COMPLETE CARE v. GEICO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00171-13T2

COMPLETE CARE a/s/o

WALTER JONES,

Plaintiff-Respondent/

Cross-Appellant,

v.

GEICO,

Defendant-Appellant/

Cross-Respondent.

__________________________________

December 11, 2014

Submitted October 27, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1710-12.

Costa Vetra LaRosa & Costa, attorneys for respondent/cross-appellant (Seth C. Hasbrouck, of counsel and on the briefs).

Law Office of Robert A. Raskas, attorneys for appellant/cross-respondent (Lauren M. Santonastaso, on the brief).

PER CURIAM

This case arises out of a dispute between a chiropractic provider, Complete Care, and an automobile insurer, GEICO, over personal injury protection ("PIP") benefits. After being injured in a March 2007 motor vehicle accident, the insured motorist, Walter Jones, received treatments at Complete Care from December 2007 through April 2010. Jones assigned his rights to receive PIP benefits for those services under his automobile policy with GEICO to Complete Care, as his subrogee.

GEICO initially paid on the treatments through November 2008. On November 12, 2008, the insurer had an Independent Medical Examination ("IME") performed on Jones. Although the IME report has not been furnished to us in the appendices, the report evidently concluded that further treatment of Jones at Complete Care was not medically necessary.

The IME results prompted GEICO to halt paying PIP benefits to Complete Care as of November 27, 2008. However, GEICO delayed in providing Complete Care with a copy of the IME until January 25, 2010, despite receiving two earlier requests from Complete Care for that report. Meanwhile, Complete Care continued to treat Jones, providing sixty-two treatments from the time of GEICO's November 2008 termination of benefits through April 2010.

The PIP dispute over Complete Care's unpaid bills was presented to a Dispute Resolution Professional ("DRP") that Forthright1 assigned to hear the case. Forthright has a contract with the Department of Banking and Insurance to provide arbitration services in PIP matters. The testimony before the DRP was not stenographically recorded.

Complete Care relied heavily in the arbitration proceeding before the DRP on a report and expert testimony of Dr. Philip Scheets, Jr., who was Jones's treating chiropractor. Dr. Scheets apparently opined that the treatment provided by Complete Care was all medically necessary. GEICO opposed his contentions, arguing that the treatment was outside the recommended "care paths" for persons with injuries such as those of Jones. GEICO also relied on the IME, which similarly showed a lack of medical necessity.

After considering the proofs, the DRP awarded Complete Care a total award of $8,484.65, plus costs and counsel fees. The DRP found Dr. Scheets's testimony to be "convincing." In addition, the DRP found that GEICO was estopped from contesting the PIP coverage for the period through January 25, 2010, when it finally turned over a copy of the IME to plaintiff. The DRP denied coverage for Jones's treatment on dates of service after January 25, 2010.

As permitted by the DRP rules, GEICO pursued an internal administrative appeal to a three-member "DRP Panel" within Forthright. The DRP Panel considered the matter on the papers, although the Panel evidently did not have a copy of Dr. Scheets's arbitration testimony since it had not been recorded.

The DRP Panel reversed the DRP's ruling that all of Complete Care's bills prior to the IME turnover date in January 2010 were compensable. Instead, the Panel found that only a small portion ($732.53) of Complete Care's incurred charges were compensable.

Complete Care then filed a complaint in the Law Division pursuant to N.J.S.A. 2A:23A-13(a), seeking to set aside the DRP Panel's award. The motion judge, the Hon. Marc M. Baldwin, J.S.C., analyzed the matter under the applicable statute, the Alternative Procedure for Dispute Resolution Act ("APDRA"), N.J.S.A. 2A:23A-1 to -19. The APDRA governs DRP matters and procedures. See N.J.S.A. 39:6A-5.1(a) (authorizing the resolution of disputes between insurers and claimants to be resolved through binding arbitration); N.J.A.C. 11:3-5.6(g) (providing that such PIP arbitrations are to be conducted through the procedures set forth in APDRA).

In an order and letter opinion dated July 24, 2013, Judge Baldwin upheld the DRP Panel's ruling in part and vacated it in part. The judge agreed with the Panel that the insurer's delayed turnover of the IME did not mandate that automatic benefits be paid to Complete Care in the interim until the IME was supplied. However, the judge vacated the DRP Panel's rulings as to the reduction of the bills and also the DRP Panel's related finding of lack of medical necessity.

Because the arbitration testimony of Dr. Scheets had never been transcribed, nor was it even summarized by the DRP in her written decision, the treating doctor's expert opinions were not available for judicial review. Consequently, Judge Baldwin remanded the matter for reconsideration by the DRP, with direction for the DRP to amplify her findings as to medical necessity, and to also summarize the substance of Dr. Scheets's testimony. See Kimba Med. Supply v. Allstate Ins. Co., 431 N.J. Super. 463 (App. Div. 2013) (construing the APDRA to authorize trial courts to remand open issues to DRPs in certain situations), certif. granted, 217 N.J. 286, certif. dismissed, ___ N.J. ___ (2014).

Specifically, the judge's order instructed the DRP "to provide a thorough decision on the 'reasonable and necessary' issue" relating to the compensability of the contested treatments. The judge further directed the DRP to provide a "good summary" of the doctor's testimony. The judge added that if the DRP "cannot provide such a summary because of the length of time between the remand and the hearing[,] this matter is to proceed ab initio" before the DRP. In such instance, the "only issue" on remand would be "whether the treatment for which there is a claim for the payment of bills was reasonable and necessary."

GEICO appeals the judge's decision to remand the case to the DRP. It maintains that the DRP Panel made no legal error that needs correction. Complete Care has cross-appealed, arguing that the DRP Panel and the trial court erred in rejecting its position that the treatments of Jones all should have been compensable, per se, until such time as the IME was furnished.

We do not reach the merits of these competing arguments. Instead, we dismiss both the appeal and the cross-appeal for lack of appellate jurisdiction, for the following reasons.

The applicable jurisdictional constraint is set forth within the APDRA. Pursuant to N.J.S.A. 2A:23A-13, a party seeking to vacate, modify or correct an award may bring "a summary application" in the trial court. According to the statute, that judicial scrutiny by the trial court is designed to be the final level of appellate review. N.J.S.A. 2A:23A-18(b) provides that "[u]pon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered by the [trial] court in conformity therewith and be enforced as any other judgment or decree. There shall be no further appeal or review of the judgment or decree." (Emphasis added).

Hewing to this explicit language in the statute, the general rule is that a plaintiff has no right to appeal from a trial judge's order issued in cases arising under the APDRA. Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 475 (App. Div. 2007). The courts have adhered to this general rule, reserving, for policy matters, the exercise of their supervisory jurisdiction over the trial court. See Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 152 (1998) (noting that only "'rare circumstances' grounded in public policy that might compel this Court to grant limited appellate review").

The "rare circumstances" enabling further review beyond the trial court in APDRA matters arise only in situations where such appellate review is needed to effectuate a "nondelegable, special supervisory function," of the appellate court. Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 239 (App. Div. 2008).

In only a few exceptional instances has this court elected to perform such appellate review in an APDRA matter. See, e.g.,Selective Ins. Co. of Am. v. Rothman, 414 N.J. Super. 331, 341-42 (App. Div. 2010) (reversing a trial court's order erroneously upholding a decision of a DRP, who failed to enforce a clear statutory mandate involving a "matter of significant public concern"), aff'd, 208 N.J. 580 (2012); Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 473 (App. Div. 2005) (conducting appellate review over a DRP's ruling on attorney's fees because the reasonableness of counsel fees "comes within [the Court's] exclusive supervisory powers"); Faherty v. Faherty, 97 N.J. 99, 109 (1984) (exercising appellate review over a child support award made by an arbitrator designated by the parties' divorce judgment); see alsoKimba, supra, 431 N.J. Super. at 482 (App. Div. 2013) (invoking the jurisdictional exception to undertake appellate review of unresolved and recurring legal questions concerning the proper interpretation of APDRA, and to clarify the trial court's ability to remand certain open issues back to the dispute professional).

In the event that such further judicial review is appropriate, however, the appellate court's "role is to determine whether the trial judge acted within APDRA's bounds. If so, [the appellate tribunal is] bound by N.J.S.A. 2A:23A-18(b) to dismiss the appeal." Fort Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 103 (App. Div. 2010). Fort Lee Surgery is an instructive example of the general rule disfavoring this court's involvement in APDRA matters. In Fort Lee Surgery we were asked to determine whether the trial judge had erred in modifying an arbitrator's award issued under APDRA. We found that our appellate review of the trial court in that matter was inappropriate and declined to exercise jurisdiction. Id. at 104.

We reasoned that because the Law Division judge had rested her decision upon one of the enumerated statutory grounds set forth in APDRA for vacating, modifying or correcting an arbitration award, the Appellate Division had no cause to invoke its supervisory function. Id. at 104; see also Riverside Chiropractic, supra, 404 N.J. Super. at 240 (declining appellate jurisdiction because it was not shown that the trial judge "commit[ted] any glaring errors that would frustrate the Legislature's purpose in enacting the APDRA"); N.J. Citizens Underwriting Reciprocal Exchange v. Kieran Collins, D.C., LLC, 399 N.J. Super. 40, 50 (App. Div.) (likewise dismissing an appeal in an APDRA matter because the trial judge "steered a course well within" the trial court's limited scope of review), certif. denied, 196 N.J. 344 (2008).

While we are mindful that "[t]he exercise of our supervisory function cannot be talismanically eliminated by the mere invocation of the words of the words of the [APDRA] statute," Fort Lee Surgery, supra, 412 N.J. Super. at 104, we decline jurisdiction as to both GEICO's appeal and Complete Care's cross-appeal.

There is nothing momentous, legally or factually, about this case. The judge's remand to the DRP calls for her to address the unresolved issue of medical necessity for the disputed bills preceding the insurer's January 2010 turnover of the IME, the compensability of which she had unfortunately decided on purely procedural grounds without addressing the substance of those bills and treatments. The open issue is one that plainly needs more factual analysis and development. De novo judicial review of the issues of medical necessity is not feasible on the present incomplete record. The remand to the DRP here for more findings is consistent with Kimba, supra, 431 N.J. Super. at 489-90. See also N.J.S.A. 2A:23A-14 (authorizing a remand for a rehearing before the dispute professional in certain instances).

The sums in dispute here are relatively small. No significant issues of public policy are implicated. Although both GEICO and Complete Care contest Judge Baldwin's rulings in separate respects, we do not discern that the judge approached the merits of their dispute by acting outside of the proper boundaries of the APDRA.

The appeal and cross-appeal are dismissed. Consequently, the trial court's order dated July 24, 2013 remains in force and shall be implemented forthwith.

1 Forthright succeeded the National Arbitration Forum as the arbitration tribunal for such matters after the underlying personal injury awards in this case were entered.