In the Matter of the Arbitration between Douglas J. Spiel, MD a/s/o P.D. CLAIMANT(s), Forthright File No: NJ1004001317390 Insurance Claim File No: 0266422850101051 Claimant Counsel: Law Offices of E. Vicki Arians, LLC Claimant Attorney File No: Respondent Counsel: Law Office of Cindy L. Thompson Respondent Attorney File No: 10P1140 KM Accident Date: 04/09/2009
v.
GEICO Insurance Company RESPONDENT(s).
Award of Dispute Resolution Professional Dispute Resolution Professional: Sergio G. Carro Esq. I, The Dispute Resolution Professional assigned to the above matter, pursuant to the authority granted under the "Automobile Insurance Cost Reduction Act", N.J.S.A. 39:6A-5, et seq., the Administrative Code regulations, N.J.A.C. 11:3-5 et seq., and the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey of Forthright, having considered the evidence submitted by the parties, hereby render the following Award: Hereinafter, the injured person(s) shall be referred to as: PD Hearing Information An oral hearing was waived by the parties. An oral hearing was conducted on: 10/5/11 Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: None.
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Findings of Fact and Conclusions of Law This dispute arises from an automobile accident of 4/9/09 in which the patient assignor, PD, sustained bodily injuries. The Demand seeks to compel payment of medical expense benefits pursuant to the NoFault/PIP provisions of an automobile insurance policy issued by Respondent. More particularly, Claimant demands payment of $29,700.22 representing balance billing for lumbar surgery performed 9/29/09 and a lumbar brace dispensed 8/19/09. The sole issue presented to the DRP at the time of hearing for determination in this Award is whether the subject billing represents the correct usual, customary and reasonable (UCR) rates for the services rendered and durable medical goods dispensed. On 9/29/09, PD underwent endoscopic discectomy and annuloplasty at the left L5-S1 lumbar spinal level. Dr. Douglas Spiel and Dr. Jeff Pan acted as co-surgeons for these procedures. Both submitted billing for the endoscopic discectomy under CPT code 63056-62 and for the annuloplasty under CPT code 0062T-62. Dr. Spiel billed CPT code 63056 at $33,000.00 while Dr. Pan billed the same code at $18,800.00. For CPT code 0062T, Dr. Spiel and Dr. Pan both billed $7,000.00. There is no dispute that the billing is subject to reimbursement at 62.5% of the eligible charge which is the limitation set for cosurgeons’ fees in N.J.A.C. 11:3-29.4(f)(4). Respondent adjusted the billing for CPT code 63056 and allowed $9,652.03 as the applicable UCR. After reduction to 62.5% per the applicable regulation Respondent paid each co-surgeon $6,032.52 for the endoscopic discectomy. The annuloplasty, CPT code 0062T was allowed at the billed rate of $7,000.00 and each co-surgeon was reimbursed 62.5% or $4,375.00. Thus, there is no UCR dispute as to the annuloplasty. N.J.A.C. 11:3-29.4(e) which pertains to determinations of UCR in PIP disputes, states that the insurer’s limit of liability for any medical expense benefit for any service or equipment not set forth in or not covered by the fee schedules shall be a reasonable amount considering the fee schedule amount for similar services or equipment in the region where the service or equipment was provided. Where the fee schedule does not contain a reference to similar services or equipment, the insurer’s limit of liability shall not exceed the usual, customary and reasonable fee. Of course, CPT code 63056 does not appear on the fee schedule. Additionally, the case of Cobo v. Mkt. Transition Facility, 293 N.J. Super. 374 (App. Div. 1996) wherein the Court indicated that the usual and customary rate for a non-fee schedule service is set in the first instance by the provider, is the leading case in New Jersey addressing the determination of UCR in PIP disputes. The Court noted that once the provider establishes its usual and customary rate, the carrier then has the obligation to review the billing for reasonableness giving due regard to other providers’ billing in the same geographical region. Naturally, review of UCR can be by many approaches. N.J.A.C. 11:3-29.4(e)(1) directs the carrier to review UCR by comparison of its experience with the medical provider submitting the bill to its experience with other providers in the same region. The regulation specifically permits the carrier to use national databases of fees such as those published by Ingenix or Wasserman for example. A review of the fee schedule reveals that CPT code 63056 is not included. Nevertheless, Respondent argues that a similar code is included. Specifically, Respondent refers to CPT code 63075 which NJ1004001317390
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represents a discectomy, anterior approach, with decompression, cervical, single interspace. The procedure in this case was a lumbar discectomy and was performed endoscopically. Claimant argues and submits a supporting report from Dr. Spiel that an endoscopic procedure is significantly more complicated than a percutaneous procedure. However, Respondent does not dispute this point and refers to CPT code 63075 as a comparable code because it represents an “open” surgical procedure, not a percutaneous procedure. Respondent further argues that a truly “open” procedure is of greater complexity than an endoscopic procedure which according to Dr. Spiel requires an incision of only approximately 1 centimeter. Therefore, Respondent urges, the comparison to an “open” procedure on the fee schedule is more than appropriate. The fee schedule eligible charge for CPT code 63075 is $9,046.68. Respondent allowed $9,652.03 as the applicable UCR for CPT code 63056, a very similar charge. Respondent also submits in evidence Wasserman Physician’s Fee Reference for 2009 which indicates the UCR for CPT code 63056 at the 75th percentile to be $7,633.00. The geographical multiplier for Claimant’s local is 1.13 according to the database resulting in a final UCR figure of $8,625.29, over $1,000.00 less than the rate Respondent utilized for its reimbursement calculation. Clearly, therefore, Respondent did not rely on the Wasserman database when it calculated the reimbursement in this case. Regardless, Respondent argues that its payment was clearly reasonable. Claimant argues that the Wasserman database is unreliable in that actual providers’ billing is not reported. However, the use of the database is clearly permitted by the cited regulation and has been upheld in the case of In Re Adoption of N.J.A.C. 11:3-29 by the State of New Jersey, Dept. of Banking and Ins., 410 N.J. Super. 6 (App. Div. 2009). Claimant submits in evidence several EOBs from other carriers demonstrating reimbursement of CPT code 63056 at the rate of $20,625.00 which represents 62.5% of $33,000.00. Claimant also submits EOBs evidencing payment as low as $16,296.00 against billing of $25,000.00 for the same code. Additionally, Claimant submits carious Awards from other arbitrations to demonstrate the billing as his own usual and customary rate and also to demonstrate comparable billing from other medical providers in the region. These Awards evidence billing for the same service by other physicians ranging from $24,750.00 to $33,000.00. Claimant also submits in evidence data from the Ingenix database for 2009. This data indicates the 75th percentile UCR for CPT code 63056 to be $18,688.00 and the 95th percentile to be $26,656.00. Clearly there is a wide disparity of evidence in this case as to the UCR issue. On the one hand, Respondent provides the Wasserman database which indicates a 75th percentile UCR at $8,625.00. On the other hand, Claimant demonstrates billing by several providers ranging from $18,800.00 in the case of Dr. Pan to $33,000.00. Claimant also the Ingenix database with figures as high as $26,656.00. With this wide range of figures UCR appears rather elusive. Nevertheless, while N.J.A.C. 11:3-29.4(e)(1) clearly permits the carrier to use national databases such as the Wasserman database, it also permits use of the Ingenix database and specifically directs the carrier to review UCR by comparison of its experience with the medical provider submitting the bill to its experience with other providers in the same region. Therefore, all the evidence submitted by both parties, not merely the Wasserman evidence, must be taken into consideration. Based on a review of all the record evidence, it is hereby determined that the preponderance of that evidence establishes a UCR for CPT code 63056 to be $25,000.00. Claimant is therefore awarded 62.5% of this rate with credit for Respondent’s prior payment. NJ1004001317390
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With respect to the lumbar brace dispensed 8/19/09, the unit was billed under CPT code L0626 at $350.00. Respondent allowed $242.26. A review of the fee schedule for similar lumbar braces reveals a wide range of eligible charges some higher and some lower. However, Claimant does not offer a description of the devise for further comparison nor does Respondent offer any explanation as to how it arrived at its reimbursement rate. Given the lack of evidence submitted it is hereby determined that Respondent has not demonstrated a review of the bill as required by Regulation. Moreover, since there are lumbar braces on the fee schedule that are higher and lower than the subject bill it is hereby determined that by comparison to these other braces the subject bill is reasonable. Claimant is therefore awarded the balance. Finally, as Claimant is found to be a prevailing party, it is also hereby determined that Claimant is entitled to an award of counsel fees and costs as per N.J.S.A. 39:6A-5(g). The fees and costs awarded below are calculated with due regard to the provisions of RPC 1.5 as well as the factors outlined in Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987) and Scullion v. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001). Those factors include: (1) the insurer’s good faith in refusing to pay the claim; (2) the excessiveness of plaintiff’s demands; (3) the bona fides of the parties; (4) the insurer’s justification in litigating the issues; (5) the insured’s conduct as it contributes substantially to the need for litigation; (6) the general conduct of the parties; and (7) the totality of the circumstances. Also considered were the fee certification of Claimant’s counsel and the objections thereto proffered by Respondent’s counsel at hearing.
Therefore, the DRP ORDERS: Disposition of Claims Submitted 1. Medical Expense Benefits: Awarded: Medical Provider Douglas J. Spiel, MD
Amount Claimed $29,700.22
Amount Awarded $9,700.22
Payable To Douglas J. Spiel, MD
2. Income Continuation Benefits: Not in issue 3. Essential Services Benefits: Not in issue 4. Death or Funeral Expense Benefits: Not in issue 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h.: to be calculated by Respondent in the usual course as mandated by statute.
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Attorney's Fees and Costs I find that the Claimant did not prevail and I award no costs and fees. I find that the Claimant prevailed and I award the following costs and fees (payable to Claimant's attorney unless otherwise indicated) pursuant to N.J.S.A. 39:6A-5.2g: Costs: $ 241.08
Attorney's Fees: $ 1,000.00
THIS AWARD is rendered in full satisfaction of all claims and issues presented in the arbitration proceeding. Entered in the State of New Jersey
Date: 12/04/2011
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