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Jane Norcia v. High Point Insurance Company


December 23, 2011


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4554-10.

Per curiam.


Argued September 20, 2011

Before Judges Messano and Espinosa.

Plaintiff Jane Norcia appeals from the Law Division's order dismissing her verified complaint against defendant, High Point Insurance Company (High Point). Plaintiff sought to vacate or modify an earlier PIP arbitration award that denied her claim for full reimbursement of medical treatment following a motor vehicle accident on August 28, 2007. Plaintiff raises the following points on appeal:









High Point counters by arguing both that the judge considered all the issues and properly applied the applicable law, and also that we lack jurisdiction to review the Law Division's order pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -19.

We have considered these arguments in light of the record and applicable legal standards. We conclude that pursuant to N.J.S.A. 2A:23A-18, we lack jurisdiction and dismiss the appeal.


To place the matter in proper context, we set forth the factual allegations and findings contained in the dispute resolution professional's (DRP) arbitration award of July 19, 2010.

On August 28, 2007, while driving her car insured by High Point, plaintiff, then 68-years old, lost consciousness and struck a parked car. She was taken to Christ Hospital by emergency medical personnel, initially treated in the emergency room, and subsequently admitted to the hospital where she stayed until September 5, when she was discharged.

The admitting diagnosis was "Hypernatremia/New Onset Seizures."*fn1 Dr. Bookbinder noted plaintiff had no prior history of seizure disorder. However, he "was unable to determine the cause of the illness [and] wished to rule out Sepsis." He admitted plaintiff for further evaluation.

Plaintiff's EEG was normal. Her medical history revealed that she suffered from chronic obstructive pulmonary disease, hypertension, and admitted "to taking diuretic medications." The endocrinologist concluded that she suffered from a "new onset of seizure," and diagnosed plaintiff with "symptomatic hyponetremia, confusion and loss of memory." The Intensive Care Specialist concluded that plaintiff might be suffering from "so-called diuretic induced hyponatremia and hypokalemia," however, she wanted to "exclude other more remote hormonal diagnostic possibilities such as Crush syndrome versus thyroid related disorders." Plaintiff's total hospitalization resulted in a bill of $90,841.64.

On September 18, 2007, plaintiff sought payment of the entire bill from High Point. In her claim, plaintiff described the accident as having occurred while she "was unconscious," and that she "d[id]n't know what happened." High Point paid for plaintiff's emergency room treatment but thereafter denied payment for the balance of services rendered during her hospitalization. High Point concluded that the balance of treatment was not "causally related to the automobile accident in question."

In her award, the DRP cited the reports of High Point's evaluative medical professionals in this regard. A registered nurse, Mary Malone, conducted an audit of the hospital bill "to address accuracy and reasonableness of charges as well as . . . relatedness to the [motor vehicle accident]." Malone recommended that $3,940 be reimbursed under plaintiff's PIP coverage, concluding:

After carefully reviewing th[e] file, . . . this admission does not appear [motor vehicle accident] related. Documentation supports the claimant having a seizure prior to the accident. While it was reasonable for her to be evaluated in the emergency room to rule out traumatic injury, the admission appears related to evaluation of her seizure, electrolyte imbalance and confusion. . . .

Since no traumatic injuries were identified, only the emergency evaluation and testing would be supported as [accident] related.

Dr. Steven Weintraub, High Point's medical director who was Board Certified in Sports and Family Medicine, agreed with Malone's conclusions, noting "th[e] collision was secondary to a seizure." With respect to treatment plaintiff received for back pain, Weintraub noted that plaintiff had received treatment for it well before the accident -- in July 2007 -- and that the diagnosis noted "a history of arthritis." He surmised that plaintiff's complaints of "numbness and cramps in both legs" also pre-dated the seizure and "ha[d] no connection to the [accident]."

Plaintiff sought arbitration of the dispute and submitted the police report of the accident, the total hospital bill, and the result of High Point's audit. Plaintiff also testified at the arbitration hearing. She claimed that she was "advised [by the doctors] that she may have blacked out as a result of being dehydrated." Contrary to the hospital records, plaintiff contended that "she was never notified" that she had a seizure. Plaintiff further claimed that her primary care doctor told her "she was dehydrated and that was the primary reason for blacking out."

Plaintiff also submitted several legal arguments to the DRP in support of her claim. She contended that her entire hospital stay was for "[e]mergency [c]are" as defined by N.J.A.C. 11:3-4.2, citing the following language from the regulation's definition:

All medically necessary treatment of a traumatic injury or a medical condition manifesting itself by acute symptoms of sufficient severity, such that absence of immediate attention could reasonably be expected to result in: death; serious impairment to bodily functions; or serious dysfunction of a bodily organ or part. Such emergency care shall include all medically necessary care immediately following an automobile accident, including, but not limited to, immediate pre-hospitalization care, transportation to a hospital or trauma center, emergency room care, surgery, critical and acute care. Emergency care extends during the period of initial hospitalization until the patient is discharged from acute care by the attending physician. Emergency care shall be presumed when the medical care is initiated at a hospital within 120 hours of the accident. [Emphasis added.]

Plaintiff argued this "very broad regulation . . . was designed to include many different scenarios from not only 'traumatic injuries' but also 'medical conditions' which . . . 'manifest[]' within '120 hours of an accident.'" She argued the intent of the regulation was not to "partition[] . . . emergency care while a patient remain[ed] hospitalized after an accident." Plaintiff also submitted two PIP arbitration awards rendered in other disputes that interpreted the emergency care regulation.

In response, High Point conceded that plaintiff's admission to the hospital was a "medically appropriate response" necessary to reject the possibility of a "traumatic injury." High Point argued, however, that plaintiff's "symptomatic hyponatremia" could "just as well have happened while she was sitting at home" rather than "driving a car," noting that in "either scenario," plaintiff would be rushed to the hospital because hyponatremia was a "blood chemistry imbalance" not triggered by a car accident.

In a supplemental submission, High Point cited N.J.A.C. 11:3-4.3(a), which provides: "Personal Injury Protection coverage shall provide reimbursement for all medically necessary expenses for the diagnosis and treatment of injuries sustained from a covered automobile accident." (Emphasis in original). High Point referenced the underlying PIP statute, N.J.S.A. 39:6A-4, which provides that "PIP benefits apply to a bodily injury that occurs 'as a result of an accident' while the insured is occupying an automobile."

In her award, the DRP addressed the factual contentions, medical findings, and applicable regulations and statute. She concluded that PIP benefits are provided to those "who 'sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an[] automobile,[']" (quoting N.J.S.A. 39:6A-4). She concluded:

While there is no question that the treatment was medically necessary and that the treatment was needed to reach a diagnosis, the treatment was not needed as a result of the accident. The fact that the treatment occurred within the time frame as defined by "Emergency Care," is irrelevant. If one were to follow claimant's reasoning, then any injury whether causally related or not, manifesting itself by acute symptoms etc., sustained during the 120 hours of an automobile accident would have to be covered by PIP. Certainly that was not the intent of the Legislature.

Claimant cannot disregard and/or avoid the need for causation merely based on the fact that the treatment is considered "Emergency Care". Claimant must establish that [she is] entitled to PIP benefits for the injuries sustained pursuant to N.J.S.A. 39:6A-4. In doing so [she] must establish causal relationship as directed by N.J.S.A. 39:6A-4. [She] failed to do so in this case.

The DRP's award denied plaintiff's request for medical expense benefits for the balance of the hospital bill.

Plaintiff filed a verified complaint and order to show cause seeking modification of the award and confirmation of a modified award granting benefits for the full amount of her hospital bill. Specifically, plaintiff alleged the DRP "improperly applied the facts to the law regarding the definition of 'Emergency Care,'" and thereby "imperfectly executed [her] power over the issues of law and fact," in violation of "N.J.S.A. 2A:23A-13(c)3 and 4."

After oral argument, the Law Division judge concluded that there "was ample evidence before" the DRP to justify the conclusion that plaintiff "did not establish that the treatment that [she] received was for a bodily injury as a result of an accident within the statutory definition." He further concluded that the DRP's "reading of the statute and the regulation together as applied to the facts she found" was "correct," and she did not "commit[] a prejudicial error of law . . . as would be required . . . to set aside the arbitration decision." He entered the order under review on November 15, and this appeal followed.


The threshold issue we confront is whether N.J.S.A. 2A:23A-18(b) permits this Court to review the trial court's essential confirmation of the DRP's award. In Points I, III and IV, plaintiff argues that the judge failed to consider all the issues presented, and that the proper interpretation of N.J.A.C. 11:3-4.2 is an issue of "first impression" involving public policy. She requests that we exercise our "supervisory function" under the APDRA and set aside the dismissal of her complaint, modify the award, and order full compensation of her medical expenses. We set out some guideposts that inform our review.

"The APDRA is a voluntary procedure for alternative dispute resolution that is only operative when parties to a contract agree to be governed by it." Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 145 (1998) (citing N.J.S.A. 2A:23A-2). Any award made pursuant to the APDRA "must be acknowledged and in writing, and must 'state findings of all relevant material facts, and make all applicable determinations of law.'" Id. at 146 (quoting N.J.S.A. 2A:23A-12(a)). "The APDRA further provides that once a court grants an order confirming, modifying, or correcting an award, 'a judgment or decree shall be entered by the court in conformity therewith and be enforced as any other judgment or decree. There shall be no further review of the judgment or decree.'" Ibid. (quoting N.J.S.A. 2A:23A-18(b)).

However, in the "rare[st of] circumstances," Tretina Printing, Inc. v. Fitzpatrick & Assocs., 135 N.J. 349, 364 (1994), an appellate court can exercise its "supervisory function" and avoid the APDRA's proscription against review. Fort Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 103 (App. Div. 2010).

We have exercised such review in only the most unusual situations. See e.g., Open MRI & Imaging of Rochelle Park v. Mercury Ins. Group, 421 N.J. Super. 160, 166 (App. Div. 2011) (finding appellate review appropriate "when the relief sought in arbitration (reformation) is beyond the power of the DRP to award"); Liberty Mut. Ins. Co. v. Garden State Surgical Ctr., L.L.C., 413 N.J. Super. 513, 517 (App. Div. 2010) (the APDRA did not bar appellate review of "the judge's denial of leave to file an amended complaint or of the judge's dismissal of the action on timeliness grounds"); Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 475 (App. Div. 2007) (supervisory function invoked for failure to rule on all of the specific claims made by the plaintiff); Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 474 (App. Div. 2005) (award of counsel fees triggered review). None of these extraordinary circumstances exist in this case.

We reject plaintiff's argument, relying upon Morel, that the judge failed to consider all the issues raised by plaintiff before the DRP. In Morel, supra, 396 N.J. Super. at 474, the judge's specific response to plaintiff's appeal from the arbitrator's award was that he would "reserve judgment and 'take a further look . . . at the arguments.'" He never did, and, instead, merely told the parties that the "arbitration [award] would be confirmed unless '[he] came up with . . . something else,' in which case he would so indicate in a subsequent ruling." Ibid. (alterations in original).

In this case, the Law Division judge carefully reviewed the DRP's factual determinations and considered plaintiff's argument that N.J.A.C. 11:3-4.3(a) required payment if the hospitalization followed a motor vehicle accident within 120 hours, even if the treatment rendered was not causally related to the accident. It simply cannot be said that the judge failed to "rule at all on plaintiff's specific claims." See Riverside Chiropractic Group v. Mercury Ins. Co., 404 N.J. Super. 228, 239-40 (App. Div. 2008) (noting that "the supervisory function of the Appellate Division, as applied in Morel, [wa]s unnecessary" because the "trial court in th[at] case did not commit any glaring errors that would frustrate the Legislature's purpose in enacting the APDRA").

Nor do we find persuasive plaintiff's argument that interpretation of the emergency care regulation presents an issue of first impression implicating broad public policy concerns such that appellate review is required. We have noted that the Automobile Insurance Cost Reduction Act (AICRA), L. 1198, C. 21, "substantially revised the prior system for arbitration of disputes concerning the payment of personal injury protection (PIP) benefits under the Automobile Reparation Reform Act (No Fault Act), N.J.S.A. 39:6A-1 to -35." Allstate N.J. Ins. Co. v. Neurology Pain Assocs., 418 N.J. Super. 246, 249 (App. Div. 2011). Pursuant to "statutory directive," the National Arbitration Forum (NAF) was designated by the Commissioner of Banking and Insurance to conduct these arbitrations in accordance with applicable regulations. Ibid. Plaintiff's arbitration was conducted by the NAF in conformance with those procedures. The NAF is called upon regularly to interpret the statutory and regulatory framework in the context of resolving disputes over PIP benefits. In short, we see nothing in this case that presents an issue of such public importance so as to exercise our supervisory authority.

We also find unavailing plaintiff's argument in Point II that the judge applied an improper standard of review. The provisions in N.J.S.A. 2A:23A-13 "define[] the scope of the trial judge's jurisdiction in such matters." N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., L.L.C., 399 N.J. Super. 40, 48 (App. Div.), certif. denied, 196 N.J. 344 (2008). The statute provides:

b. In considering an application for vacation, modification or correction, a decision of the umpire on the facts shall be final if there is substantial evidence to support that decision; provided, however, that when the application to the court is to vacate the award pursuant to paragraph (1), (2), (3), or (4) of subsection c., the court shall make an independent determination of any facts relevant thereto de novo, upon such record as may exist or as it may determine in a summary expedited proceeding . . . .

c. The award shall be vacated on the application of a party . . . if the court finds that the rights of that party were prejudiced by:

(1) . . .

(2) . . .

(3) In making the award, the umpire's exceeding their power or so imperfectly executing that power that a final and definite award was not made;

(4) . . . or

(5) The umpire's committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.*fn2

[N.J.S.A. 2A:23A-13(b) and (c) (emphasis added).]

When the claim is made, therefore, that the umpire "exceed[ed] [her] power or so imperfectly execut[ed] that power that a final and definite award was not made," the judge must de novo consider the factual record, and, if necessary, order a summary proceeding to supplement the record.

N.J.S.A. 2A:23-13(f) further provides:

Whenever it appears to the court to which application is made . . . either to vacate or modify the award because the umpire committed prejudicial error in applying applicable law to the issues and facts presented . . . [N.J.S.A. 2A:23A-13(c)(5)], the court shall, after vacating or modifying the erroneous determination of the umpire, appropriately set forth the applicable law and arrive at an appropriate determination under the applicable facts determined by the umpire. The court shall then confirm the award as modified.

Thus, only if the judge concludes the umpire's application of the law to the facts was "prejudicial[ly] erro[neous]" may the judge "vacat[e] or modify[] the erroneous determination," and apply the "applicable law" to reach the proper result.

We have said that "when the trial judge adheres to the statutory grounds in reversing, modifying or [affirming] an arbitration award, [this court] ha[s] no jurisdiction to tamper with the judge's decision or do anything other than recognize that [he] has acted within his jurisdiction." N.J. Citizens Underwriting Reciprocal Exch., supra, 399 N.J. Super. at 48.

Plaintiff argues that the judge was required to conduct a de novo review of the factual record pursuant to N.J.S.A. 2A:23A-13(c)(3). However, the APDRA only requires a de novo review when the challenge is based upon the DRP exceeding her power or so imperfectly exercising her power such "that a final and definite award was not made." There was no evidence that the DRP exceeded her power or failed to make a definite award.*fn3

Plaintiff's challenge under N.J.S.A. 2A:23A-13(f) essentially presumes that the judge incorrectly interpreted the law, in particular N.J.S.A. 39:6A-4 and N.J.A.C. 11:3-4.2, and thereby failed to conclude that "the umpire committed prejudicial error in applying applicable law to the issues and facts presented." This argument, however, fails to recognize the limited scope of our review of the judge's determination.

Fort Lee Surgery Ctr., Inc., supra, 412 N.J. Super. at 101 is instructive in this regard, even though the situation there presented a converse set of facts in that we were asked to review the trial judge's decision to modify an arbitrator's award. In that case, the arbitrator rendered a final award denying the plaintiff's claim based upon a finding that the treatments were not medically necessary. Ibid. The plaintiff sought review and the trial judge determined the insurer was estopped from claiming a lack of medical necessity. Id. at 101-02.

On appeal, we remanded the matter "because we were uncertain whether the trial judge had confined herself to the grounds set forth in N.J.S.A. 2A:23A-13." Id. at 102. On remand, the trial judge found that the arbitrator "prejudicially erred" by failing to apply the doctrine of collateral estoppel to bar further consideration of whether the treatment was medically necessary and, also, by misapprehending the meaning of medical necessity as applied to the facts. In correcting these errors, the judge made her own determination, as permitted by N.J.S.A. 2A:23A-13(f), that the treatment was medically necessary. [Ibid.]

The insurer again appealed. We noted, "[O]ur role is to determine whether the trial judge acted within APDRA's bounds. If so, then we are bound by N.J.S.A. 2A:23A-18(b) to dismiss the appeal." In dismissing the appeal, we held, "[W]hen a trial judge is able to provide a rational explanation for how the arbitrator committed prejudicial error, N.J.S.A. 2A:23A-18(b) requires a dismissal of an appeal of that determination regardless of whether we may think the trial judge exercised that jurisdiction imperfectly." Id. at 104.

So too, in this case, the trial judge considered the legal arguments raised by plaintiff and concluded that under the applicable statutes and regulations, plaintiff was not entitled to an award in her favor. He noted, the "statute controls, and [it's] really . . . the controlling mechanism as to what the emergency care that's provided for under the regulation would `apply to." See In re Terebetski, 338 N.J. Super. 564, 571 (App. Div. 2001) (noting "the basic premise that a regulation cannot supersede or alter a statute"). The judge's conclusion comports with N.J.A.C. 11:3-4.1(a), which expressly states that the "subchapter" governing emergency medical care "implements the provisions of N.J.S.A. 39:6A-3.1 and 39:6A-4 and 39:6A-4.3 by identifying the personal injury protection medical expense benefits and emergency personal injury protection coverage for which reimbursement of eligible charges will be made by automobile insurers."*fn4

In short, "[b]ecause the judge navigated within APDRA's parameters, we have no appellate jurisdiction to review that decision regardless of whether we might have decided the merits differently." Fort Lee Surgery Ctr., Inc., supra, 412 N.J. Super. at 104.

The appeal is dismissed.

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