This demand for arbitration arises from the patient being involved in an automobile accident on 11/12/15 and receiving treatment for injuries. In accordance with N.J.A.C. 11:3-5.6(d) and Forthright Rule 43, the following issues were identified by the parties at the hearing and submitted for my determination as the only issues in dispute:
Issues Presented
- Whether the EEG and associated studies and speech therapy were reasonable and medically necessary as related to the subject MVA?
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 MVA on 11/12/15. Claimant brings this demand on assignment. Claimant is seeking an amended amount of $ 3037.70. Claimant is seeking reimbursement for treatment that occurred from 10/27/16 through 4/4/17. The testing was performed on 10/27/16. On 12/19/16, patient underwent speech testing and on 1/9/17, patient underwent cognitive testing. The patient underwent speech therapy from 2/1/17 through 4/4/17.
Respondent denied the treatment based upon a series of peer reviews: dr. Varma dated 10/6/16; Dr. Grinman 12/8/16; Dr. Helfrich-Miller on 1/24/17, 3/11/17; and 5/19/17. Respondent also submitted medical records from other providers including Regional Orthopedics.
Claimant submitted the treatment records from Eastern Neuro; The brain MRI, the appeal letter from Dr. Patil; the peer review rebuttal from Dr. Patil, Articles regarding the usefulness of the Quantitative EEG and Neuroetherapy in the Assessment and treatment of Post-Concussion Syndrome, letter or medical necessity dated 12/28/16 as to the cognitive testing; 1/26/17 letter of medical necessity as to the skilled/cognitive speech therapy.
I have reviewed all the proofs and submissions of the parties and will address those upon which I relied in making my determination as to 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 (PIP) 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. NJ 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 PIP 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 standard appropriate treatment for injuries sustained in automobile accidents. Those guidelines are set forth in the Care Paths.
The Care Paths are recommended courses of care based on professional 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 DOBI, 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 PIP 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 testimony of the treating physician. 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 ERISA Plans), it is accorded an appropriate measure of deference. Palliative care is compensable under PIP 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 (SSEP), visual evoked potential (VEP), brain audio evoked potential (BAEP), or brain evoked potential (BEP), nerve conduction velocity (NCV) 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 (EEG) 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 (EMG) 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 (NCV) 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 – EEG / 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 specifically relied upon the 8/29/16 evaluation of Dr. Patil and the 1/9/18 rebuttal of Dr. Patil. evaluation in conjunction with the cognitive testing records that the speech therapy were reasonable and medically necessary. I also relied upon the letters of medical necessity from Mary Margaret-Epifano who supplied the clinical support fro the cognitive testing and speech therapy.
I specifically find that the claimants proofs outweigh the reviews of respondent. Respondent failed to have the patient examined. In a case such as this with an alleged head injury / post concussive symdrome, respondent’s failure to have the patient examined is fatal. In this case, claimant and the various professionals at claimant’s practice met with and examined the patient numerous times. The fact there is an allegation of head injury and associated problems
I specifically find the cognitive injures and subsequent treatment were causally related to the MVA of 11/12/15. This is based upon the history from the patient and the evaluations of claimant from the ER through the 8/29/16 evaluation of Dr. Patil wherein its indicated the patient did have headaches and buzzing in the ears.
Respondent did in fact pay for the EEG and digital analysis plus the office visits of 11/21/16 and 4/4/17. This is clearly an admission that at the very least the testing and injury was related and medically necessary. With respect to causal connection, the Appellate Division has recently held that an individual seeking Personal Injury Protection Benefits (PIP) 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. NJ Manufacturers Insurance Company, 367 N.J. Super. 128 (App. Div. 2004). In this case, the testing revealed an injury and abnormal findings on 6/12/15.
Further, in this case, I relied upon the exams and testing of the therapist, Ms. Epifano.. Her records detail the complaints, the objective findings and treatment warranted. Based upon the proofs presented, I find that the all the neurological testing and speech therapy through 4/4/17 was reasonable and medically necessary and is awarded.
Based upon the claimant’s and respondent’s proofs, I am awarding dates of service 10/27/16 through 4/4/17. Claimant is awarded in amended demand amount of $ 3037.70.
Attorneys Fees and Costs
Counsel for claimant submitted a fee certification indicating a total of 7.5 attorney hours @ $ 350.00 per hour, and costs of $ 240.00. Respondent objected that the rate and amount of time spent were excessive.
I find the claimant to be a prevailing party for the purpose of awarding attorney’s fees and costs and consistent with N.J.A.C. 11:3-5.6(b)(3) and Forthright Rule 22, find that such an award is warranted in an amount consonant with the amount of the award and with the Supreme Court’s Rules of Professional Conduct. I find claimant’s Certification of Services to be in compliance with Rule 22 and consistent with the guidelines contained in R.P.C. 1.5 as well as the guidance provided by the Court in Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001) and Enright v. Lubow, 215 N.J. Super. 306
(App. Div. 1987), I have considered the following:
- The insurer’s good faith in refusing to pay the demand;
- The excessiveness of plaintiff’s demanded amount;
- The bona fides of one or both parties;
- The insurer’s justification in litigating the issues;
- The claimant’s conduct in contributing substantially to the necessity of litigation;
- The general conduct of the parties;
- The totality of the circumstances;
- The time and labor required;
- The novelty and difficulty of the question involved;
- The skill requisite to perform the legal services properly;
- The likelihood that acceptance of the particular employment will preclude other employment by the lawyer;
- The fee customarily charged in the locality for similar legal services;
- The amount involved and the results obtained;
- The time involved in the rendering of the professional services;
- The experience, reputation and ability of the lawyer involved in performing the services;
- Whether the fee is fixed or contingent;
- And whether or the amount of fees awarded is commensurate with the amount of the award.
The issue of counsel fees was also addressed in the matter of Litton Indus. v. IMO Indus., 200 N.J. 372 (2009). In Litton the court considered the “lodestar” argument, “which is that number of hours reasonably expended by the successful party’s counsel in the litigation, multiplied by a reasonable hourly rate.” The court also considered a “proportionality” test, which considers “the damages sought and the damages actually recovered…The court must evaluate the reasonableness of the total fee requested compared to the amount of the jury award. That is when the amount actually recovered is less than the attorney’s fee request, the court must consider that fact in determining the overall reasonableness of the attorney’s fee award.”
Lodestar Analysis
We now turn to a discussion of N.J.A.C. 11:3-5.6 (e), which states:
(e) Pursuant to N.J.S.A. 39:6A-5.2(g), the costs of the proceedings shall be apportioned by the DRP and the award may include reasonable attorney’s fees for a successful claimant in an amount consonant with the award. Where attorney’s fees for a successful claimant are requested, the DRP shall make the following analysis consistent with the jurisprudence of this State to determine reasonable attorney’s fees, and shall address each item below in the award:
- Calculate the “lodestar,” which is the number of hours reasonably expended by the successful claimant’s counsel in the arbitration multiplied by a reasonable hourly rate in accordance with the standards in Rule 1.5 of the Supreme Court’s Rules of Professional Conduct:
- The “lodestar” calculation shall exclude hours not reasonably expended;
- If the DRP determines that the hours expended exceed those that competent counsel reasonably would have expended to achieve a comparable result, in the context of the damages prospectively recoverable, the interests vindicated, and the underlying statutory objectives, then the DRP shall reduce the hours expended in the “lodestar” calculation accordingly; and
iii. The “lodestar” total calculation may also be reduced if the claimant has only achieved partial or limited success and the DRP determines that the “lodestar” total calculation is therefore an excessive amount. If the same evidence adduced to support a successful claim was also offered on an unsuccessful claim, the DRP should consider whether it is nevertheless reasonable to award legal fees for the time expended on the unsuccessful claim.
- DRPs, in cases when the amount actually recovered is less than the attorney’s fee request, shall also analyze whether the attorney’s fees are consonant with the amount of the award. This analysis will focus on whether the amount of the attorney’s fee request is compatible and/or consistent with the amount of the arbitration award. Additionally, where a request for attorney’s fees is grossly disproportionate to the amount of the award, the DRP’s review must make a heightened review of the “lodestar” calculation described in (e)1 above.
Rule 22 Attorneys Fees and Costs
Rule 22 Attorney Fees and Costs became effective on April 1, 2011. Rule 22 states the following:
“The attorney for the claimant shall submit a written Attorney Fee Certification, which shall include the following information for each date upon which legal work was performed: date, description of work, name of person performing the work, hourly rate, time in fractions of one hour, total charges for all work and itemized costs. All parties may present arguments on the claimed amount. A sample attorney Fee Certification form is available for downloading at www.nj-no-fault.com. Failure to submit the required certification shall result in the DRP denying the claims for attorney’s fees and costs.”
Based upon the proofs submitted and the authority cited above, I find that a reasonable fee and costs for this matter is $ 1225.00 in fees and costs of $ 240.00. I performed the lodestar analysis and I find that a reasonable rate per hour is the one requested by Counsel in the amount of $ 350.00 per hour. Based upon Counsel’s experience and expertise in PIP litigation, I find the rate of $ 350.00 per hour to be reasonable based upon proofs supplied.
I also find that a total of 3.5 hours and not the 7.5 requested is reasonable to prosecute this demand based upon all facts in this case and the services rendered. I have reduced the requested fee by 54% even though claimant was 100% successful and in light of my substantive findings above and the amount of medical expenses awarded.
Claimant’s counsel attended the hearing and did prepare a detailed legal argument and statement of facts. Claimant’s proofs provided a basis for recovery in this matter and claimant’s attorney reasonably prepared a demand with exhibits and legal arguments and attended an arbitration regarding this matter. Claimant succinctly stated the law, cited authority and prosecuted the demand to the fullest extent permitted under the law. I have carefully reviewed claimant’s counsel certification of services. I find that these services are reasonable in light of the standards cited above in Litton and Enright.
Finally, I have also conducted a review of the “lodestar” calculation standard as cited above in N.J.A.C. 11:3-5.6 (e). I have determined that the hours expended exceed those that competent counsel reasonably would have expended to achieve a comparable result, in the context of the damages prospectively recoverable, the interests vindicated, and the underlying statutory objectives. I have therefore reduced the hours expended in the “lodestar” calculation accordingly. The award of counsel fees has taken into consideration the proportionality of the award of reimbursement for medical bills awarded in the amount of $ 3037.70. The fee award and award of medical expenses are consonant.
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