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Allstate of New Jersey Insurance Company v. Delaware Valley Physical Therapy A/S/O Renee Fountain

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 7, 2012

ALLSTATE OF NEW JERSEY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DELAWARE VALLEY PHYSICAL THERAPY A/S/O RENEE FOUNTAIN, DEFENDANT-RESPONDENT.
ALLSTATE OF NEW JERSEY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DELAWARE VALLEY PHYSICAL THERAPY A/S/O TAMI SEMPREVIVO, DEFENDANT-RESPONDENT.
ALLSTATE OF NEW JERSEY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DELAWARE VALLEY PHYSICAL THERAPY A/S/O ALBA JUSTINIANO, DEFENDANT-RESPONDENT.
ALLSTATE OF NEW JERSEY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DELAWARE VALLEY PHYSICAL THERAPY A/S/O LEON CLARK, DEFENDANT-RESPONDENT.
ALLSTATE OF NEW JERSEY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DELAWARE VALLEY PHYSICAL THERAPY A/S/O JASPER KITTRELL, DEFENDANT-RESPONDENT.
ALLSTATE OF NEW JERSEY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DELAWARE VALLEY PHYSICAL THERAPY A/S/O CONSUELO REDDICK, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-5905-09, L-5906-09, L-5907-09, L-5924-09, L-5927-09 and L-5929-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 17, 2011

Before Judges A. A. Rodriguez, Ashrafi and Fasciale.

Allstate of New Jersey Insurance Company (Allstate) appeals from six Law Division orders entered on May 7, 2010, denying its motions for summary judgment to dismiss with prejudice arbitration awards for Personal Injury Protection (PIP) benefits in favor of patients of Delaware Valley Physical Therapy (Therapy). The PIP arbitration awards were assigned by the patients to Therapy. Allstate also challenges corresponding summary judgment motions in favor of Therapy upholding the arbitration awards. We dismiss the appeal and hold that Allstate has no right to seek review in this court from the Law Division's decision. Finally, we affirm orders awarding attorney fees to Therapy, following its successful defense of Allstate's motions for reconsideration.

This is the relevant procedural history. It is common to all appeals. Therapy rendered medical services to persons who are entitled to PIP coverage from Allstate. When Allstate refused to pay for these medical services, Therapy initiated six arbitration petitions in the National Arbitration Forum (NAF), pursuant to N.J.S.A. 39:6A-1 to -35,*fn1 seeking from Allstate unpaid PIP benefits for services rendered to its patients, the co-respondents herein.*fn2 The NAF assigned different arbitrators or dispute resolution professionals to preside at the corresponding hearings. Allstate participated in the arbitration hearings. It argued that Therapy was not entitled to payment of PIP benefits for any of its services because the physical therapy modalities were performed by a licensed chiropractor. The various dispute resolution professionals rejected these arguments and rendered PIP awards to Therapy as assignee of its patients.

Allstate challenged the arbitration awards, filing complaints in the Law Division. Therapy moved for summary judgment confirming the arbitration awards. Allstate cross-moved to vacate the awards. Judge Michael J. Kassel decided in favor of Therapy, and denied summary judgment to Allstate on May 7, 2010.

Allstate moved unsuccessfully for reconsideration. On July 20, 2010, Judge Kassel issued an order granting attorney fees to Therapy for costs incurred in connection with the motions for reconsideration.

Allstate appeals to us contending that "the arbitration award must be vacated because [a chiropractor] performed physical therapy on Allstate's insureds, which is either impermissible for a chiropractor or not reimbursable under PIP." Allstate also contends that Therapy was not entitled to PIP benefits because it failed to comply with the applicable Decision Point Review Plan and billed for services not rendered. We are not persuaded by these arguments.

PIP arbitration disputes are to be resolved pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA). N.J.S.A. 2A:23A-1 to -35. N.J.S.A. 2A:23A-18(b) permits the Law Division of the Superior Court to enter a decree or judgment "confirming, modifying or correcting an award."

This section expressly provides that, "[t]here shall be no further appeal or review" of such decisions. Ibid.

N.J.A.C. 11:3-5.6(f), included in a set of regulations adopted to effectuate APDRA, provides in pertinent part:

The final determination of the dispute resolution professional shall be binding upon the parties, but subject to vacation, modification or correction by the Superior Court in an action filed pursuant to N.J.S.A. 2A:23A-13 for review of the award.

Thus, in seeking relief pursuant to N.J.S.A. 2A:23A-18(b), Allstate acknowledged that it has no right to review in the Appellate Division from any decision of the Law Division.

Moreover, N.J.S.A. 2A:23A-13(b) and -13(f) allow, under limited circumstances, the court reviewing the award, i.e., the Law Division, to make an "independent determination of the facts," conduct a "de novo review" or "appropriately set forth the applicable law and arrive at an appropriate determination under the applicable facts determined by the umpire."

Here, Allstate only sought review of the arbitrators' decisions under the prejudicial error standard set by N.J.S.A. 2A:23A-13(c)(5). But, this matter presents no circumstances where a de novo review is allowed. See N.J.S.A. 2A:23A-13(b) (permitting de novo review over applications brought pursuant to N.J.S.A. 2A:23A-13(c)(1) to (4)).

Therefore, the only issue for determination by Judge Kassel with regard to the arbitration awards was whether there was "substantial evidence to support that decision." N.J.S.A. 2A:23A-13(b). Based upon Judge Kassel's oral opinion, it is clear that the Law Division correctly applied the proper standard of judicial review as to all issues. As Judge Kassel stated at the conclusion of his decisions, "[W]hat I'm trying to do is obviously make sure that none of the arbitrators' decisions in any of these cases were so off the mark so as to require, in essence, as I say, a do-over . . . in the Superior Court." See Coalition for Quality Health Care v. N.J. Dep't of Banking and Ins., 348 N.J. Super. 272, 312-13 (App. Div.) (holding that "insurance policy provisions providing that all PIP disputes must be submitted to dispute resolution rather than court are statutorily authorized, consistent with policy goals of AICRA and with our public policy generally, and were properly approved by the Commissioner"), certif. denied, 174 N.J. 194 (2002).

Allstate contends that this court should nonetheless review the PIP awards through our "supervisory function." In Riverside Chiropractic Group v. Mercury Insurance Co., 404 N.J. Super. 228, 240 (App. Div. 2008), we declined to exercise our supervisory function to review the Law Division's affirmance of an arbitrator's PIP award because "the purpose of the Legislature was not frustrated by the trial court's application of the APRDA." As was true for the payment claims brought in that case, the affirmance of the PIP awards here "does not rise to the level of public policy that warrants appellate review." Ibid.

Allstate also argues that Therapy failed to comply with the Decision Point Review Plan, and billed for services not rendered. Again, these issues were properly before the arbitrators and dispute resolution professionals. Their awards were affirmed by Judge Kassel, and no appellate review is available. These issues were decided and rejected by the arbitrators, and Allstate had a right to review in the Law Division, but as explained above, there is no such right to further review. Therefore, the appeals from the May 7, 2010, orders are dismissed.

Allstate also challenges the decision to award attorney fees to Therapy because these fees should have been dramatically reduced. We reject this argument, and affirm pursuant to Rule 2:11-3(e)(1)(E). We find no abuse of discretion by Judge Kassel in the amount of the attorney fees awarded.

While the appeal was pending, Allstate moved to: supplement the record; file additional briefs; or in the alternative, remand to the Law Division. We deny this motion (M-2990-11) by a separate order.

Affirmed.


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