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Novak v. Liberty Mutual Insurance Co.

May 27, 2010

ELIZABETH A. NOVAK, PLAINTIFF-RESPONDENT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2910-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 1, 2010

Before Judges Carchman and Lihotz.

We again review Liberty Mutual Insurance Company's (Liberty) appeal from a Law Division order entered upon plaintiff Elizabeth Novak's motion to vacate an arbitration award for personal injury protection (PIP) benefits. We again reverse.

Novak was injured in an automobile accident on March 11, 2002. She submitted requests for PIP benefits for medical care rendered by twenty-two different providers totaling $249,707.45. Most of the bills related to treatments for a temporomandibular joint dysfunction (TMJ) and a herniated disc. Liberty declined payment, asserting the conditions treated were not causally related to Novak's automobile accident or medically necessary. Novak submitted a demand for arbitration.

PIP arbitration was held on June 8, 2005, subject to American Arbitration Association (AAA) rules, N.J.S.A. 39:6A-5(g)*fn1 and governed by the provisions of the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. See also N.J.S.A. 39:6A-5.1; N.J.A.C. 11:3-5.1 to -5.12. Both parties provided extensive documentary submissions. Novak testified, and one treating dental physician, Robert Federman, D.D.S., appeared by telephone.

We provide only a brief overview of the course of medical treatment described by Novak. In the first three months, she was treated by a chiropractor and commenced physical therapy. In July 2002, claiming her left lower back and neck pain were getting worse, she sought the services of neurologist Ulises Sabato, M.D., who ordered an MRI of her cervical and lumbar spine, provided epidural injections, and made a referral for review of possible TMJ. Novak sought treatment from an orthopedist, who also commenced a course of epidural injections, and recommended physical therapy. Novak then underwent trigger point injections, supervised by a pain management specialist. In October 2002, Novak was referred to Neville Mirza, M.D., a neurosurgeon, who recommended a selective endoscopic lumbar discectomy at L4-L5, thermodiscoplasty with laser and a provocation lumbar discography at lumbar discs at L3-L4 and L4-L5. Dr. Mirza treated Novak's neck pain with steroid injections. Pre-certification for the surgical procedures was sought and denied by Liberty.

On November 12, 2002, Novak sought an emergency evaluation and comprehensive review by a Medical Review Organization (MRO). See N.J.S.A. 39:6A-5.1(d) (providing for review by an MRO when the PIP-reimbursement dispute concerns "the diagnosis, the medical necessity of the treatment or diagnostic test administered to the injured person, whether the injury is causally related to the insured event or is the product of a pre-existing condition, or disputes as to the appropriateness of the protocols utilized by the provider"); Orthopaedic Assocs. v. Dep't of Banking and Ins., 405 N.J. Super. 54, 62 (App. Div. 2009). Prior to receipt of the MRO report, Novak underwent surgery on December 17, 2002.

Novak was again hospitalized on January 26, 2004, complaining of lower back pain that radiated to both legs. A neurosurgical consultation with Marvin Friedlander, M.D., occurred on January 29, 2004. Dr. Friedlander noted a herniated disc and scheduled and completed "a complete discotomy at L4-L5, Gill-type decompression and complete fusion" three days later.

Novak's TMJ symptoms were treated by Robert Federman, M.D. from August 12, 2002 to January 16, 2003. Dr. Federman suggested, in all probability, the TMJ resulted from the auto accident. He also disagreed with Liberty's independent medical expert, Frederick Meiselman, M.D., who examined Novak on November 1, 2002 and opined the cause of any TMJ symptoms was other than the accident as Novak had not "experienced any trauma to the mandible . . . and there was no causal relationship." Dr. Federman contended that TMJ can result from causes other than direct head trauma and maintained the accident was the cause of Novak's condition. A bilateral TMJ arthroscopy was performed on November 12, 2002.

Liberty submitted its expert evaluation reports. An October 31, 2002 peer review analysis rejected a course of injection treatments, which the attending physician admitted was a "clerical mistake." A second peer review of the requested six to eight weeks of cervical trigger point injections was rejected as "not medically necessary and in accord with the NJCP criteria[,]" because Novak had already undergone the same treatment. A November 14, 2002 independent medical examination (IME) by Daniel S. Rosenberg, M.D., concluded Novak suffered from cervical and lumbar sprain. He noted no muscle spasms or trigger points, normal range of motion in the upper and lower extremities and somewhat decreased lumbar range of motion but normal cervical range of motion. Dr. Rosenberg recommended a "home exercise program" for stretching and strengthening Novak's lumbar spine. He concluded Novak needed no further conservative care to treat her accident injuries.

The MRO report by Edward Josell, D.O., board certified in neurology, reviewed Novak's complete medical treatment file. Dr. Josell found the record failed to show any acceptable rationale for the December 17, 2002 back surgery and concluded there was "no clinical definitive evidence of a disc herniation that might cause pressure on a sciatic nerve root" and that "this sort of operation is not routinely done for simple low back pain." Specifically, his report stated:

The offer of surgery on [the October 9, 2002] consultation with Dr. Mirza was unwarranted. He fails to indicate how the MRI demonstrated any compression of sciatic nerve root on either side. Only a bulging annulus is recorded which is not an acceptable reason for disc surgery.

There is no adequate documentation of why this patient was put on total disability.

Nor is there any indication of why [Novak] was being treated for depression (using Zoloft) at the ...


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