BORIS PRAKHINA v. ALLSTATE INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4378-04T14378-04T1

BORIS PRAKHINA,

Plaintiff-Respondent,

v.

ALLSTATE INSURANCE

COMPANY,

Defendant-Appellant.

__________________________________________________________

 

Submitted December 20, 2005 - Decided January 11, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-0441-05.

Harwood Lloyd, attorneys for appellant (Curtis J. Turpan, of counsel and on the brief).

Robert C. Diorio, attorney for respondent.

PER CURIAM

Defendant Allstate Insurance Company (Allstate) appeals from an order dated April 15, 2005. That order denied Allstate's motion to vacate an earlier February 18, 2005 order that vacated an arbitration award which determined a lumbar discogram administered by plaintiff, Dr. Boris Prakhina, was not medically necessary or reasonable. Allstate asserts that plaintiff's challenge of the arbitration award was untimely and barred by the forty-five day statute of limitations under N.J.S.A. 2A:31-13(a). We agree and reverse.

Plaintiff, Dr. Boris Prakhina, M.D. was assigned the rights of Ayman Hashem, who suffered bodily injuries as a result of a motor vehicle accident that occurred on March 2, 2002. Hashem was eligible for PIP benefits from an automobile insurance policy issued by Allstate. Plaintiff provided medical treatment to Hashem.

After the motor vehicle accident, Hashem received chiropractic treatment for severe lower back pain, a conservative course of treatment. Because that conservative course of treatment did not relieve Hashem's pain, he was referred to plaintiff, a pain management specialist. At the initial screening, plaintiff's diagnosis of Hashem was that he was suffering from lumbar disc displacement with associated lumbar radiculopathy. Plaintiff instituted a course of epidural steroid injections for Hashem.

As of June 26, 2003, Hashem still complained to plaintiff about lower back pain. Plaintiff re-examined him and noted that flexion extension and rotation of the lumbar spine were limited, secondary to pain and muscle spasm. Plaintiff recommended a lumbar discogram under anesthesia to rule out internal disruption. Plaintiff sought authorization from Allstate for the discogram through a decision point review.

Allstate requested that a decision point analysis be performed by Dr. R. Trifiletti, M.D. Dr. Trifiletti recommended that the request for pre-certification of the discogram be denied pending the performance of a lumbar MRI to determine the presence of any disc pathology. The MRI was performed on July 30, 2003.

Plaintiff appealed Trifiletti's recommendation. The appeal review was conducted by Dr. V. Raab, M.D. on August 8, 2003. Dr. Raab concluded that the July 30, 2003 MRI study revealed degenerative disc changes with mild annulus bulging at L4-5, and opined that the MRI study did not reveal focal neurological disease to support further treatment with the discogram. Based on Dr. Raab's review, Allstate again denied certification of the discogram.

After the second denial, plaintiff requested a third peer review. That was conducted by Dr. A. Baskies, M.D. on August 18, 2003. Dr. Baskies came to the same conclusion as the previous two reviewers. He recommended the discogram be denied.

In spite of the denials from Allstate, plaintiff performed a discogram on September 6, 2003. The discogram revealed an annular tear at L4-5. Nevertheless, Allstate refused the request for payment of the expenses relating to the discogram. Plaintiff sought an award of those expenses, including anesthesia services, in the amount of $3,814.

The dispute was submitted to arbitration where an award was entered in favor of Allstate and against plaintiff. The award does not appear to be dated but it was served upon the plaintiff on December 3, 2004. Plaintiff's Order to Show Cause and Verified Complaint filed on February 4, 2005, sought to vacate the arbitration award. The Order to Show Cause permitted service by ordinary mail. The mailing was received by Allstate's in-house counsel on February 14, 2005, but was internally misdirected so that there was no opposition to the scheduled hearing of February 18, 2005. At that time, the judge vacated the arbitrator's order. When Allstate realized what had occurred, it filed a motion to vacate the February 18, 2005 order. That motion was filed on March 3, 2005. Allstate argued that it could show both excusable neglect and it had a meritorious defense. The judge denied the motion.

Although the judge accepted that Allstate had shown excusable neglect for its failure to oppose the motion to vacate the arbitration award, he reasoned as follows:

The question here is whether - then we get to the question as to whether or not there was a proper ground to vacate the arbitration award which the court decided on February 18 in an unopposed setting, brings us back to that same issue.

Where it can be - I'm satisfied that where it can be demonstrated that there has been a mistake of fact as it relates to the case that the plaintiff is entitled to a second bite at the apple so to speak, the plaintiff does have an obligation to collect all of the information necessary to obtain all of the facts and to present the case.

Here, that was not done. Plaintiff indicates in the papers that plaintiff was unaware of all of the facts at the time of the PIP arbitration.

I believe that the PIP arbitration ought to be decided on the basis of all of the relevant information.

So on the motion to vacate the order of February 18 is denied to allow this matter to go back to PIP and have the arbitration with all of the information. Let the arbiter make a decision based on all of the facts.

In effect, the court remanded the matter to arbitration based on the view that the award had been based on an incomplete record. That was not an appropriate basis for a remand to arbitration where the motion to vacate the award was not timely.

Our standard of review is the same as the trial court's on an issue of law. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted). Here, N.J.A.C. 11:3-5.6(f) governs the review of PIP dispute resolution proceedings. That regulation provides, "The final determination of the dispute resolution professional shall be binding upon the parties, but subject to vacation, modification or correction by the Superior Court in an action filed pursuant to N.J.S.A. 2A:23A-13 for review of the award." N.J.A.C. 11:3-5.6(f). The referenced statute, N.J.S.A. 2A:23A-13, governing the application to court for review of a PIP arbitration, states:

a. A party to an alternative resolution proceeding shall commence a summary application in the Superior Court for its vacation, modification or correction within 45 days after the award is delivered to the applicant, or within 30 days after receipt of an award modified pursuant to subsection d. of section 12 of this act, unless the parties shall extend the time in writing. The award of the umpire shall become final unless the action is commenced as required by this subsection.

[(emphasis added).]

Plaintiff does not dispute that he did not comply with the forty-five day time limit set forth in N.J.S.A. 2A:23A-13(a).

Plaintiff contends, however, that the statute of limitations was tolled because Allstate withheld vital information. Plaintiff argues that (1) Allstate knew Hashem had undergone a radical discectomy at L4-5 with anterior lumbar interbody fusion and fixation of hardware; (2) that Allstate knew the positive discogram was an aspect used to determine that Hashem needed that surgery; (3) that Allstate had a duty to disclose such information to plaintiff, but failed to do so; (4) that this information would have caused the dispute resolution professional (DRP) to rule in plaintiff's favor or, in the alternative, would have caused plaintiff to appeal within the forty-five day period called for under N.J.S.A. 2A:23A-13(a).

The trial court made no explicit finding that Allstate wrongfully withheld information, though such a finding is implicit in its disposition of the motion. Another view is that the court referred the matter back to arbitration so the arbitrator could make that determination. What is clear is that plaintiff provided no evidence that Allstate knowingly, willfully or purposefully withheld information. There is nothing beyond speculation to suggest that it should have foreseen that the information in question was necessary for plaintiff's case.

More significant is the fact that the document that plaintiff claims should have been provided was a notation by Dr. Klempner, written on January 20, 2004. The arbitration took place on October 21, 2004 and the DRP rendered the decision on December 3, 2004. Plaintiff did not submit his appeal of the arbitrator's decision until, at the earliest, February 1, 2005. Plaintiff had the burden to come forward with evidence to prove the discogram was medically necessary and failed to do so. He produced no evidence to show that he could not have discovered the evidence that he claims was critical at any time from January 20, 2004, when it came into existence, until the close of the forty-five day window following the December 3, 2004 service of the arbitrator's award.

Finally, the notation by Dr. Klempner merely stated, "[a] concordant pain response on discography is only one aspect that one uses to assess whether or not a patient would be an appropriate candidate for interbody fusion." It does not opine that the discogram was the only reason the surgeon knew Hashem required surgery. Nor did it state that the high resolution MRI recommended by all three of defendant's experts would have failed to allow the medical provider to determine whether Hashem needed surgery. Therefore, the arbitrator's ruling would not necessarily have changed even if plaintiff had the allegedly undisclosed information.

In the end, plaintiff failed to appeal within the permissible forty-five day period. His motion to vacate the award should have been denied, rendering unnecessary Allstate's motion to vacate, from the denial of which this appeal is taken.

 
Reversed.

The pleading was dated February 1, 2005, however, it was stamped as filed February 4, 2005.

(continued)

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9

A-4378-04T1

January 11, 2006