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Selective Insurance Company of America v. Rothman

July 13, 2010

SELECTIVE INSURANCE COMPANY OF AMERICA, PLAINTIFF-APPELLANT,
v.
ARTHUR C. ROTHMAN, M.D., PH.D., P.A., A/S/O D.R., DEFENDANT-RESPONDENT.
DR. ARTHUR C. ROTHMAN, A/S/O D.R., PLAINTIFF-RESPONDENT,
v.
SELECTIVE INSURANCE COMPANY, DEFENDANT-APPELLANT.
ARTHUR C. ROTHMAN, M.D., PH.D., P.A., PLAINTIFF-RESPONDENT,
v.
SELECTIVE INSURANCE COMPANY OF AMERICA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-2376-09, L-3524-09 and L-3527-09.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 17, 2010

Before Judges Rodríguez, Reisner and Yannotti.

In A-5288-08, Selective Insurance Company of America (Selective) appeals from an order entered by the trial court on June 9, 2009, denying Selective's motion to vacate and modify the arbitration award entered in favor of Dr. Arthur C. Rothman (Rothman). In A-5289-08, Selective appeals from an order entered by the trial court on June 9, 2009, which confirmed the aforementioned arbitration award. In A-5290-08, Selective appeals from a judgment entered by the trial court on June 9, 2009, which declared that physician assistants are permitted to perform needle electromyography (EMG) studies. For the reasons that follow, we reverse.

I.

These appeals arise from the following facts. Rothman is a physician licensed to practice medicine and surgery in New Jersey. Through his professional corporation, Rothman performs electrodiagnostic studies, including EMGs and nerve conduction velocity (NCV) tests. EMG studies involve the study of spontaneous and voluntary chemical activity of muscle, which is performed by the insertion of a needle electrode into the muscle and recording the electrical activity at rest and during voluntary muscle contraction. NCV tests involve the application of electrical stimulation at various points along or near a nerve using surface electrodes for stimulation and recording of data.

D.R. was injured in an auto accident and, on August 27, 2007, electrodiagnostic tests were performed on D.R.'s right upper extremity in Rothman's office. As D.R.'s subrogee, Rothman submitted a claim to Selective for the cost of the tests. The claims were made pursuant to the provisions of the Selective policy and the statute governing payment of personal injury protection (PIP) benefits, specifically N.J.S.A. 39:6A-4(a).

Selective refused to pay the claim. Selective asserted, among other things, that Rothman did not personally perform the needle EMG test. Selective claimed that the test had been performed by Bracha "Beth" Mazin (Mazin), a physician assistant in Rothman's office, and she was not legally authorized to perform the test. The matter was submitted to dispute resolution pursuant to N.J.S.A. 39:6A-5.1.

The Dispute Resolution Professional (DRP) issued a report dated November 28, 2008. He stated that there are two elements of electrodiagnostic testing: "the compilation of data during the test and the interpretation of [that] data with due regard to the clinical presentation and examination of the patient." The DRP found that Mazin had retrieved the data, while Rothman had interpreted the data compiled. The DRP noted that both Rothman and Mazin had signed the test report, thereby acknowledging that they were both involved in the testing process. The DRP found that N.J.S.A. 45:9-5.2(a) did not preclude Mazin from performing the EMG testing "for the compilation of data" that the supervising physician may interpret.

The DRP ordered Selective to pay Rothman's claim, and awarded him attorney's fees and costs. Thereafter, Selective filed a motion with the DRP for modification or clarification of the award. The DRP entered an order dated February 23, 2009, denying the motion. On March 13, 2009, Rothman filed a verified complaint and order to show cause in the Law Division, seeking an order confirming the arbitration award.

On March 13, 2009, Rothman also filed a complaint in the Chancery Division seeking a judgment declaring that physician assistants are legally authorized to perform EMG studies. Among other things, Rothman alleged that Selective had refused to pay about twenty-five to thirty claims for EMG testing on the ground that the tests had been performed by a physician assistant. Rothman sought an order compelling Selective to pay the disputed claims.

On April 15, 2009, the Chancery Division entered an order transferring the declaratory judgment action to the Law Division, where it was considered along with Rothman's application to confirm the arbitration award. On June 8, 2009, the trial court filed a written opinion in which it concluded that physician assistants were legally authorized to perform EMG studies under the supervision of a licensed physician. The court entered orders dated June 9, 2009, confirming the arbitration award in the D.R. matter and granting Rothman the declaratory relief he sought. Selective filed separate appeals from the trial court's orders. We entered an order dated August 31, 2009, granting Selective's motion to consolidate the appeals.

II.

We turn first to Selective's appeal from the judgment entered in the declaratory judgment action. Selective argues that the trial court erred by finding that N.J.S.A. 45:9-5.2(a) does not ...


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