A M E R I C A N A R B I T R A T I O N A S S O ... - New Jersey

[Pages:6]CASE NO. 18 Z 600 03467 02

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AMERICAN ARBITRATION ASSOCIATION NO-FAULT/ACCIDENT CLAIMS

In the Matter of the Arbitration between

(Claimant)

v. ENCOMPASS INSURANCE F/K/A CNA PERSONAL INSURANCE, (Respondent)

AAA CASE NO.: 18 Z 600 03467 02 INS. CO. CLAIMS NO.: 08090631 N5 DRP NAME: John J. Fannan NATURE OF DISPUTE: Medical Necessity, MRO

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: August 29, 2002

2. 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. 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 July 23, 2000. 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 to Ronald and Lillia Potteray by the respondent.

The claimant alleges a number of bills remain unpaid in connection with treatment which she received allegedly for injuries sustained in this accident. Those bills are as follows: Chestnut Hill Hospital ($6,924.20); Barden, Thorwarth & Daughtridge ($942.00) for MRI review; JFK Medical Center ($74.00); Edison Metuchen Orthopedic Group ($6,764.00); Chestnut Hill Hospital Physical Therapy ($2,099.00); Chestnut Hill Hospital

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Physical Therapy ($3,528.00); Dr. Matthew Garfinkel ($103.98); JFK Medical Center ($112.00); Menlo Anesthesia Associates ($1,000.00); Central Jersey Pathology ($105.00); Edison Surgical Center ($6,777.00). The bill of Overlook Hospital ($920.07) was paid and is no longer at issue.

With the exception of the bill of Chestnut Hill Hospital ($6,924.20), which is for MRIs (3) and Barden, Thorwarth & Daughtridge ($942.00), which is for a review of those MRIs, all other bills relate to an arthroscopic partial medial meniscectomy of the patient's right knee which was performed on January 2, 2002.

The respondent has denied payment of these bills based on Peer Review Report and IME of Dr. Michael Sananman, who concluded there was "no medical necessity" for the three MRIs performed, the Peer Review of Dr. David Rubenfeld who opined that the right knee surgery performed on the patient was not related to the motor vehicle accident, and the MRO report of Dr. Albert B. Thrower who also concluded that the surgery to the meniscus was not causally related to the subject accident.

The following documents have been submitted for review and consideration:

Demand for Arbitration; Reports of Dr. Garfinkel; Office notes of Dr. Tiedrich; Report of Dr. Tiedrich; Report of Dr. Smith; Bills; Certification of Services; Letter of Dr. Tiedrich (4/18/01); Operative report; Report of Dr. Novick; Physical Therapy Progress Notes; Patient Treatment Notes; EOBs; Letter from United Review Services; MRO report of Dr. Thrower (7/26/02); Reports of Dr. Sananman; Denial of Payment Letters; Report of Dr. Rubenfeld; MRI reports; Outpatient evaluation form.

The claimant also points to a letter dated 3/20/02 from United Review Services to Edison/Metuchen Orthopedic which the claimant maintains was a negotiation of surgical costs with Dr. Garfinkel and an agreement to a price. I find that letter to be the result of an audit of the medical records, performed after the subject surgery, and which arrives at recommended dollar amount. Nowhere in that letter is there contained a commitment to pay and I find the letter may not be construed as an agreement by the respondent to pay.

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The respondent still is entitled to determine whether or not the treatment was medically necessary in addition to calculating an appropriate fee for same.

With respect to medical necessity, the 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 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). N.J.A.C. 11:4-2 defines medical necessity as medical treatment or diagnostic testing which is consistent with "clinically supported symptoms." Clinically supported is further defined as a personal examination in which the physician makes an assessment of subjective testing, complaints, observations, objective findings, neurologic indications and physical tests. Nowhere does the regulation require that the physician make an objective findings in order to administer a diagnostic test. Rather, the regulations clearly contemplate that such findings (or the lack thereof) are only a portion of a physician's assessment of the patient in his decision making process. In fact, the regulations require the recording and documentation of positive and negative findings and conclusions on the patient's medical records.

Further, as is set forth in NJAC 11:3-5.6 and Rule 21A of the Rules governing No-Fault Arbitration of the American Arbitration Association, the findings of an MRO shall enjoy a presumption of correctness, which presumption may only be overcome by a preponderance of the evidence.

With respect the bill of Chestnut Hill Hospital for the MRIs performed ($6,924.20), I find that the reports and records submitted by the claimant do establish to a preponderance of the evidence that the MRIs of the brain, cervical spine and lumbar spine were reasonable, medically necessary and for a condition or conditions causally related to the subject accident. Therefore, payment of those three tests for the Fee Scheduled amount of $2,905.00 is awarded. I do not find any evidence supporting the necessity of a separate bill from Barden, Thorwarth & Daughtridge for a review of those MRIs and therefore that portion of the claim is denied.

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With respect to the right knee surgery, I note the report of Dr. Rubenfeld which finds that this surgery was not related to the motor vehicle accident. Dr. Rubenfeld noted that the patient ceased treatment with Dr. Tiedrich on January 12, 2001 and did not undergo right knee surgery for one entire year. Dr. Rubenfeld concluded this gap of treatment speaks strongly against causation noting that "any significant injury to the knee related to the motor vehicle accident would have required treatment in a timely and consistent manner."

Further, Dr. Thrower, in his MRO report opines that the meniscal tear and the maltracking of the patella were not causally related to the accident but were rather "in all likelihood pre-existing conditions." Dr. Thrower based his opinion on the fact that the "mechanism of injury described by the physicians would not have been capable of causing a meniscus tear or causing a maltracking patella." Dr. Thrower offered his medical opinion that the records substantiated the patient suffered a contusion of the right knee and that patellar instability and lateral tracking of the patella was in all medical probability a congenital condition present prior to the accident. Dr. Thrower noted "the meniscus tear would require a rotational twisting type injury, which did not occur in this case." He further concluded that "the maltracking of the patella would have required the patella to dislocate if indeed this was a traumatic condition, neither of which occurred." He finally noted "the orthopedic surgeon's finding of a tight retinaculum would also be consistent with a chronic congenitally present condition."

I do not find the report of Dr. Thrower to be inherently contradictory. He does find the treatment of the orthopedic surgeon to be appropriate and necessary,however for a condition not causally related to the subject accident.

A reading of NJSA 39:6A-4(a) in conjunction with NJSA 39:6A-2(e), leads to the inescapable conclusion that the PIP Statute requires payment of all reasonable and necessary medical expenses incurred as the result of personal injuries sustained in automobile accident. It is equally clear, there must be a causal relationship between the injuries and the subject accident. Miskofsky v. Ohio Casualty Insurance Company, 203 N.J. Super 400 (Law Div. 1984). In determining whether the knee surgery was causally related to the subject accident or rather the end result of a natural progression of a preexisting condition, prior Court decisions relating to other PIP eligibility issues are instructive. In cases interpreting the phrase "involving an automobile" the Courts apply the concept of "substantial nexus", a connection more stringent than a "but for" connection. Morgan v. Prudential Insurance Company of America, 242 NJ Super 638 (App. Div. 1990); Foss v. Cignarella, 196 Super 378 (Law Div. 1984). It is logical then to review the reports which have been submitted to determine if such a substantial nexus has been established to a preponderance of the evidence so that the correctness enjoyed by the MRO opinion may be overcome.

I find that the reports and records submitted by the claimant have not established to a preponderance of the evidence a causal relationship between the knee surgery of January,

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2002 and the subject automobile accident. Therefore, payment of medical bills related to the surgery is denied.

Inasmuch as no calculation of interest has been provided, the claim for interest is deemed to have been waived.

I further find that the claimant was successful and is entitled to an award of counsel fees, based on the award of payment of the MRI bills. Counsel for the claimant has submitted a Certification of Services wherein is sought counsel fees in the amount of $4,125.00, paralegal fees of $370.00 together with costs of $325.00. Counsel for the respondent has entered an objection to the award of counsel fees. I find that an award of counsel fees in the amount of $950.00 is consonant with the amount of the award in this matter 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 find no authority in support of an award of paralegal fees and none are awarded. However, I do award costs in the amount of $325.00.

5. MEDICAL EXPENSE BENEFITS:

Awarded

Provider

Amount Claimed Amount Awarded Payable to

Chestnut Hill Hospital Barden, Thorwarth & Daughtridge JFK Medical Center Edison/Metuchen Orthopedic Gp. Chestnut Hill Hospital PT Chestnut Hill Hospital PT Matthew Garfinkel, M.D. JFK Medical Center Menlo Anesthesia Associates Central Jersey Pathology Edison Surgical Center Overlook Hospital

$6,924.20 $942.00 $74.00 $6764.00 $2099.00 $3528.00 $103.98 $112.00

$1,000.00 $105.00 $6777.00 $920.07

$2,905.00* -0-0-0-0-0-0-0-0-0-0-

Paid

Chestnut Hill Hospital

Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below.

The amount awarded to Chestnut Hospital is a net award not subject to further reduction .

6. INCOME CONTINUATION BENEFITS: Not in Issue

7. ESSENTIAL SERVICES BENEFITS: Not in Issue

8. DEATH BENEFITS:

Not in Issue

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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): $325.00

(B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $950.00

(C) INTEREST is as follows: WAIVED.

This Award is in FULL SATISFACTION of all Claims submitted to this arbitration.

October 18, 2002 Date

________________________ John J. Fannan, Esq.

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