THE BACK INSTITUTE v. HIGH POINT INSURANCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THE BACK INSTITUTE, a/s/o

GISELE HARRIS,

Plaintiff-Appellant,

v.

HIGH POINT INSURANCE,

Defendant-Respondent,

and

FORTHRIGHT SOLUTIONS (an

interested party herein),

Defendant.

__________________________________

April 25, 2014

Submitted April 1, 2014 Decided

Before Judges Hayden and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8206-12.

Rubenstein, Marucci & Shinrod, attorneys for appellant (Richard B. Rubenstein, of counsel and on the briefs).

Law Offices of Debra Hart, attorneys for respondent (Francis A. Nemazie, of counsel and on the brief).

PER CURIAM

Defendant, High Point Insurance, denied payment of requested medical personal injury protection (PIP) benefits to its insured, Gisele Harris. Harris' medical provider, The Back Institute, as assignee of her claim for benefits, demanded arbitration to resolve the dispute in accordance with the New Jersey Alternate Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. The arbitrator issued an award denying benefits based on his finding that Harris' need for surgery was solely the result of a degenerative condition, and was not necessitated by injuries suffered in the motor vehicle accident in which Harris had been involved.

Plaintiff then brought a summary action in the Law Division seeking to vacate the award. It argued that the arbitrator impermissibly considered medical reports submitted by defendant which were authored by physicians who were not practitioners in the same specialty as Harris' treating physician, a neurological surgeon. According to plaintiff, this constituted one of the limited grounds for vacating an award under the APDRA, namely, "[t]he umpire's committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution." N.J.S.A. 2A:23A-13(c)(5). Judge Thomas R. Vena rejected plaintiff's argument and entered an order on January 4, 2013 confirming the award.

On appeal, plaintiff repeats the same argument and urges us to reverse. We find plaintiff's arguments unpersuasive. We agree with Judge Vena that the arbitrator did not err in applying the law to the facts and issues before him.

Under the APDRA, after adjudication by the trial court, "[t]here shall be no further appeal or review of the judgment or decree." N.J.S.A. 2A:23A-18(b). Although rare exceptions to this proscription exist when compelled by public policy concerns or the need for a reviewing court to exercise its supervisory authority, this case does not fall within the exceptions. Therefore, we lack jurisdiction to hear the appeal, and the appeal is dismissed.

Harris was involved in a motor vehicle accident on November 9, 2009. She experienced back and neck pain. She was taken to a local hospital, where diagnostic tests were performed and she was discharged.

On November 12, 2009, Harris began a course of conservative treatment with Dr. Monica Mehta, a physiatrist. Dr. Mehta's treatment focused primarily on Harris' mid-back, lower back and left shoulder.

On February 9, 2010, while Harris was still treating with Dr. Mehta, defendant referred her to Dr. Robert D. Brady, a physiatrist, for an independent medical exam (IME). His diagnosis was cervical and lumbar sprain and strain. Dr. Brady opined that Harris had received adequate conservative treatment and recommended that she return to work without restrictions, having reached maximum medical improvement.

In his report, Dr. Brady requested images of MRIs that had previously been performed so he could personally review them. After receiving them, he issued a supplemental report on February 11, 2010 noting disc herniations at C4-5 and C5-6, and a disc bulge at L3-4. He stated that "[e]ven though the patient has disc herniations in the cervical spine, epidurals are not warranted, as she does not offer any complaint of radicular pain." Dr. Brady adhered to the opinions expressed in his original IME report, including the diagnosis of cervical and lumbar sprain and strain.

On June 3, 2010, Harris came under the care of a physician at The Back Institute, Dr. Paul K. Ratzker, a neurological surgeon. Dr. Ratzker referred Harris for some testing, and did not see her again until December 13, 2010. He then determined that because Harris had not responded satisfactorily to significant conservative treatment, and continued to suffer from chronic neck pain, surgery was indicated. He recommended that she undergo an anterocervical discectomy and fusion.

Dr. Ratzker sought precertification approval for the surgery from defendant. In his view, the need for the surgery was caused by the injuries Harris sustained in the November 9, 2009 accident.

On June 6, 2011, Dr. Jay E. Bowen, a physiatrist, reviewed Dr. Ratzker's precertification request as part of a Medical Director Review (MDR). Based upon his review, Dr. Bowen concluded that Harris' condition was degenerative and not caused by the accident. Accordingly, defendant denied preapproval for the anticipated surgery.

On June 13, 2011, Dr. Ratzker appealed. On June 29, 2011, Dr. Ahmar Shakir, an orthopedic surgeon, reviewed the matter as part of a second MDR. His review of medical records, including MRIs, persuaded him that there was no justification for the surgery. He also noted that "there is degenerative disease documented that is obviously not related to the accident." The appeal was denied.

On July 27, 2011, Dr. Ratzker performed the cervical surgery on Harris, after which she underwent a physiotherapy program beginning in August, 2011. The surgery was successful, resulting in a significant reduction in Harris' neck pain. Plaintiff submitted its bill to defendant for the total amount of $272,950, which defendant declined to pay.1

On November 29, 2011, plaintiff filed a demand for arbitration2 pursuant to N.J.S.A. 39:6A-5.1. Both parties submitted extensive medical records and reports and set forth their respective positions as to whether or not Harris' surgery was necessitated by the accident. Among the reports submitted by defendant were Dr. Brady's IME report and the MRD reports authored by Drs. Bowen and Shakir. The hearing was conducted on September 25, 2012 before a dispute resolution professional (DRP). Harris was the only "live" witness.

Based upon his review of all of the medical records, and his consideration of Harris' testimony and the arguments of counsel, the DRP issued his award on October 10, 2012. The award decision was thorough and comprehensive, consisting of nine single-spaced pages. Most significantly, the DRP found unpersuasive Dr. Ratzker's opinion that Harris' cervical condition was caused by the accident. He found Dr. Shakir's analysis more persuasive and based his ultimate finding on that analysis:

In this case, I am persuaded by the opinions expressed by Dr. Shakir. In his report, Dr. Shakir noted that, as to the diagnosis of severe kyphosis, the cervical MRI revealed disc height and signal intensity were normal. There were disc herniations at C4-5 and C5-6 but these levels were not concordant with the patient's pain per the cervical discogram. The remaining cervical disc spaces were unremarkable for displacement or other abnormality. There were no compression deformities and bone alignment was preserved. There was straightening of the normal cervical lordosis which was suggestive of muscle spasm. The radiologist, who was a medical doctor, noted a loss of lordosis but no bony pathology. In contrast, Dr. Ratzker found the patient had a collapse at C4-5 and C5-6 which was engendering a severe chronic neck pain syndrome. Dr. Shakir stated: "If that is true, then that occurred in the interim since the accident unrelated to the accident since there was no collapse documented after the MVA by MRI as documented above". Further, Dr. Shakir noted that on 12/13/10 Dr. Ratzker indicated that he went over the cervical MRI in great depth with the patient and explained how the herniations were likely causing her chronic discogenic neck pain. Therefore, in this case, the evidence documents that the patient had minimal treatment to her cervical spine. Further, the initial diagnosis was discogenic pain (negated by the results of the cervical discogram) and then the diagnosis changed to severe kyphosis and disc collapse which, as pointed out by Dr. Shakir was not supported by the MRI results. As the sole finder of fact, I find that the scales of justice have tipped from their traditional position of equipoise in this case in favor of the respondent on the issue of causation.

Therefore, the claim herein is denied in its entirety.

On November 13, 2012, pursuant to N.J.S.A. 2A:23A-13(a), plaintiff filed a verified complaint and order to show cause, thus initiating a summary proceeding, seeking to vacate the award. Plaintiff argued that, contrary to N.J.S.A. 2A:23A-13(c)(5), the award should be vacated because the DRP committed prejudicial error by erroneously applying the law to the issues and facts presented for alternative resolution. Plaintiff premised this argument on the fact that N.J.S.A. 39:6A-13(d) and N.J.A.C. 11:3-4.7(e)(3) require that insurers in PIP cases utilize the services of only physicians engaged in the same specialty as the health care provider whose services are subject to review.

Judge Vena rejected the argument. He found that, unlike in some other contexts, in the context of this kind of arbitration, no provision requires the use of a specialist within a specific discipline. He reasoned that because there was no such requirement,

it is certainly permissible [for the DRP] to take into consideration the weight . . . that can be given to a particular medical . . . professional's determination, . . . if he or she chooses, give greater weight to an expert who's practicing in the same specialty or sub-specialty . . . as the contrary medical professional.

It is . . . for the arbitrator to weigh the strengths and weaknesses of -- of the reports or testimony of the . . . particular medical witnesses; whether they be in the specialty or sub-specialty. Clearly . . . the statute and rules require that . . . if it was a dental issue, that you need a dentist to make the determination . . . but with the medical issue, you need a medical doctor; -- [not?] necessarily have to be one who is within the specialty.

You or I might make a -- a contrary decision and find that the -- the determination made by the medical specialist might carry more weight, but it's not for this Court to substitute its judgment on that of the -- the arbitrator here.

So for that reason this Court declines the application to set aside the arbitration award and affirms same.

We agree with Judge Vena's analysis of the law. N.J.S.A. 39:6A-13(d) and N.J.A.C. 11:3-4.7(e)(3) apply to physical examinations. The only physical examination conducted at the behest of defendant was the IME performed by Dr. Brady on February 9, 2010. He is a physiatrist, as was Harris' then treating physician, Dr. Mehta. Therefore, Dr. Brady's IME was in compliance with those statutory and regulatory provisions.

On the other hand, medical reviews in connection with precertification requests by insureds or medical providers are governed by N.J.A.C. 11:3-4.7(c)(4). That section provides: "Denials of decision point review and precertification requests on the basis of medical necessity shall be the determination of a physician. In the case of treatment prescribed by a dentist, the denial shall be by a dentist[.]"

Defendant contends that Dr. Brady's IME was utilized by the DRP, as well as Drs. Bowen and Shakir in their reviews, only as part of the historical record documenting Harris' complaints. Therefore, defendant argues, its use did not provide an impermissible basis for the DRP's ultimate determination. A review of the award decision confirms this contention. The DRP relied on Dr. Shakir's detailed analysis of a number of objective diagnostic tests and other reports and records documenting clinical findings by various physicians. Although this included Dr. Brady's clinical finding that, at the time of his IME, plaintiff did not experience cervical pain radiating into her extremities, this was only one historical component in a lengthy continuum of medical information leading to Dr. Shakir's analysis and conclusion, which the DRP found persuasive.

We find no error in Judge Vena's conclusion that the DRP did not commit prejudicial error by erroneously applying the law to the facts and issues before him. Therefore, we are deprived by N.J.S.A. 2A:23A-18(b) of jurisdiction to hear the appeal. The Legislature has made clear the manner in which judicial proceedings should be disposed of in actions brought by unsuccessful parties to arbitration proceedings under the APDRA:

These proceedings shall be summary in nature and expedited. This act shall be liberally construed to effectuate its remedial purpose of allowing parties by agreement to have resolution of factual and legal issues in accordance with informal proceedings and limited judicial review in an expedited manner.

[N.J.S.A. 2A:23A-19.]

We recognize that narrow exceptions have been carved out to the prohibition against appellate review imposed by N.J.S.A. 2A:23A-18(b). This area of jurisprudence begins with the fundamental proposition that if "the trial judge acted within APDRA's bounds," the appeal must be dismissed, even if the trial judge's evaluation was imperfect or if the appellate court "might have decided the merits differently." Fort Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 103-04 (App. Div. 2010) (dismissing auto accident coverage appeal where trial judge rationally explained how arbitrator committed prejudicial error); see also Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 152-53 (1998) (affirming dismissal where trial court affirmed arbitration award and no rare circumstances compelled review); Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 240 (App. Div. 2008) (dismissing where trial judge affirmed arbitration without any "glaring errors" and claim for coverage of chiropractic treatment through PIP did not implicate public policy); N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., LLC, 399 N.J. Super. 40, 50 (App. Div.) (dismissing auto accident coverage appeal where trial judge modified arbitrator's award and thoroughly explained the legal errors therein), certif. denied, 196 N.J. 344 (2008); Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 472 (App. Div. 2005) (declining to review trial judge's finding of bad faith by arbitrator).

However, "'in rare circumstances a court may vacate an arbitration award for public-policy reasons.'" Riverside Chiropractic Grp., supra, 404 N.J. Super. at 239 (quoting Tretina v. Fitzpatrick & Assocs., 135 N.J. 349, 364 (1994)). "These circumstances arise in areas where the courts have 'a nondelegable, special supervisory function.'" Ibid. (quoting Mt. Hope Dev. Assocs., supra, 154 N.J. at 152; see, e.g., Faherty v. Faherty, 97 N.J. 99, 109 (1984) (child support award); Sabato, supra, 380 N.J. Super. at 473 (attorney's fees); see also Selective Ins. Co. of Am. v. Rothman, 414 N.J. Super. 331, 341-42 (App. Div. 2010) (reversing where trial court improperly upheld DRP, who failed to enforce clear statutory mandate involving a "matter of significant public concern"), aff'd, 208 N.J. 580 (2012).

Appellate review may also be available when needed to effectuate the supervisory function of the Appellate Division. Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 476 (App. Div. 2007) (remanding PIP coverage case where trial judge failed to rule on plaintiff's claims of error, but stating that had the court addressed the plaintiff's claims, dismissal would have been proper); see also Mt. Hope Dev. Assocs., supra, 154 N.J. at 152 (noting that where trial court was biased, review may be proper).

Neither of these exceptions apply here. Judge Vena acted within the APDRA's bounds and adequately explained the basis for his decision. This case implicates no compelling public policy issue, and we discern no prejudicial legal error, let alone a "glaring" error that would induce us to invoke our supervisory authority.

Accordingly, the appeal is dismissed with prejudice and without costs.

1 Defendant paid $7,239 for Harris' medical expenses which it did not dispute were necessitated by the injuries she suffered in the accident.

2 The arbitration was conducted by Forthright Solutions, which was included as a defendant in the Law Division action as an "interested party."