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 600 08077 03
v. INS. CO. CLAIMS NO.: 30V218738
State Farm Insurance Company DRP NAME: James H. Garrabrandt
(Respondent) NATURE OF DISPUTE: Causal
Relationship
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: Claimant. 1. ORAL HEARING held on November 10, 2003. 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 hearing (Amendments, if any, set forth below). STIPULATIONS were notmade by the parties regarding the issues to be determined (Stipulations, if any, set forth below).
4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW:
This matter arose out of a motor vehicle accident that occurred on May 6, 2000 and is, therefore, subject to AICRA.
Claimant seeks medical expense benefits to defray the cost of treatment, including, but not limited to back surgery, he received from Northern New Jersey Orthopedic Specialists, P.A. from May 26, 2000 through April 16, 2002. Claimant seeks medical expense benefits in the amount of $36,331.82.
Respondent denied payment contending that the services for which Northern New Jersey Orthopedic Specialists, P.A. billed were not provided to Claimant for a condition sustained in, and causally related to the May 6, 2000 accident.
In a Peer Review report dated March 13, 2001, Dr. Merrick J. Wetzler of South Jersey Orthopedic Associates, indicates that Claimant's medical history is significant for several surgeries which were related to a workman's compensation injury back in 1995. His symptomatology improved after the surgery but he was again seen by Dr. Cohen on November 13, 1998. At that point, he had recurrence of his left leg pain with numbness and tingling. This had been going on for a couple of months. An EMG showed radiculopathy at L4-5 and L5-S1. Dr. Wetzler notes that after looking at the CT myelogram which showed lateral recess stenosis with well healed fusion L4-5, the treating physician, Dr. Cohen, recommended revision spinal surgery, decompressing the lateral recess, explore the spinal fusion and if the fusion was solid, remove the spinal fixation device and then continue the fusion down to the L5-S1 area.
Dr. Wetzler then notes that there are no further notes from Dr. Cohen until after the accident of 5/6/00. At that time, Dr. Cohen felt that Claimant might have a new herniated disc, but a CT scan showed solid fusion and no disc herniation. An EMG showed a positive radiculopathy. Dr. Wetzler also notes that on May 22, 2000, Dr. Cohen says that the motor vehicle accident probably caused movement and loosening of the screws and it would be his opinion to remove it. He tried conservative care, did physical therapy and on 9/29/00 recommended surgery, which was performed on 12/18/00. Dr. Wetzler states that the surgery was the exact procedure that Dr. Cohen wanted to do on Claimant prior to the motor vehicle accident of 5/6/00.
Dr. Wetzler concludes that since Dr. Cohen wanted to do this procedure prior to the motor vehicle accident, it is within a reasonable degree of medical certainty that the motor vehicle accident although might have exacerbated Claimant's condition, did not cause the need for the surgery since it was contemplated prior to the motor vehicle accident. Dr. Wetzler does not feel that there is a causal relationship between the surgery and the motor vehicle accident. He does feel that the treatment provided by Dr. Cohen in this case is medically necessary but not causally related to the accident.
In a report dated April 15, 2001, the treating physician, Dr. Marc A. Cohen, and commenting on the utilization review that was performed by Dr. Wetzler, states that the physician that has rendered the opinion does correlate without question that this patient did have a surgical procedure prior to this, dated back in 1995. The patient was last seen in my office on November 13, 1998. At that time, notes Dr. Cohen, the patient did have symptoms, but he was able to manage the problem for almost two years, until after the motor vehicle accident on May 6, 2000. It was only after the accident on May 6, 2000, explains Dr. Cohen, that the patient's symptoms became such that he could no longer manage and deal with the problem.
Dr. Cohen continues the April 15, 2001 report by stating that there is no question that the patient did have a problem. The patient was able to deal with it and was functioning and
it was only after the motor vehicle accident on May 6, 2000 that his symptoms became such that surgery was contemplated and performed. It is clear to Dr. Cohen that the patient did have a causal relationship from the motor vehicle accident and that the surgery performed was medically necessary.
Dr. Wetzler responds in a report dated May 31, 2001, that to say that the patient was able to deal with the functioning is not true since even in Dr. Cohen's notes he did comtemplate surgery before the 5/6/00.
What is true, and as gleaned from the reports of record in this case, is that even though surgery may have been contemplated for Claimant prior to the May 6, 2000 accident, he was able to tolerate his condition for nearly two years before his involvement in that accident.
In a report dated May 26, 2000, Dr. Cohen notes that Claimant was involved in an accident on May 6, 2000. He has pain in the lower part of his back radiating down the right leg into the right foot, sometimes pain in his left leg.
It should be noted, and as commented on by Dr. Wetzler in his report, that on November 13, 1998 Claimant had recurrence of his left leg pain with numbness and tingling. On May 26, 2000, he was complaining of pain in the lower part of his back radiating down the right leg into the right foot, sometimes pain in his left leg.
Not only had Claimant sustained an exacerbation of his prior condition in, but also he began experiencing additional symptoms after the May 6, 2000 accident.
In a report dated June 22, 2000, Dr. Cohen indicates that Claimant is symptomatic with his sciatica pain. Dr. Cohen explains that he told the patient that there is a probability the car accident has caused movement and loosening of the screws and it was his opinion to remove it. But, the patient at that time preferred to try conservative treatment. He was referred to physical therapy; but, if there was no improvement, then surgery would be recommended.
In a report dated August 8, 2001, Dr. Cohen indicates that Claimant was treated conservatively. After failure of conservative care without significant improvement, the patient underwent a neurological evaluation by Dr. Daniel Feuer where he was noted to have a right L5-S1 radiculopathy. He also underwent diagnostic testing, which also concurred that he likely had a change in the old area of surgery, particularly at the L4-5 level.
Dr. Cohen then explains that because of no significant improvement in Claimant's symptoms and with the patient having a tremendous amount of back and leg pain, and a dysfunctional quality of life, he underwent a surgical procedure at Morristown Memorial Hospital on December 18, 2000. The operation consisted of an evaluation of his old area of surgery at the L4-5 level where it was noted the instrumentation was grossly loose.
Dr. Cohen is of the opinion that this itself was likely a direct result of motor vehicle accident.
Dr. Cohen concludes his August 8, 2001 report by summarizing that Claimant incurred an accident on May 6, 2000. This accident caused a change in his old area of surgery at L4-5 where the instrumentation was made loose. At the same time, the accident caused an exacerbation and injury to the area below his old surgery at L5-S1. At the time of surgery, there was clear evidence of looseness of hardware as well as compression of the right S1 nerve root. The patient incurred this surgical procedure as a direct result from this accident.
The reports rendered, and opinions expressed by the treating physician, Dr. Marc A. Cohen, are persuasive and have been given greater weight than those of the utilization review physician, Dr. Merrick J. Wetzler.
It has been established by a preponderance of the credible and reliable evidence that the loosening of the instrumentation that was placed in Claimant's lower back in 1995, as well as an exacerbation of his prior condition occurred during, and a new problem below the area of the old surgery was caused by Claimant's involvement in the May 6, 2000 accident.
The conditions for which Claimant underwent conservative treatment, as well as surgery from May 26, 2000 through April 16, 2002 , then, were causally related to the accident. The treatment, as well as the surgery was medically necessary, reasonable and causally related to the accident and, therefore, Claimant is entitled to reimbursement for the subject dates of service.
Medical expense benefits are awarded in the amount of $36,331.82, subject to the medical provider's UCR, or for those CPT codes listed in it, the prevailing medical fee schedule, and any applicable deductible and co-payment.
Claimant's counsel made an application for attorney's fees in the amount of $1,580.00 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.
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 $1,580.00 is consonant with the amount of the Award and in keeping with the guidelines of RPC 1.5.
Claimant seeks reimbursement of costs in the amount of $344.54, which includes reimbursement of a $325.00 filing fee. It is the understanding of the DRP that because the Demand for Arbitration was filed on May 8, 2003 (and the filing fee was reduced to $285.00 effective May 1, 2003), the AAA refunded $40.00 to Claimant. The costs for which Claimant seeks reimbursement, then, have been adjusted to $304.54.
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 $285.00, photocopying postage costs of $12.75 and postage costs of $6.79 shall be apportioned against Respondent.
Costs are awarded in the amount of $304.54 and are to be paid to counsel of record for Claimant.
5. MEDICAL EXPENSE BENEFITS: Awarded
Provider Amount Claimed Amount Awarded Payable to Northern New
Jersey Orthopedic Specialists, P.A.
$36,331.82 $36,331.82* Northern New Jersey Orthopedic
Specialists, P.A.
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 the medical provider's UCR, and for those CPT codes listed in it, the prevailing medical fee schedule, 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 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): $304.54
(B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1,580.00
(C) INTEREST is as follows: waived per the Claimant. .
This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. December 31, 2003 ________________________ Date James H. Garrabrandt, Esq.
