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Allstate New Jersey Insurance v. Sean Driscoll

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 9, 2011

ALLSTATE NEW JERSEY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
SEAN DRISCOLL, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6209-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 20, 2011 - Decided

Before Judges Sapp-Peterson and Simonelli.

Plaintiff Allstate New Jersey Insurance Company (Allstate) appeals from the March 19, 2010 Law Division order confirming an arbitration award rendered pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. Allstate contends that the decision of the dispute resolution professional (DRP) is deficient and the trial judge failed to review the matter de novo. We reverse and remand for a de novo review.

Allstate's insured, defendant Sean Driscoll, was injured in an automobile accident on July 3, 2006. On August 20, 2007, he filed a demand for arbitration for personal injury protection (PIP) reimbursement for medical treatment rendered by his medical providers, including Steven Alberti, D.C., who operates through an entity known as CARE Center of South Jersey.

As to Dr. Alberti, Allstate presented several issues: The following issues are relevant to this appeal: Dr. Alberti was not entitled to reimbursement because (1) he and his employee chiropractors were performing services outside the scope of their practice by improperly performing physical therapy modalities, such as infrared, electrical stimulation, massage and traction, in the absence of chiropractic manipulation; (2) he permitted unlicensed aides to perform ultrasound (CPT Code 97035), electrical stimulation (CPT Code 97014), massage (CPT Code 97124), infrared (CPT Code 97026), and waterbed (CPT Code 97039); and (3) he violated patient recordkeeping regulations by failing to provide a description of the care or services rendered at each visit along with the name of the person rendering the care.

The DRP rendered a written decision on January 17, 2009. He concluded that the treatment Dr. Alberti rendered was medically necessary and related to the accident; the physical therapist performing the physical therapy was licensed; Allstate failed to demonstrate that Dr. Alberti performed services outside of his practice; and the services were billed and referenced in the medical records. In favor of Allstate, the DRP concluded that Dr. Alberti improperly bundled certain services with other services performed the same day; failed to provide documents clinically supporting Code 97035 services; and failed to establish the medical necessity of physical therapy services performed by Ann Marshall. As a result, the DRP awarded $10,430.65 for Dr. Alberti's services.

Allstate challenged the DRP's decision in the Law Division, alleging that the DRP failed to address and make findings of facts or conclusions of law as to the above three issues in violation of N.J.S.A. 2A:23A-12e and N.J.A.C. 11:3-5.6(d). Allstate argued that the trial judge must review the matter de novo pursuant to N.J.S.A. 2A:23A-13b and c(3). The trial judge summarily confirmed the award, finding the DRP addressed the three issues and there was sufficient specificity in the DRP's decision to comply with N.J.A.C. 11:3-5.6(d). In this appeal, Allstate asks us to exercise our supervisory authority and remand for a de novo review.

The DRP "shall make the award on all issues submitted for alternative resolution in accordance with applicable principles of substantive law." N.J.S.A. 2A:23A-12e. The DRP's determination of a PIP dispute "shall be in writing and shall state the issues in dispute, the DRP's findings and legal conclusions based on the record of the proceedings and the determination of the medical review organization, if any." N.J.A.C. 11:3-5.6(d).

Where, as here, a party seeks to vacate an award pursuant to N.J.S.A. 2A:23A-13c(3),*fn1 the trial court "shall make an independent determination of any facts relevant [to the application for vacating the award] de novo, upon such record as may exist or as it may determine in a summary expedited proceeding." N.J.S.A. 2A:23A-13b (emphasis added).

Where the trial court, after its de novo review, grants an order confirming, modifying or correcting the award, "[t]here shall be no further appeal or review of the judgment or decree." N.J.S.A. 2A:23A-18b; see also Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008); N.J. Citizens Underwriting Reciprocal Exch. v. Kiernan Collins, D.C., LLC, 399 N.J. Super. 40, 47 (App. Div.), certif. denied, 196 N.J. 344 (2008); Weinstock v. Weinstock, 377 N.J. Super. 182, 189 (App. Div. 2005). However, appellate review is not barred where it is "'necessary for [this court] to carry out its supervisory function over the courts.'" Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 475-76 (App. Div. 2007)); see also Collins, supra, 399 N.J. Super. at 48; Weinstock, supra, 377 N.J. Super. at 189. "[T]his 'supervisory function' permits our exercise of appellate jurisdiction when a trial court has exceeded its jurisdiction," Collins, supra, 399 N.J. Super. at 48, or failed to properly apply the relevant statutory standards, Morel, supra, 396 N.J. Super. at 476. However, "when the trial judge adheres to the statutory grounds in reversing, modifying or correcting an arbitration award, [this court has] no jurisdiction to tamper with the judge's decision or do anything other than recognize that the judge has acted within his jurisdiction." Collins, supra, 399 N.J. Super. at 48. Therefore, we will "review the decision of the trial judge . . . for the limited purpose of determining whether he exceeded the authority granted to him by the APDRA," ibid., or whether he failed to apply the legal principles dictated by the Legislature, Morel, supra, 396 N.J. Super. at 476.

Applying these standards, we conclude that we must exercise our supervisory function because the judge failed to properly apply the dictates of N.J.S.A. 2A:23A-13b. An independent review of the record is the essence of a de novo review. See State v. Kashi, 360 N.J. Super. 538, 454 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). The judge's role was not, as was the case here, to essentially affirm or reverse what occurred before the DRP, but to review the record and make an independent determination of the issue before him. The judge made no independent review of the facts relevant to the three issues to determine whether in making the award the DRP "so imperfectly [executed his] power that a final and definite award was not made" on those issues. N.J.S.A. 2A:23A-13c(3).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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