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Usa Chiropractic A/S/O Julie Mendez v. Nj Re-Insurance Company and Naf/Forthright Solutions

December 14, 2012

USA CHIROPRACTIC A/S/O JULIE MENDEZ, PLAINTIFF-APPELLANT,
v.
NJ RE-INSURANCE COMPANY AND NAF/FORTHRIGHT SOLUTIONS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9461-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 26, 2012 -

Before Judges Fasciale and Maven.

Plaintiff USA Chiropractic appeals from two orders dated January 27, 2012 denying its motion to vacate a Personal Injury Protection (PIP) arbitration award and dismissing its complaint against defendant NAF/Forthright Solutions (NAF).*fn1 Plaintiff primarily contends that it had insufficient notice of the internal appeals process of the PIP carrier, defendant NJ Re-Insurance (NJ-Re).*fn2 We affirm.

In July 2008, Julie Mendez sustained injuries in a motor vehicle accident and obtained medical treatment for approximately six months from plaintiff. After NJ-Re failed to pay for the treatment, plaintiff obtained an assignment of rights and filed a demand for PIP arbitration for the unpaid health care services that it rendered.*fn3 Before plaintiff demanded arbitration, NJ-Re provided plaintiff with its decision point review plan (DPRP), which states in part that

[a]ny treating provider who has accepted an assignment of benefits must submit a written request for Reconsideration and Appeals specifying the issues in dispute accompanied by supporting documentation at least 21 days prior to initiating arbitration or litigation.

If you wish to be paid directly by us for covered services, you must obtain an executed assignment of benefits. . . . As a condition of assignment, you must follow the requirements of the [DPRP] . . . . Failure to comply with (1) our [DPRP] or (2) the requirement to follow the Reconsideration and Appeals Process prior to initiating arbitration or litigation will render any prior assignment of benefits under the policy null and void. [(Emphasis added).]

Prior to filing its demand for PIP arbitration, plaintiff also possessed NJ-Re's explanation of benefits (EOBs), which included a notice that was printed on its own page with the heading in bold letters and the entire notice enclosed within a bordered box. The EOB stated that

IMPORTANT! PLEASE READ!

Unless emergent relief is sought, the health care provider must utilize the reconsideration and appeals process prior to filing arbitration and litigation. Information on this process and other requirements are included in [NJ-Re's] Decision Point Review Requirements, which may me obtained at http://www.njm.com/pdf/AC-PIP18.pdf or by contacting the Claims Representative. [(Emphasis added).]

The DPRP and the EOBs provided plaintiff with information on NJRe's internal appeals process and how to use it.

In October 2011, the arbitrator entered a written decision in NJ-Re's favor. The arbitrator noted that the PIP arbitration "is about the failure [of plaintiff] to appeal [NJ-Re's] non- payment [of PIP benefits]." It is undisputed that plaintiff failed to follow the internal appeals process. As a result, the arbitrator concluded that plaintiff lacked standing to proceed and rendered an award dismissing the PIP arbitration.

In November 2011, plaintiff filed its complaint and order to show cause naming NJ-Re and NAF as parties. Plaintiff sought to vacate the dismissal and contended that the arbitrator misapplied the law. NAF moved to dismiss the ...


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