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Thermographic Diagnostics Inc. v. Allstate Insurance Co.

Decided: May 15, 1987.

THERMOGRAPHIC DIAGNOSTICS, INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT. THERMOGRAPHIC DIAGNOSTICS, INC., A NEW JERSEY CORPORATION, PLAINTIFF, V. STATE FARM INSURANCE COMPANY, DEFENDANT



Talbott, J.s.c.

Talbott

OPINION

This is an action by Thermographic Diagnostics, Inc., (TDI) plaintiff, suing by assignment of insureds of defendants Allstate Insurance Company and State Farm Insurance Company under the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq., for payment of thermographic studies made of these individuals after injuries were sustained in automobile accidents.

TDI contends that it made thermograms of the cervical, thoracic and/or lumber spines of these patients as ordered by medical doctors and chiropractors who considered them necessary for diagnostic purposes. It is owed by Allstate and State Farm in excess of $150,000 in unpaid invoices for over 300 assignees which it represents in this case. The defendants contend that neuromuscular and/or musculoskeletal thermography is not a necessary medical expense since it is still in the research and experimental stage and should not be paid for except under specific guidelines supported by contemporary research. They also contest the fees charged by TDI as excessive

and out of proportion to other more widely-accepted diagnostic tests.

Thermography is a relatively new diagnostic tool. Its scientific basis was developed in space and agricultural research. Thermogram means literally a picture of heat. In preparation for a thermographic examination, an individual must follow a strict protocol which eliminates conditions that might affect skin temperature, and just before the pictures are taken the skin is equilibrated with a room temperature of 68 degrees to 74 degrees Fahrenheit. Thermography is the measure of the infrared radiation from the skin surface of the human body by a scanner. A control unit then converts these emissions into electronic signals, which are displayed by image on a monitor. Color is introduced into the electronic signal, each color representing an approximate differential of 1 degree Centigrade. Pictures taken of this image by a 35-millimeter camera preserve the study for diagnostic purposes. The thermogram of a normal individual is symmetrical, one side of the body being the mirror image of the other. If asymmetry occurs, it is claimed that this differential of heat on the skin's surface shows that there is a nerve impingement or irritation at the root of the dermatome which affects that area of the skin. Also, localized areas of heat change may be reflective of disease states that are attributable to musculoskeletal pathology.

This is a case of first impression in this State on the issue of whether thermography is compensable as a reasonable and necessary medical expense under the Personal Injury Protection (PIP) provisions of our no fault statute, N.J.S.A. 39:6A-4. This court in Procida v. McLaughlin, 195 N.J. Super. 396 (Law Div.1984), addressed the issue of whether thermographic tests could be admitted as evidence in a damages trial. This court found in that case that thermography is a diagnostic tool with sufficient scientific basis to be an aid to the jury. This determination was made from testimony taken in a two-day Rule 8 hearing. This decision was not appealed. However, the Appellate Division in Ferlise v. Eiler, 202 N.J. Super. 330 (App.Div.1985),

reversed the admission of thermograms in evidence by the trial court in that case, finding that the proper foundation had not been laid to show that the specific tests performed were reliable.

This trial of the present case, which took place over a six-week period, presented in depth the opinions of doctors and other experts from throughout the United States and Canada concerning the current thinking in the medical profession about the usefulness of thermography as a diagnostic test. There is no question that this testimony showed a deep chasm of disagreement between doctors who are members of the American Academy of Thermography and the American Academy of Neuromuscular Thermography who support its use and those doctors called by the defendants who found it to have no provable value. Local doctors called by both sides presented community opinions.

The subject of thermography has become timely in the medical and legal professions because of the claims of the thermographic community. In some instances it has been advertised as showing a "picture of pain" and therefore helpful to attorneys in presenting their clients' damages claims to a jury by objectively picturing soft-tissue injury in automobile accident cases. This has further led to claims for payment under no fault insurance policies for these costs. Some insurance companies, including the defendants Allstate and State Farm, have refused payment, which raises the issue presented in this case.

The claims of the parties must be tested against the provisions of the statute, which read as follows:

N.J.S.A. 39:6A-4. "Personal injury protection coverage" means and includes:

a. Medical expense benefits. Payment of all reasonable medical expenses incurred as a result of personal injury sustained in an automobile accident . . .

N.J.S.A. 39:6A-2. Definitions.

As used in the act:

e. "Medical expenses" means expenses for medical treatment, surgical treatment, dental treatment, professional nursing services, rehabilitation services, x-ray and other diagnostic services, prosthetic devices, ambulance services,

medication and other reasonable and necessary expenses resulting from the treatment prescribed by persons licensed to practice medicine and surgery pursuant to R.S. 45:9-1 et seq., dentistry pursuant to R.S. 45:6-1 et seq., psychology pursuant to P.L. 1966, C. 282 (C. 45:14B-1 et seq.) or chiropractic pursuant to P.L. 1953, C. 233 (C. 45:9-41.1 et seq.) or by persons similarly licensed in other states and nations or any nonmedical remedial treatment rendered in accordance with a recognized religious method of healing.

In essence, this court must decide whether thermography is a necessary and reasonable diagnostic test qualifying for payment under the statute.

To answer this question it is necessary to review the extensive expert medical testimony concerning neuromuscular thermography presented by the parties. TDI presented five doctors in the fields of neurology and orthopedics who use neuromuscular thermography in their practice. All of these doctors are members of the American Academy of Neuromuscular Thermography and the American Academy of Thermography.

Joseph Urrichio, M.D., a practicing orthopedic surgeon in Orange County, Florida, certified by the American Academy of Orthopedic Surgeons testified concerning the medical basis of neuromuscular thermography. He said it is a physiological test that aids primarily in the diagnosis of sensory nerve irritation. He explained that sensory nerves emerge from the spine and travel in recognized patterns called dermatomes, to skin areas. For example, the nerve that emerges at L-4 comes down the buttock and over the front of the thigh and down into the big toe; from L-5 the sensory nerve comes down the side of the buttock and to the middle toes; and from S-1 the nerves come down the back of the thigh into the little toe. These sensory nerves, which allow one to feel sensations, are closely associated with the sympathetic nervous system over which we have no control. He testified that as much as one-third of every sensory nerve is composed of sympathetic nerve fibre. When a sensory nerve gets irritated through trauma or otherwise, the sympathetic nerve fibre associated with that nerve causes vascoconstriction of the capillaries under the skin. Cutting down the size of these blood vessels creates a cooler area on the skin

area supplied by that nerve. However, it is only possible to approximate the level at which the irritation occurs since sensory nerves do not correlate exactly to dermatomes. A temperature change often appears on the skin at a dermatomal area one or two levels above or below the irritation. In some cases the temperature change will appear on the side of the body opposite from where the irritated nerve is present. Thermograms are not intended for exact anatomic localization of the irritation. Thermograms do not tell what causes a problem or precisely where it is. Other diagnostic tests are needed to get this information.

However, neuromuscular thermography is the best test for diagnosing the existence of sensory nerve irritation. Its uses are primarily helpful in forming a successful strategy for treatment. Since other tests such as myelograms and Computerized Tomography Scans (CT Scans) give positive results approximately one-third of the time in asymptomatic patients, neuromuscular thermography is indicated as a supplement to a CT Scan to determine whether more aggressive forms of treatment such as a myelogram, hospitalization or surgery are necessary. It is also indicated where patients do not respond to other forms of treatment and it is necessary to determine whether there is an organic basis to pain symptoms.

Dr. Urrichio reported on a study of 1,228 patients in which he compared thermographic results with results from other neurodiagnostic tests. He concluded that abnormal thermograms highly correlated with defects shown by CT Scans and myelograms and also detected abnormalities which were not picked up by those methods.

Jack E. Hubbard, M.D., a neurologist certified in 1983 by the American Board of Neurology and Psychiatry, practices in Minneapolis, Minnesota. He is also an assistant clinical professor at the University of Minnesota. Dr. Hubbard offered testimony on the physiological basis of neuromuscular thermography -- how measuring the temperature of the skin's surface

could reflect injury or disease within the body. He explained that the sympathetic nervous system regulates skin temperature by controlling the diameter of the small capillaries at the skin surface. If a sensory nerve is damaged or irritated, blood vessel constriction can result in decreased blood flow to the skin resulting in decreased skin temperature. A sympathetic nerve becomes irritated when it is pressed on by an irritated sensory nerve. Sensory nerves tend to travel with sympathetic nerves. Neuromuscular thermography thus demonstrates sensory nerve impairment because of the close relationship between sensory and sympathetic nerves.

Dr. Hubbard testified further that neuromuscular thermography is a physiological test whereas other neurodiagnostic tests such as a myelogram, x-ray and CT Scan are anatomical. A thermogram tells if body structure is working while other neurodiagnostic tests indicate the relationship of one structure to another. In his opinion, neuromuscular thermography is useful in three instances. First, it is useful as a screening tool that helps in deciding whether more invasive and painful tests are necessary. Second, it is useful in locating the organic source of ...


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