Award of Dispute Resolution Professional. Hearing Information

Transcription

1 In the Matter of the Arbitration between CHIROPRACTIC CARE, PC / DR. MICHAEL HADDAD A/S/O F. G. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: 30Q Claimant Counsel: Andrew J. Blair, Counselor at Law, P.A. v. Claimant Attorney File No: B-MED-GON Respondent Counsel: Amy F. Loperfido & Associates Respondent Attorney File No: 2P10RU1585 Accident Date: 11/05/2009 State Farm Ins Co North-NJ RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Maureen M. Johnston 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: FG An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: June 26, 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: NJ Page 1 of 6

2 Findings of Fact and Conclusions of Law Petitioner seeks PIP reimbursement for services provided to patient FG. This patient was involved in an auto accident on November 5, At issue are outstanding services from April 6 through July 27, 2010 in the amount of $2, Claimant provided the proof of medical necessity with the documentation supplied. Respondent raises the defense of collateral estoppels, medical necessity and Med-Pay v. PIP. In post hearing claimant amended the demand originally filed on July 26, 2010 to include additional dates of service April 6 through May 4, 2010 in the amount of $1, making the total amount outstanding $2, The carrier initially denied the claim because a prior matter for earlier services, NJ , was settled between the carrier and the petitioner. Respondent's first argument is that the doctrine of res judicata/ entire case controversy applies. According to the carrier this claim is barred in accordance with the entire controversy doctrine. A demand was previously filed through the office of counsel on behalf of this claimant for disputed billing for service dates ranging from December 30, 2009 through February 11, The claim was filed on May 29, 2010 and settled on June 17, Respondent urges that a valid argument of the entire case controversy exists relative to service dates at least through June 15, At that time claimant and counsel knew of or should've known prior to the settlement date of June 17, 2010 that bills were outstanding. Service dates of May 7 through June 15, 2010 occurred prior to the filing and during the pendency of claimant's prior demand filing. According to respondent the only dates that the entire controversy doctrine does not seem to apply to would be June 22 and June 30 in which case respondent relies on the denial of medical necessity by IME. Entire Controversy: The entire controversy doctrine Rule 4:30A provides that non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by Rule 4:64-5 (foreclosure actions) and Rule 4:67-4A leave required for counterclaims or cross-claims in summary actions. The doctrine is a preclusionary device intended to prevent fractionalized litigation by requiring the assertion of all claims arising from a single controversy in a single action. Prevratil v. Mohr, 145 N.J. 180 (1966). The doctrine/analysis is as follows to support (1) the need for complete and final disposition through the avoidance of piecemeal decisions, (2) fairness to parties to the action and those with a material interest in the action, and (3) efficiency and the avoidance of waste and the reduction of delay. Ditrolio v. Antiles, 142 N.J. 253 (1995). Further a party will not be barred from raising additional claims in a subsequent proceeding if that party was unable to assert those claims in the initial proceeding. Mystic Isle Development Corp. v. Persky and Nehmad, 142 N.J. at 323 (1995). With regard to the entire controversy the petitioner's position is that the prior settlement was on June 17, 2010 and that the bills in question for the original demand for arbitration and the amendments NJ Page 2 of 6

3 were not ripe for payment at the time of settlement. The original bills were filed on June 21. The amendment bills were filed on May 24. The second amendment was submitted on August 3 and the final on September 2, Claimant relies on the dates in the lower left-hand corner of the HCFA forms attached to the demand and a certification from the billing company indicating when the respective HCFAs were submitted. Claimant's argument is that the outstanding claims were not ripe for payment at the time of settlement and that same should not be barred. While I understand that the entire controversy doctrine would bar certain of the billing I cannot find that the outstanding services herein were ripe for resolution at the time of the original settlement of the prior case. Respondent relies on the opinions of other DRPs in the matters of entire controversy and their opinions on same. Many of these are distinguishable in that they apply the entire controversy doctrine to matters that were heard in arbitration and resolved on the merits. They do not describe services that were previously denied and then attempted to be re-litigated. In the above-captioned matter the carrier overlooked the chiropractic IME of April It was possible that the petitioner relied on that reimbursement. There was no indication that the settlement was full and final and that no other bills would be considered. I also find that the billing that is the subject of this arbitration was not overdue at the time that the settlement was resolved. A party will not be barred from raising additional claims in a subsequent proceeding if that party was unable to assert those claims in the initial proceeding. Accordingly I find the matter should proceed with regard to medical necessity. Respondent advises that the matter concerns limited med pay and not PIP because the vehicle in which the claimant was involved with the loss is a commercial truck bearing commercial license plates. As of July 23, 2012 the outstanding amount remaining for Med pay is $1, Claimant acknowledges the Med-Pay limitations. In post hearing respondent also stated that the initial demand filed included HCFA bills, covering consults and dates of services May 7, 12, 14, 19, 24, 25, 27, 6/1 and 6/3/2010. The amendment dated October 21, 2010 included dates of service July 13, 20 and 27. The September 15, 2010 amendment was for a consult of June 15 and billings on June 15, 22 and June 30, Respondent argues that even if medical necessity is to be found payment should not be awarded if claimant does not produce medical records and HCFA bills including CPT coding for all the dates sought. The carrier relies on the chiropractic opinion of Dr. Riotto who performed an examination on April 2, He concluded that the patient suffered cervical myalgia and lumbar myalgia. He concluded there was a direct relationship between the auto accident but that further chiropractic treatment was not warranted or justified for the patient. Claimant relies on the opinion of Chiropractic Care PC. On April 6 at or about the time the patient was examined by Dr. Riotto the patient had reduced range of motion with positive cervical orthopedic signs and thoracolumbar orthopedic signs. The patient had pain and spasm with palpation to the cervical, thoracic and lumbar spine. The notes indicate that the patient was having pain in the low back, across the hips and buttocks. By May 2010 the patient was having difficulty with his left hip during ambulation which was also afflicting his left knee. He had persistent neck pain that was resolving and was referred for consult and MRI of the left knee to rule out internal derangement. By June 15, 2010 the patient's range of motion was improved somewhat. The orthopedic testing remains similar to what it had been prior. The patient still was having difficulty with the hips into the knee when walking and was referred for pain management. Medical Necessity: NJ Page 3 of 6

4 The burden to establish medical necessity by a preponderance of the evidence lies with claimant. When the parties disagree, claimant has the burden to establish that the services for which payment is sought were reasonable, necessary and causally related to the subject automobile accident. Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156, 158 (Law Div. 1980). The medical necessity of the treatment is a subject to first be decided by the injured party s treating physician. Id. Medical expenses must be both reasonable and necessary and are defined by N.J.S.A. 39:6A-2(m) as follows: 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, as such protocols may be recognized or designated by the Commissioner of Health and Senior Services or with a professional licensing or certifying board in the Division of Consumer Affairs in the Department of Law and Public Safety, or by a nationally recognized professional organization, and (3) does not involve unnecessary diagnostic testing. Medical necessity is further explained in N.J.A.C 11:3-4.2 as follows: 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 protocols including the Care Paths in the Appendix, 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 or treatment. Clinically supported is defined in N.J.A.C. 11:3-4.2 as follows: 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, 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. N.J.S.A. 39:6A-4(a) provides for the payment of medical expenses in accordance with a benefit plan provided in the policy and approved by the commissioner of insurance for reasonable, necessary and appropriate treatment. According to the statute, medical treatment, diagnostic tests and services shall be rendered in accordance with commonly accepted protocols and professional standards and practices Id. The statute goes on to state that: NJ Page 4 of 6

5 Protocols and professional standards and practices and lists of valid diagnostic tests which are deemed to be commonly accepted pursuant to this section shall be those recognized by national standard setting organizations, national or state professional organizations of the same discipline as the treating provider, or those designated or approved by the commissioner in consultation with the professional licensing boards in the Division of Consumer Affairs in the Department of Law and Public Safety. The commissioner, in consultation with the Commissioner of the Department of Health and Senior Services and the applicable licensing boards, may reject the use of protocols, standards and practices or lists of diagnostic tests set by any organization deemed not to have standing or general recognition by the provider community or the applicable licensing boards. Protocols shall be deemed to establish guidelines as to standard appropriate treatment and diagnostic tests for injuries sustained in automobile accidents, but the establishment of standard treatment protocols or protocols for the administration of diagnostic tests shall not be interpreted in such a manner as to preclude variance from the standard when warranted by reason of medical necessity. Pursuant to N.J.A.C. 11:3-4.6(c), [t]reatments that vary from the care paths shall be reimbursable only when warranted by reason of medical necessity. It appears that the chiropractic care was helping the patient to resolve his painful condition. There was some improvement as the range of motion improved and the spasm and tenderness decreased. I note however that by June 15 the patient was referred for pain management. At that point I find that the chiropractic care had stabilized and that the conservative care was moving to the next level as prescribed by the Carepath PIP guidelines. At that point I find the patient chiropractic care is not warranted and not demonstrated by the medical documentation. Based on this finding the service dates supported by HCFAs and treatment notes specifically May 7, 12, 14, 19, 24, 25, 27, June 1 and 3 and 15 are reimbursable as well as the office consults regarding same. Had an office consult at $99.00, ten office visits at $99.00 and consults at $ Under NJAC 11:3-5.6 prevailing counsel in the PIP setting is entitled to an award of attorney fees and costs. The award of counsel fees in the litigation setting rests within the court and within the discretion of the DRP in the arbitration setting. Enright v. Lubow 215 N.J. Super 306 (App. Div. 1987) after reaffirming the rule that award lies within the court's discretion, the court set forth seven basic factors to be included in a determination. These included the insurer's good faith in refusing to pay the claim, excessiveness of the demand, the bona fides of the parties, the insured's conduct and the insurer's justification a litigating the issues, the general conduct of the parties and the totality of the circumstances. Further, the court in Scullion v. State Farm Ins. Co. 345 NJ Super. 431 (App. Div. 2001) advised that counsel fees comport with the amounts awarded. I find that the reduced amount awarded herein is in accordance with RPC 1.5 as well as the Forthright R.22. NJ Page 5 of 6

6 Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Chiropractic Care/Michael Haddad, DC $1, $1,104.00* Chiropractic Care/Michael Haddad, PC *subject to the Med-Pay limits. 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 is 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: $ Attorney's Fees: $ 1, 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: 09/06/12 NJ Page 6 of 6