fee schedule and remaining co-pay/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 was waived 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: 7/12/10 NJ Page 6 of 6