In the Matter of the Arbitration between JERSEY REHAB A/S/O C.R. CLAIMANT(s), Forthright File No: NJ1203001435098 Insurance Claim File No: ALE84350 Claimant Counsel: Melvin D. Marx, P.A. v. Claimant Attorney File No: 221380 Respondent Counsel: Chasan, Leyner & Lamparello Respondent Attorney File No: 13248-0320 Accident Date: 01/03/2011 MetLife Auto & Home RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Cynthia J. Celentano 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: CR An oral hearing was waived by the parties. Hearing Information X An oral hearing was conducted on: July 2, 2012 Claimant or claimant's counsel appeared by telephone. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: Claimant conceded that precertification was not requested for a three level discogram. NJ1203001435098 Page 1 of 6
Findings of Fact and Conclusions of Law CR was involved in a motor vehicle accident on January 3, 2011, from which the within matter arises. At the time of the accident CR was eligible to receive PIP medical benefits from the respondent, Metlife Auto & Home (hereinafter referred to as respondent or Metlife ). Jersey Rehab demands payment of $5,201.58 in PIP medical benefits for three (3) re-evaluations and a three-level discogram at L3-4, L4-5 and L5-S1. As summarized by the claimant, Jersey Rehab demands payment for the following: Date CPT FS Amount Claimed 11/21/11 99213 $59.87 $59.87 12/24/11 99213 $59.87 $59.87 01/11/12 99214 $93.57 $93.57 01/24/12 62290 $1,378.05 $1,378.05 62290 $1,378.05 $1,378.05 62290 $1,378.05 $1,378.05 72295 $854.12 $854.12 In accordance with N.J.A.C. 11:3-5.6(d) and Forum Rule 43, the following issue was identified by the parties for my determination: Whether the treatment is supported as being reasonable and medically necessary. Claimant stipulates that precertification was requested for one unit of CPT code 62290. Claimant acknowledges that in the absence of proof that the claimant had requested precertification for a threelevel discogram; a 50% penalty applies to two units of CPT code 62290. I have considered the following submissions that were filed by the parties: Demand for Arbitration with attachments. Claimant s submission dated June 26, 2012 with Summary of Claim and attached Certification of Services. Claimant s submission dated June 6, 2012 with summary and attachments. Respondent s submission dated June 22, 2012 with summary of claim and attached IME reports of Drs. Kolla and Valenza, examination report of Dr. Naseef, APTP and operative report. In rendering the award in this matter I have considered the evidence presented by the parties and the arguments of counsel at an arbitration hearing on July 2, 2012. At the conclusion of the hearing the parties advised that no additional evidence would be presented. The hearing was then closed. 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 claimant must carry that NJ1203001435098 Page 2 of 6
burden of proof by a preponderance of the evidence. State v. Seven Thousand Dollars, 136 N.J. 233 (1994). 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. 11:3-4.2. 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. It is well settled that the necessity of medical treatment is a matter to be decided, in the first instance, by the patient s treating physicians and an objectively reasonable belief in the utility of a 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 N.J. 491, 512 (1991). Further, the treating physician enjoys wide discretion in determining the extent of treatment needed for a particular patient since it is not unusual for there to be a genuine dichotomy of medical opinion as to the type and extent of treatment needed for a particular injury. Elkins v. N.J. Mfrs. Ins. Co., 203 N.J. Super. 695, 701 (App. Div. 1990). It is also clearly established that the testimony of the treating physician is to be given greater weight when there is a dispute over the necessity and reasonableness of the medical services to be rendered. Mewes v. Union Bldg. & Const. Co., 45 N.J. Super. 89 (App. Div. 1957). Claimant argues that the evaluations and discogram are supported as being reasonable and medically necessary based upon the patient s documented subjective complaints and the objective findings of the treating medical providers. Claimant submits that CR sustained injury to her neck and back as a result of the accident. MRI testing was positive for disc herniations at L1-2, L2-3, L3-4, L4-5, L5-S1 and ridging of the cervical discs. Claimant argues that the patient is documented to have continued complaints of pain despite a course of PT and the pain medications. Claimant contends that Dr. Marini ordered a three level lumbar NJ1203001435098 Page 3 of 6
discography to determine the etiology of the patient s pain. The discogram was positive for lumbar internal derangement and discogenic pain. Claimant argues that the focus of respondent s medical director s report was on the patient s cervical complaints when in fact the patient had lumbar pain and positive findings. In addition, claimant maintains that neither Dr. Valenza nor Dr. Kolla had reviewed the lumbar MRI findings prior to rendering their opinions that the patient had reached maximum medical improvement. In addition, claimant submits that the independent report of Dr. Nasseef corroborates the medical necessity of the discogram since the patient was reported by Dr. Nasseef to have significant lower back pain radiating to the right buttock and occasionally down the leg. Dr. Nasseef s report indicates that the patient had positive straight leg raise test on the right. Dr. Nasseef acknowledges that the discography was positive at L3 to S1; however, in Dr. Nasseef s opinion it was unlikely that surgical intervention would provide lasting relief. It was recommended that the patient undergo closed MRI studies and EMG testing. Metlife denied the request for precertification based upon the opinions and recommendations of Drs. Kolla and Valenza. Dr. Kolla examined CR on September 8, 2011. At the time of the exam CR complained of neck pain and intermittent lower back pain. In Dr. Kolla s opinion CR had reached maximum medical improvement in his field (physical medicine and rehabilitation). Dr. Kolla states that there was no for further PT or testing. Dr. Gangemi filed an appeal. According to the addendum report issued by Dr. Kolla, Dr. Gangemi submitted additional records for consideration. Dr. Kolla states that the additional records did not affect his original IME determination. The decision to deny treatment was upheld. Dr. Gangemi submitted a second appeal on January 16, 2011. Dr. Kolla performed an appeal review. According to Dr. Kolla s report he considered multiple records including the MRI reports relating to the cervical and lumbar spine. Dr. Kolla states that the additional records did not affect his original IME determination. On February 15, 2012 Dr. Valenza at the Kessler Institute examined CR for Rehabilitation. The patient s chief complaints at the time of the IME were neck pain, thoracic pain, low back pain with aching in the left arm and aching in the right leg. In Dr. Valenza s assessment, the patient had reached MMI and she was not in need of further formal therapies or interventional techniques. An appeal was filed. Dr. Valenza issued an addendum on March 22, 2012. After reviewing the records Dr. Valenza states that he still does not believe that CR is a candidate for discogram and follow up CT scan. After considering the evidence presented I find that the claimant has established by the greater weight of the credible evidence that the re-evaluations and discogram were reasonable and medically necessary for the treatment if injuries sustained by CR in the accident. The patient is documented to have multiple lumbar disc hernia ions and to have continued to be symptomatic dispute a course of treatment that NJ1203001435098 Page 4 of 6
included medication, chiropractic treatment, acupuncture and pain management injections. As surgical intervention was considered as a potential treatment option, the discogram is supported as a diagnostic procedure meant to determine the etiology of the complaints. Claimant is awarded $3,823.53. The award reflects a 50% precertification penalty assessed on two units of CPT code 62290. The claimant is the prevailing party entitled to attorney s fees, costs and interest. Interest is awarded and it is hereby ordered that the respondent calculate the amount of interest. Claimant demands $1,567.50 in attorney s fees and $234.63 in costs and fees. The respondent objects to the request for fees as being excessive considering the amount in controversy and the complexity of the issues presented. N.J.A.C. 11:3-5.6 provides that "an 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 Rules of Professional Conduct." An award of attorney's fees to a successful claimant is not mandatory but lies within the sound discretion of the Arbitrator as provided by N.J.A.C. 11:3-5.6(b) (3). In determining the proper amount of fees "the most useful starting point... is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. Super. 144, 157 (App. Div. 1996). The fact finder is given discretion to adjust the fees upward or downward in its discretion. Id. at 158, 160. See Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987); Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 437-38 (App. Div. 2001). R.P.C. 1.5 states that consideration must be given to the novelty and difficulty of the question involved, the skill requisite to perform the legal services, the fees customarily charged in the locality for similar services, the amount involved and the results obtained, as well as the experience, reputation and ability of the attorney performing the services. Considering the factors set forth in R.P.C. 1.5 and the respondent s objection, I award the claimant counsel fees of $1,200.00 and costs of $234.63. NJ1203001435098 Page 5 of 6
Therefore, the DRP ORDERS: Disposition of Claims Submitted 1. Medical Expense Benefits: Awarded: Medical Provider Amount Claimed Amount Awarded Payable To JERSEY REHAB $5,201.58 $3,823.53 JERSEY REHAB 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 awarded 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: $ 234.63 Attorney's Fees: $ 1,200.00 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: 07/03/12 NJ1203001435098 Page 6 of 6