This demand for arbitration arises from the patient being involved in an automobile accident on June 25, 2018, and receiving treatment for injuries. In accordance with N.J.A.C. 11:3-4.7 and Forthright Rule 43, the following issues were identified by the parties at the hearing and submitted for my determination as to the only issues in dispute:
Issue Presented:
Whether the neurophysiological testing was reasonable and medically necessary as related to the subject M.V.A.?
No other issues were identified at the hearing or will be considered, including any other issues raised in either party’s pre or post-hearing submissions. At the hearing, the parties presented the issue identified above. In rendering this decision, I have read and considered the pre and post-hearing submissions of the parties along with all attachments thereto. I have also heard and considered the arguments of counsel at the hearing.
Facts:
Medical Necessity
The patient was injured in an M.V.A. on June 25, 2018. Claimant is seeking an amount of $1,516.79 and interest, attorney fees, and costs. Claimant is seeking reimbursement for services performed to the Claimant on May 6, 2019. On the said date, the Claimant underwent neurophysiological testing including Cortical Brain Mapping.
Respondent denied the treatment based upon a series of peer reviews: Dr Scott Weiss dated April 29, 2019; Dr. Jingyasa Desai May 8, 2019; Dr. Brad Tinkleman on May 21, 2019. Respondent also submitted their letter of review, The denial letter from Dr Scott Weiss, three appeal letters from Optimum Managed Care Services, Dr. Jingyasa Desai’s letter upholding Dr Scott Weiss’ finding, Fax correspondences, Dr. Brad Tinkleman’s letter denying the necessity for the Claimant’s testing,
Claimant submitted the treatment records from Eastern Neuro; The brain M.R.I., the appeal letter from Optimum Managed Care Services; Explanation of Brain mapping/Definition of Sensorium; Articles on Brain Mapping for Post-Concussive Syndrome; Sample Brain Mapping Arb Awards; and Supreme Court of NY Brain mapping Affirmation.
I have reviewed all the proofs and submissions of the parties and will address those upon which I relied on determining the reasonableness and medical necessity of the treatment.
Law:
Medical Necessity / Causation
With respect to causal connection, the Appellate Division has recently held that an individual seeking Personal Injury Protection Benefits (P.I.P.) must prove by a preponderance of the evidence that the injuries for which treatment was rendered and for which reimbursement is sought were proximately caused by the particular automobile accident triggering coverage under the policy of insurance. Bowe v. N.J. Manufacturers Insurance Company, 367 N.J. Super. 128 (App. Div. 2004).
When confronted with a dispute as to the services provided, the burden rests upon the Claimant to establish that the medical expenses for which it seeks P.I.P. benefits were reasonable, necessary, and causally related to an automobile accident. See Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156 (Law Div., 1980).
N.J.S.A. 39:6A-4(a) provides for the payment of medical expense benefits in accordance with a benefit plan provided in the policy and approved by the commissioner for reasonable, necessary, and appropriate treatment. This statute also indicates that medical treatments, diagnostic tests, and services provided by the policy shall be rendered in accordance with commonly accepted protocols and professional standards and practices. Protocols shall be deemed to establish guidelines as to appropriate standard treatment for injuries sustained in automobile accidents. Those guidelines are outlined in the Care Paths.
The Care Paths are recommended courses of care based on professionally recognized standards. The Care Paths identify typical courses of intervention. That is, the Care Paths were created to establish the typical treatment protocols for neck and back injuries as a measuring stick to help determine whether treatment is medically necessary. There may be patients who require more or less treatment. However, cases that deviate from the Care Paths may be subject to more careful scrutiny and may require documentation of special circumstances to justify the deviations. Deviations may be justified by individual circumstances, such as pre-existing conditions and/or comorbidities. The Care Paths encourage result oriented medical treatment practices. The guidelines established in the Care Paths are designed to avoid the continuation of treatment and therapy, week after week, over many months and years without any observable improvement. Such practice is not only wasteful but may cause a patient to suffer unnecessarily before more effective and beneficial care might be available from a different type of treatment. The Care Paths, then, do not deprive the patient of the opportunity to seek the treatment of choice, but rather they encourage alternative choices if a treatment plan becomes unproductive. Comments of D.O.B.I., December 21, 1998.
Pursuant to N.J.A.C. 11:3-4.6(c), treatments that vary from the Care Paths shall be reimbursable only when warranted by reason of medical necessity. 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 its medical value is enough to qualify the expense for P.I.P. purposes. Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491 (1991).
Pursuant to N.J.S.A. §39:6A-2(m), “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.” See also N.J.A.C. 11:3-4.2 which states “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: the treatment is the most appropriate level of service that is in accordance with the standards of good practice and standard professional treatment protocols including the Care Paths in the Appendix, as applicable.
In addition, N.J.A.C. 11:3-4.2 Definitions, State in pertinent part: “Clinically supported” means that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic test has: Personally examined the patient to ensure that the proper medical indications exist to justify ordering the treatment or test; Physically examined the patient including making an assessment of any current and/or historical subjective complaints, observations, objective findings, neurologic indications, and physical tests; 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 Recorded and documented these observations, positive and negative findings and conclusions on the patient’s medical records.
Case law in this State is clear that where there is a conflict of testimony of medical experts, generally greater weight is to be given to the treating physician’s testimony. Mewes v. Union Bldg. & Const. Co., 45 N.J. Super. 88 (App. Div. 1957); Bialko v. H. Baker Milk Co., 38 N.J. Super. 169 (App. Div. 1955); Abelit v. Gen. Motors Corp., 46 N.J. Super. 475 (App. Div. 1957). While it is true the treating physician’s opinion is not automatically accorded conclusive weight, Black & Decker Disability Plan v. Nord, 123 S. Ct. 1965 (2003), (relating to E.R.I.S.A. Plans), it is accorded an appropriate measure of deference. Palliative care is compensable under P.I.P. when it is medically reasonable and necessary. Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990).
Certain diagnostic tests have been determined to have value in the “evaluation of injuries, the diagnosis and development of a treatment plan” for injured persons, “when medically necessary and consistent with clinically supported findings” N.JAC. 11:3-4.5(b). These tests include: Somasensory evoked potential (S.S.E.P.), visual evoked potential (VEP), brain audio evoked potential (B.A.E.P.), or brain evoked potential (B.E.P.), nerve conduction velocity (N.C.V.), and H-reflex Study are reimbursable when used to evaluate neuropathies and/or signs of atrophy, but not within 21 days following the traumatic injury.
Electroencephalogram (E.E.G.) when used to evaluate head injuries, where there are clinically supported findings of an altered level of sensorium and/or a suspicion of seizure disorder. This test, if indicated by clinically supported findings, can be administered immediately following the insured event. When medically necessary, repeat testing is not normally conducted more than four times per year.
Pursuant to N.JAC. 11:3-4.5(b)(1), needle electromyography (E.M.G.) may be warranted “when used in the evaluation and diagnosis of neuropathies and radicular syndrome where clinically supported findings reveal a loss of sensation, numbness or tingling ….” N.J.A.C. 11:3-4.6(b)1. Pursuant to N.J.A.C. 11:3- 4.5(b)(2), nerve conduction velocity (N.C.V.) and H-reflex studies “may be warranted when used to evaluate neuropathies and/or signs of atrophy+ but not within 21 days following the traumatic injury.”
Analysis and Conclusion:
Medical Necessity – E.E.G. / Brain Mapping and subsequent therapy.
I find by a preponderance of the evidence that Claimant has met its burden as to the testing and treatment.
I relied on the April 15, 2019 evaluation of Dr. Shiva Gopal. The Doctor’s physical examination revealed the Claimant’s post-traumatic injuries. Also, per the neurological examination, the Claimant was unable to complete Serial 7’s. The Claimant had difficulty spelling the word “world” backward and forward. Further, her memory recall included 3 out of 5 items after five minutes. Consequently, the Doctor concluded that the Complainant was limited with respect to her cognitive abilities and needed to be evaluated with a cortical brain mapping study. I find that the said clinically supported findings satisfy the need for the testing.
I also relied on Dr. Brett M. Picciotti’s review on May 23, 2019, where the Doctor reviewed the cortical brain mapping study. The review demonstrated that the Claimant had an electrophysiologic dysfunction in the bitemporal region and extending to the parietal-occipital region. This finding was in light of the Claimant’s persistent post-concussive symptoms and ongoing cognitive deficits, including concentration and memory difficulties. The results of the study clearly affirm that the Claimant rightly needed the test.
Dr. Daniel Kuhn’s Brain mapping Affirmation on April 13, 2006 observes that non-penetrative injury occasioned from accidents cause abnormal brain changes. And that these changes can only be observed by an electroencephalogram E.E.G. Notably, the E.E.G. has been widely used in diagnostics to evaluate brain injuries. In that regard, the Complainant in this case rightly needed the test.
Also, the New Jersey Auto Insurance Cost Reduction Act has not ruled out any service as not fitting within its definition of “hospital expenses” that Insurance companies should cover. See New Jersey Auto Insurance Cost Reduction Act, Section C.39:6A-2(2)(f).
Accordingly, I find that the Respondents lack satisfying evidence that Complainant’s treatment was not medically necessary.
Attorney’s Fees and Costs
Respondent PLIGA is exempt and not subject to an award of costs and fees.
Therefore, the D.R.P. Orders:
Disposition of Claims Submitted
- Medical Expense Benefits: Awarded
| Medical Provider | Amount Claimed | Amount Payable | Payable To |
| Eastern Neurodiagnostic | $1,516.79 | $1,516.79 | Eastern Neurodiagnostic |
2 . Income Continuation Benefits: Not in Issue
3 . Essential Services Benefits: Not in Issue
4 . Death Funeral Expense Benefits: Not in Issue
5 . Award of Interest: Awarded. Amount to be calculated by Respondent pursuant to N.J.S.A. 39:6A-5.2g.
Attorney’s Fees and Cost
I award no fees and costs to the Respondent.
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:05/08/17
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.