MIRIAM GONZALEZ v. NEW JERSEY PROPERTY LIABILITY INSURANCE GUARANTY ASSOCIATION

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1298-07T2

MIRIAM GONZALEZ,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. March 25, 2010

APPELLATE DIVISION
NEW JERSEY PROPERTY LIABILITY
INSURANCE GUARANTY ASSOCIATION,
NATIONAL ARBITRATION FORUM, and
NEW JERSEY DEPARTMENT OF BANKING
AND INSURANCE,

Defendants-Respondents.
_____________________________

March 25, 2010
Argued September 14, 2009 -- Decided

Before Judges Lisa, Baxter, and Alvarez.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-3627-07.

S. Gregory Moscaritolo argued the cause for
appellant (Roberts & Moscaritolo, LLC,
attorneys; Mr. Moscaritolo, on the brief).

Arthur J. Timins argued the cause for
respondent National Arbitration Forum
(Shiriak & Timins, attorneys; Mr. Timins, of
counsel and on the brief).

William B. Puskas, Jr., Deputy Attorney
General, argued the cause for respondent
Commissioner of Banking and Insurance (Anne
Milgram, Attorney General, attorney; Melissa
H. Raksa, Deputy Attorney General, of
counsel; Paul G. Witko, Deputy Attorney
General, on the brief).

Dennis S. Brotman argued the cause for
amicus curiae Association of Trial Lawyers
of America-New Jersey (Fox Rothschild LLP,
attorneys; Mr. Brotman, of counsel; Patricia
Barron, on the brief).

Respondent New Jersey Property Liability
Insurance Guaranty Association did not file
a brief.

The opinion of the court was delivered by

ALVAREZ, J.A.D.

In this appeal, we consider the validity of the National

Arbitration Forum's (NAF) Rule 4.1 The rule requires a person

injured in an automobile accident to demonstrate "immediate and

irreparable loss or damage" when seeking emergent medical

services disputed by a personal injury protection (PIP) insurer.

Plaintiff Miriam Gonzalez contends that the approval of Rule 4

by defendant, the Commissioner of the Department of Banking and

Insurance (Commissioner): (1) violated the Administrative

Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, because the

approval amended a regulation without compliance with the APA;

(2) was ultra vires; (3) imposed additional eligibility

requirements on PIP claimants in violation of public policy; (4)

contravened the authority of NAF dispute resolution

1 Rule 4, which is found in NAF's New Jersey No-Fault Arbitration
Rules, has since been renumbered as Rule 9. Because in the
briefs and at oral argument all references were to Rule 4, we
retain the usage.

A-1298-07T2
2

professionals (DRP) deciding emergent cases; and (5) violated

equal protection under the state and federal constitutions. We

find no merit to these claims and affirm the Commissioner's

approval of NAF Rule 4.

On February 26, 2005, while crossing a street, plaintiff

was struck by a motor vehicle, sustaining serious disabling

shoulder.2 Plaintiff
injuries to her neck, back, and right

alleges that after the accident her pain progressed to the

extent that it interfered with her normal day-to-day functioning

and disabled her from employment. On August 10, 2005, she

underwent surgery on her right shoulder, which did not alleviate

the problem. Multiple epidural nerve blocks were administered,

but they too were ineffective.

PLIGA referred plaintiff to a pain management specialist,

who recommended cervical spine surgery and, in turn, referred

plaintiff to a neurosurgeon. After additional evaluation, the

neurosurgeon, Frank Moore, M.D., proposed to perform "an

anterior cervical diskectomy, fusion and instrumentation at C4-5

and C5-6." At PLIGA's request, William Foxall Cunningham, M.D.

conducted an independent medical examination on May 10, 2007.

2
Plaintiff's claims against the driver of the automobile and the
New Jersey Property-Liability Insurance Guaranty Association
(PLIGA) for PIP coverage are being pursued in separate
litigation.

A-1298-07T2
3

He opined that the surgery was unwarranted and the injuries were

unrelated to the automobile accident. Consequently, PLIGA

refused to pay for plaintiff's surgery.

On July 16, 2007, after a hearing, the DRP denied

plaintiff's request for emergent relief, made pursuant to

N.J.S.A. 39:6A-5.1. Applying the Rule 4 standard, the DRP

concluded that "[t]here was no testimony o[r] evidence produced

that demonstrated an immediate and irreparable harm if the

surgery was not performed immediately." This litigation

followed.

Plaintiff's Law Division complaint, filed on July 20, 2007,

sought to enjoin NAF's application of the Rule 4 requirement

that a claimant establish "immediate and irreparable loss"

before emergent relief is granted. Plaintiff also sought a

determination that the rule violated N.J.A.C. 11:3-5.4(b)(3).3

The court heard final arguments on September 20, 2007, by which

time plaintiff's second NAF hearing had been scheduled. Because

no decision had been made, however, the Law Division judge

dismissed the case as not ripe for adjudication.

3
"[T]he [DRO] shall develop and maintain a [DRP dispute
resolution plan] approved by the Commissioner that sets forth
its procedures and rules . . . . The plan . . . may provide for
limited, procedural or emergent matters to be determined by one
or more specially designated [DRPs] . . . ."

A-1298-07T2
4

On September 28, 2007, the DRP denied plaintiff's request

for modification of the prior order denying emergent relief. In

support of the request, plaintiff had asserted changed

circumstances including a brief psychiatric hospitalization for

depression due to her injuries.4

On October 17, 2007, plaintiff's case was heard by the same

DRP on the standard non-emergent calendar. Confronted with

conflicting medical opinions, the DRP determined that Moore's

testimony was more credible and found that the surgery was

"medically necessary, reasonable and causally related to the

[automobile] accident." See N.J.S.A. 39:6A-16. On November 13,

2007, plaintiff appealed the dismissal of her complaint.

Plaintiff underwent surgery in December 2007, and, according to

her attorney, her condition has since improved.

The New Jersey Automobile Reparation Reform Act (the Act),

also known as the "No Fault Act," ensures that persons injured

in automobile accidents receive medical and wage replacement

benefits regardless of fault. N.J.S.A. 39:6A-1 and 39:6A-1.1b.

The Act is to be given a liberal construction. N.J.S.A. 39:6A-

16. The Automobile Insurance Cost Reduction Act (AICRA),

4
Plaintiff was admitted on the recommendation of the licensed
psychologist who evaluated her relative to her Social Security
disability claim.

A-1298-07T2

5 N.J.S.A. 39:6A-1.1 to -35, adopted in 1998, amended the Act in

order "to preserve the no-fault system" of benefits to residents

injured in automobile accidents, "while at the same time

reducing unnecessary costs which drive premiums higher."

N.J.S.A. 39:6A-1.1b.

AICRA also required revision of the existing dispute

resolution process in order to meet the legislative goal of

"eliminating payment for treatments and diagnostic tests which

are not medically necessary." Ibid. N.J.S.A. 39:6A-5.1b states

that:

The Commissioner of Banking and Insurance
shall designate an organization, . . . for
the purpose of administering dispute
resolution proceedings regarding medical
expense benefits and other benefits provided
under personal injury protection. . . . The
commissioner shall promulgate rules and
regulations with respect to the conduct of
the dispute resolution proceedings. . . .
The organization shall establish a dispute
resolution plan, which shall include
procedures and rules governing the dispute
resolution process and provisions for
monitoring the dispute resolution process to
ensure adherence to the standards of
performance established by the commissioner.
The plan, and any amendments thereto, shall
be subject to the approval of the
commissioner.

In response, the Commissioner promulgated dispute

11:3-5.1 to -5.12, which
resolution regulations, N.J.A.C.

included the conduct of PIP dispute resolution proceedings,

A-1298-07T2

6 N.J.A.C. 11:3-5.6. In 2004, NAF replaced the American

Arbitration Association (AAA), which had served as the

designated DRO from 1998 to 2003.

In accordance with N.J.A.C. 11:3-5.4(b), the Commissioner

instructed the designated DRO to develop a dispute resolution

plan containing its rules and procedures, subject to the

Commissioner's approval. The plan was to "provide the assigned

dispute resolution professional with sufficient authority to

provide all relief and to determine all claims arising under PIP

coverage, but may provide for limited, procedural or emergent

matters to be determined by one or more specially designated

11:3-5.4(b)(3).
dispute resolution professionals." N.J.A.C.

Additionally, the DRO was required to "promote fair, efficient

and consistent determinations consistent with substantive law

and with rules adopted by the Commissioner." N.J.A.C. 11:3-

5.4(a)(8).

When AAA was the DRO, the Commissioner approved the

following provision regarding applications for emergent relief:

If after consideration the DRP is satisfied
that the party seeking the emergent relief
has shown that immediate and irreparable
loss or damage will result in the absence of
emergency relief, and that such party is
entitled to such relief, the DRP may within
three days, enter an award granting the

A-1298-07T2
7

relief and stating the reasons therefor with
findings of fact and conclusions of law.

[American Arbitration Association Rule 3a.]

NAF's own set of rules includes Rule 4, which contains

language almost identical to AAA's Rule 3a:

[New Jersey No-Fault Automobile Arbitration
Rules, Rule 4.]

The Commissioner approved the NAF rules, including Rule 4, on

March 23, 2004.

According to NAF's then vice president, Joseph Di Donato,

during 2007 only fifty-six requests were filed seeking Rule 4

stated that in thirty-four
expedited hearings. Di Donato

percent of those cases, the claimants demonstrated "immediate

and irreparable loss," and another twenty-one percent of the

cases settled. Thus, according to Di Donato's calculations,

more than half of the reported requests were either granted or

settled. The remaining cases were either withdrawn or denied.

A-1298-07T2
8

II.

We first address the Commissioner's contention that this

appeal is moot because plaintiff's surgery was ultimately

approved, and the legitimacy of Rule 4 is neither an issue of

"substantial public importance" nor likely to frequently recur.

"[We] will not render advisory opinions or function in the

Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J.
abstract."

Super. 295, 301 (App. Div. 2005) (citing Crescent Park Tenants

Ass'n v. Realty Equities Corp.,
58 N.J. 98, 107 (1971)). If an

"underlying issue is one of substantial importance and is

capable of repetition while evading review," however, we will

decide an appeal in spite of factors that render it otherwise

moot. Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd.,
366 N.J. Super. 323, 330 (App. Div. 2004). See also In re Geraghty,

68 N.J. 209, 212 (1975) (finding that "courts may hear and

decide cases which are technically moot where issues of great

public importance are involved").

Plaintiff relies on Brady v. Department of Personnel,
149 N.J. 244 (1997), in support of the proposition that the validity

of Rule 4 is sufficiently important to warrant judicial review

even though the underlying dispute is moot. In Brady, a police

officer demanded greater access to his civil service examination

Id. at
results so that he might challenge the test outcome.

A-1298-07T2
9

249. He had already obtained the materials pursuant to our

order, however, the Court determined that while the controversy

was "technically moot," the issue warranted review because of

its importance and the potential impact upon the many who sit

Id. at 253.
for civil service exams.

Obviously, this plaintiff is not entitled to affirmative

relief as she has already undergone surgery paid for by PIP.

Nonetheless, because Rule 4 applies to those injured in

automobile accidents who seek emergent relief despite an

insurer's refusal to pay for the cost, an issue of significant

public importance remains.

The final determination of a DRP may be appealed to the

Superior Court under N.J.S.A. 2A:23A-13 and N.J.A.C. 11:3-

5.6(f). Following denial of emergent relief, however, a

claimant's case, as happened here, moves to the standard track

for a final hearing. So long as that final hearing date is

pending, no appealable determination will have been made

pursuant to N.J.A.C. 11:3-5.6(f). If a claimant is granted the

requested relief in a final hearing, as in this case, questions

that arose during the emergent hearing process become moot.

This issue is one of public importance, capable of recurrence,

and likely to continue evading review. Hence we will entertain

plaintiff's appeal.

A-1298-07T2
10

III.

Plaintiff asserts that an amendment to an AICRA regulation,

N.J.A.C. 11:3-5.4, without adherence to the formal rule-making

process of the APA renders the amendment unlawful. The

Association of Trial Lawyers of America-New Jersey (ATLA), in

its capacity as amicus curiae, joins in this argument. NAF

points out that because Rule 4 was not promulgated by an agency,

the APA does not apply, and that Rule 4 does not meet the

threshold at which formal rule-making is required. The

Commissioner argues that approval of the emergent relief

standard in the NAF dispute resolution plan, as opposed to

formal adoption and inclusion in N.J.A.C. 11:3-5.4, was within

its broad discretion. The Commissioner further argues that Rule

4 does not meet the criteria requiring formal rule-making. We
5
agree with the Commissioner.

An agency is afforded considerable discretion in choosing

the method by which it fulfills its legislatively delegated

duties. In re Adoption of N.J.A.C. 10:52-5.14(d)(2) and (3),

276 N.J. Super. 568, 574-75 (App. Div. 1994), certif. denied,

142 N.J. 448 (1995). Such decisions will generally be upheld so

5
We further note that the Department of Banking and Insurance
(DOBI) is considering the adoption of an amendment to N.J.A.C.
11:3-5.4(b)3 to incorporate the "'immediate and irreparable
harm' standard . . . in effect for many years." Public comment
on the proposal closed on September 4, 2009.

A-1298-07T2
11

long as they advance the agency's purpose and function. Ibid.

An agency's administrative regulations are presumed valid,

thereby limiting a court's regulatory review. Lewis v.

Catastrophic Illness in Children Relief Fund,
336 N.J. Super.
361, 369 (App. Div.), certif. denied,
168 N.J. 290 (2001).

Although any regulation exceeding the agency's grant of

authority from the Legislature is considered ultra vires, such a

finding "is strongly disfavored, and is made only in exceptional

circumstances." In re Route 206 at New Amwell Rd.,
322 N.J.

Super. 345, 352 (App. Div.), certif. denied, 162 N.J. 197

(1999). Nevertheless, if an agency's action contravenes its

enabling statute, the courts will intervene. N.J. Ass'n of

Realtors v. N.J. Dep't of Envtl. Prot.,
367 N.J. Super. 154, 160

(App. Div. 2004).

The APA defines an administrative rule as an "agency

statement of general applicability and continuing effect that

implements or interprets law or policy, or describes the

organization, procedure or practice requirements of any agency."

N.J.S.A. 52:14B-2(e). In Metromedia, Inc. v. Director, Division

of Taxation,
97 N.J. 313, 331-32 (1984), the Court established

criteria for determining whether a particular agency

determination should be subject to formal rule-making. These

A-1298-07T2
12

criteria, which can be considered singly or in combination,

include when the agency determination:

(1) is intended to have wide coverage
encompassing a large segment of the
regulated or general public, rather than an
individual or a narrow select group; (2) is
intended to be applied generally and
uniformly to all similarly situated persons;
(3) is designed to operate only in future
cases, that is, prospectively; (4)
prescribes a legal standard or directive
that is not otherwise expressly provided by
or clearly and obviously inferable from the
enabling statutory authorization; (5)
reflects an administrative policy that (i)
was not previously expressed in any official
and explicit agency determination,
adjudication or rule, or (ii) constitutes a
material and significant change from a
clear, past agency position on the identical
subject matter; and (6) reflects a decision
on administrative regulatory policy in the
nature of the interpretation of law or
general policy.

[Ibid.]

Applying the Metromedia factors, we note that Rule 4 is

applicable only to that narrow class of prospective PIP

beneficiaries who request emergent relief, and does not apply to

a large segment of the general public. Thus, the first

Metromedia factor supports the conclusion that Rule 4 is not an

administrative rule requiring compliance with the APA. As to

the second Metromedia factor, Rule 4 is intended to be applied

uniformly to all applicants for emergent relief, and thus

supports plaintiff's position. The third Metromedia factor

A-1298-07T2
13

requires an analysis of whether the rule in question is designed

to operate only prospectively. Here, although intended to be

applicable to all future cases, Rule 4 merely restates a rule

that had already been in existence for five years, and was thus

not purely prospective in its application.

The fourth criterion appears to lean in favor of formal

rule-making because Rule 4 could constitute a legal standard not

expressly found in the enabling statute or regulations. But, it

is possible to infer that the requirement of immediate and

irreparable harm was contemplated by the governing legal

provisions. N.J.S.A. 39:6A-5.1(b) authorizes the DRO to

establish procedures and rules for dispute resolution subject to

the Commissioner's approval, and the resulting regulations

require the DRO to make provisions for emergent relief. See

N.J.A.C. 11:3-5.4(b)(3). Furthermore, as the Commissioner

points out, the Rule 4 emergent relief standard is the same as

that utilized in civil litigation and in prior PIP arbitrations

See R. 4:52-1(a); R. 4:67-2(a). It is
when AAA was the DRO.

possible to infer that use of the term "emergent" in the

authorizing regulations implied the Rule 4 standard.

Under the fifth Metromedia criterion, as has already been

stated, Rule 4 mirrored AAA's earlier rule and was not a

material change in the agency's position on emergent relief

A-1298-07T2
14

arbitration. Finally, under the sixth criterion, the adoption

of Rule 4 was not an interpretation of a law or general policy.

Tested against the Metromedia criteria, we conclude that Rule 4

should not be subject to formal rule-making procedures.

IV.

Plaintiff contends that the Commissioner's approval of Rule

4 was ultra vires because such approval: (1) is inconsistent

with the authorizing regulation under AICRA, specifically

N.J.A.C. 11:3-5.4(b)(3), and contravenes the legislative

policies of the Act, including N.J.S.A. 39:6A-16; and (2)

disregards the emergency care provisions set forth in N.J.A.C.

11:3-4.2 and -4.7(b). ATLA also contends that DOBI "violated

its statutory and regulatory proscriptions in allowing NAF to

adopt Rule 4," thus making Rule 4 void.

Plaintiff further asserts that N.J.A.C. 11:3-5.4(b)(3), the

emergent filings AICRA regulation, is inconsistent with Rule 4.

Plaintiff characterizes Rule 4 as an unauthorized amendment to

AICRA.

N.J.S.A. 39:6A-5.1b vested the obligation in the DRO to

establish a dispute resolution plan, including all necessary

procedures and rules. N.J.A.C. 11:3-5.4(b)(3) states that the

plan:

. . . shall provide the assigned [DRP] with
sufficient authority to provide all relief

A-1298-07T2
15

and to determine all claims arising under
PIP coverage, but may provide for limited,
procedural or emergent matters to be
determined by one or more specially
designated dispute resolution professionals.

Emergent applications are thereby specifically authorized,

although no process is described. In the most literal sense,

NAF's dispute resolution plan, including Rule 4, is not

inconsistent with the Act or with the relevant regulations.

Rule 4 merely expresses the standard of review for such

applications, a step which puts affected litigants on notice of

the requirements for emergent relief. The DRO's inclusion of

Rule 4 in its dispute resolution plan merely filled a procedural

void.

Plaintiff's argument focuses on the Act's stated purpose of

ensuring that New Jersey residents injured in automobile

accidents receive medical benefits regardless of fault, see

N.J.S.A. 39:6A-1.1b, and on the legislative requirement that the

Act be liberally construed, see N.J.S.A. 39:6A-16. Despite

that expression of intent, however, the Legislature did impose

limits on recovery. For example, under N.J.S.A. 39:6A-4a, PIP

coverage is defined as "[p]ayment of medical expense benefits

. . . for reasonable, necessary, and appropriate treatment and

provision of services to persons sustaining bodily injury, in an

amount not to exceed $250,000 per person per accident." See

A-1298-07T2
16

also Elkins v. N.J. Mfrs. Ins. Co.,
244 N.J. Super. 695, 700

(App. Div. 1990) (finding "medical expenses must be both

reasonable and necessary" to be compensable, and unjustified

expenses may subvert the purpose of the Act). The Legislature

obviously did not intend that all persons claiming PIP benefits

would do so without regard to economic realities. See N.J.S.A.

39:6A-1.1b.

In fact, AICRA was promulgated because the no-fault system

was not effectively maximizing benefits while reducing the cost

The Act's arbitration system was not
of insurance. Ibid.

functioning as the Legislature intended. Ibid. AICRA was

designed precisely to reform the system so as to reduce

unnecessary costs, which drive premiums higher. Ibid.

AICRA revamped the no-fault system by eliminating payments

for unnecessary medical treatment and tests. Ibid. In

furtherance of that legislative goal, the Commissioner enacted

regulations implementing the emergent relief process and

requiring that the DRO's decisions be consistent and issue in

accordance with all applicable law and rules. N.J.A.C.

11:3-5.4(a)(8) and (b)(3). Viewed in that light, Rule 4 is

entirely consistent with AICRA's underlying purpose of providing

benefits while reducing costs. It merely establishes the means

by which insureds and insurers can quickly address conflicts

A-1298-07T2
17

regarding emergent medical needs not otherwise addressed in the

statutory scheme. It is therefore not ultra vires.

Plaintiff also asserts that Rule 4 conflicts with the

emergency care requirements of N.J.A.C. 11:3-4.2 and -4.7(b),

and improperly imposes an additional eligibility requirement on

claimants seeking PIP benefits. For the purposes of PIP

coverage, emergency care is defined as "all medically necessary

treatment of a traumatic injury or a medical condition

manifesting itself by acute symptoms of sufficient severity such

that absence of immediate attention could reasonably be expected

to result in: death; serious impairment to bodily functions; or

serious dysfunction of a bodily organ or part." N.J.A.C.

11:3-4.2. N.J.A.C. 11:3-4.7(b) provides that adherence to a

decision point review plan (the insurer's plan designating

points at which treatment and testing decisions are to be made,

N.J.A.C. 11:3-4.2) is not required when treatment occurs within

ten days of an accident or is for emergency care.

Emergency care, as defined in N.J.A.C. 11:3-4.2, is

necessitated by an injury or condition that, absent immediate

attention, will result in irreparable harm such as death,

serious impairment or dysfunction of bodily functions, organs,

or parts. Rule 4's requirement that an applicant for emergent

A-1298-07T2
18

relief demonstrate "immediate and irreparable loss or damage" is

consistent with that definition. When a PIP claimant is able to

demonstrate the need for emergency care, N.J.A.C. 11:3-4.7(b)

provides that a decision point review plan is unnecessary.

Therefore, Rule 4 is not inconsistent with emergency care

regulations.

VI.

We turn next to the question of whether Rule 4 improperly

interferes with a DRP's authority to decide all questions of law

and fact presented. N.J.A.C. 11:3-5.6(d) requires that a DRP

make findings and reach conclusions that comply with substantive

law, and with "the provisions of the policy and the Department's

rules." See N.J.S.A. 39:6A-5.1b; N.J.A.C. 11:3-5.4(b). In our

view, Rule 4 only provides the framework for determination of

which applications are truly emergent and should be expedited,

or, even where medically necessary, which should be relegated to

the standard arbitration track because the claimant will not

suffer any "immediate or irreparable loss or damage." Having an

analytical framework does not take away from a tribunal's

statutorily mandated authority.

Plaintiff urges us to invalidate Rule 4 under the authority

of State Farm Mutual Automobile Insurance Co. v. Molino,
289 N.J. Super. 406 (App. Div. 1996). In Molino, we found that an

A-1298-07T2
19

insurer's denial of PIP benefits created a dispute that

"triggered [the claimant's] right to demand binding

Id. at 408. We noted that a DRP is required to
arbitration."

decide both legal and factual issues in dispute resolution,

guided by case law and statute. Id. at 411. It does not

follow, however, that this precludes a DRP from being subject to

guidelines that serve to frame his or her application of the law

to the facts. Given the statutory mandate that a DRO establish

a dispute resolution plan, N.J.S.A. 39:6A-5.1b, the Legislature

must have intended that implementing guidelines be created.

Plaintiff urges, as an alternative, that DRPs be permitted

to select the legal standard to be employed in each emergent

case. Thus, the DRP would merely apply the facts to the

statutory definition of emergency care found in N.J.A.C. 11:3-

25.2 and AICRA's stated purpose of providing maximum protection

for accident victims in an efficient manner. "Emergency care"

11:3-25.2 is the equivalent of the
as defined in N.J.A.C.

current Rule 4 standard. "Emergency care" means all necessary

treatment "such that absence of immediate attention could

reasonably be expected to result in: death; serious impairment

to bodily functions; or serious dysfunction of a bodily organ or

part."

A-1298-07T2
20

Plaintiff further proposes that "[e]vidence that a claimant

will likely suffer additional permanency and restriction of

daily activities[] if the surgery is not performed promptly

should satisfy the NAF rule requirement." The restriction of

daily activities is, in our view, an unwarranted lessening of

the Rule 4 requirement that the medical need be truly emergent.

The remaining portion, that additional permanent injury may

result without prompt treatment, is no different than requiring

a claimant to demonstrate the potential for "immediate and

irreparable loss or damage." These alternatives are not

acceptable.

Plaintiff's other suggestion, that DRPs decide emergent

claims based on whether the requested relief would alleviate the

applicant's pain and suffering, too closely equates emergent

relief with treatment that is "medically necessary," N.J.A.C.

11:3-4.2, or "medically indicated treatment," N.J.A.C. 15A:3-

2.2. This suggested standard improperly blurs the distinction

between medical care that may be necessary in the future and

medical care that is immediately required.

For decades, New Jersey courts have applied a similar

"immediate and irreparable harm" standard in determining whether

to grant applications for emergent relief. To obtain an order

for temporary restraints, a plaintiff must demonstrate that

A-1298-07T2
21

irreparable harm will result if emergent relief is not granted.

Crowe v. De Gioia,
90 N.J. 126, 132 (1982) (noting that courts

have long granted temporary relief to prevent irreparable harm).

See also R. 4:52-1 and R. 4:67-2. Thus, the Rule 4 standard is,

for all practical purposes, within the vernacular of every

lawyer in this state in cases raising entitlement to emergent

relief.

Plaintiff has not proffered a more suitable standard than

Rule 4; nor has she shown that Rule 4 in any way undermines the

authority of the DRPs to make findings and conclusions of law

and fact. Rule 4 complies with the standards used in similar

cases, provides the DRPs with an appropriate method for

distinguishing cases requiring emergent relief from those that

simply require medical treatment at some future point in time,

and ensures consistency in determinations as required by

N.J.A.C. 11:3-5.4(a)(8).

VII.

Plaintiff asserts that Rule 4 imposes an additional

eligibility requirement not found in the statute. She relies

upon Hermann v. Rutgers Casualty Insurance Co.,
221 N.J. Super.
162, 167 (App. Div. 1987), for the proposition that an insurer

cannot include in its policy an exclusion that is not found in

Hermann is distinguishable from the present
the PIP statute.

A-1298-07T2
22

circumstances as Rule 4 is neither an insurance policy exclusion

nor an additional eligibility requirement. It is merely a

decisional framework, approved by the Commissioner, for DRPs.

Plaintiff further contends that Rule 4's requirement that

applicants submit an affidavit explaining the nature of the

emergent need and the requested relief is sufficient to separate

the matter from standard track cases, and that any inquiry

beyond that should be limited to the medical necessity of the

treatment. This argument too is unavailing. The "immediate and

irreparable loss or damage" portion of Rule 4 assists the DRP in

determining which cases are truly emergent while advancing

AICRA's legislative policy. It gives claimants notice of the

level of proof they must provide to establish that their medical

need is truly emergent. Eliminating that standard from Rule 4

has the potential to cause inconsistent results, thereby

undermining AICRA's goal of fair but efficient provision of

benefits.

VIII.

Plaintiff's final point is that Rule 4 does not serve a

legitimate state interest, and that it "targets a select class

of claimants injured in automobile accidents." She contends

that all of the rules included in the NAF plan are procedural

with the exception of Rule 4, and that Rule 4 imposes a

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threshold for receiving benefits, which "violates the

substantive due process rights of every PIP claimant in New

Jersey." Similarly, ATLA contends that Rule 4 is an

unconstitutional delegation of authority under article IV,

section 1, paragraph 1 of the New Jersey Constitution. It

argues that DOBI improperly delegated its regulatory authority

to NAF, thereby rendering Rule 4 invalid.

Rule 4 did not result in plaintiff receiving disparate

treatment compared to other PIP claimants. Although she did not

meet the Rule 4 standard for emergent relief, her request for

surgery was ultimately approved following a standard track PIP

arbitration hearing. In fact, if, as plaintiff proposes, DRPs

were left to establish their own standards for emergent relief,

it is possible that claimants would receive significantly

different results depending on the DRP hearing the case; they

would be more likely to suffer disparate treatment in the

absence of a definitive standard. We consider the equal

protection argument to not warrant further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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