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Riverside Chiropractic Group v. Mercury Insurance Co.

December 17, 2008

RIVERSIDE CHIROPRACTIC GROUP, A/S/O MEGAN MACHADO, PLAINTIFF-APPELLANT,
v.
MERCURY INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8691-07.

The opinion of the court was delivered by: Lyons, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 13, 2008

Before Judges Stern, Lyons and Waugh.

Plaintiff, Riverside Chiropractic Group, appeals from a judgment affirming an arbitration award entered pursuant to the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -19 (APDRA), regarding personal injury protection (PIP) costs incurred by one of its patients. Because we find that the APDRA, N.J.S.A. 2A:23A-18(b), bars appeal to this court, we dismiss. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On March 1, 2006, plaintiff's patient, who was twenty-two years old at the time, was injured in an automobile accident. On March 5, 2006, the patient sought treatment from plaintiff for her resulting injuries. The patient, who was insured pursuant to her mother's policy, assigned plaintiff all of her rights under the insurance contract on that date. The patient thereafter began a course of treatment for her injuries that lasted several months.

On May 10, 2006, plaintiff sent a pre-certification request to defendant*fn1 for payment for the treatments it had provided to the patient. Plaintiff made its request pursuant to defendant's decision point review plan,*fn2 which defendant implemented in accordance with N.J.A.C. 11:3-4.7(c)(4) which requires decisions regarding payment pre-certification to be based upon medical necessity and treatment. The request contained the patient's medical evaluation and history, as well as information on her range of motion, a diagnostic assessment, and a plan of treatment.

Two days later, on May 12, 2006, defendant responded by letter and informed plaintiff that Dr. Louis Cuccaro, D.C. had reviewed the request and approved certain medical services but denied others on behalf of defendant. Specifically, Dr. Cuccaro determined that plaintiff's "[s]ervices exceed the usual and customary care required for the diagnosis." The response letter also informed plaintiff that a more detailed explanation of the denial would be provided upon request and plaintiff could seek reconsideration of the determination. Defendant also included information regarding plaintiff's right to appeal to the National Arbitration Forum.

Plaintiff continued to treat the patient and made more pre-certification requests. Defendant denied each of these requests in the same manner and plaintiff sought reconsideration from defendant on these denials. Defendant upheld all of its decisions.

On October 10, 2006, plaintiff filed a demand for arbitration. At that time, plaintiff had not obtained a copy of the applicable insurance contract, and assumed that the contract mandated arbitration for PIP disputes. However, defendant provided a copy of the contract post-oral argument, supplementing the record on appeal. The policy states, in pertinent part, that "[a] PIP dispute, as defined in N.J.A.C. 11:3-5, may be submitted to dispute resolution by: a) an injured party, b) the Insured, c) a provider who is an assignee of PIP benefits of the company." (Emphasis added).

Plaintiff filed a PIP claim in the amount of $4,465.01 with the National Arbitration Forum, arguing that defendant's denial of the pre-certification requests violated N.J.A.C. 11:3-4.7(c)(4). The National Arbitration Forum assigned a Dispute Resolution Professional (DRP) to hear the matter.

In response to plaintiff's demand for arbitration, Dr. Cuccaro drafted a letter documenting his reasons for denying pre-certification in more detail. This letter was dated February 2, 2007.

The DRP heard oral arguments on July 24, 2007. At that time, plaintiff argued that Dr. Cuccaro's February 2, 2007, letter was in fact an impermissible retrospective denial of payment, prohibited by ...


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