IRA KLEMONS v. GEICO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3669-10T3

IRA KLEMONS, DDS, PhD, PC

A/S/O ROSS BRUTMAN,

Plaintiff-Appellant,

v.

GEICO,

Defendant-Respondent.

________________________________________________________________

October 26, 2012

Argued November 9, 2011 - Decided

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey,Law Division,Monmouth County,

L-4510-10.

Sean T. Hagan argued the cause for appellant.

Stanley G. Wojculewski argued the cause for respondent (Law Office of Anthony P. Castellani, attorneys; Mr. Wojculewski, on the brief).

PER CURIAM

Plaintiff Ira Klemons, D.D.S., Ph.D., P.C., appeals from a Law Division order that dismissed its verified complaint and denied its application to vacate a National Arbitration Forum (NAF) arbitration award of personal injury protection (PIP) benefits for a lesser sum than it had sought. Plaintiff also appeals from a Law Division order denying its motion for reconsideration. After considering plaintiff's arguments in light of the record and applicable law, we conclude that plaintiff's appeal is barred by N.J.S.A. 2A:23-18(b), which provides that when a trial court confirms an arbitration award, there shall be no further appeal. Therefore, we dismiss the appeal.

Plaintiff's patient, Ross Brutman, was injured in an automobile accident on January 23, 2008. On May 9, 2008, Brutman began receiving treatment from plaintiff, to whom Brutman assigned his claim benefits under an automobile insurance policy issued by defendant GEICO. Plaintiff continued to treat Brutman through February 10, 2010, and GEICO paid for most of the treatment through October 17, 2008. In a letter dated October 6, 2008, GEICO notified plaintiff that it would not authorize further treatment after October 17, 2008, because Dr. Marc N. Cooper, D.D.S., who had examined Brutman at GEICO's request, had concluded that Brutman had "reached maximum medical improvement for Oral, Maxillofaciakl Surgey [sic] treatment for injuries resulting from his loss."

Plaintiff filed a demand for arbitration with the NAF1 on October 1, 2009, seeking an arbitration award of $4,147.76 for dental expenses. In support of this claim, plaintiff submitted an arbitration memorandum in which he defined the issues as: (A) improper response to pre-certification request; (B) improper reductions/denials based on net EOBS; (C) improper reductions/denials based on an untimely exam by a hired doctor on behalf of respondent; and (D) non-payment of services. GEICO also submitted an arbitration memorandum in which it challenged plaintiff's "coding" of certain bills relating to services rendered on five dates between May 9, 2008, and September 2, 2008; and asserted that it was not responsible for services performed on and after October 28, 2008, because Dr. Cooper had concluded that further treatment was medically unnecessary and that GEICO had so notified plaintiff in its October 6, 2008 letter.

The Dispute Resolution Professional (DRP) who conducted the arbitration hearing issued a written award on August 2, 2010. The DRP, with one exception, awarded plaintiff the amounts billed for services from May 9, 2008 through October 28, 2008, determining that GEICO had impermissibly underpaid some of the bills. The one exception that pertained to billing, according to the DPR, represented "impermissible 'unbundling'" of services.

The DRP disallowed plaintiff's request for payment of bills pertaining to services rendered after October 28, 2008. The DRP determined that plaintiff had "reached a treatment plateau, as reflected in the notes and records contemporaneously prepared by the claimant as well as in the examination report of Dr. Cooper." Finding that no competent medical evidence supported a conclusion that the post October 28, 2008 treatment "was medically necessary or anything other than purely palliative[,]" the DRP disallowed those expenses. The DRP awarded plaintiff $1,189.66 plus interest and attorney's fees.

On October 4, 2010, plaintiff filed a verified complaint and order to show cause seeking to vacate the DRP's award. On December 17, 2010, the trial court denied plaintiff's application in a written decision. The court analyzed plaintiff's contentions under both the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, and the Uniform Arbitration Act (UAA), N.J.S.A. 2A:23B-1 to -32. In its APDRA analysis, the court: determined that the DRP had not exceeded his power; rejected plaintiff's claim that GEICO's failure to respond to pre-certification requests required it to pay more than the DRP awarded for the pre-October 2008 bills; and concluded the DRP's finding -- that post-October 2008 treatment was not medically necessary -- was supported by the DRP's consideration of the evidence presented to him. The court denied plaintiff's motion to vacate the arbitration award.

On January 24, 2011, plaintiff filed a motion for reconsideration, which the trial court denied in an order dated March 10, 2011. This appeal ensued.

The parties to a dispute "regarding . . . benefits provided under [PIP] coverage . . . [may submit the dispute] to dispute resolution on the initiative of any party to the dispute . . . ." N.J.S.A. 39:6A-5.1(a). Arbitration of PIP disputes must be conducted under the APDRA. Riverside Chiropratic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008). The APDRA requires that "[a] party to an alternative resolution proceeding . . . commence a summary application in the Superior Court for its vacation, modification or correction within 45 days after the award is delivered . . . ." N.J.S.A. 2A:23A-13(a).

The DRP's award "shall be final if there is substantial evidence to support that decision[.]" N.J.S.A. 2A:23A-13(b). If, however, a party's application to vacate the award is based upon: corruption; fraud or misconduct in procuring the award; partiality of the DPR; the DPR's exceeding his or her power, or so imperfectly executing it that a final and definite award is not made; or the DRP's failure to follow proper procedures; the reviewing court may make independent findings of fact. N.J.S.A. 2A:23A-13(b) (c). The reviewing court may also vacate the award if the DRP has committed prejudicial error by erroneously applying law to the issues and facts. N.J.S.A. 2A:23A-13(c)(5). Once the trial court confirms, modifies, or corrects the award, "[t]here shall be no further appeal or review of the judgment or decree." N.J.S.A. 2A:23A-18.

The Supreme Court upheld the constitutionality of N.J.S.A. 2A:23A-18 in Mt. Hope Dev. Assoc. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 152 (1998). Nevertheless, limited appellate review may be granted in "'rare circumstances' grounded in public policy." Ibid. Plaintiff has not established such circumstances.

Plaintiff asserts the trial court applied the wrong standard of review because it applied the UAA instead of the APDRA. Although the court's analysis under the UAA was unnecessary, the court analyzed plaintiff's arguments under the APDRA as well.

Plaintiff also argues that the trial court applied the wrong standard of review because it failed to address the DRP's failure to rule on one of its arguments; namely, that GEICO was required to respond to pre-certification requests even though GEICO had explicitly denied any further treatment based on Dr. Cooper's opinion. The rejection of plaintiff's argument was implicit in both the DRP's decision and the trial court's determination. This is evident from the trial court's discussion of plaintiff's claim in connection with the pre-October 2008 bills.

Lastly, plaintiff's arguments that the trial court "fail[ed] to address whether the award was supported by substantial evidence" and "failed to make independent findings of facts" amount to little more than disagreement with the DPR's weighing of evidence, and the trial court's determination that the evidence supported the DPR's opinion.

In short, plaintiff's arguments do not rise to the level of public policy that warrants appellate review. Fort Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 102 (App. Div. 2010).

A

1 In accordance with statutory mandate, N.J.S.A. 39:6A-5.1(b), the Commissioner of Banking and Insurance designated the NAF "as the organization responsible for administering PIP dispute resolution proceedings and adopted rules and regulations the NAF is required to follow in conducting such proceedings." Allstate N.J. Ins. Co. v. Neurology Pain Ass'n, 418 N.J. Super. 246, 250 (App. Div. 2011).