NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Plaintiff-Respondent,
SPECIALTY SURGICAL CENTER OF NORTH BRUNSWICK a/s/o CLAIRE FIORE, and SURGICARE SURGICAL ASSOCIATES OF FAIR LAWN a/s/o MARTINO CHIZZONITI, Defendants-Appellants.
December 11, 2018
appeal from Superior Court of New Jersey, Law Division,
Bergen County, Docket Nos. L-3647-17 and L-4927-17.
J. Roberts and Richard B. Robins argued the cause for
appellant Specialty Surgical Center of North Brunswick (Brach
Eichler, LLC, attorneys; Keith J. Roberts, of counsel and on
the briefs; Richard B. Robins, on the briefs)
A. Massood argued the cause for appellant Surgicare Surgical
Associates of Fairlawn (Massood Law Group, LLC, attorneys;
Joseph A. Massood, of counsel and on the briefs; Tara M.
McCluskey, on the briefs).
Gregory E. Peterson argued the cause for respondent (Dyer
& Peterson, PC, attorneys; Gregory E. Peterson, on the
Stryker argued the cause for amicus curiae Insurance Council
of New Jersey and the Property Casualty Insurers Association
of America (Bressler, Amery & Ross, PC, attorneys; Susan
Stryker, of counsel and on the briefs; Michael J. Morris, on
Judges Hoffman, Suter and Geiger.
these back-to-back appeals involving automobile insurance,
which we now consolidate for purposes of this opinion,
defendants appeal from Law Division orders vacating binding
arbitration awards entered in their favor against plaintiff
New Jersey Manufacturers Insurance Company (NJM). In both
cases, the trial court held the PIP medical fee schedule does
not provide for payment to an ambulatory surgical center
(ASC) for procedures not listed as reimbursable when
performed at an ASC. We affirm.
39:6A-4.6(a) requires the Department of Banking and Insurance
(the Department) to "promulgate medical fee schedules on
a regional basis for the reimbursement of health care
providers . . . for medical expense benefits . . . under
[PIP] coverage . . . ." These fee schedules shall
"incorporate the reasonable and prevailing fees of
[seventy-five percent] of the practitioners within the
region." Ibid. To comply with this statutory
mandate, the Department promulgated new regulations and
amendments to N.J.A.C. 11:3-29.
11:3-29.5(a) states, "ASC facility fees are listed in
Appendix, Exhibit 1 by CPT code. Codes that do not have an amount
in the ASC facility column are not reimbursable if performed
in an ASC." The Fee Schedule has three columns relevant
to the instant matter: one column lists CPT codes and two
columns list corresponding ASC fees, "ASC Fees
North" and "ASC Fees South." The Fee Schedule
does not list CPT code 63030 as a code eligible for
reimbursement for physicians or ASCs.
first case, Claire Fiore, an NJM insured, sustained injury to
her lower back in a May 2014 accident involving an
automobile. In November 2015, Fiore underwent a lumbar
discectomy at the ASC operated by defendant Specialty
Surgical Center of North Brunswick (Specialty Surgical).
Following the procedure, Specialty Surgical sought $32, 500
in reimbursement from NJM under CPT code 63030; however, NJM
denied payment, claiming the treatment was not medically
necessary and further asserting "the CPT code charged by
the facility - 63030 - had no reimbursement value for the ASC
on the [F]ee [S]chedule."
second case, Martino Chizzoniti also sustained injury to her
lower back in a May 2014 accident involving an automobile. In
November 2015, Chizzoniti underwent lumbar decompression
surgery at an ASC operated by defendant Surgicare Surgical
Associates of Fair Lawn (Surgicare). Following the procedure,
Surgicare sought $49, 000 in reimbursement under
Chizzoniti's PIP coverage with NJM for the procedure
under CPT code 63030; however, NJM denied reimbursement
because "the CPT code charged by the facility - 63030 -
had no reimbursement value for the ASC on the [F]ee
case, the ASC filed a demand for arbitration with Forthright,
Inc. (Forthright),  and the parties proceeded to binding
arbitration pursuant to N.J.A.C. 11:3-5.1(a) and the PIP
endorsement in NJM's policy. After a Forthright DRP and a
Forthright appellate panel found against NJM in each case,
filed Law Division actions seeking to vacate each award under
N.J.S.A. 2A:23A-13 of the Alternative Procedure for Dispute
Resolution Act (APDRA),  alleging the awards resulted "from
an erroneous and prejudicial application of the law to the
facts." On August 14, 2017, the trial court filed a
final order and written decision in each case, vacating each
award and holding that the ASC "shall receive no
reimbursement, of any kind[, ] in connection with [ASC] fees
for CPT code 63030" for the surgical procedure in each
case. These appeals followed.
first address the applicable jurisdictional constraint set
forth in the APDRA. Pursuant to N.J.S.A. 2A:23A-13, a party
seeking to vacate, modify, or correct an award may bring
"a summary application" in the trial court.
According to the statute, that judicial scrutiny by the trial
court should constitute the final level of appellate review.
N.J.S.A. 2A:23A-18(b) provides that "[u]pon the granting
of an order confirming, modifying[, ] or correcting an award,
a judgment or decree shall be entered by the [trial] court in
conformity therewith and ...