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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 AWARD OF DISPUTE RESOLUTION PROFESSIONAL

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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 11789 03

v. INS. CO. CLAIMS NO.: 9CJBA0608701

CLARENDON DRP NAME: John J. Fannan

INSURANCE COMPANY NATURE OF DISPUTE: MEDICAL

NECESSITY AND NON-COOPERATION (Respondent)

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 Patient 1. Oral Hearings were held on: February 26, 2004 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 as permitted by the DRP (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).

4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW:

I find the Patient was injured as the result of an automobile accident which occurred on June 9, 2002. I further find that the Patient was eligible to make claim for PIP benefits pursuant to the terms and conditions of a policy of automobile insurance issued by the respondent to Aracelis Garcia.

The patient came under the care of Advanced Spinal Care Center on June 17, 2002 complaining of neck pain which radiated into the right shoulder, upper, mid and low back

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pain with low back pain radiating into the left leg. A physical examination revealed tenderness and palpable muscle spasms in the cervical, thoracic and lumbar regions with restricted ranges of motion in all three areas. A number of orthopedic/neurologic tests administered produced positive results. The following diagnosis was formed: lumbosacral radiculitis, cervical sprain/strain, thoracic sprain/strain and lumbar sprain/strain. The patient was placed on a program of chiropractic treatment consisting of spinal manipulation, electrical muscle stimulation, cold and/or hot packs and massage with regular re-evaluations. The patient continued to treat with Advanced Spinal Care Center through November 14, 2002. It is the bill for these treatments ($5825.00) which is open and unpaid and is a subject of this arbitration.

Also, during the course of his treatment with Advanced Spinal Care Center, the patient came under the care of AM Pain Care Acupuncture, on or about July 18, 2002 and received treatment there from July 18, 2002 through August 1, 2002, a total of 3 visits. It is the bill for this acupuncture treatment ($578.00) which is also open and unpaid and is at issue at this hearing.

The respondent argues the patient failed to cooperate with an investigation of this claim. Specifically, it is argued the patient failed to provide a Statement Under Oath as requested and failed to appear for an IME, also as the respondent requested. It is this failure which the respondent argues excuses them from any responsibility for payment of these medical bills.

The following documents have been presented for review and consideration: Demands for Arbitration;

Medical Bills (HCFA Forms); Assignments;

Notice of Commencement of Medical Treatment; Pre-Certification requests with fax headers attached; Comprehensive acupuncture report;

Acupuncture records;

Patient Questionnaire of Advanced Spinal Care Center; Police report;

Copy of patient’s New Jersey Driver’s License; Patient’s Affidavit of No Insurance;

Patient Examination Reports;

Physical Therapy Daily Records (SOAP Notes); Handwritten Patient Examination Records; Certification of Services;

PIP Benefit letters from respondent; SIU Investigation Report;

PIP Application;

Correspondence scheduling IME;

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With respect to the issue of non-cooperation, it is noted the report of SIU Investigator Clark indicates that he spoke on several occasions to the patient’s personal injury attorney requesting documents to support the residency of the patient in order to approve PIP eligibility. The gist of that report indicates that Investigator Clark wanted proof of residency or a statement from the patient. Investigator Clark concludes the claim should be denied because of the failure or inability of the patient’s attorney’s office to locate patient. However, a review of that SIU Investigation Report is most instructive. As is noted, the patient’s name appears on the police report and correctly identifies his address. The report further notes the claimant did complain of injuries to the police. A Motor Vehicle Search regarding the vehicle in which the patient was a passenger confirms its VIN Number was accurate as matching both the insurance policy and the police accident report. A DMV check for the patient revealed the patient did not own any vehicles on the date of loss. Both the patient’s PIP Application and the Affidavit of No Insurance listed his address as the same as that which appeared on the police report. A search of INFOTECH revealed the patient had a credit history at the same address. The SIU Investigator made several trips to the address listed by the patient and spoke to individuals there who advised the investigator the patient did indeed live there but had moved. Investigator Clark concluded in the summary to his report that “there are some indicators that (our claimant) did reside on the second floor at (patient’s address) as some data bases place him there at the time of the loss, but he is not available to support that residence claim and produce documentation that would place him there on the date of loss.” All information developed by the SIU Investigator supported the veracity of the information provided by the patient. There is no indications in the investigative report that there every was any question as to the correct residence of the patient. Investigator Clark fails to even suggest a basis for denial of the claim other than the unavailability of the patient. Having conducted a thorough investigation over the course of several months, the respondent failed to unearth a single reason for challenging the truthfulness of the residency information provided by the patient to the police, to the doctors or to the respondent in the form of a PIP Application and Affidavit of No Insurance. I find the defense of non-cooperation to be at best disingenuous. I do not find the patient failed to cooperate in any way or acted in a manner so as to prejudice the ability of the respondent to conduct a proper defense of this matter.

However, with respect to the failure of the patient to attend a scheduled IME, NJAC 11:3-4.7 permits the scheduling of a physical examination of the injured person at the request of the respondent. That same Section of the Administrate Code provides that failure to appear for a physical examination so scheduled shall result in an additional co-payment not to exceed 50% of the eligible charge for medically necessary treatments. I find that the patient did fail to appear for a properly scheduled IME, and therefore, any amounts awarded herein shall be subject to reduction by that 50% co-payment penalty. With respect to the bill of AM Pain Care Acupuncture, with NJSA 45:2c-5(a)(1) require that initial acupuncture shall only be performed on presentation by the patient of a referral by or diagnosis from a licensed physician. No such document is entered into evidence. Further, the notes of the treating chiropractor contemporaneous with the referral of the patient for acupuncture treatment are wholly silent on that referral. In the

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absence of any support reports or records, I find the claimant AM Pain Care Acupuncture has failed to demonstrate to a preponderance of the evidence that the acupuncture treatments for which payment is sought were reasonable, medically necessary and for a condition or conditions causally related to the subject accident. This is the claimant’s burden under case law and the Administrative Code, and therefore the claim of claimant AM Pain Care Acupuncture is denied.

With respect to the billings of Advanced Spinal Care Center, I note that the respondent has offered no medical reports or testimony whatsoever challenging the medical necessity of that procedure. A review of the reports and records submitted by Advanced Spinal Care Center have demonstrated to a preponderance of the evidence that the treatments for which payment is sought from June 17, 2002 through November 1, 2002 were reasonable, medically necessary and for a condition or conditions causally related to the subject accident. I further find those narrative reports do not establish the medical necessity for the 11/5/02 and 11/14/02 dates of service, and that portion of the claim which seeks payment for those two dates of service is denied.

In reviewing the billing submitted, it is necessary to correlate the dates of treatment billed with the number of treatments requested for Pre-Certification. In a number of instances, the total of number of treatments administered and billed exceeded the numbers for which Advanced Spinal Care Center sought Pre-Certification. Therefore, I find that any treatments which were administered in excess of the numbers of treatments requested for Pre-Certification are deemed to be treatments which have been incurred without first complying with Pre-Certification requirements and are therefore subject to an additional co-payment penalty of 50% pursuant to NJAC 11:3-4.8(h). An analysis of the bill submitted begins with the determination that, pursuant to the Administrative Code, no Pre-Certification is required for the first ten days immediately following the event. I further find as follows: no proper Pre-Certification requests for dates of service 6/20/02 through 7/3/02, 7/8/02-7/30/02 were properly pre-certified, 7/31/02 was not certified, 8/3/02 through 8/28/02 were properly certified, 8/30/02 and 9/4/02 were not pre-certified, 9/7/02 through 11/1/02 were properly pre-certified. In applying the Fee Schedule to those dates of service, including the Daily Maximum Allowable Fee of $90.00 set forth in NJAC 11:3-29.4(m), I find the total amount due and owing to Advanced Spinal Care Center to be $3,703.00.

However, as was stated above, that amount is subject to an additional 50% co-payment penalty for failure of the patient to appear for a validly scheduled IME. Therefore, the total amount awarded to the claimant Advanced Spinal Care Center is $1,851.50.

I also award interest to Advanced Spinal Care Center in the amount of $100.00.

I further find the claimant Advanced Spinal Care Center was successful and is entitled to an award of counsel fees. Counsel for that claimant has submitted a Certification of Services wherein is sought counsel fees in the amount of $1,640.00 together with costs of $325.00. Counsel for the respondent has entered a vehement objection to an award of counsel fees in this amount, objecting to both the total number of hours billed (8.2) and

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the hourly billing rate ($200.00) as excessive. I have reviewed the line item entries on the Certification of Services and I find that an award of counsel fees in the amount of $1,100.00 to counsel for claimant Advanced Spinal Care Center is consonant with the amount at issue herein 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 also award costs in the amount of $285.00. I further find the award of counsel fees in that amount to be consistent with the mandates of the Court in Enright v. Lubow, 215 NJ Super 306, (App. Div.), cert. Denied 108 NJ 193 (1987) as well as of Scullion v. State Farm, 345 N.J. Super 431 (App. Div. 2001).

5. MEDICAL EXPENSE BENEFITS:

Awarded as to claimant Advanced Spinal Care Center Denied as to claimant AM Pain Care Acupuncture

Provider Amount Claimed Amount Awarded Payable to AM Pain Care

Advanced Spinal Care Ctr.

$578.00 $5825.00

-0-$1851.50

AM Pain Care

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

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): $285.00 to counsel Advanced Spinal Care Center.

(B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1100.00 as to counsel for claimant Advanced Spinal Care Center

(C) INTEREST is as follows: $100.00 is awarded to claimant Advanced Spinal Care Center.

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This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. April 5, 2004 ________________________

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