A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS AWARD OF DISPUTE RESOLUTION PROFESSIONAL

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1 CASE NO. 18 Z A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS In the Matter of the Arbitration between (Claimant) AAA CASE NO.: 18 Z v. INS. CO. CLAIMS NO.: 2911P FARM FAMILY DRP NAME: John J. Fannan INSURANCE COMPANY NATURE OF DISPUTE: MEDICAL NECESSITY, PRE-CERTIFICATION AND AFFIDAVIT OF NO INSURANCE (Respondent) AWARD OF DISPUTE RESOLUTION PROFESSIONAL I, THE UNDERSIGNED DISPUTE RESOLUTION PROFESSIONAL (DRP), designated by the American Arbitration Association under the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey, adopted pursuant to the 1998 New Jersey Automobile Insurance Cost Reduction Act as governed by N.J.S.A. 39:6A-5, et. seq., and, I have been duly sworn and have considered such proofs and allegations as were submitted by the Parties. The Award is DETERMINED as follows: Injured Person(s) hereinafter referred to as: The Claimant 1. Oral Hearings were held on: February 24, ALL PARTIES APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration WERE NOT amended at the oral hearing as permitted by the DRP (Amendments, if any, set forth below). STIPULATIONS were not made by the parties regarding the issues to be determined (Stipulations, if any, set forth below). 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: I find the Claimant was injured as the result of an automobile accident which occurred on November 8, I further find that the Claimant was eligible to make claim for PIP benefits pursuant to the terms and conditions of a policy of automobile insurance issued by the respondent. The claimant came under the care of the Hamilton Chiropractic Center on November 11, 2002 complaining of headaches, neck pain, mid and low back pain, pain radiating down

2 CASE NO. 18 Z the right arm and right leg. The physical examination conducted by Dr. Beato revealed tenderness upon digital palpation of the C3-C4 spinous processes and deep and superficial muscle spasm, tenderness and muscle splinting of the anterior cervical paravertebral musculature bilaterally. The cervical range of motion was decreased with pain due to spasm. Also, the lumbar examination revealed spasm and tenderness upon palpation of paraspinal musculature at tenderness upon palpation of the L3-L4 spinous processes. Lumbar range of motion was similarly decreased. A series of orthopedic/neurologic tests administered produced positive results. Based upon the claimant s subjective complaints, and the results of the physical examination and orthopedic/neurologic testing, Dr. Beato formed the following diagnostic impression: Acute severe post-traumatic cervical sprain, acute severe post-traumatic lumbar sprain. He also noted that a disc bulge at L4-5 and L5-S1 was later confirmed by an MRI. The claimant was placed on a program of chiropractic treatment consisting of traction followed by chiropractic manipulative therapy and therapeutic massage. The patient continued to treat with Hamilton Chiropractic Center through February 21, It is the bill for treatments rendered by Hamilton Chiropractic Center during those dates of service ($3,189.26) which is open and is at issue in this arbitration. Also, during the course of his treatment with Dr. Beato, the patient was referred for evaluation in physical medicine and rehabilitation to the Regional Rehab Associates, which evaluation took place on January 20, Dr. Jaffe conducted a physical examination which confirmed the presence of tenderness to palpation in both the cervical and lumbosacral spines with muscle spasm and restricted ranges of motion. Dr. Jaffe recommended continued chiropractic treatment as well as therapeutic intervention including intersegmental traction, moist heat, manipulation and deep tissue massage. Dr. Jaffe also prescribed Fiurocet. It is this consultation with Regional Rehab Associates ($225.00) which is also open and unpaid and is a subject of this arbitration. Finally, on February 21, 2003, the claimant was referred by Dr. Beato to Capitol Open MRI for an MRI of the lumbar spine which was performed on that date. The bill of Capitol Open MRI ($925.00) is also open and unpaid and at issue. The respondent argues payment was initially denied because there was no listing of the claimant s name on the police report. However, it was subsequently discovered there was a second page to that police report which did in fact list the name of this claimant. Payment then was delayed because the claimant failed to submit a PIP Application. On January 31, 2003, a PIP Application was subsequently supplied. Additionally, the carrier denied payment because the claimant failed to supply an Affidavit of No Insurance. The respondent argues that three Affidavits of No Insurance had been sent to the claimant, none had been returned. Finally, the respondent indicates it denied payment because no medical provider had ever sought to obtain Pre-Certification for the treatments at issue. The following documents have been submitted for review and consideration:

3 CASE NO. 18 Z Demand for Arbitration; Medical Bills; Police report (with collision description narrative); PIP Application; Report of Dr. Beato; Report of Dr. Jaffe; MRI report. With respect to the issue of the failure of the claimant to provide an Affidavit of Insurance, I find the information provided on the Application for PIP Benefits sufficiently addresses the information sought to be obtained through the Affidavit of No Insurance. The claimant has made the averment that neither he nor any member of his household owned an automobile, that he was not the driver of the automobile but was a passenger therein and was not a member of an automobile owner s household. No evidence has been introduced which would suggest that the respondent had any basis for suspicion of any of those representations. Nor has any evidence been introduced that the respondent took any steps to obtain that information other than mailing requests for same to the claimant and/or the claimant s counsel. Where medical necessity is an issue, the claimant bears 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 Payment were reasonable, necessary and causally related to an automobile accident. Miltner v. Safeco Insurance Company of America, 175 N.J. Super 156 (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 it's 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 Casualty Insurance Company, 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 utility of a treatment or diagnostic method based on the credible and reliable evidence of it's medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics v. Allstate, 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 Manufacturers Insurance Co., 244 N.J. Super 695 (App. Div. 1990). Additionally, pursuant to Case Law developed in this State, where there is a conflict of testimony of medical experts, generally greater weight is to be given to the testimony of the treating physician. Mewes v. Union Building & Construction Company, 45 NJ Super 89 (App. Div. 1957); Biaco v. H. Baker Milk Company, 38 NJ Super 109 (App. Div. 1955); Abelit v. General Motors Corporation, 46 NJ Super 475 (App. Div. 1957).

4 CASE NO. 18 Z Medically Necessary is defined in NJAC 11:3-4.2 as medical treatment or diagnostic testing which is consistent with the clinically supported symptoms, diagnosis or indications of the injured person. That same section of the Administrative Code defines clinically supported as meaning that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic has (1) personally examined the patient to insure that the proper medical indications exist to justify ordering the treatment or tests; (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 ;(4) recorded and documented these observations. The reports and records provided by Hamilton Chiropractic Center thoroughly document the presence of the patient s subjective complaints, as well as document the results of a physical examination and orthopedic/neurologic testing which provide objective corroboration for those complaints. The respondent offers no medical reports which would contradict the determination of Dr. Beato with respect to the medical necessity for the chiropractic treatment offered. I find the reports and records provided by the claimant have established to a preponderance of the evidence that the treatment provided by Hamilton Chiropractic Center from 11/11/02 through 2/21/03 was reasonable, medically necessary and for a condition or conditions causally related to the subject accident. I further find those reports and records also establish to a preponderance of the evidence that the consultation service of the Regional Rehab Associates requested by Dr. Beato was also reasonable, medically necessary and for a condition or conditions causally related to the subject accident. With respect to the claim of Capitol Open MRI, it is noted that the Administrative Code defines Medical Expense means the reasonable and necessary expenses for treatment or services rendered by a provider, including diagnostic services. NJAC 11: That same section of the Administrative Code defines diagnostic test as follows: A medical service or procedure intended to assist in establishing a medical, dental, physical therapy, chiropractic or psychological diagnosis, for the purpose of recommending or developing a course of treatment for the tested patient to be implemented by the treating practitioner or by the consultant. The MRI in this instance was performed on 2/21/03, the date of the claimant s last treatment with Hamilton Chiropractic Center. It can hardly be maintained then the diagnostic test (MRI) was for the purpose of recommending or developing a course of treatment for the tested patient to be implemented by the treating practitioner or by the consultant. That is a necessary requirement of the Administrative Code and one which I found has not been met here. Therefore, the bill of Capitol Open MRI is denied inasmuch as the MRI which was the subject of that bill has not been shown to be reasonable, medically necessary or prescribed in accordance with the New Jersey Administrative Code. In applying the Fee Schedule to the bills of Hamilton Chiropractic Center and Regional Rehab Associates, I find the eligible charge of Hamilton Chiropractic Center to be

5 CASE NO. 18 Z $2, and that of Regional Rehab Associates to be $ However, I find that no evidence has been introduced to indicate the treatments and consultation were subject of Pre-Certification requests, as is required in NJAC 11:3-4.8 for treatment rendered after the initial 10-day period immediately following the accident. Therefore, I find the treatment from Hamilton Chiropractic Center from 11/11/02-11/18/02 is reimbursable at 100% of the eligible charges or $ The treatment from 11/19/02 2/21/03, which produces an eligible charge of $2,048.00, is subject to application of a 50% additional copayment penalty for failure to pre-certify and is reimbursable at the amount of $1, Therefore, the bill of Hamilton Chiropractic Center is awarded in the amount of $1, Similarly, I find a Fee Scheduled amount for the bill of Regional Rehab Associates to be $ This eligible charge is subject to a 50% additional co-payment penalty for failure to properly pre-certify same and therefore the bill of Regional Rehab Associates is awarded in the amount of $ Inasmuch as no calculation of interest has been provided, the claim for interest is deemed to have been waived. I further find the claimant was successful and is entitled to an award of counsel fees. Counsel for the claimant has submitted no Certification of Services; however a review of the submissions made in conjunction with this claim lead me to 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 RPC 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 $ I further find the award of counsel fees in that amount to be consistent with the mandates of the Court in Enright v. Lubow, 215 NJ Super 306, (App. Div.), cert. Denied 108 NJ 193 (1987) as well as of Scullion v. State Farm, 345 N.J. Super 431 (App. Div. 2001). This matter was the subject of an oral hearing conducted on February 24, The hearing was held open to afford the parties the opportunity to make additional submission, including the opportunity for claimant s counsel to submit a Certification of Services, which was not done. The hearing was declared closed of March 15, MEDICAL EXPENSE BENEFITS: Awarded in part/denied in part Provider Amount Claimed Amount Awarded Payable to Hamilton Chiro Capitol Open MRI Regional Rehab Assoc. $ $ $ $1, $ Hamilton Chiro Capitol Open MRI Regional Rehab Assoc. Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below.

6 CASE NO. 18 Z INCOME CONTINUATION BENEFITS: Not in Issue 7. ESSENTIAL SERVICES BENEFITS: Not in Issue 8. DEATH BENEFITS: Not in Issue 9. FUNERAL EXPENSE BENEFITS: Not in Issue 10. I find that the CLAIMANT did prevail, and I award the following COSTS/ATTORNEYS FEES under N.J.S.A. 39:6A-5.2 and INTEREST under N.J.S.A. 39:6A-5h. (A) Other COSTS as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $ (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $ (C) INTEREST is as follows: Waived. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. April 22, 2004 Date John J. Fannan, Esq.