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AMERICAN ARBITRATION ASSOCIATION NO-FAULT/ACCIDENT CLAIMS In the Matter of the Arbitration between (Claimant) AAA CASE NO.: 18 Z 600 11068 03 INS. CO. CLAIMS NO.: 99JBA0423901

v. CLARENDON NATIONAL INSURANCE COMPANY

DRP NAME: Andrew A. Patriaco NATURE OF DISPUTE: Causal Connection, Medical Necessity

(Respondent)

AWARD OF DISPUTE RESOLUTION PROFESSIONAL I, THE UNDERSIGNED DISPUTE RESOLUTION PROFESSIONAL (DRP), designated by the American Arbitration Association under the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey, adopted pursuant to the 1998 New Jersey “Automobile Insurance Cost Reduction Act” as governed by N.J.S.A. 39:6A-5, et. seq., and, I have been duly sworn and have considered such proofs and allegations as were submitted by the Parties. The Award is DETERMINED as follows: Injured Person(s) hereinafter referred to as: L.H. 1. ORAL HEARING held on October 29, 2003. 2. ALL PARTIES APPEARED at the oral hearing(s) . NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration were NOT AMENDED at the oral hearing (Amendments, if any, set forth below). STIPULATIONS were not made by the parties regarding the issues to be determined (Stipulations, if any, set forth below).

4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: This is a claim arising out of an accident that occurred on April 30, 1999. Claimant submitted the following documents: 1) Demand for Arbitration with attachments received on June 25, 2003. 2) Letter dated October 28, 2003 with attachments.

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3) Letter dated November 6, 2003 with attachments. Respondent submitted the following documents: 1) 2) 3) 4)

Letter dated July 10, 2003. Letter dated September 23, 2003. Letter dated October 9, 2003 with attachments. Letter dated November 17, 2003.

I will first address the issue of causality and medical necessity. L.H. sustained injuries as the result of an automobile accident that occurred on April 30, 1999. She received emergency room treatment and physical therapy before being seen by Doctor Schimler on May 17, 1999. Doctor Schimler provided an initial diagnosis of cerebral concussion, TMJ injury, acute cervical sprain, acute lumbosacral sprain, and an injury to the right wrist and knee. Physical therapy and medication were prescribed. An MRI revealed a disc herniation at L5-S1 and an EMG revealed L5-S1 radiculopathy. Doctor Schimler last saw L.H. on January 31, 2000. L.H. had complaints of increased low back pain with radiation down the right leg. At that time, surgical intervention was discussed. Doctor Schimler related his findings to the subject accident. L.H. was seen in neurological consultation by Doctor Rubin, a neurosurgeon, on May 24, 2002. After reviewing records and performing an examination, Doctor Rubin provided a diagnosis of a left sided L5-S1 disc herniation. He requested that a new MRI be performed and that surgery would be needed if there was a significant disc herniation. L.H. was also seen by Doctor Vizzone, an orthopedic surgeon. He was aware of a prior low back injury in 1989. It appears that Doctor Vizzone saw L.H. in April of 2003. He performed an examination and reviewed MRI films. According to Doctor Vizzone the films demonstrated a far lateral disc herniation on the left at L4-L5 and a large herniated disc at L5-S1. He recommended an intraoperative discogram at L5-L5 and L5-S1 with selective endoscopic diskectomies. Doctor Peterson, another neurosurgeon, saw L.H. in February of 2003. He noted that the January 9, 2003 MRI revealed the disc herniation as described above. He also recommended a 2 level diskectomy. Doctor Peterson was aware of a prior motor vehicle accident that occurred in 1989. L.H. did sustain a low back injury in that accident. According to the history taken by Doctor Peterson, L.H. had made a 100% recovery from the 1989 accident. Doctor Kantha, of Meadowlands Pain Management, saw L.H. on April 23, 2003. Doctor Kantha's history indicated that prior to the subject accident, L.H. had no pain. She was

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now complaining of low back pain radiating mostly to the left ankle and also right leg pain. She also had complaints of numbness, tingling, and weakness in both legs. Doctor Kantha performed an examination and reviewed records. He provided an impression of traumatic injuries to the lumbar spine. He recommended a consultation with Doctor Vizzone as discussed above and medication. Doctor Altman conducted an independent orthopedic evaluation on March 5, 2003 for QRS Managed Care. Doctor Altman noted that L.H. was involved in a prior motor vehicle accident in 1989. He stated that L.H. injured her mid back and treated for one year. Doctor Altman reviewed two MRI studies. He noted a small disc protrusion at L5-S1 and some disc degeneration. A second MRI study revealed a disc herniation at L5-S1. Some bulging was noted at L4-L5 and there was pressure on the nerve roots at L5-S1. Doctor Altman performed an examination. He stated that L.H.'s symptomatology was related to an L5-S1 radiculopathy that was secondary to a herniated lumbar disc. He was unable to relate his findings to the subject accident without reviewing records from the 1989 accident. He recommended removal of the L5-S1 disc. Doctor Ricciardelli, an orthopedic surgeon, examined L.H. at the request of William McGuire, Esquire. Doctor Ricciardelli noted that L.H. had been involved in an accident in the early 1980s in which she injured her neck, back and jaw. L.H. stated that she had made a full recovery from that accident. Doctor Ricciardelli performed an examination and reviewed records. He concluded that L.H. had signs and symptoms indicative of left lumbar radiculopathy. He pointed out that L.H. had a prior motor vehicle accident and that the MRI studies showed degenerative disc disease at L5-S1. He concluded that, "most likely, if her history is correct, she has sustained trauma superimposed on the area of previously existing degenerative lumbosacral disc disease and presently is showing signs of nerve root irritation involving the L5-S1 level on the left side." Attached to respondent's October 9, 2003 submission was the January 3, 2000 report of Doctor Dauhajre who examined L.H. on behalf of First Managed Care Option on January 3, 2000. He noted L.H.'s prior treatment immediately subsequent to the subject accident. He also reviewed records. Doctor Dauhajre commented that he did not review EMG/NCV studies and the MRI of the lumbosacral spine of June 18, 1999. He concluded that no further physical therapy was needed. However, further work up may be needed after his review of the EMG/NCV studies and the MRI of the lumbosacral spine. Doctor Dauhajre related his findings to the subject accident.

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Respondent had denied payment of this claim contending that the treatment in issue was not medically necessary and causally related to the subject accident. I have reviewed the entire submissions of the parties. I carefully considered the arguments of respondent and her comments regarding L.H.'s prior accident and L.H.'s accident on June 25, 1998. It is clear to me, by a preponderance of the evidence, that claimant has met her burden of proof that the treatment in issue was reasonable, medically necessary and causally related to the subject accident. The medical evidence submitted in this matter clearly establishes causality and medical necessity. Respondent argues that L.H. failed to cooperate in this matter and that the entire claim should be denied. Respondent argues that L.H. deliberately misled the treating providers and examiners regarding her prior accident. However, L.H. has consistently maintained that she was not experiencing any symptomatology prior to the accident in question. Respondent also argues that L.H., at her E.U.O., could not remember the "full names, addresses, medical speciality" etc of the providers from her prior accidents. This lack of memory should not come as a surprise to respondent since one of the accidents occurred 14 years ago. Respondent cannot construe L.H.'s lack of recall as a failure to cooperate. Respondent has raised the statute of limitations as a defense. It argues that its last payment was April 5, 2000 and that a claim should have been filed by April 5, 2002. A lawsuit was filed by claimant on April 18, 2001. The complaint was dismissed for lack of prosecution on October 24, 2001. The Court reinstated the complaint on November 22, 2002. The complaint included an action against a third party and a direct action against respondent. Subsequently, the claim against respondent was dismissed, without prejudice on March 13, 2003. The Demand for Arbitration was then filed on June 25, 2003. I find that this claim is not barred by the Statute of Limitations. Claimant filed a lawsuit within the statutory time period. As respondent points out, claimant included a PIP Count in the Superior Court proceeding to preserve his client's rights to future benefits. Thus, respondent was on notice of a claim for PIP benefits. Further, the claim is not barred by the entire controversy doctrine as this claim was included in the Superior Court proceeding, but the parties entered into a stipulation of dismissal without prejudice. Counsel for claimant seeks a fee of $5,670.00 which represent 37.8 hours at $150.00 per hour. In reviewing the certification of services, it is noted that much of the services for which counsel for claimant seeks payment were in connection with the Superior Court lawsuit. This lawsuit was ultimately dismissed by the parties without prejudice. Considering this fact, and pursuant to Rule 30, I award $2,500.00 as attorney's fees. 5. MEDICAL EXPENSE BENEFITS:

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Awarded Provider

Amount Claimed

Jersey Rehab Doctor Subash Doctor Rubin Bergenline X-Ray Meadowlands Pain Management Doctor Peterson

$679.60 $12,753.16 $220.00 $2,400.00 $80.02 $350.00

Amount Awarded $679.60 $12,753.16 $220.00 $2,400.00 $80.02

Payable to Provider Provider Provider Provider Provider

$350.00 Provider

Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. This award is subject to any remaining deductible, co-payment and the fee schedule. 6. INCOME CONTINUATION BENEFITS: Not In Issue 7. ESSENTIAL SERVICES BENEFITS:

Not In Issue

8. DEATH BENEFITS:

Not In Issue

9. FUNERAL EXPENSE BENEFITS:

Not In Issue

10. I find that the CLAIMANT did prevail, and I award the following COSTS/ATTORNEYS FEES under N.J.S.A. 39:6A-5.2 and INTEREST under N.J.S.A. 39:6A-5h. (A) Other COSTS as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $285.00 (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $2,500.00 (C) INTEREST is as follows: waived per the Claimant.

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This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. December 10, 2003 Date

________________________ Andrew A. Patriaco, Esq.