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 bet

Transcription

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.: Allstate Insurance DRP NAME: James H. Garrabrandt (Respondent) NATURE OF DISPUTE: Non-Payment of Bills, CPT Codes, UCR, Unbundling, Medical Necessity 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: EY. 1. ORAL HEARING held on January 13, ALL PARTIES APPEARED at the oral hearing(s). ALL PARTIES appeared telephonically. 3. Claims in the Demand for Arbitration were AMENDED and permitted by the DRP at the oral hearing (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). The Amount Claimed for Claimant, Fort Lee Anesthesiology, was amended to $2, to correct a computational error. 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: This matter arose out of a motor vehicle accident that occurred on January 16, 2002 and is, therefore, subject to AICRA. In the Demand for Arbitration, Claimant, Fort Lee Surgery Center, seeks reimbursement in the amount of $15, in facility fees for dates of service October 18, 2002, October 30, 2002, November 20, 2002 and February 24, 2003 and Claimant, Fort Lee

2 CASE NO. 18 Z Anesthesiology seeks reimbursement in the amount of $2, for anesthesia administered to EY on those dates of service. Fort Lee Surgery Center Claimant, Fort Lee Surgery Center, seeks reimbursement in the aggregate amount of $15, for various dates of service, as itemized below. October 18, 2002 CPT $ CPT $ October 30, 2002 CPT $ CPT $ November 20, 2002 CPT $ February 24, 2003 CPT $2, CPT $1, CPT $1, CPT $1, CPT $ What constitutes usual, customary and reasonable charges for CPT codes 62311, with additional levels billed, and is at issue in this case. An independent CPT-4 billing audit was conducted on behalf of Respondent by Midlantic Medical Review, Inc. (MMR) on November 11, MMR evaluated what acute care facilities/hospitals charge in the State of New Jersey for spine surgery and procedures. An analysis of the data yielded an average cost of $1, per hour of combined operating room, anesthesia and recovery room time for these procedures. MMR then evaluated a slightly higher figure of $1, per hour for Claimant's time to take in the time spent at the facility pre-operatively and in recovery. It then calculated that Claimant

3 CASE NO. 18 Z is charging $11, per hour. Following its analysis, MMR recommended that Claimant be compensated at a rate of $1, an hour, pro-rated to $25.00 a minute. Neither MMR, nor its methodology of averaging certain charges billed by a selected group of acute care facilities/hospitals is recognized for establishing a UCR charge for CPT codes. Nowhere during its analysis, or in its recommendation does MMR even suggest a UCR for any of the subject CPT codes. It should also be noted that most of the acute care facilities/hospitals from which MMR gathered raw data for its analysis are located in geographical Regions I and II; while Claimant is located in Region III. Costs are generally known to be higher in the New York/Northern New Jersey metropolitan area than in other areas of the State. And, it does not look as though, or at least there is no back-up material of record in this case to establish that the actual costs incurred, or overhead expenses absorbed by Claimant, or any of the acute care facilities/hospitals were taken into consideration by MMR during its analysis. Claimant, on the other hand, produced copies of EOB's showing payment in full by other insurance carriers for CPT codes 62311($1,570.00), ($2,110.00), with additional levels billed ($1,055.00), ($550.00) and ($1,850.00). Claimant's proofs are persuasive. Claimant's billing, coupled with the EOBs of record in this case, has established the UCR charges for CPT codes 62311, with additional levels billed, and in this case. Billing for supplies under CPT on dates of service October 18, 2002, October 30, 2002, November 20, 2002 and February 24, 2003 constitutes "unbundling" and is, therefore, disallowed. Claimant withdrew its claim for reimbursement of facility fees and/or other expenses billed under CPT for trigger point injections administered to EY on October 18, 2002 and October 30, Respondent, through MMR, cites from what purports to be a footnote on a 1-page excerpt from National Correct Coding Initiative (CCI), Correct Coder for Edits, Validation List that "Comprehensive Edits Code. The look-up code will not be reimbursed when it is rendered by the same provider on the same date of service since it (the Look-up Code) is part of this comprehensive procedure code." and, then, argues that Claimant should not be reimbursed facility fees for an epidural injection and epidurography administered to EY on the same day.

4 CASE NO. 18 Z Without the entire section from which the excerpt was taken, however, a determination cannot be made as to whether the excerpt applies to the reimbursement of facility fees, or whether Respondent's interpretation of the wording on the excerpt is correct. Nor has Respondent established that National Correct Coding Initiative (CCI), Correct Coder for Edits, Validation List is an authoritative document for coding and/or the reimbursement of various procedures, or facility fees for the use of a particular facility where those procedures are performed; or, for that matter, on what basis it would ever be controlling in the reimbursement of various CPT codes under AICRA, the Administrative Code, the prevailing medical fee schedule and UCR. For the foregoing reasons, then, the National Correct Coding Initiative (CCI), Correct Coder for Edits, Validation List has not been given any weight in this case. The amount for which Claimant, Fort Lee Surgery Center, is seeking reimbursement has been reduced to $12,430.00, and as itemized below. October 18, 2002 October 30, 2002 November 20, 2002 February 24, 2003 CPT $2, CPT $1, CPT $1, CPT $1, Even though it paid Claimant, Fort Lee Anesthesiology, in full for dates of service October 18, 2002, October 30, 2002, November 20, 2002 and February 24, 2003, Respondent questions the medical necessity of the treatment rendered to EY when considering whether or not to reimburse Claimant, Fort Lee Surgery Center, facility fees for those same dates of service.

5 CASE NO. 18 Z In doing so, Respondent relies on a report rendered by an IME physician, Dr. James A. Charles, on September 10, In his report, and following his examination of her, Dr. Charles states that EY sustained cervical and lumbar sprains of musculoskeletal and ligamentous origin. The accident caused a direct intensification of headache frequency and intensity, but the symptoms are improving as noted by his relatively normal neurological examination of her. Dr. Charles did note, however, some radiation of pain form EY's lower back into her calves. Dr. Charles, though, recommends that MRI films revealing a disc herniation should be reviewed either by him, or at Respondent's discretion, by a board certified radiologist. Aside from that, opines Dr. Charles, the patient has received maximum benefit from treatment and requires no further treatment or testing. There is no indication of record that either Dr. Charles, or anyone on behalf of Respondent reviewed the MRI films. As reported by the radiologist, Dr. Ronald Schliftman, to the treating physician, Dr. Ulises C. Sabato, on January 22, 2002, the MRI of the cervical spine revealed midline herniated discs at C4-5 and C5-6; while the MRI of the lumbar spine revealed a midline herniated disc at L5-S1. An EMG/NCV study conducted on February 25, 2002 revealed left tibial neuropathy and the presence of bilateral L5-S1 polyradiculopathy with acute and subacute features. In the Operative Report dated October 18, 2002, the treating physician, Dr. Ulises C. Sabato, advises that because of a history of severe lower back pain and poor response to conservative treatment modes, EY was proposed for a lumbosacral epidural steroid injection with fluoroscopic guidance of needle and lumbosacral paraspinal trigger point injections under sedation. This is so for the procedures performed on EY on October 30, 2002 and November 20, 2002, as well. In Operative Report date February 24, 2003, Dr. Sri Kantha indicates that the patient complains of intractable low back pain since being involved in the accident and there is MRI evidence of lumbar disc herniation at L5-S1, and her clinical symptoms are suggestive of discogenic pain. She has not responded adequately to conservative treatment, to include physical therapy, chiropractic treatment and lumbar epidural steroid injections and, therefore, is being proposed provocation lumbar discography at L3-4, L4-5 and L5-S1 levels. Greater weight has been given to the reports rendered, and opinions expressed by the treating physicians, Drs. Sabato and Kantha, than to those of the IME physician, Dr. Charles.

6 CASE NO. 18 Z The procedures performed on EY on October 18, 2002, October 30, 2002, November 20, 2002 and February 24, 2003 were part of a progressive treatment plan for her after she failed to adequately respond to a course conservative treatment. As reflected in the referenced reports, as well as the handwritten notes of Dr. Sabato which are also of record in this case, the treatment was consistent with clinically supported symptoms, diagnosis and indications of the injured person. N.J.S.A. 11:3-29.1, et seq. Claimant has established by a preponderance of the credible and reliable evidence that the treatment rendered to EY on the subject dates of service was medically necessary and its billing of facility fees for those procedures was proper. Claimant is, therefore, entitled to reimbursement in the amount of $12, for dates of service October 18, 2002, October 30, 2002, November 20, 2002 and February 24, Fort Lee Anesthesiology Claimant, Fort Lee Anesthesiology, billed a total of $2, for anesthesia administered to EY on October 18, 2002 (CPT $510.00); October 30, 2002 (CPT $595.00); November 20, 2002 (CPT $510.00) and February 24, 2003 (CPT $595.00). Respondent produced proof of paying, and Claimant acknowledged receipt of payment for dates of service October 18, 2002, October 30, 2002, November 20, 2002 and February 24, Claimant is not entitled to any further reimbursement for those dates of service. Medical expense benefits are awarded as outlined hereinabove and set forth in Paragraph 5, below. Claimant's counsel made an application for attorney's fees in the amount of $1, in this matter. N.J.A.C. 11:3-5.6(d)3 provides that the decision of the dispute resolution professional "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." Claimant has been successful herein and, therefore, Claimant's counsel is entitled to an attorney's fee. With respect to attorney's fees, the Certification of Services has been reviewed and Respondent's argument that the fees sought by Claimant's counsel are excessive has been taken into consideration, as well.

7 CASE NO. 18 Z As set forth in RPC 1.5, consideration has been given, but not limited to, the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the fees customarily charged in the locality for similar legal services, the amount involved and the results obtained, as well as the experience, reputation and ability of the lawyer performing the service. An attorney's fee of $1, is consonant with the amount of the Award and in keeping with the guidelines of RPC 1.5 and, therefore, appropriate and reasonable in this case. Claimant seeks reimbursement of costs in the amount of $ N.J.A.C. 11:3-5.6(d)2 provides that "the award shall apportion the costs of the proceedings, regardless of who initiated the proceedings, in a reasonable and equitable manner consistent with the resolution of the issues in dispute." In keeping with N.J.A.C. 11:3-5.6(d)2, Claimant's arbitration filing fee of $ shall be apportioned against Respondent. Costs are awarded in the amount of $ and are to be paid to counsel of record for Claimant. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Fort Lee Surgery Center Fort Lee Anesthesiology $15, $12,430.00* Fort Lee Surgery Center $2, $0.00 Fort Lee Anesthesiology Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. *Subject to Claimant's UCR and any applicable deductible and co-payment. 6. INCOME CONTINUATION BENEFITS: Not In Issue 7. ESSENTIAL SERVICES BENEFITS: Not In Issue 8. DEATH BENEFITS: Not In Issue

8 CASE NO. 18 Z 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): $1, (C) INTEREST is as follows: waived per the Claimant.. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. March 24, 2004 Date James H. Garrabrandt, Esq.