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Home My WebLink About94-05693 " t J, ..;J. d ' 0, . ~ i J \ , ! \ \ i. ~ t { ~ I ~ J \ ~ CY) ()- ~ f;'j 0-1 , , "".e e.. )of 2: II: ~~.... 2:2: H.... ell . O~ Ill.... "" I': iii '" ~"" '... ;:):E1ll ~ " . 0 )of+> .e0'O m N ) . ,., '" r:, 0 , :':1': UI': U l/l w U)of e...... 0-1 Q) ~ 0 m ~ 0 m . e.. .elll .e~"" '" r:, ~ l/l Q. ~2: U'-' ;:)UQ) e.. :ll . > 0 . 0 ~ Z " 0;:) "" . ~~O 2: .;, Z Q. ,., < m e..8 'tl III H <( > . W '" ~ , I': > :3 '" 1: " t III II: III 0 ~ Z III , I III 00 :ECIl "" m I j l/l . m 0 . . '" 02: e.. ~a:; :&: iii ~ m m 0 III U:3 II: 0 ... ~ 0 .j Z I H ~ U ... z ! . ~gj III ~ it 8 I ~0-1 u e..~ ~ e..H I.!l N ~ .elll 2:0 e..O HU ~ CIl:&: '~ " ,', ., M ,', .. .. ~ " ... . " ~~ ~ ~ , ~ " . ~ 1; .t "- . ~l .. . .. ~ " . ,. i <.. 5, u. ". I!',~ , ' " .f .: f. -" ,.. . '", ~ .. :' r- ~ , , WAOE BIRT and CATHY BIRT, IN THE COURT OF COMMON PLEAS OF Plaintitts CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW va. . . NO. r;J.I,:;GJ?3 C;,-~;..R T-i.t\f'f1 STATE FARM MlJT1JAL AUTOMOBILE INSURANCE COMPANY, Detendant . . . . I NOTICE You have been sued in court. It you wish to de tend against the claims set torth in the tollowing pages, you must take action within twenty (20) days atter this Complaint and Notice are served, by entering a written appearance personally or by attorney and tiling in writing w~th the CO'Jrt your de tense or objections to the claims set torth against you. You are warned that it you tail to do so, the case may proceed without you and judgment may be entered against you by the court without turther notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORO ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland county Court Administrator CUmberland county Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 or 697-0371 WADE BIRT and CATHY BIRT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW . . STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant . . NO. 91- 5&?3 Cu:uJJ T.eW1 . . . . COMPLAIl<< COtJHT ONE 1. Plaintiff Wade Birt is an adult individual who resides at 1526 pine Road, Carlisle, cumberland county, Pennsylvania. 2. Defendant, State Farm Mutual Automobile Insurance Company, is a corporation licensed to transact automobile insurance business in Pennsylvania. Defendant maintains a place of business at 115 Limekiln Road, New Cumberland, Pennsylvania. That address is in Fairview Township, York County. 3. Defendant regularly conducts business in Cumberland County. 4. On or about 4/14/93 Defendant issued to Wade and Cathy Birt, a policy of automobile insurance bearing number 703 4237- F21-3BB. The policy period was 4/14/93 to 12/21/93. A copy of the insurance policy is marked Exhibit A, attached hereto, and hereby incorporated by reference. 5. The insurance policy provided for $100,000.00 in First Party Medical Loss Benefits in accordance with the Pennsylvania 6. On or about July 9, 1994, while said automobile insurance policy was in full force and effect, Plaintiff was Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. Section 1701 et seq., as amended. 1 invo1ved in a motor vehicle collision in which he sustained injuries which included cervical hyperextension/hypertlexion injury, cervical neuralgia, lumbosacral sprain/strain, and cervical, dorsal, and lumbar subluxation complex. 7. As a result ot the injuries he sutfered due to the July 9, 1993 collision, Plaintift has been obliged to seek and receive treatment and care ot his injuries, thereby incurring various expenses tor which medical benetits are payable. He may be obliged to continue to expend various sums of money tor an indetinite period ot time in the future in order to receive treatment tor his injuries. 8. Among the health care providers who treatment for the injuries Plaintiff suffered 1993 collision is the Bach Chiropractic Clinic. 9. Defendant has arbitrarily and unreasonably payment for treatment rendered to Plaintiff by the Chiropractic Clinic after 10/13/93, contending that treatment has not been reasonable or necessary. The amount of unpaid bills to date is at least $2,511.18. 10. The care which the Boch Chiropractic Clinic has rendered after 10/13/93 for treatment of Plaintiff's injuries caused by the 7/9/93 collision has all been reasonable and have in the provided July 9, refused Boch such necessary. 11. Detendant's refusal to pay for reasonable and necessary care of Plaintiff's injuries violates both the applicable insurance policy and the MVFRL. 2 WHEREFORE, Plaintift demands judgment against Detendant for damages not exceeding $25,000.00, interest at the rate ot 12\ per annum pursuant to section 1716 of the MVFRL, counsel fees pursuant to Section 1716 and 1798 ot the MVFRL, costs of suit, and such additional relief as the Court deems appropriate. cotnrr no 12. Plaintift Cathy Birt is an adult individual who resides at 1526 Pine Road, Carlisle, Cumberland County, Pennsylvania. 13. The ~verments ot Paragraphs 2 through 5 ot this complaint are hereby reaverred and incorporated by reterence as if textually set forth at length. 14. On or about 7/9/93, while said automobile insurance policy was in full force and effect, Plaintiff was ~nvolved in a motor vehicle collision in which she suffered injuries which included cervical hyperflexion/hyperextension injury, cervical and lumbar sprains/strains, and cervical, dorsal, and lumbar vertebral subluxations. 15. As a result of the injuries she suffered due 7/9/93 collision, Plaintiff has been obliged to seek and treatment and care of her injuries, thereby incurring expenses tor which medical benefits are payable. She obliged to continue to expend various sums of money indefinite period of time in the future in order to treatment for her injuries. 3 to the receive various may be for an receive 16. Among the health care providers who have provided treatment tor the injuries Plaintiff suffered in the 7/9/93 collision is the Boch Chirqpractic Clinic. 17. Defendant has arbitrarily and unreasonably retused payment tor treatment rendered to Plaintiff by the Bocll Chirop;:-actic Clinic after 10/13/93, contending that such treatment has not been reasonable or necessary. The amount of unpaid bills to date is at least $4,376.18. 18. The care which the Boch Chiropractic Clinic has rendered atter 10/13/93 for treatment of Plaintiff's injuries caused by the 7/9/93 collision has all been reasonable and necessary. 19. Defendant's refusal to pay for reasonable and necessary care of Plaintiff's injuries violates both the insurance policy and the MVFRL. WHEREFORE, Plaintiff demands judgment against Oefendant for applicable damages not exceeding $25,000.00, interest at the rate of 12' per annum pursuant to Section 1716 of the MVFRL, counsel fees pursuant to section 1716 and 1798 of the MVFRL, costs of suit and such additional relief as the Court deems appropriate. GRIFFIE & ASSOCIATES Attorneys for Plaintiffs .y~@!.~/ 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 4 . . UJ'IDAVI'l' We verify that any facts not of record set forth in the foreqoinq Petition are true and correct to the best of our knowledqe, information, and belief. We acknowledge that any false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relatinq to unsworn falsification to authorities. Da~ 7'-.;(3 -,t/ dJtiL~ WADE BIRT Date q- J3- 9/ <<'# . CA~t(z# --8~i, A , stATE FARM' MUTUAL AUTOMOBILE INSURANCE COMPANY 558P7 05-10-93 I It.,. '.iI. ,....,..UIC' ONE STATE FAHM 01. CONCORDVILLE. PA 19339 NAMED iNSURED POLICY NUMBER 703 42 37- F 21- 388 38-2627-73 8 BIRT. WADE & CATHY 621 NORTH PITT ST CARLISLE PA 17013-1950 POLICY PERIOD APR -14-93 TO 0 EC -21-93 CURRENT 6 MONTH PREMIUM 00 NOT PAY PREMIM~~HJ~N ON THIS PAGE. SEPARATE STATEMENT ENCLOSED IF AMOUNT DUE. DESCRIBED YEAR MAKE MODEL VEHICLE 87 N I SSAN ST ANZA COVERAGES IAS DEFINED IN POLICY) SYMBOL.PRE....IUM.COVERAGE NAME.LIMITS OF LIABILITY BODY STYLE 4DR VEHICLE IDENTIFICATION NUMBER CUSS JN1HT2113HT088617 3E301 SEE REVERSE SIDE FOR IMPORTANT MESSAGE C2 141.28 BO~ILY INJij~Y/~RO~~RTY DAMAGE L!ABILITY LIMITS OF LIABI~ITY-COVERAGE A-80DILY INJURY EACH PERSON. EACH ACCIDENT 100.000 300.000 LIMITS OF LIABILITY-COVERAGE A-PROPERTY DAMAGE EACH ACCIDENT 100.000 MEDICAL PAYMENTS LIMIT OF LIABILITY-COVERAGE C2 EACH PERSON 100.000 COMPREHENSIVE 5100 DEDUCTIBLE COLLISION EMeRGENCY ROAD SERVICE UNINSURED MOTOR VEHICLE LIMITS OF LIABILITY-U EACH ACClDENT 100.000 A 5112.95 D G100 H U 532. P 5137'31 U:6~ w 515.11 EACH PERSON. 50.000 UNDER INSURED MOTOR VEHICLE LIMITS OF LIABILITY-W EACH PERSON. 50.000 BENEFITS OF LIABILITY-COVERAGE F EACH PERSON 2.500 EACH ACCIDENT 100.000 F 51.11 FUNERAL LIMIT 22 59.21 LOSS OF INCOME 5361.19 TOTAL PREMIUM FOR POLICY PERIOD APR-14-93 TO DEC-21-93 ------------------------------------------------------------------------------ MEMBERSHIP 56.00 ------------------------------------------------------------------------------ EXCEPTIONS AND ENDORSEMENTS 6078A AMENDATORY ENDORSEMENT: COVERAGE CHANGES. 6997AF UNINSURED MOTOR VEHICLE-COVERAGE U AND UNDER INSURED MOTOR VEHICLE-COVERAGE W. THIS POLICY PROVIDES LIMITED TORT OPTION. RSIGNED_'CD THiS IS YOUR DECLARATIONS PAGE, ,,", ~ PLEASE A mCH iT TO YOUR AUTO POLICY BOOKLET 8 Y ~ L(\_ YOUR POLICY CONSiSTS OF THiS PAGE. 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';t'11 Jlfl~ I] elj~~ d e] ~t -!I.el~'''' ~ .llJll'" ~ ! ~ ~ ~ d: ' ~ ~ J.ll~ 9 H h 1( . . ~ ! I h i f!MUllU.iiH ,!j Iii ;Jl I'll ~ j! ~ ~ j I a , I 8 I ~ I il, ~ !. I ,. I I l~ d j ~ j J U! a I ,g ~ UN >- I ;J Q U == iii. ....;,.i,.;.. vi oG i 5 :; Ii: ill i J I i. t'" ........... "'" ....::::!:!:!::2 ~ ~ NN M l':J:!Hm;!l;llJ:; Ji . ROLF E. KROll, ESOUIRE Pt. Supr... Court 1.0. No. 47243 REYNOLDS , HAVAS A Prof..sional Corporation 101 Pine Street Post Ottioe Box 932 Herrisburg, P.nn.ylvania 17108.0932 Telephone: 17171 23~,3200 Fax: 717 236.6863 WADE BIRT and CATHY BIRT, Plaintiffs Attorn.y tor Det.ndant: STATE FARM INSURANCE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . . v. NO. 94-5693 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRBL:IM:INARY OBJECTIONS OP DEPENDANT, STATE PARM MUTUAL AUTOMOBILE INSURANCE COMPANY TO PLAINTIPFS I COMPLAINT AND NOW, comes Defendant, State Farm Mutual Automobile Insurance Company ("Defendant"), by and through its counsel Reynolds & Havas, a professional corporation, to preliminary object to the Complaint of Plaintiffs, Wade Birt and Cathy Birt ("Plaintiffs"), as follows: 1. Plaintiffs commenced this breach of contract action against State Farm for the non-payment of certain medical benefits that Plaintiffs, state Farm insureds, contend are due and owing under the terms of their policy with State Farm. 2. In Plaintiffs' Complaint, Plaintiffs allege that in addition to the payment of medical expenses, they are also entitled to an award of attorneys fees pursuant to 11716 and I~, '.~ Exhibit A , . . . , . ' ,,' " . , . . "ARf/I"". .J.... nr; '1}1( " ' '~.J I~ ,"' f RECEIVEr) Palle2 Cathy Bin thia claimant presented to the emerpnc:y room o( CarIi.le Hospital foUowin8 the incident wIleR the claimant wa. examined, diqaoscd a. having su.tainedlprain NOS. There exists no record. statin8 that this claimant had experienced any loss o( consciousness, nor suatained any ft'KtUres from the incident oC 7/9/93. Subsequently, this claimant prcacntcd to the office of Boc:h Chiropraaic Clinic, on 7/16193, where it was noted that upon examination the (ollowing diasnoses were rendered to thi. claimant by thi. Cacility: cervical hypcrfIcxtionlhypcrntension injury, cervical, dorsal and lumbar vertebral subluxations. Bued upon the above diaanoses a treatment regimen was implemented at Bach Chiropractic Clinic consisting o( physiologic:a1 therapeutics, along with office visit/manual manipulation of the spine. From a review of the medic:a1 records. it is noted that this claimant initiated care at Boch Chiropractic Clinic on 7/16193 and continued through 4/1/94, It is unclear through the records submitted for my review if this claimant continued to receive care at Boch Chiropractic Clinic beyond 4/1/94, In IDIwer to your corrcspondence dated 4/12/94, the following is my professional opinion concerning your questions: 1. REVIEW OF RECORDS TO DETERMINE IF ALL CARE RENDERED BY BOCH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR MY A INJURIES SUSTAINED ON 7/9/93. IF EXCESSIVE, PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT. IC the claimants complaints, mechanism of injury and history of the accident as presented are correct, this claimant initiated care at Boch Chiropractic Clinic on 7/16/93, for trestment o( injuries sustained in a mv. which occurred on 7/9/93, It appears by the file available Cor my review that chiropractic care rendered to this claimant by Boch Chiropractic Clinic was appropriate. reasonable and necessary in the initial months oC care, Treatment consisting of physiolosical therapeutics and or manipulation for soft tissue injuries is usually justified for a 3 month period of time, At which point, a home based rehabilitative type program con~i~tjng of therapeutic stretches and exercises could be incorporated effectively in returning the patient to normal function as well as to help prevent agairut any aggravation/exacerbation in the future, There exists little compelling evidence suggesting that the ongoing use of office centered physiological therapeutic modalities and or manipulative therapy, beyond this time period, is more efficacious than a home bued program consisting of huting, stretching and exercise, In fact. literature suggests that the prolonged utilization of ti/IHHI""I' .,/, ,fir 1\1.~ r .) .) :. FI~r>-1 -,..,:: V20 Pase 3 Cathy Bin pauive modalities and manipulation may actually promote chronicity of symptoms, secondary to disuse. deconditionin& and patient expectations oCu/\l'Isolveable disability (Vert Mooney, MD. The 10urnal oCMusculo.lceletal Medicine, September. 1989). If significant fUnctional disability persists, the most appropriate c:ourse oC treatment Is an active and qgressive exuase IIId stretc:hins prosram. Additionally,llllI unaware of any medic:a1lUb~a1ty c:onsuItation and or any advanc:ed diagnostic: evaluation ltudies c:onc;eming this else, Bued upon the above principles a10ns with the documentation presented for my review conc:crnina this case. it is my profeuional opinion that this c:laimant had reached a point of maximum improvement of further in office therapeutic: care including manipulative therapy lit Boc:h Chiroprac:tic Clinic: by 10/15/93, ProlJlCSs notes submitted for my review from the /feating chiropractic: ph)"ic:ian fails to document that this cJainwlt wu making any fUnher improvement with the treatment regimen whic:h wu being implemented. It is my proCessional opinion that a home bued rehabilitative type prosram c:onsisting oCtherapeutic Iln:tchcs and exercises, coupled with home heatingtec:hnlques, would have been appropriate in and ofitselfbcyond 10/15/93, to help incrcue strength, flexibility and endurance as well IS to help prevent apinst any agsraVl1ion Iexac:e'.-bation oCthe alleged injuries susumed on 719/93. There exists no lUrthc1 objective clinic:a1 documentation for my review from the treating chiropractic physician oC Boc:h Chiropractic Clinic supporting the neceaaity or need of continued ongoing chiropractic ~e beyond 10/1 S193. Funhennore, it is my profewonal opinion that the use oChot/cold paw (97010) IS performed to this claimant at Boc:h Chiropractic Clinic wu appropriate and reuonable for a one month period oftimc:. At which point, this claimant could have performed this therapy effectively It home for the same therapeutic: benefit, The comments contained in this report are my professional opinions concerning this case bued upon the documentation submitted for my review. Thank you for allowing me to review this cue. Should you require tunhor uaistance, please feel free to c:onlact our office. MArk Cav 10, Diplomate American Academy of PaiD Management Certified Independent Chiropractic:JMedical Examiner . Exhibit B .""." ",,,,,,,0 "- ~i~~ '1:"1 -::.'f+, , . , ' , , . ~ ,. 121"736199" ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT P.Il? / .' J ~ ~.,. ,. ~ A comprellensive Peer Review ~~J certified DY bi.;-'.... y ED Commonwealth of Pennsylvam. A'rrl Bicta PAS'roR, R.N. RBs CATHY BI~ CLI 38-6593-731 0/1: 7/9/93 6/22/94, RBCONSIDJ:RATION REVIEW REPORT Dear Ms. Pastor: For the purpose of thia review, I have utilized tbe following reeorda: 1. APPLICATION FOR BENEFITS 2. AIJ'l'O ESTIMATE WITH l'IC'l'URll 3. IR BILLS, 7/9/93 4,. MC01U)S OF DR. BOCH _ IlIQUEST FOR lU!:CONSIDERATION AND IlEBtrrrAL _ X-RAY REPORTS, 7/15/93 AND 9/1/93 _ CONSULTATION, 7/15/93 - BXAHS, 7/15 ~ 12/8/93 _ ACCIDBNTAL INJURY REPORT, 7/14/93 _ TREATMEN'r RECORDS, 7/15/93-4/1/94 . SUPPLEMENTAL RXPORT, 1/21/94 .'BILLiNG, 7/15/93-3/4/94 _ REPO~ D~D 7/16/93 _ M11SCLB ':rESTINQ REPORTS, ROM WORJI: SHEETS Aacording to the recorda, on 7/9/93, this 22 rear old female waa the passenger of an auto that was struck n the rear by anoth.r vehicle. She complained of neck and back pain after the accident and went to an ER but was released on the s... day. She preaented to Dr. Booh on 7/15/93 with complaint. of low baok'pain and left shoulder pain. Her low back pain waa the, main c~mplaint and ahe stated that there was no neck pain on that day. She relateR that she hns had loW back pain en an on and off basi. .ince November cf 1992 when .ne waa pregnant. Driving anti standing aggravate it. ' . . R~C~/~EO JIJN 2 J /99-1 CRC Examination on 7/15/93 showed a 5'4" 221 pound female with no discernable cervical problems. The exam sheet did not list . Pl.... Reply To o 16161'1, B",od St P,O. Bo.1119 Lonsd>14. P" 1'/446-0821 o 2036 ~"'pJ. A venue Hoddon IleilhlS N..... 1.ney O8OJ.l ..-.... ..... ..... C1 J IIlHobeoc;k Blvd. Sulle'l PitlSlxltlb. PA 13231 {:U'" 1NL.4~lU " , , '-, 121~736199" P."8 HARRISBURG ...... 2:1 1991t RECEIVEO CATHY BIRT, PAGE TWO. any abnormal findings. The l""'''-r region revealed some positive findings such as Xemp's and slight low back pain with the SLR bilateral. The patient was asse.Bed as having sustained strain/sprains to the cervical and lumbosacral spinal regions. Treatment in the form of manipulation and physiotherapy was institutsd on a three time. or so per week basis on 7/17/93 and remained at a similar level to the laat date in the file, 4/1/94, a total of almost five months. Thi. amounts to around 111 office visits, and aaoordini to the patient's 8Yl11ptom reports, there is little to no mprovement. In the first review regarding this cass, it i. stated that the patient should have reached MHI within 90 days and that she could have handled any other 8Yl11ptoma with home care. I disagree with 'parts of that review, however, there 18 nothing in this file to sub8tantiate 111 office visits over an eight and one half month period for what appearo to be a moderate strain/8prain to the affected areall. Dr. Bach has written a re.ponse to the first review, but in it he only criticizes the reviewers credentials and opinions, he does not in any way try to defend his actions regarding this patient's care. Although the latest codes cn the treatment not.s show "6W for the last month, whereas these had been "S" or "9", the objective findings column is still stuck at "8", meaning I assume a 20 , rate of improvement in those findings. I see no change in the program in response to the patient'. laok of progress. The x-ray findings that are being li.ted .a objective findings are for the most part long term vertebral disrelationships, aa these are "wedge eftects~ that take a considerable time period to come about. The facets, discs, and other supportive s~ruc~ures must accommodate in order to give that radiographic appearance. It this happened all at once, then the result would be severe tissue tearing which would present much different physical findings then that given in this case. Utilizing these as objective findings for the purpose of long term treatment does not seem reasonable for the injuries sustained in the accident of 7/9/93. However, as the patient does pos.es. these deficits, treatment cannot necessarily be limited to what would be termed a minor injury, 90 days or so. . ~TIFICATE OF SERVICE I HEREBY CERTIFY that I have served a true and correct copy of the foregoing document upon all counsel and part i.. of record this 'i i ,'. day of l \ , \, \, , , , 1994, by placing the same in the United States First Class Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Fred H. Hait, Esquire 200 North Hanover street Carlisle, Pennsylvania 17013 '. ~. '..,) ~ \;' ,J,. lap, Secreta - 3 - ;J; - '0 '" - ~ ...... ~~ ......,'.t ....,..-. ~-':i ~~u. ~~~~ ,- ~..' oR( il1 . n': ,J Z': -J.. Z. ""l'_~;..' ~t<J.. .~.u ~. ::c C>... o N . WADE BIRT and CATHY BIRT, Plaintlf fs IN TIlE COURT OF COIIMON PLiAS OF Ct;~IBERI..\.ND COUNTY, PENNSYLVANIA va. NO. 5693 CIVIL 1994 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant RULE 1312-1, The Petition for Appointment of Arbitrators shall be sub.tant~al1y in the following form: PETI7!ON FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: ROLF E. KROLL , counsel for the ~defendant in the above 1. action (or actions), respectfully represents that: The abov<J-captioned action ~ is ~ J.t issue. The claim of the plaintiff in the action is $ 4,376.00 The counterclaim of the defendant in the action is 2. The following attorneys are interested in the wise disqualified to sit as arbitrators: case(s) as counselor are other- Fred H. Halt. ESQuire: McOraw. Hait & Deltchman WHERE.ORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. -1 Respe~tf~lr;s b~t:ed. ,,",'( /y~~ Rolf E,' Kr n, At torney for ORDER Of COURT Defendant State Farm Mutual AND NOW, tnfltC6h t./. . 192k., foregoing petition, C ./ltJ V!A/u'o'/llJ/C, Esq., Esq., and D/litlE- RM(!.I/d ,ESq~ are appointed above-captioned action (or actions) as prayed for. By, the Court~ ',' ",,, \ [- . I." \. WADE BIRT and CA TIIY BIRT Plaintiffs : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA vs. : CIVIL ACTION. LAW : NO.: 94-5693 STATE FARM MUTUAL AUTOMOBILE: INSURANCE COMPANY Defendant SUMMARY OF ATIORNEY FEES Griffie & Associates: 10.8 hrs. on I SI party claim @ $IOOlhr = $1,080.00 McGraw, Hait & Deitchman: 1.10 hrs. billed @ # I OOlhr + 4.2 hrs. preparation for arb.(RVFL,= 420.00 RSER & drafting of memorandum 5/2 + attendance at arbitration ~. V + :?az.() ,00 TOTAL $ 1lrtO~ , SUMMARY OF COSTS Complaint filing fee: $ 45.50 Sheriff Service fee $ 50.44 TOTAL $ 108,50 $ 204,44 Charges for copies (Boch Chiropractic) , ;" '," ;,. '. *' :1 . , . " , \ WADE J' . "n \ BIRT, titfs IN TKE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL AC'l'ION - LAW STATE INSURI' 35.00 1 , ~ '5 0 l TOMOBILE . ~5. 0 0 1 5. 0 0 1 dant ~5.'50CX <..'1 NO. q4-- 5c"Q3 Cu.u.O I~ I r' " -;., " ,\ = .... ..... 69 3 '3 08 : 0 3 YIO-OS'-9'1 NOTrCE (.0 '.r. "N,t... . ,;~ ~ 0,:, .. ~I; J-~ ued in court. If you wish to d8fe~4 a~nst -. ~ the cl.....",,!, tUb" LQot-'ll in the following pages, you must take action . within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the co~rt your defense or objections to the claims set forth against you. You are warned that it you tail to do so, the case may proceed without you and judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money " or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court Administrator CUmberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 or 697-0371 .(f w , I .... BOCH CHIROPRACllC ~C 323 Yook &.d c.w.. PA 17013 ToIophollC (7171 243&196 13,'r1 CIX~e ... ;....' ",,:,0 " ',' ," .~... r.hnrQQn For Th. FolLowinU: .",.. r.llnrg. for copies of records .$108.50 l'lense lIemit To Ths Above Addreu Tllnnk You ,,- ..... \ . . \ I . I . ....". I ~ '0.. '0_ -, .... :. :'-: '.. .' \ . . .... '. ,- . ,.{oi) .. ~~~~ . . . . I ,,- .. " ..' .. - .....-.-... ... . , GRIFFIE , ASSOCIATES 200 North Hanover street Carlisle, PA 17013 Invoice submitted tOI WADE , CATHY BIRr 1526 PINE ROAD CARLISLE PA 17013 ., September 6, 1995 Amount. Previous balance $260.94 Balance due $260.94 - THIS STATEMENT REFLECTS ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OF AUGUST 31, 1995 _===~__=_____.___.~____._=_a_=____._=___________-------- - Previous balance of client fun4.s $72.20 ~ ) GRIFFIE , ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 Invoice submitted tOI WADE , CATHY BIR'l' 1526 PINE ROAD CARLISLE PA 17013 August 4, 1995 Rou~ a_...to. 07/11/95 REquest Hovis drier information froll PennDot receive and deposit sheriff's refund into truat account 0.20 0.20 For professional services rendered Additional charqes: 07/11/95 Costs advanced for driver information record on Hovia 0.40 $0.00 5.00 Total costs $5.00 Total cmount of this bill $5.00 $260.94 ($5.00) Previous balance 08/04/95 Payment from accowlt Balance due $260.94 WADE , CATHY BIRT Page 2 THIS STATEMEN'l' REFLECTS ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OP JULY 31, 1995 - Amount Previou. balance ot olient fund. 07/11/95 Cepo.it to account-refund 08/04/95 Payment from account $0.00 $77.20 ($5.00) New balance of olient fund. $72.20 . \ GRIFFIE , ASSOCIATES 200 North Hanover street Carlisle, PA 17013 Invoioe submitted to: WADE , CATHY DIRT 1526 PINE ROAD CARLISLE PA 17013 , ft' July 7, 1995 RourII .l.IIOUftt: 06/09/95 Conterenoe with olients 06/19/95 Pile Praeoipe for Writ of Summons Review respons.s to disoovery request. Legal Research - Motion to Compel PRO information 1.20 0.20 1.20 For professional services rendered Additional oharges: 2.60 $0.00 " 06/19/95 Costs advanoed for filing fees - Praeoipe for Writ of S\IlIIDIons Costs advanced for service fees to sheriff 45.50 100.00 Total coats $145.50 Previous balano. $145.50 $260.'4 Total amount of this bill WADE , CATHY BIRT paq. 2 Amount: 06/12/95 Payment - thank you - coata ($145.50) Balance due $260. t4 - THIS STATEMENT REPLECTS ALL SERVICES RENDBRlD AND PAYJIIHTS RECEIVED AS OP JUM! 30, 1995 ." :! ,.... I- e .-t .. .-t " . " " " " . " . " " ..11 ):~::"'l;:., .. '..;: ',:: ~':.:... :;;:" Z\, 4i{J~:;;, ":;~,,',:,, .'" ~!::. ' '," ".'c'::';,:,:' ~Y:'::\.>~C(:~':.::! ~:":"''':~,:)~;:;:~0.~!:; .: '",' >j..:; / ";"":"':>;l;,:~~{I;,::~.",.;, ;~l;'':;J ::::::'::/;;~; is:7:?':' .. .: '...... ~, '. ". ",: , . .:. '~-<,~.:.'.'. ~'''.';~ :".\ '~'_:'" ,. ,'. .~. ' ;'", ~.: . '.' .'" . - . ~:!.".t.'" ')" ~~:l"~'''''1o ,"" ~.."" t.', ':,t.:::,..-:"r..,...., ""J;':'~"'>'t':::~:-. .:' .'. 'J'. ;', .,.... '''', .;" . f.~. . "'~'..: .:;. .' .\"'. ~:. '.:": .'. ".'," ., d lil z ~ ~..eti:! 5~115~ !::~ ~~ LA.lC z . Q31.ai'! 0... u~~~g a:: ",00 w ,,21 ~ ~ z z w ... " ;' ',-' . ,', . ..... ,.:~ J ',' ".,. . ..,;.-. :' ~ 'r' .; o J I~ Ii .. - c.II 1ft o Ll1 - 1ft - 1ft o ~ ',.. .. " ~ o - - o o " J j GRIFFIE , ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 Invoice submitted to: WADE , CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 June 5, 1995 05/01/95 Dratt Interroqatories and Motion to Produce Amount: Correspondence to opposinq counsell Letter to clients Dratt Praecipe tor Writ 05/03/95 Receipt and Review of report from Dr. Jurqenson 0.10 05/08/95 Telecon with Client OS/23/95 Review Defendant's Answer Draft response to New Matter For protessional services rendered Previous balance 2.90 $0.00 $260.94 Balance due $260.94 ------------- THIS STATEMENT REFLECTS ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OF MAY 31, 1995 CRIFFIE , ASSOCIATES 200 North Hanover Street carlisle, PA 17013 Invoice submitted to: WADE , CATHY DIRT 1526 PINE ROAD CARLISLE PA 17013 . .. April 5, 1995 Hour. Amount: 03/09/95 Receipt and Review ot ~ correspondence trom'clients, letter to clients 03/23/95 Receipt and Review of 3/17/95 Court & Order dismissing Preliminary Objections in Birt v. State Farm, Conference with Jenn Oeitchman reI proposed discovery G;/ Review decision and discuss with Fred Hait .' For protessional services rendered 0.85 $0.00 Previous balance $260.94 Balance due $260.94 a--.. - THIS STATEMENT REFLECTS ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OF HARCH 31, 1995 GRIFFIE , ASSOCIATES 200 North Hanover street Carlisle, PA 17013 Invoice submitted tOI WADE , CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 . .' March 3, 1995 hount Previou. balance $260.94 Balance due $260.94 - THIS STATEMEN'l' REFLEC.:TS ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OF FEBRUARY 28, 1995 ~;.j'j;'I!. '. .,'cc :1~,!,-j" CRIFFIE , ASSOCIATES 200 North Hanover street carlisle, PA 17013 Invoice submitted to: WADE , CATHY BIRT 1526 PINE ROAD CARL!SLE PA 17013 .'If,' February 3, 1995 Amoun1: Previous balance $260.94 Balance due $260.94 --- -- - THIS STATEMENT REFLECTS ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OF JANUARY 31, 1995 Date 01/03/95 Tillie 10157 .. GRIFFIE , ASSOCIATES Client Billing Work. beet !-Birt, WadeCat WADE & CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 None None No controller Rounding Fu II Precis ion bill charge payment Next aging : 12/06/94 : 12/30/94 10/24/94 Amount Oate/Slioj DescriDtion 11/28/94 jen / Ltr Third Party t916 Letter to defendant's insurance representative 12/05/94 jen / Miscellaneous t944 finish preparing specials (copy and send to third party carrier) 12/06/94 fhh / TC other Atty #179 Telecon with defense attorney reI state Farm suit 12/06/94 fhh / R/R Document t183 Receipt and Review of defense argument court brief 12/07/94 fhh / Argument Court '184 Argument court reI state Farm preliminary objections .' 12/07/94 fhh / TC Third Party t261 Telecon with third party adjuster 12/12/94 fhh / Ltr Third Party '307 Receipt and Review of letter from Anthem Insurance 12/23/94 fhh / R/R Document t1523 Receipt and Review of State Farm Counsel Praecipe to attach exhibits to preliminary objections 12/27/94 fhh / TC Client t1547 Telecon with Client reI case status 12/30/94 fhh / R/R Document '1689 Receipt and Review of defense reply brief in State Farm lawsuit I 01/28/95 I $49.56 HOURS/RATE 0.10 0.00 0.30 0.00 ~ .~ r::;;) ~ K::J ~ 0.10 0.00 0.10 0.00 Q ~ P&9'e 259 AMOUNT .' TOTAL 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 +-~:~~t j ..t. 11/"/" ~illle 1Q 12. aia GRIFFIS , ASSOCIATES Client Bi11inq Work.heet I'&q. 272 :ontroller {ounding 'u1.l preciaion WADE , CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 I None I None I No ~-8irt, WadeCat I bill . 10/05/94 Next aginq . 11/28/94 . . charge 10/28/94 payment 10/24/94 Amount $49.56 I DescriDtion I )ate/SliDt I Cl9/20/94 jen / R/R Document te05 Review tile 10/04/94 fhh / R/R Letter 0.10 1192 Receipt and Review ot 9/28/94 0.00 letter trom Anthem Insurance (tort case) 10/18/94 fhh / R/R Document @ '945 Receipt and Review ot de tense O. attorney entry of appearance (1st party claim) 10/24/94 fhh / R/R Document @ 11434 Receipt and Review ot sheritf 0.00 return (State Farm case) 10/28/94 fhh / TC Client @ 11799 Telecon with Client reI case stat~s 0.0 rOTAL BILLABLE TIME CHARGES 0.70 ..... AMOUNT TOTAL 0.00 0.00 0.00 0.00 0.00 $0.00 Date/SliD' OescriDtion 10/04/94 thh / $Costs Advanced '187 Costs advanced to file suit state Farm OTY/PRICE against ~ 145.50 BILLABLE COSTS $145.50 --_________c__a__a~~_________=_=_=__=______==____=__________--- -- rOTAL NEW CHARGES $145.S0 PREVIOUS BALANCE 3 month overdue 165.00 TOTAL PREVIOUS BALANCE TOTAL overdue $165.00 $165.00 Date 10/04/H Tillie tlOl .. f-Birt, W.sdecat controller Rounding Full precision bill charge payment GRIFFIS , ASSOCIATES Client Billinq Worksheet WADE , CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 None None : No ( 09/12/94 : 09/12/94 07/20/94 Next aqinC) : 10/28/94 : no.OO Amount D~te/SliDf DescriDtion HOURS/RATE 09/02/94 fhh / TC Client '91 Telecon with Cathy Birt 09/05/94 fhh / Doc Prep '97 Draft Complaint for First Party Benefita lawauit 09/07/94 thh / Ltr to Client '116 Letter to clients with draft of State Farm lawsuit complaint 09/12/94 fhh / R/R Document '111 Receipt and Review of 9/1/94 report from Or. Boch paq. :no AMnUNT TOTAL 0.00 0.00 0.00 0.00 BILLABLE TIME CHARGES 1.60 $0.00 BILLABLE COSTS $0.00 -------- -_-=z~::a=I~___- ~----~---- --- TOTAL NEW CHARGES $0.00 PREVIOUS BALANCE 3 month overdue 56.50 2 month overdue 108.50 TOTAL PREVIOUS BALANCE $165.00 TOTAL overdue . $165.00 . BALANCE 3 month overdue 56.50 2 month overdue 108.50 -- -- - - - -- TOTAL NEW BALANCE $165.00 TOTAL overdue . $165.00 . Date 09/08/U Time 7158 &Ill GRIFFIE , ASSOCIATES Client Billing Worksheet Page :195 t-Birt, WadeCat : WADE , CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 None : None : No Controller Rounding Full precision Last bill Last paYlllent : 08/04/94 : 07/20/94 Next aging Amount : 09/28/94 : $20.00 TOTAL BILLABLE TIME CHARGES 0.00 $0.00 $0.00 TOTAL BILLABLE COSTS -- -------------------------------.------------------------------------------- $0.00 TOTAL NEW CHARGES PREVIOUS BALANCE 3 month overdue 1 month overdue 56.50 108.50 TOTAL PREVIOUS BALANCE TOTAL overdue : $165.00 $165.00 NEW BALANCE =======-=============_===-==============_=2============-=-a=s___=ma=s=--=-=--- 3 month overdue 1 month overdue 56.50 108.50 TOTAL NEW BALANCE TOTAL overdue $165.00 . . $165.00 .' ...... _ "~.." ........ 4:'.~.."'" ~..;...'9i.: ..001.,... ....... ...... ....,,,...~....,..~1......,.......~,.......,, 'f'~.""" ,,~............~..,'....,..'\I. " GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, FA 17013 Invoice submitted to: WADE , CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 ~'.' August 4, 199. 07/02/94 Review file re: PRO issues 07/05/94 Letter to Boch Clinic requesting medical records and State Farm correspondence Amount 07/27/94 Legal research/Review file re: peer review issues Letter to Dr. Boch 9 For professional services rendered Additional charges: 07/20/94 Costs advanced for records from, Dr. Boch 1.85 $0.00 108.50 Total costs $108.50 Total amount of this bill $108.50 $76.50 ($20.00) Previous balance 07/20/94 Payment - thank you Balance due $165.00 =========-- - GRIFFIE , ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 Invoice submitted to: WADE , CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 .!... July 6, 1994 - 06/01/94 Telecon with Dr. Boch re: PRO reconsidertion ~ ammmt. 06/08/94 letter to State Farm 06/10/94 Receipt and Review of correspondence from Dr. Boch Review file, letter to Anthem Insurance 0.25 06/16/94 Receipt and Review of State Farm documents e .' Telecon with Client 06/30/94 Telecon with Boch Clinic re: PRO denial For professional services rendered Previous balance 0.85 $0.00 $76.50 Balance due $76.50 --- GRIFFIE , ASSOCIATES 200 North Hanover Street carlisle, PA 17013 Invoice submitted tal WADE , CATHY DIRT 1526 PINE ROAD CARLISLE PA 17013 June 2, 1994 Hours Amount. 05/09/94 Receipt and Review of tltate Farm lO~ PRO decision Telecon with Dr. Bocn re: saDIe 05/16/94 Telecon with State Farm Telecon with State Farm OS/23/94 Telecon with Client OS/24/94 Telecon with Cathy Birt reI PRO review .. For professional services rendered 0.65 $0.00 Previous balance $76.50 Balance due $76.50 THIS STATEMENT REFLEC'l'S ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OF MAY 31, 1994 GRIFFIE & ASSOCIATES ~oo North Hanover Street Carlisle, PA 17013 Invoice submitte~ tOI WADE & CATHY BIRT 1526 PINE ROAD CARLISLE PA 17013 11' April 7, 1994 Hours AmoUI\~ OJ/0~/94 Review file, letter to Anthem Insurance .- 0.25 ~ For professional services rendered Previous balance 0.25 $0.00 $76.50 Balance due $76.50 - THIS STATEMENT REFLECTS ALL SERVICES RENDERED AND PAYMENTS RECEIVED AS OF MARCH 31, 1994 Wade & Cathy Bir! 1526 Pine Road Carlisle, PA 17013 Attention: RE: DATE Apr-IS-96 May,OI-96 DESCRIPTION Meeting with client to prepare for arbitration Correspondence from opposing counsel Totals FEE SUMMARY: Lawyer Jennifer C. Deitchman Houn 1.10 Effective Rate $0.00 Total Fees, DbbunementJ Previous Balance Previous Payments Balaoce Due Now AMOUNT QUOTED: .. May 02, 1996 File II: Inv II: 14-5073 SAMPLE HOURS AMOUNT LAWYER @ 0.00 JCD 0,10 0.00 JCD 1.10 SO.OO Amouot $0.00 so.oo $0.00 $0.00 $0.00 $0.00 i".fI ,.':;", . , . POnR OJ' AT'l'ORNBY AND CONTINGENT FEE AGREEMENT KNOW ALL MEN BY THESE PRESENTS that We, the undersigned, do hereby retain the Law Firm of GRIFJ'IE , ASSOCIATBS as our attorney for us in our name and to institute and maintain an action against C f,(q \rl,'"~ .d1- -HOl/1 \~' and/or any person, Firm, corporation, or other entity who may be responsible to us for damages which we sustained on or about 9f11 day of vnl y 19~ f4rr. '.; ivA '(!; (/-1~l<II<jC- U/o/p.-IS 8r,/a.. IV/ result of n],:r-t;,r 1/41) L'r/~ rY>/;;''>1 "V'! or to negotiate an amicable settlement of the claim, in the at as a accordance with the terms conditions herein set forth: 1. We agree that in consideration of the services to be rendered by Griffie & Associates, we agree to pay Griffie & Associates for professional services rendered a sum THIRTY-THREE AND ONE-THIRD (33 1/3%) percent of whatever is recovered as a result of settlement without suit, or of any recovery attained after suit is filed or a trial is held. 2. If our claim, or any part thereof, arises out of the maintenance or use of a motor vehicle, we agree that any services performed by Griffie & Associates to collect first party or no fault insurance benefits shall be calculated and paid in accordance with the Firm's hourly rates in effect at the time the work is performed, for time expended working on the claim. We understand that these rates are currently .;r>/;2 s""; M per hour 1 ,J for partners and ~pf),~" per hour for associates, and these rates are subject to change at any time. 3. We agree to be responsible for all costs and expenses due 'to persons or entities outside the Firm of Griffie , Associates including but not limited to filing fees, travel, photocopy, deposition transcripts, long distance telephone charges, witness fees, medical reports, investigation, etc., which may be necessary in order to pursue the claim, and to reimburse Griffie' Associates for any such expenditures which they may make on our behalf. We understand that Griffie , Associates may request that we make advance payments on a monthly basis to be held in escrow for payment of costs to be incurred, and we agree to make such advance payments as Griffie , Associates, may request in writing from time to time. 4. We agree not to settle or adjust the claim or any proceedings based thereon without the prior written consent of Griffie' Associates. 5. Griffie & Associates reserves the right to withdraw if, after investigation, they determine that there is no merit to the claim. We acknowledge that in the event of withdrawal by Griffie & Associates we will remain liable for payment of all costs as set forth in Paragraph 3 of this Agreement. 6. This Agreement does not cover any services performed in connection with any appeal from a Court of Common Pleas, Federal District Court, or Board of Arbitration in an uninsured/underinsured motorist proceeding. 7. We authorize Griffie & Associates to deduct from our 2 . '? . .. ( share of any recovery and pay directly to any doctor, hospital, or other health care provider any unpaid balance due tor treatment or injuries related to the claim. 8. We agree that, Gritfie &, Associates may employ associates counselor special trial counsel for their discretion, and that any counsel so employed may be designated to appear on our behalf and/or undertake to represent us in this matter. 9. If payment of this claim is made by a structured settlement, with or without trial, attorney's fees will be computed by taking the applicable percentage agreed upon and mUltiplying it times the present cash value of the settlement, as determined by actuarial experts; said payment to be made out of any initial lump sum payment. In lieu of said method of calculation, Griffie & Associates may, at their option, elect to receive for their fees the applicable percentage of each settlement payment as it is received. 10. We acknowledge that we have the right to terminate this Agreement at any time by giving written notice to Griffie & Associates. In the event we elect to terminate this agreement, Griffie & Associates shall be entitled to reimbursement for any and all cost, as set forth in Paragraph 3, which the Firm incurred prior to receipt of written notice of termination. Griffie & Associates shall have no obligation to release the file to us or to any other attorney until such expenses have been paid. In the event of a settlement or award of damages after termination, Griffie & Associates shall be entitled to payment in 3 .' r I proportion to the time which the Firm spend working on the claim. 11. In construing this Agreement, the singular shall include the plural and the masculine shall include the teminine and the neuter whenever the contest so requires, 12. We acknowledge receipt of a copy of this Agreement. IN WITNESS WHEREOF, We have set our hands this ~ day ot ~b1wt , 19 93 , intending to be legally bound thereby. t/lJ;k(j;Y &tJ~ {}~; I The above employment is hereby accepted on the terms stated. we agree to make no settlement without the consent of the Claimant. GRIFFIE & ASSOCIATES Date: "#J~J BG~~ 4 POWER OF ATTORNEY AND CONTINGENT FEE AGREEMENT We, the undersigned, hereby retain the law firm of McGRAW. HAlT & DEITCHMAN as my attomeys for us in our names and to institute and maintain an action against Christine M. Hovis andlor any person, firm, corporation, or other entity which may be responsible to us for damages which we sustained on or about the 9th day of July , 19~ at Harrisburg Pike & Wolf's Bridge Road a motor vehicle collision as the result of ' and to negotiate an amicable settlement of the claim, in accordance with the terms and conditions herein set forth: 1. We agree that in consideration for the services to be rendered by McGraw, Hait & Deitchman, we will pay McGraw, Hait & Deitchman a sum of thirty-three and one-third percent (33 1/3%) of whatever is recovered as a result of settlement without suit, or of any recovery attained after suit is filed or a trial is held as fees for professional services rendered. In the event that the claim is not resolved until after an appeal has been filed, we agree to pay McGraw, Hait & Deitchman the sum of forty percent (40%) of any recovery attained. 2. We agree to be responsible tor all costs and expenses due to persons or entities outside of the firm of McGraw, Hait and Deitchman including, but not limited to, filing fees, travel, professional photocopy, deposition expenses, witness fees, medical reports, and investigation, whic'1 may be necessary to pursue this claim. Although McGraw, Hait & Deitchman may. in extreme circumstances, advance these costs for us, we understand that we are responsible for prompt payment of them and our failure to reimburse the firm for these advancements andlor costs may result in the firm's withdrawel from representation of us. McGraw, Hait & Deitchman on their part agree to provide us with as much advance notice and estimation of anticipated expenses as possible so that we may budget for these expenses. 3. We also agree to reimburse McGraw, Hait & Deitchman for the following types of costs which may be incurred in conjunction with our claim: a) outgoing fax transmissions will be billed at the rate of $ .50 per page, regardless of destination b) long distance telephone calls in excess often minutes may be charged for the time over ten minutes c) photocopy batches in excess of 50 pages per copy job will be billed at the rate of $ ,05 per page over 50 d) long distance travel for depositions, court appearances, etc. over 50 miles roundtrip will be billed at the rate of $ .30 per mile (trips to Harrisburg and Chambersburg are specifically excluded from mileage calculation) 4. We understand that McGraw, Hait & Deitchman may request that we make advance payment(s) to be held in escrow for payment of costs such as those found in Paragraphs 2 and 3 to be incurred, and we agree to make such advance payment(s) as may be requested from time to time. We are hereby informd that we will receive routine statements indicating the work done on our case as well as any payments due for costs or funds which we may have in escrow, 5. We understand that if our claim, or any part thereof, arises out of the maintenance or use of a motor vehicle, and if there is a dispute with our own insurance carrier for first party or underinsured or uninsured insurance benefits, McGraw, Hait & Deitchman will attribute their time spent on this aspect of this claim to an hourly fee for purposes of presenting a fee petition to be paid by our insurer. McGraw, Hait & Deitchman will calculate their fees for services !)erformed in this respect in accordance with the firm's hourly rates in effect at the time the work is performed. We are aware that these rates are currently $100 per hour for partners and that these rates are subject to change at any time. 5. McGraw, Hait & Deitchman agrees not to settle the claim without prior consent which shall be documented in writing to the furthest extent possible. 6. We agree not to settle the claim without the prior wrillen consent of McGraw, Hait & Daitchman. 7. McGraw, Hait & Deitchman reserves the right to withdraw from representation, and we, the undersigned, also reserve the right to terminate this agreement. In the event of termination by either party, we agree that we will remain liable for payment of all costs or expenses as set forth in paragraphs 2 and 3 above. McGraw, Hait & Deitchman shall have no obligation to release the file to us or any other attorney until such expenses have been paid. a) In the event of a settlement or award alter termination, McGraw, Hait & Deitchman shall be entitled to payment in proportion to the time which the 2 firm spent working on the claim in relation to the total time spent on the claim by each attomey or law firm involved. This clause may be modified by written agreement of the parties hereto or subsequent counsel. 8, We agree that McGraw, Hait & Deitchman may employ associate counselor special trial counsel at their discretion, and that any counsel so employed may be designated to appear on my behalf and/or undertake to represent us in this matter. The employment of any associate counselor special trial counsel, however, shall not increase the total attorney's fee, if any, to be paid. 9. We authorize McGraw, Hait & Deitchman to deduct from our share of any recovery and pay directly to any doctor, hospital, or other health care provider any unpaid balance due for treatment of injuries related to this claim. We also agree that the applicable attomey fee as discussed in paragraph 1 and any outstanding costs such as those in paragraphs 2 and 3 are to be decucted directly from any recovery obtained in this matter. 10. If payment of this claim is to be made by a structured settlement, with or without trial, attorney's fees will be computed by taking the applicable percentage agreed upon, multiplied by the present cash value of the settlement, as determined by actuarial experts; said payment to be made out of any intitial lump sum payment. 11. We acknowledge that we have read this Agreement, have had an opportunity to ask questions concerning its terms, and agree to its terms. We also acknowledge receipt of a copy of this Agreement. IN WITNESS WHEREOF, we have set our hand and seal this day of , 1995, intending to be legally bound hereby. !(ko ;3J2 seal) ~ I A'/t! (seal) ---------------------------------.------------------------.----------------------------- The above agreement is hereby accepted on the terms stated therein. Date: BY: ,1995 / ~ 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a true and correct copy ot the toregoing docu~ent upon all counsel and parties ot record this C:)1:tr- day otC ((~C,,},~,' ,1994, by placing the same in the United States First Class Mail, postage prepaid, at HarriSburg, Pennsylvania, addressed as tollows: Fred H. Hait, Esquir.e 200 North Hanover street CarliSle, Pennsylvania 17013 c; Thereafter, Plaintiffs sent discovery requests to State Farm which produced the claiJl1 file in response. Stahl Farm objected to a multitude of interrogatories and requests for production seeking information concerning the peer review process, criteria for review, and their contracts with the doctors who performed them. Thereafter, arbitration was scheduled to be held on May 3, 1996. OUESTIONS PRESENTED 1. Did State Farm have a reasonable foundation for refusing to pay fint party medical benefits? 2. Was the peer review completed by a Commonwealth approved, competent and qualified chiropractor? DISCUSSION State Farm did not have reasonable foundation for refusing to pay Wade and Cathy Birt's first party benefits and did not use good faith in its failure to submit pertinent material to the peer review organization. The peer review reports themselves, when read in conjunction with the claim file, reveal that State Farm did not send records from the ambulance service, the Carlisle Hospital Emergency room, nor Three Springs Family Practice where the Birt's received treatment on July 12, 1993. The reco:lSideration reviews had no more documentation to review other than the additional PRO report. On the other hand, the auto estimate with pictures were reviewed, as well as the hospital bills. 2 What relevance these items have to whether Dr. Boch's treatment conformed to professional standards and whether such treatment was reasonably. is unknown. More importantly, State Fann must prove that the reviewers were in conformance with Pa. Code Title 31, ~~69.51 - 69.55. Specifically, the determination may be challenged if the initial determination is not done by a "licensed practitioner with experience providing and prescribing the care under review." Id. at ~69.52(f). The initial review of both Wade and Cathy's claims were done by Mark Cavallo, D.C, Although it is anticipated that Dr. Cavallo's report will be submitted as a defense exhibit, Plaintiff also intends to present it, in a highlighted version as an exhibit as well, The purpose of this is to demonstrate exactly how much of Wade Birt's and Cathy Birt's reports are the same. The fact that virtually the same fmdings were made for two entirely different individuals raises an inference of an incompetent review. State Farm has refused to provide information concerning its guidelines for peer review, It is incomprehensible to imagine that. State Farm never utilized Consolidated Rehabilitation Company or Dr, Cavallo prior to the Birts' reviews. Given the "cookie- cutter" or "boilerplate" nature of Dr. Cavallo's reports, we can infer that State Farm has knowledge of the reviewer's opinion that "treatment consisting of physiological therapeutics and or manipulation for soft tissue injuries is usually justified for a three month period of time." (report of Dr. Cavallo on Wade Birt, p. 2; report of Dr. Cavallo I necessary (75 Pa.C.S.A, ~1797(b){l) 3 on Cathy Birt, p. 2). This could prompt State Fann to automatically PRO such claims exceeding three months of treatment. 2 Dr. Boch's rebuttal was not provided with the reconsideration, nor with the claim record formally requested from State Farm. The reviewers misquote Dr. Boch's rebuttal and shed it in a false light. Dr. Boch did provide explanations for the treatment rendered and the omission of his report exhibits a callous disregard on the part of State Farm and the reviewers for the rights of the Birt's and Dr, Boch under the MVFRL. CONCLUSION Based on the aforesaid reasons, i.e. the irregularities and omissions involved with these particular PRO's, Plaintiffs request that judgment be entered in their favor; damages in the amount 0[$2,511.18 for Wade Birt; $4376.18 for Cathy Birt; interest at the rate of 12% per annwn pursant to ~1716 of the MVFRL and Judge Sheely's opinion; counsel fees pursuant to ~ 1716, 1798 of the MVFRL, costs of suit, and such additional relief as the panel deems appropriate. I Although Slale Fann waited after three months 10 PRO this malter, the inilial report found maximum medial improvement to be approximalely 3 mOnlhs after commencemenl oflrealmen!. ~1797(b)(7) provides: "If ills delennined by a PRO or court that a provider has provided unnecessary medical trealment or rehabUilalive services.. .or thaI fulUre provision of such trealment... will be unnecessary..., the provider may nol collecl payment for the medically unnecessary Irealment.... If the provider has collecled such paymenl, it musI renun the amounl paid plus inlerestal12% per year wiUun 30 days." The record will reflecl that Slate Fann paid benefit., for both Wade and Cathy through January of 1994, A PRO decision in ilS favor entllles illo a 12% rale of interesl on funds it had paid to Dr. Boch. Although it may nOI be the besl investmenl, there is an Incenliveto pay and the PRO In the insurance industry. 4 Respectfully submitted, McGRAW, HAlT & DEITCHMAN ~ / By: n ~ lfer C. Deitchman ~ Pa. I.D. # 72779 4 Liberty Avenue Carlisle, PA 17013 (717) 249-4500 Date: 5/3/96 5 loss of consciousness or sustained any fractures from the incident. Both were diagnosed with soft tissue injuries. Subsequently, Mr. Sirt presented to the office of Boch Chiropractic Clinic ("Boch Chiropractic") on July 13, 1993. At that time, Mr. Birt complained of neck pain which was ultimately diagnosed as cervical hyperflexion/hyperextension injury, lumbosacral sprain/strain and cervical, dorsal and lumbar subluxation complex. Based on these findings, treatment was initiated and continued through March 1994. Like her husband, Mrs. Birt began treatment at Boch Chiropractic on July 16, 1993. Her diagnoses were very similar to those of her husband, including cervical hyperflexion/ hyperextension injury, cervical, dorsal and lumbar vertebral subluxations. Mrs. Birt's treatment continued through April 1994. The Birts requested first party benefits for the above- referenced treatment that was provided by Boch Chiropractic. Because the treatment was inordinately long, State Farm requested a review of both cases by a peer review organization ("I?RO"). The I?RO ultimately referred the cases to Mark Cavallo, D.C., in order to determine if the treatment that had been provided was reasonable and necessary. After reviewing both Mr. and Mrs. Birt's cases, Dr. Cavallo opined that treatment for soft tissue injuries was justified fo~ only a three,month period of time. 2 Based on established medical literature and his experience, Dr. Cavallo indicated that Mr. and Mrs. Birt reached a point of maximum medical improvement on October 13, 1993, and October 15, 1993, respectively. A copy of Dr. Cavallo's expert reports concerning Mr. and Mrs. Birt are attached hereto, incorporated herein and marked Exhibit "A" and "B," respectively. After Plaintiffs requested a reconsideration of Dr. Cavallo's opinions, the medical reports were again examined by Kevin W. Emmons, D.C. Dr. Emmons gave Mr. and Mrs. Birt the "benefit of the doubt" and indicated that six months treatment would have been adequate for the moderate strains/sprains they both had sustained. Accordingly, Dr. Emmons opined that only the care and treatment rendered through January 13, 1994, and January 15, 1994, was reasonable and necessary. A copy of Dr. Emmons' reports concerning Mr. and Mrs. Sirt are attached hereto, incorporated herein by reference and marked Exhibits "C" and "D," respectively. In view of the foregoing, it is submitted that State Farm's denial of benefits after six months of treatment was reasonable and appropriate under the circumstances. II. APPLICABLE LAW. The question at bar is whether the care and treatment at issue was reasonable and necessary and related to the underlying motor vehicle accident at issue. Necessary medical , 3 . . .."..',.,........."..,,,. "i"'''' ~ , ~ " Exhibit A 121'5-"161994 HARRIS80RG ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT ,JUI~ 2 ~ 199'1 RECEIVED A comprel1en.t1 vo Peer Revi.w O'1anwdon ~fled by l.hc Commonwealth of PCIln.ylvanJa A1".r: DiCKY PASTOR, R.N. RE: WADi BIRT eL: 38-6593-131 0/1: 7/9/93 6/22/94 RECONSIDERATION REVIEW REPO~ Dear Ms. Pa.~or: For the purpose of this review, I have utilized the following records: PI~sc: Reply To 1. APPLICATION POR BENEFITS 2. AUTO EST~ WITH PICTURE 3. ER BILLS, 7/9/93 4.,RECqRDS OP,DR. BOCR - REQUEST FOR RECONSIDERATION AND REBUTTAL - X-RAY REPO~S, 7/15/93 AND 9/1/93 - CONSULTATXON, 7/15/93 - EXAMs, 1/15 , 12/8/93 - ACCIDENTAL INJURY REPORT, 7/14/93 - TREATMENT RECORDS, 7/13/93-3/23/94 - SUPPLEMENTAL REPORTS, 1/21/94, 1/26/93, 11/12/93, 10/4/93 - BILLINC, 7/13/93- 1/21/94 - REPORT DATED 7/14/93 -'LE~~~" OF 12/17/93 TO STATE FARM - MUSCLE,TESTING REPORTS - CONSULTATION SHEETS, ROM WORK SHEETS - PEER REVIEW OF MARK CAVALLO, 4/18/94 According to the records, on 7/9/93, this 30 year old male was the driver of an auto that was struck in the rear by another vehicle. He complained of neck and back pain after the accident and went to an ER but was released on the same day. He preeented to Dr. Boch on 7/15/93 with complaints of low back pain and right shoulder pain. There was also radiation reported into the right arm and leg. Examination revealed signs and symptomn consistent with a cervical and lumbo~acral strain/sprain. Treatment in the form of R~C~/,v. 'Ju. ~O 'II 2 J 119.1 eRe 9/1/93, C 26161'1, Bro3d $1. P,O, 80. 1119 un'ldale. PA I94J!i~1~-:7 lZl'3~3"19"" p.a.. WADE BIM', PAQB ~. m4nlpulatlon, and phYSiotherapy was instituted on a frequency of three time. per week and appeared to average on~. a week by the last visit on 3/23/94. This patient W&8 put on disability for several months during the ~ourse of oare, so I don't think that his ocCUpation 8S a truck driver can be 8aid to have continually exacerbated his condition. I can find no reason then, for the extensive amount of treatment rendered in this ~a8e. The documentation submitted does indicate a strain/sprain to the cervical and lumbar areas, and while the patient perceives neural deficits, there are no diagnostics to show that such 8 condition exists. While it wouldn't be proper to order such testing in the first month or two, if the patient is not improving, as was the case here, then it would be appropriate. In my opinion, the documentation does not support the length of care, especially since there appears to be little improvement in the patient's complaints in the eight months that he had been treating. I don't agree with the first review, stating that 90 days would be sufficient, as his radiQgraphic reports indieate long term spinal degenerative effeets. This could hamper progress. However, there did not appear to be any change in the program to COu~ter the patient's lack of progress. The addition of closely supervised exercise would have been an asset. A change in technique might have been also. This is speculation, but since the treatment seemed to remain the same for so long, I can't agree continuing it beyond a reasonable period would have been appropriate. As stated, there are findings that indicate more care would be necessary, and the patient should have the benetit of that doubt. However, since nothing seemed to change in response to treatment, I cannot agree that more then six months treatment would have been necessary. This is an average length for moderate strain/sprains. Maximum improvement in this case should not be later then 1/13/94. Dr. Boch did not give any additional information regarding this case, meaning, he did not state why he thought the treatment length was reasonable. He did not write a separate letter of this Claimant, but named the claimants names togather on one rebuttal. lZl~7361S1?" P.05 HARRISBU, ..JUN 2 :i 19t RECEIVEC WlDJl BIRr, PACS ':DII. Thank you tor letting IIIe N of .ad.ul1ea iu this aa... "'-- ~immcm~ b.c. ~ JtWE: ma exhibit B ..., 11."."~ _.in...', lUl' ,U':'Cl,D @ IZl~736199" ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT A'l"r: UCla PASTOR, R. N. u: CA'l'BY BIR'r CL: 38-6593-731 D/I: 7/9/93 RlCONSIDERA~ION REVIEW REPORT Dear M8. Pa.toJ:: P.II? mRR~ A comprohMsi'~o ~ · $ Peer Rlvlew ~~~ cMifIed l)y lE~ eo Commonwealth of Pennsylvania 6/22/9. For the purpose of this review, I have utilized the following recorda: 1. APPLICATION FOR BENEFITS 2. AUTO ESTIMATE WITH prcruu 3. ER DILLS, 7/9/93 4. RECORDS OF DR. BOCH _ REQUEST FOR RECONSIDERATION AND REBUTTAL _ X-RAY REPORTS, 1/15/93 AND 9/1/93 _ CONSULTATION, 7/15/93 _ EXAKS, 7/15 ~ 12/9/93 _ ACCIDENTAL INJURY REPORT, 1/14/93 _ TREATMENT RECORDS, 7/15/93-4/1/94 _ SUPPLEMENTAL RiPORT, 1/21/94 -'BILLING, 7/15/93-3/4/94 _ REPO~ D~D 7/16/93 _ MUSCLE TESTING REPORTS, ROM WORK SHEE'rS According to the records, on 7/9/93, this 22 year old temale was the passenger of an auto that was struck in the rear by anoth.r vehicle. She complained of neck and back pain after the accident and went to an ER but waB released on the eame day. She presented to Dr. Bach on 7/15/93 with complaint8 of low back'pain and left shoulder pain. Her low back pain was the. main c~mplaint and she stated that there was no neck pain on that day. She relates that she hns "^d low back pain on an on and off basis since November of 1992 when she was pregnant. Driving and standing aggravate it. . . RECEIVED JUN 2 J /994 eRC ..... Examination on 7/15/93 ahowed a 5'4" 221 pound female with no discernable cervical problems. The exam sheet did noe lise PleJs. RCl)ly r" C :616 S. Broad Sf. PO. 80. 1119 Lansd.J.le. P:' \'J~lJ)Jl1 :: :0)6 PoI.plc A u:nuc lioddcn 1I...hu S.., Jeney Oa035 :1 )1&3 8.bcocl< 81,d. Suire ifl PlllSbu'ah, PA 13~)1 'U."lM..J,(Q.I lZ15736199.. P.IIS HARRISBURG "..,. 2 ~ 1S94 RECEIVED CA!rBY DIRT, PAGE TWO. any abnormal findings. The Illlllh.1r region revealed some p08itive findings such as ~emp'. and slight low bac~ pain with the SLa bilateral. The patient was assessed as having 8ustained strain/sprains to the cervical and lumbosacral spinal regions. Treatment in the form of! manipulation and physiotherapy was instituted on a three times or so per week basis on 7/17/93 and remained at a similar level to the last date in the file, 4/1/94, a total of almost five months. This amounts to around 111 office visits, and according to the patient's symptom reports, there 1s little to no improvement. In the first review regarding this case, it i. stated that the patient should have reached MMI within 90 days and that ehe could have handled any other symptoms with home carBo I disagree with 'parts of that review, however, there ia nothing in this file to substantiate 111 office visits over an eight and one half month period for what appears to be a moderate strain/sprain to the affected areas. Dr. Boch has written a response to the first review, but in it he only criticizes the reviewers credentials and opinions, he does not in any way try to defend his actions regarding this patient's care. Although the latest codes on the treatment notes show "6" for the last month, whereas these had been "8" or "9", the objective findings column is still stuck at "8", meaning I assume a 20 , rate of improvement in those findinga. I see no change in the program in response to the patient's lack of progress. The x-ray findings that are being listed as objective findings are for the most part long term vertebral disrelationships, as these are "wedge effects" that take a considerable time period to come about. The facets, discs, and other supportive scruceures must accommodate in order to give that radiographic appearance. If this happened all at once, then the result would be severe tissue tearing which would preaent much different physical findings then chat given in this case. Utilizing these as objective findings for the purpose of long term treatmene does not seem reasonable for the injuries sustained in the accident of 7/9/93. However, as the patient does possess these deficits, treatment cannot necessarily be limited to whae would be termed a minor injury, 90 daya or so. ...'U!l."......._,.."'.,. It:" "","_uu @ exhibit C ;, . . . . . . I' , . . . . I - HARFlIf'_ .JuO,.{'" t. NAy U f , 10" "', . Fi~f",", A comptl/Wnw./lI f: 0 ,.., R.view OraianiUlion CIltiI1ed by the Commonweal'" 01 Pwnn.ylvani. ~RC) Consolidated RehabiUtation Company CONFIDENTIAL REPORT Apil II, 1994 RECEIVE/J AfJR 2 6 /994 CRC R.E: Wade Birt FILE NO: 38-6'93.7) I ... CIA: 1/9/93 A comprehensive review of the Ibove r.r.rlllCed lIIe Iw been completed with &ltIntion to evaluete and delermine if chiropractic care was eppropriall and medically nec:awy. ne following documentation was submilted fot my review: I. Application for Benents 2. Estimate of Auto Repair 1I0nB with PictUre of Vehicle 3. Invoice ITom the Emergency Room ofCarHsle Hospital 4 Records from Bach Chiropractic Clinic. dated 7/13/93 through 3/22/94 HISTORY. This history as related in the records reveals that this 30 year old male was involved in a motor vehicle accident on 7/9/93 The records state that while thiS claimanl was driving his motor vehicle. and was at a complell stop. in !urn another automobile struck the rear of the vehicle claimant was traveling in According to the records this claimant presCl1ted to the emergency room of Carlisi. Hospital following the incident where the claimant WIIS ellamined. diagnosed as having sustained spr,"," NOS There exists no records ".tin!l.hat .his claimant had o~pel1.nced any Iou of consCIousness. nor sustained any fractures ITom the incident of 7/9/93. P1n~C'l(o:;ph I'll ::I\II\~. Aru&IJ .0;. i"O 8m 11Iq l';I1'\dJle. V" ly..&..IlI.tJI!:7 +~I~I'lq'1.~l~O ;" ~.'( i :' ~ I '''17. :,l~'J . ;ilJ^"t.ple"vtn~ Haddon Helin" .....t... Jtne.., 0100' '~\H~.111" r:".'( l~j ~~7.q:7~ ~ J Ilj$ B~bcock Bh'd. SUII. ., Piusbur,h. P.-\ 1~:~1 1.'ZI.1M.....'q.,l r...",.&i;lJM.l1.n ",1UHlsaUFlQ ''111 r fJ J 139', RECEIVED PliO 2 Wad. Bitt Subsequently, this claimant prnented to tho office of Bach Chiropractic Clinic, on 1/13/93, where it was noted that upon examination the following diagnoses were rendered to this claimant by this facility: cervical hyperflextionlhyperextension injury, cervical neuralgia, lumbosacral sprain/strain, and cervical, donal and lumbar subluxation complex, Based upon the above diagnoses a treatment regimen was implemented at Boch Chiropractic Clinic consistini of physiologicaltherapcutics. along with manu&1 manipulation of the 5pine. From a review of the medical records, it is noted that this claimant initiated care at Bach Chiropractic Clinic on 7113/93 and continued through 3/94. It is unclear through the recordJ submitted for my review if this claimant continued to receive care at Boch Chiropractic Clinic beyond 3/94, In answer to your correspondence dated 4/12/94. the following is my professional opinion concerning your qu~tions: \. REVIEW OF RECORDS TO DETERMINE IF ALL CARE RENDERED BY BOCH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR MV A INJURIES SUSTAINED ON 7/9/93. IF EXCESSIVE, PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT. If the claimants complaints, mechanism of injury and history of the a~ident as presented are correct, this claimant initiated care at Boch Chiropractic Clinic on 7/13/93, for treatment of injuries sustained in a mva which o~urred on 7/9/93. It appears by the file available for my review that chiropractic care rendered to this claimant at Boch Chiropractic Clinic was appropriate, reasonable and necessary in the initjal months of care, Treatment consisting of physiological therapeutics and or manipulation for soft tissue injuri~ is usually justified for a 3 month period of time, At which point, a home based rehabilitative type program consisting of theraptutic stretches and exercises could be incorporated effectively in returning the patient to nonnal function as well as to help prevent against any aggravation/exacerbation in the future. There exists Iinle compelling evidence suggesting that the ongoing use of office centered physiologicaltherapcutic modalities and or manipulative therapy, beyond this time period, is more efficacious than a home based program consisting of heating, stretching and exercise, Funhermore, I am unaware of any subspecialty consultations and or any advanced diagnostic evaluation studies concerning this case. In fact, an article written by Vert Mooney, MD, in the Journal ofMuscuJoskeJetal Medicine. September, 1989. states. ",,'.;IJ,j\: ./ti( 1;.5 1994 REceIVED Page J Wad. Bin with reprd to the treatment ofaoft tiuu. injuria, .Currently, mlll&sement ia fOClUed on active care whicb does not emtel:hronicity SlCOncWy to prolonged rest, dependenq' on pauive modalities, or patitnt expectations ofunresolveabl. disability. Several pulive treatment modalities can make the patient feel better briefly, but tha soal of traatment i! to return the patient to nonnallUnction. Among the modalities that arc unwarranted, because they do not l:Orrespond to this goal of normal function, are protonsed chiropractic nanipularion and physical therapy modalities such u ultra sound, hot packs IInd bie-feed back. The goal of therapy is to enhance nutrition to the soft tissues of the back, including the disc. This is generally accomplished with an exercise program aimed at improving range of motion and, if prolonged activity has resulted in weakness, strengthening.. Bued upon the above principles along with the documentation presented for my review concerning this case, it is my professional opinion that this claimant had reaehed a point of maximum improvement of lUrther in office therapeutic care ineluding manipulative therapy at Boch Chiropractic Clinic by 10/13/93. Progress notes submitted for my review from the treating l:hiropractic physician failJ to document that this claimant was making any further improvement with the treatment regimen which was being implemented. Furthermore, it should be noted that according to the documentation, this claimant underwent approximately 45 visits at Boch Chiropractic Center through to my recommended MMI date of 10/13/93. It is my professional opinion that this frequenq' of treatment was more than a sufficient amount of care for the treatment of this claimant's alleged injuries sustained on 7/9/93. Rather, it is my professional opinion that a home based rehabilitative type program consisting of therapeutic stretches and exerl:ises, coupled with home heating techniques, would have been appropriate in and ofitsclf beyond 10/13/93, to increase strength, flexibility and endurance as well as to help prevent against any aggravation lexacerbation of the alleged injuries sustained on 7/9/93. There exists no lUrther objective clinical documentation submitted for my review from the treating chiropmctic physician of Boch Chiropractic Clinic supporting the neceS3ity or need of continued ongoing chiropraetic care beyond 10/13/93. Therefore, any and all care rendered to this claimant at Boch Chiropractic Clinic beyond 10/13/93 cannot be construed as treatment which was appropriate. reasonable or necessary for the treatment of the alleged injuries sustained on 7/9/93. Additionally, it is my professional opinion thatlhe use ofl:ol/cold packs (97010) as performed to this claimant at Both Chiropractic Clinic was appropriate and reasonable for a one month period of time. At which point, this claimant could have pC!rformed this therapy effectively at home for the same therapeutie benefit. The comments contained in this report are my professional opinions concerning this case based upon the documentation submitted for my review Thank you for allowing me to review this case. "'" "I 0 U/7{: I.'MT U J 199~ RECEIVED P~I' 4 Wade Bitt nher uailtancl, please feel free to conllCt our office, Me/smt 1;';.-' ... .1.". ,.,.. _." ~" ,,,,. \:;J .' exhibit 0 '.)t.oI.'Hl; . . :"fA f I' . .) ,':, - ~RC) ConsolJdated Rehabilitation Company RE~:IV,?i) CONFIDENTIAL REPORT A comprehensive p..,r Review Oraaniution certified by Ihc CommonweaJlh ot Penn.ylnnil . April 11, 1994 RECEIVED 4P/r' t 0 199~ CRC RE: Cathy Silt Fn.E NO.: 31-6593.731 CIA: 719193 . RECEI/;t..;;:,... 4PI/ ...... < 6 1994 CFiC . A comprehensive review of the above reterenced file has been completed with attention tl) evaluate and determine if cbiroprac;tic care wu appropriate and medic:ally ncc~ulry. The following documentation was submitted for my review: 1. Application for Benefits 2. Estimate of Auto Repair along with Picture ofVehic;le 3. Invoic;e from the Emergency Room of Carlisle Hospital. dated 7/9/93 4 Records from Boch Chiroprlctic Clinic con~i~ting of history, exam, re-exams, progress notes and invoic;cs. dated 7/16/93 through 4/1/94 ffiSTORY: This history as related in the records reveals that this 22 year old female was involved in a motor vehicle accident on 7/9/93. The records state that while this claimant wu a passenger in a motor vehicle. in turn the vehic;le claimant was traveling in was at a complete stop while another automobile struck the rear of the vehicle claimant was traveling in. According to the records C :ala:-;. 9'00. Sl. PO. Ilo. 1711 l:anwi~JI, p", 19.u6.0127 '1<\ QQ'1.' 1 'In : :OJd MJpl1 A venue H_nIfClcJlU Sew hene., IJAOH ,~)Ql <.41.<1 1.1 ::- llU 8.bcock 81,. 1wu: II PiIUblUsJ'!. p-, Ij;31 ,II'" I"""........ . . . l1~klll'" '. 'J.., 'TAr: . J.J !:: ',/1' ., RECEIVEr) Pase 2 Cathy Birt this claimant presented to the emersel\q' room of Carlisi. Hospital followinl the incidlllt wllere the claimant wa. elWlli.ncd, c1iqnoacd as having sustained .prain NOS. There.xisu no record. sutinlthat thi. claimant had expcrlenced 1l1Y loss of consciousness. nor sustained any ft'acturca from th. incident of 7/9/93. Subsequently, this c:laimant presented to the office of Boch Chiroprac:tic Clinic, on 7/16193, where it was noted that upon examination the followin8 diaposes were rendered to thi. c:laimant by this facility: cervical hyperflextion/hyperextension injury, cervical. donal and lumbar vertebral subluxations. Based upon the above diagnoses. treatment regimen was implemented at Bach Chiropractic Clinic consisting of physiologic:altherapeutics, along with office visit/manual manipulation of the spin.. From a review oflhe medical records, it is noted that this claimant initiated care at Bach Chiropractic Clinic on 1/16/93 and continued through 4/1/94. It is unclear throuJh the records submitted for my review if this claimant continued to receive .:arc at Boch Chiropractic Clinic beyond 4/1/94. In answer to your correspondence dated 4/12/94, the following is my professional opinion concerning your questions: I. REVIEW OF RECORDS TO DETER.'WINE IF ALL CARE RENDERED BY BaCH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR MV A lNJUllIES SUSTAINED ON 1/9/93. IF EXCESSIVE, PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT. If the claimants complaints, mechanism of injury and history of the accident as presented are correct, this daimant initiated care at Boc:h Chiropractic Clinic on 1/16/93, for treatment of injuries sustained in a mva which occurred on 7/9/93. It appears by the file available for my review that chiropractic care rendered to lhis daimant by Boch Chiropractic Clinic was appropriate. reasonable and necessary in the initial months of care. Treatment consisting of physiologic:allherapeutics and or manipulation for soft tissue injuries ia usually justified for a J month period of time At which point, a home based rehabilitative type program con~istin8 nf therapeutic stretches and exercises could be incorporated effl:CtiveJy in returning the patient to normal function as well as to help prevent agaiJUt any aggravation/exacerbation in lhe future. There exists little compelling evidence sUllllesting that the ongoing use of office centered physiological therapeutic modalities and or manipulative therapy. beyond this time period. is more efficacious than a home based program consisting of heating, \!retching and exercise. In fact. literature suggests that the prolonged utilization of tI/'HHI"Rl'R .j I r. 1'1.4 r I).J '., '~" 't REC~/VEO Pas. 3 Cathy Bitt p...ivo modaIitles and manipulation may actually promote chronicity of symptoms, sccolldary to disuse, deconditioning. and patient cxpectatiolU ofunresolveable disability (Vert Mooney, MD, The Journal ofMusculoalc:eleta! Medicin., September, 1989). Ifsigniticant /i.anctional disability penist" the most eppropriate course of treatment Is an active and aggressive exercise and stretching program. Additionally, I am unaware of any medical subspecialty consultation and or any advanced diagnostic evaluation studies conc;erning this case. Based upon the above principles along with the document.tion presented for my review concerning this case, it is my professional opinion that this claimant had reached a point of maximum improvement offunher in office therapeutic care including manipulative therapy at Boch Chiropractic Clinic by 10/15193. Progress notes submined for my review from the treating chiropractic physician fails to document that this claimant was making any /i.arther improvement with the treatment regimen which was being implemented. It is my professional opinion that a home based rehabilitative type program consisting of therapeutic stretches and exercises, coupled with home heating techniques. would have been appropriate in snd ofirselfbeyond 10/15/93, to belp increase strength, flexibility and endurance as well as to help prevent against any aggravation lexacerbation of the alleged injuries sustained on 7/9/93. There exists no further objective clinical documentation for my review from the trc:ating chiropractic physician ofBoch Chiropractic CUnic supporting the necessity or need of cominucd ongoing chiropractic C3l'e beyond 10/1 5/93. Furthennore, it is my professional opinion that the use of hot/cold packs (97010) as perfonned to tbis claimant at Boch Chiropractic Clinic was appropriate and reuonable for a one month period of time. At which point. this c1aimam could have perfonned this therapy effectively at home for the same therapeutic benefit. The comments contained in this report are my professional opinions concerning this case based upon the documentation submilled for my review. Thank you for allowing me to review tbis case. Should you require /i.arther assistance, plcase feel free to contact our office. Sincerely, ac", I~ p Diplomate American Academy of Pain Management Cenified rndependent ChiropracticJMedical Examiner . provisions ot 51797 are attached hereto as Exhibits "A" and "B" respectively. As the foregoing history reveals, there is no dispute that state Farm challenged the reasonableness and necessity ot the bills at issue by contracting with a PRO in accordance with the provisions ot 51797. Despite this fact, plaintitts commenced the instant action seeking, inter AliA, attorneys fees pursuant to 75 Pa. Cons. stat. 51716 and 51798. For the reasons that follow, these claims must be dismissed as they fail to state a claim upon which relief can be granted as a matter of law. II. STATEMENT OF QUESTIONS PRESENTED WHETHER THE SPECIFIC PROCEDURES AND REMEDIES SET FORTH IN 51797 PRECLUDE, IN THE CONTEXT OF AN ACTION FOR FIRST PARTY BENEFITS, A CLAIM FOR ATTORNEYS FEES PURSUANT TO 75 Pa. CONS. STAT. 51716 AND 51798? (Suggested answer in the affirmative) III. ARGUHENT THE SPECIFIC PROCEDURES AND REMEDIES SET FORTH IN 51797 PRECLUDE, IN THE CONTEXT OF AN ACTION FOR FIRST PARTY BENEFITS, A CLAIM FOR ATTORNEYS FEES PURSUANT TO 75 Pa. CONS. STAT. 51716 AND 51798. State Farm's Preliminary Objections seek to dismiss - 2 - . Plaintiffs' claims tor attorneys tees on the basis of the provisions of 75 Pa. Cons. stat. 51797(b). Specitically, 51797(b) encourages an insurer to utilize a PRO by limiting the Plaintiff's potential recovery where the matter has been referred to a PRO, to the outstanding bills plus interest. Although Plaintiffs contend that state Farm is liable tor attorneys fees pursuant to 51792, recent decision by the superior Court dictates that this Court reach the opposite conclusion. In Barnum v. state Farm, __pa. Super__, 635 A.2d 155, (1993) the superior Court specifically stated as follows: Where the insured denies a claim without fir~t Obtaining a PRO evaluation, the claimant may immediately commence a court action. If the court finds in favor of the claimant, the insurer becomes liable, in addition to the amount of the claim, for counsel fees, costs, and interest at the rate of 12'. Moreover, if the court finds that the insurer acted wantonly in denying a claim, treble damages may be awarded. Conversely, if the insurer uses the Pe~ Review Droaess. its Dotential 1iabi1itv is limited to the amount of the claim D1us interest. (Emphasis added). It is anticipated that Plaintiffs will argue that because the holding in Barnum ~as overruled by the Supreme Court, the above quoted statement that use of the Peer Review process insulates an insurer trom extra-contractual liability should likewise be disregarded. This argument is without merit. The Barnum court concluded, consistent with the language of the Peer - 3 - Review statute, that where the process is used, reasonable foundation for an insurer'. denial exists. The holding in Barnum that was overruled dealt exclusively with the question of whether a claimant is required to seek reconsideration of a PRO review in order to seek redress in the courts. The supreme Court has now answered that claimant need not seek such reconsideration in order to obtain judicial review. However, this holding has nothing whatsoever to do with the logic or precedential value of the above quoted statement. The Barnum Court's observation concerning the legal effect of an insurer'. decision to submit a claim to a PRO is entitled to great weight and should be followed by the Honorable Court. This is particularly appropriate in this instance. Here, records were reviewed by the Peer Review Organization. The records revealed that Plaintiff was treated and released from the emergency room on the day of the accident. The Carlisle Hospital records reveal a diagnosis of a cervical/lumbar sprain. There was no evidence of loss of consciousness or fracture. Plaintiff was followed by a chiropractor one week following the accident. Plaintiff, a five foot four inch two hundred twenty- one pound female presented to the chiropractor in question with a chief complaint of low back pain. She indicated that she had also had low back pain on an "off and on" basis since November 1992 when she was pregnant. Both the initial Peer Review report - 4 - Exhibit A l",\ ,.,,) OMNPMEDICORP Deoember 1, 1993 ,w.~__ Mr. Bill Weitzel state Farm Insurance Co. 115 Limekiln Road P.o. Box 257 New Cumberland, PA 17070 RE: Wade Birt OM/: DME 01-07-2750A CL/: 38-6593-731 D/A: 7/9/93 AGE: 30 years Dear Mr. Weitzel: This letter contains the initial determination of reasonableness and necessity pursuant to State Farm Insurance Company's challenge in the case cited above. Omni-Medicorp, Ltd. is certified as a comprehensive peer review organization by the Pennsylvania Insurance Commissioner, and this determination is rendered pursuant to the provisions ot PA Act Six of 1990. State Farm Insurance Company challenged the reasonableness and necessity of durable medical equipment not yet provided to its insured pursuant to a prescription signed by Thomas A. Boch, D.c. We note that all documents provided by the respective health care provider(s) pursuant to our request by certified mail of September 30, 1993, were made part of the permanent record of this determination. Our determination of reasonableness and necessity is as follows. I am in receipt of your recent request for review of the above case. I am aware of your concerns regarding the reasonableness and necessity of the prescribed durable medical equipment. I am in receipt of the fOllowing photocopies of records for review: 1. An undated, signed "To whom it may concern" letter from Thomas A. Boch, D.C. consisting of 4 line statement described a "waterbed" as part of the therapeutic regimen for spine rehabilitation of Wade and Cathy Birt due to their auto injury. There are no other elements of criteria for a Certificate of Medical Necessity as required by the HeFA/Medicare/AHA Standards. __ _. ,', "'..-' Omni MeditDrQ. lid. i Irl~ll!J,,.,tf:C( : :J'.l ;"/. ~ ' .i:~:fr ;! ;)' l - -.. ........10. ... ...: oJ J L I..: I ~ . ., :: :'..: '::';'/"':- RE: Wade Dirt Page Two ~. An incomplete unsigned narrative 8ummary (incomplete, 1 page only), dated July 14, 1993. This indicates that the patient's symptoms had been pre8ent for 4 days prior to a treatment by Dr. Boch. 3. An abbreviated, short-form, number coded progress page (1 page) with dates from July 13, 1993 to July ~6, 1993. 4. An unsigned "supplemental report" (form type) dated July ~6, 1993 with a nonspecific destination. !S. An x-ray report dated July 13, 1993 referring to the cervical, thoracic and lumbar vertebral spines. 6. Carlisle Hospital Emergency Room bills without medical statements or records. 7. A Commonwealth of Pennsylvania Police Accident report of July 9, 1993 which indicates that the above patient's car was rear-ended and that he and his wife were transported to Carlisle Hospital by ambulance. Both cars were able to be driven away from the seen of the accident. ~ This is a 30-year-old male whose motor vehicle was rear-ended (Dr. Boch's forwarded medical records never stated the patient's age). The single page of narrative background reveals muscle spasm of the cervical, thoracic and lumbosacral areas. The narrative is incomplete and the progress notes are poorly descriptive of anything more than muscle strain and sprain. ~ Based solely on the forwarded documentation, it does not appear to be reasonable or necessary to purchase a "waterbed" for the treatment of the above injuries.* *Due to a lack of appropriate physician documentation, it appears that the above item (a waterbed) is for comfort and not therapeutic utilization, as indicated in HCFA/Hedicare guideline:!. Further justification from the attending physic~an as to unique therapeutic efficiency of this item would be indicated. There must be evidence of a definite vartebra1 instability with objective neuro1oqical morbidity; the severity and frequency of the subjective and objective findings tor a specific condition must be clearly stated to necessite a specific type of bed or mattress. -' -, :" 2 '"'., 4 _ J 'wi .... - - ,.. .,.- '"" 1'/;";.:) ,. ..-- RE: Wade Birt Page Three As express above, bas.d upon the torwarded documentation, it do.s not appear to be reasonable or necessary to purchase a waterbed for the above specitic injuries. Theretore, we have determined that the reterral rendered by Thomas A. Boch, D.C. for a waterbed i8 not rea80nable or necessary a8 detined by PA Act sAx ot 1990. Under the provisions of PA Act Six ot 1990, the insurer, the provider(s), and/or the insured has thirty (30) days trom the date of this determination in which to request reconsideration ot this initial determination. Should you wish to request reconsideration, please direct your written request for reconsideration to amni- Medicorp, Ltd., attention: PRO Review Coordinator. If additional intormation becomes available and a further elucidation is required, please do not hesitate to call upon my oftlce. Sin erely yours, //J ,..:1" '~ . If. ~ , l/!P'/ tJf.CJlf.//{f<r ulian M. B~ M.D., F.A.C. . Independent Consultant JMB/hjs :-:." I' :....:' .: .''; . .... ~ 2 ,...) ~':"J \,j ,~... !~I.~"::."'j:'::;) Exhibit B .1'tl.n,"...I)t,HI,...., '.....'l..'~ "". "",c.'UIlI (i) - IfARru<> ' '!U{J"f"J ;\",1 {; !~( I. )' ./, 15J'J. ~ Consolidated Rehabilitation Company R€,.. A comprehcnl1~ 11/2 f) Pur Revi.", Orlan'Ulion ccnined by iIle Common1Nuhh o( Pcnn.ylv""i~ CONFIDENTIAL REPORT April II, 1n4 R~CEIVEO AJJR 2 6 1994 CRC RE: Wade Bin ... - . FILE NO.: ]1-6'93.731 DI A: 119/93 A comprehen.ive review of the above referenced file has been completed with Utention to evaluate and determine if chiropractic: care was appropnatelnd medically necessary. The {ollowing documentation was submitted (or my review: 1. Application for Benefits 2. Estimate of Auto Repair along with Picture ofV.hicle ]. Invoice from the Emergenc:y Room o{Carlisle Hospital 4 Records from Bach Chiropractic Clinic. dated 7/13/93 through 3/22/94 HISTORY: This history IS relaled in the records reveals that this 30 year old male was in\'olved in a motor vehicle accident on 7/9/9] The records stale that while this claillUlllt was drivinS his Irlotor vehicle, and was at a complete stop, in turn another automobile struck the rear o{ the vehicle claimilllt wu traveling in. Accordins to the records this claimant presented to the emcraenc:y room of Carlisle Hospital following the incident where tlte claimant was examined. diagnosed as having susuined sprain NOS There exislS no records $lalina IhallNs claimant had ",,~rienced any loss of consciousness. nor sustained any fractures from the incidenl of7/9/93. PTft.~ .'pl)' To ! !61ft:-t. Bro.... ~l. )In 8u.I 1119 Utl4dJlc. ,,'" IlJ..&.UI.fnc11 t ~I~I Y91.2J~O h~.'( l: r'l ?'J1. ;'1~" I I 10JA .\41p'- A'f'CftUC Hoddon HltlhlS New 't",., 0100' t6Q!Jl "41.~11.a r-....'( IN)91 ~..'; 'l:1~ , ) liU ...., 11>4. 51&'" '1 Pill'bufah. p" U:)1 dlll.1M-l.CW r,,'I( ,.al':i~l'l.;'.n .""H/J~;8ur~(: 11.\1 " .j 13~h R~'" -..EIVEO Pqe2 Wade Birt Subsequently. this claimant presented to the office of Boch Chiropractic Clinic. on 7/13/93, where it wu noted that upon examination the followinS diagnoses were rendered to thi, claimant by thi, fac:iJiry: cervical hyperflextionlhypermension injury, cervical neuralgia, lumbosacral sprain/strain. and cervical, dorsal and lumbar subluxation tomplcx. Based upon the above diagno.., a treatntent regimen was implemented at Boch Chiropractic Clinic consis1ini of physiological therapeutics, along with manual manipulation of the ~pine. From a review of the medical records, it is noted that this.tlaimant initiated care at Boch Chiropraaic Clinic (n-l!IJ/~ and continued throu~ 3/94. It is unclear through the records submitted for my review rfihi, claimant continued to I'tceive care at Boch Chiropnctic Clinic beyond 3/94. In answer to yow correspondence dated 4/12/94. the foUowinS is my professional opinion concerning your questions: \. REVIEW OF RECOIWS TO DETERMINE IF ALL CARE RENDERED BY BoeH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR MV A INJURIES SUSTAINED ON 7/9/93 IF EXCESSIVE, PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT. If the claimants complaints, mechanism of injury and history of the accident u presented are correct, this claimant initiated care It Boch Chiropractic Clinic on 7/13/93. for treatment of injuries sustained in a mVI which occurred on 7/9/93. It appelll" by the tile available for my review that chiropractic care rendered to thi, claimant at Boch Chiropractic Clinic was appropriate, reasonable and necessary in the initial months of care. Treatment consisting of physiological therapeutics and or manipulation for soft tissue injuriea is usually justified for a J month period of time. At which point, a home based rehabilitative type program consisting of therapeutic stretches i1Pd exercise, could be incorporated effectively in returning the patient 10 normal function as weU as to help prevent agilinst any aggravationleucerbation in the future. There exists little compeUing evidence suggesting that the ongoing use of office centered physiological therapeutic modalities and or manipulative therapy, beyond this time period, is more efficacious than a home based program consisting or heating, stretching and Clr.ercise. Furthermore, I am unaware of any subspecialty consultations and or any advanced diagnostic evaluation studies concerning lhis case. In fact, an article written by Vert Mooney, MD, in the Journal of Musculoskeletal Medicine, September, 1989. nales. .; ..;1.. ; : .~( i, .; i394 ;r:SI:IVEIJ Page 3 Wad. Silt with roprd to the treatment of 10ft tis",e injuries, .Currently, manasemm is f'ocuaed on active cite which d~s not create c:htonicity s.condary to prolonaed rest, depcndenc:y on passive modalities, or patient npec:tations ofunresolveable disability. Sev.ral passive treatment modalities un make the patient feel better briefly, but the loal of treatment is 10 return the patient to nonnal function. Among the modalities lhat Ite unwarranted, because they do not correspond 10 this goal of normal function, Ite prolonled chiropractic: manipulation and physical therapy modalities such u ultra sound, hot packs and bie-feed back. The goal of therapy is 10 enhance nutrition to the soft tissues of the back, including the disc. This is generally accomplished with an exerci!ltl program aimed at improving range of molion and, if prolonged activity has resulted in weakness, strengthening." Buod upon the above principles along with the documentation presented for my review conc:eming this case, it is my professional opinion that this claimant had reached a point of maximum improvement of further in office therapeutic care including manipulative therapy at Boch Chiropractic Clinic by 10/13/93. Pr.;lgress notes submitted for my review from the treating chiropractic physician fails to document that this claimant was making any further improvement with the treatment regimen which was being implemented. Furthermore, it should be noted that according to the documentation, this claimant underwent approximately 4S visits at Boch Chiropractic Center through to my recommended MMI date of 10/13/93. It is my professional opinion that this frequenc:y of treatment was more than a sufficient amount of care for the treatment of this claimant's alleged injuries sustained on 719/93. bther, it is my professional opinion that a home based rehabilitative type program consisting of therapeutic stretches and exercises, coupled with home heating techniques, would have been appropriate in and ofitself beyond 10/13/93, to increase strength, flOJtibility and endurance as well as to help prevent llainst any aggravation /exacerbation ofthe alleged injuries sustained on 7/9/93. There exist, no further objective clinical documentation submitted for my review from the treating chiropractic physician ofBoch Chiropractic Clinic supporting the necessity or need of continued ongoing chiropractic: care beyond 10/13/93. Therefore. any and all care rendered to this claimant at Bach Chiropractic: Clinic beyond 10/13/93 cannot be construed as treatment which was appropriate, reasonable or necessary for the treatment of the alleged injuries sustained on 7/9/93. Additionally, it is my professional opinion that the use or hot/cold packs (97010) as performed to this claimant at Bach Chiropractic Clinic was appropriate and reasonable for a one month period of time. At which point, this claimant could have performed this therapy effectively at home for the same therapeutic benefit. The comments contained in this report are my professional opinions concerning this case based upon the documentation submitted for my review. Thank you for allowing me to review this case. PRAECIPE FOR USmG CASE FOR ARGDLE:'IT l~huc ~ cyp....nccen md lubmicted in duplic:lce' TO nu: PROTHONOT.UW, OF Ct:~IBERL.",,'iD COL":'IT":': Ple:ue :ls1 the ....iclun m~ecer far :ile ne:t:: - 1"1 :..l\.,; ~,. T:I:U .-IllUmtne C JIllI Ii '-- .-Il'jUmtnl C>lur: -------- -- CAPTION OF c.-\Sa (tnUZW o::lpdon mllll be sl:lled in t\1ll) WADE BIRT and CATHY BIRT (Pl:llnCliO ('>~ ;: c:... ."X.r-,. c.Q ~~inr ;2i'-!]~ ~ ~l.-= ' ,...z-tO ... cc~...t ~no:! w xo'Zn ~ ~c::.nm :x ,.,-4 =s . ~ ''" STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (~iend:mc) 'I'l. 5693 :-;>l. C' .1 Action - LAW ~Ir~ :~~ I. Sl:lce matlu to ae :1:1Ued ([.1.. jll:1intiirs malion far ne... :n:1l. deitllclalll's demurrer 10 .:omlll:1in1, tlc.j: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT :. Idmdty .:ounsel wile wUl U1\le .::.se: (a) faljll2inI1.l'f: GRIFFIE & ASSOCIATES, Fred H. Hait Address: 200 North Hanover Street, Carlisle, PA 17013 (b) iar deienc!:1nl: REYNOLDS & HAVAS, Rolf E. Kroll Address: 101 Pine St., P.O. BOK 932, Harrisburg, PA 1710S-0932 3. I will nOlify 311 parties in writinS 'Vl~ ;':Va day' :.'m :!us .::ue n:.s ~eer: ll.sUld (or U1\lm.nc. _ 4. Argum.nt Court Date: December 7, 1994(,l ~/./.~ ~ Call of Argument List Date: t:::!).. ~~ / . "-~J - ' 1..\llom.:' far Plaintiffs, Wade Birt and Cathy Bitt) CIlld: November 10, 1994 pR.-\ECIPE FOR L1Sn~G CASE FOR ,-\RGC:'tIE:-lT l:'tlust be [ypewntten JlId submicted in duplic:lCe I TO THE PROTHONOTARY, OF CC:'oIBERL.",,'iD COt:~TY: Pll:ut:isl thl wtl/un m311lr ier :hI nl:tt: - ~ P:1.Tn:1i .-"1umdnl CJUlt Ii ..... .-"'jUmdnc C~UI: ------------------------------------ CAP'lION OF C.-\SE (dnUR <:3pdon musc b. 1C31ld in tUlI) WADE BIRT and CATHY BIRT (J?lilndant) ....0 il!l: ",'" :II "V:a:: ::~ ""w-. "I, :r.trwl'l':; c.o ;r::.'''''Tln, ",)~:..x''-""J ~>>:~o .c.. c:laz.... ...... "'no", ~ -"xn &AI ~C:~'" ~ "". - ::J70 .. ~ (p13il1 tiiO VSo STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY 'IS. 5693 S~. Cld Action - LAW t9~ I. SlaCI manit to b. :quId (L i.. ,Wndirs motion ior nlW tnlli. dlilllllaac's demurrer 10 .:om!,L1int. die.): DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT :. Identify ,:cWlSII who wlil :quI .:3.11: (3) ior ilL1inciii: GRIFFIE & ASSOCIATES, Fred H. Hait Address: 200 North Hanover Street, Carlisle, PA 17013 (b) fordliln,13nt: REYNOLDS & HAVAS, Rolf E. Kroll Adrtress: 101 Pine St., P.O. Box 932. Harrisburg, PA 17108-0932 3. I W11l1101liy :111 partin in wnlin~ 'VI:'W ~.vo d3Y' :.'l:1l :Ius J:ue n3.1 ::un Usud for :qumdnl. _ 4. ) ::::.:;'A;::::.:.~::,O;;;~~~ ~~ 1,.'llorne:' ,or Plaintiffs, Wade Birt and Cathy Birt) Dllld: November 10, 1994 , ROLl I. KROLL, IIQUIRI -.. ......._ Court 1.0. 10. 472U In_DI a MAVAI A Prol_I_1 Corporotlon 101 PI". IIr... P... 0111.. lox 93~ ..rrllbur., Penneyl,..I. 17Ioe.~~ 101""'"",,: '''''' l71n 2]6,3200 171 n Z3,HI863 A.........., lor O.lorden" I'ATI 'ARM '11URAMCI v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-5693 WADE BIRT and CATHY BIRT, PlaintHfs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Detendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAEC:IPE TO EHTER APPEARANCE TO THE PROTlIONOTARY OF CUMBERLAND COUNTY: Kindly enter my appearance as counsel tor Detendant, State Farm Mutual Automobile Insurance Company. DATE'I;/:fY By: . ~ COMMONWEALTH OF PENNSVLVANIA COUN'rV OF CUMBERLAND In the Court of Common Pleas of Cumberland County, Pennsylvnaia No. 94-5693 Civil Term Complaint in Civil Action Law and Notice , t,_ t ! t ! i SHERIFF'S RETURN Wade Birt and Cathy Birt VS State Farm Mutual Automobile Insurance Company 1 R. THOMAS KLINE, Sheriff, who being duly sworn according to law, says, that he made diligent $earch and inquiry for the within named defendant, to wit. State Farm Mutual Automobile Insurance Company but was unable to locate them in his bailiwick. He therefore deputized the sheriff of York County, Pennsylvania. to serve the within Complaint in Civil Action Law and Notice On October 17, 1994 , this office was in receipt of the attached return from York County, Pennsylvania. . Sheriff's Costs: Docketing Out of County Surcharge York County 14.00 5.00 2.00 29.44 50.44 :;2~u- d ~b [;it. OMAS KLINE, Sheriff p. yay 10- -94 me $ Sworn and subscribed to before th is ..,Ij"<!:- day of a:~~t...~ 19 9'1 ,A.D. -) - LftL..... O. n.wu~ ,4'<7- Prothonotary ..c -. (I):a M r.I .. ~::i ...1 M H CII ...1>0 . 1Il 2 CII el p.,(I) !;of III ~ ! t; Z l>:'" +J ~ 0 zz ~ H'" ~ l: g ~ ~ ~ ow 1Il..... III J en " w ~ ~p., W .oJ ::> '0 z g w j << 0 << :I; !;of >oc: < l: M ~ < 0 . :x:..... ell ~ I W ~ ... ell .. U>O ...:l !;of '" ...1 .... tl ~ ~ ~ <( ~ z .; !;of H <..... <>ow .. ;z 11. . << c..z > up., ::lZC M ~ < w w :l: :> 0::> H ~~ m >< z X ~ t " .., :> z II! 0 U '0 . a << z III ell ~ I-<U c: III :1::0 o ~ J 3 w II: .... '" :> U . lA.I I: << 3 " ::>0 '" ~rl CII M ii: < ~ Z J < OZ '" I-< t ~ l&. 8 ! z u::'j 1Il l>: II: u I H c..z M ~ Cl N fAl~ .... 1Il < ~ :X:fAl '" fAll>: I-<~ r.I 1-<::> Milt . 0 <(I) :s~ ~R 9 ~ I-<Z . : '!' _..I..t!H06"....-...,.......". OIII~.o:l.""'~Il'~"'" 1)~C o~ ~ WADE DIRT AND CATHY DIRT, Plaintifts I I IN THE COURT or COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA No. 94-5693 CIVIL TERM CIVIL ACTION - LAW vs. . . STATE rAJU( MUTUAL AUTOMOBILE INSURANCE COMPANY, Detendant . . . . PLAIJI'l'II'I'S' BRIBI' III OPPOSI'1'IOII 'fa PRlLIXINARY OBJBC'l'IONS Thie is an action in which P1aintitts seex to recover payment for reasonable and necessary chiropractic care rendered for injuries which they suttered in a motor vehicle collision on July 9, 1993. Defendant is Plaintiffs' auto insurance carrier. The relief sought is payment of First Party Medical Benefits as described in the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. ~!1701 et seq. This action arose after Defendant submitted the charges in question for review by a Peer Review Organization (PRO), pursuant to Section 1797 of the MVFRL. The PRO determined that the treatment was not reasonable or necessary, whereupon Defendant denied payment. Plaintiffs then requested reconsideration of the PRO's determination pursuant to Section 1797(b) of the MVPRL. Upon reconsideration, the PRO once again decided in favor of Defendant. Plaintiffs then filed this action. In addition to payment ot the First Party Benetits themselves, together with statutory interest and costs of suit, Plaintiffs seek an award of counsel fees pursuant to Section 1716 and 1798 of the MVPRL, which provide, in relevant part: 1 Section 1716 Benetit8 are overdue it not paid within 30 day. atter the insurer receives reasonable proot ot the amount of the benetits. It rea.onable proof is not supplied as to all benetits, the portion supported by rea80nable proot is overdue it not paid within 30 day. .fter the proot i. ~eceived by the insurer. OVerdue benefits shall bear intereat at the rate of 12' per annum trom the date the benefit8 become due. In the event the insurer i. found to have acted in an unreasonable manner in retusing to pay the benefit. when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a rea.onable attorney tee based upon actual time expended. 1984, Feb. 12, P.L. 26, No. 11 !3, eftective Oct. 1, 1984. Section 1798 ee) ...i. for reasonable tee No attorney's tee tor representing a claimant in connection with a claim for tirst party benefit. provided under Subchapter B (relating to motor vehicle liability insurance tirst party benefits) or a claim for catastrophic loss benetits under Subchapter F (relating to catastrophic Loss Trust Fund) shall be calculated, determined or paid on a contingent tee basis, nor shall any attorney's fees be deducted from the benetits enumerated in this 8ubsection which are otherwise due such claimant. An attorney may charge a claimant a reasonable tee based upon actual time expended. eb) Unreasonable refusal to pay benefit. In the event an insurer is found to have acted with no reasonable foundation in refusing to pay the benefits enumerated in subsection (a) when due, the insurer shall pay, in addition to the benefits owed and and the interest thereon, a reasonable attorney fee based upon actual time expended. 2 Defendant has tiled preliminary objections to that portion ot the Complaint which seeks to aBsess counsel tees against Detendant, contending, based upon Barnua v. stat. ~ara, ~30 'a. Superior ct. ~I', .35 A.2d 155 (ltt3), that an insured may seek an award of counsel tees against the insurer only in those instances where the insurer has tailed or retused to pay medical expenses without SUbmitting a timely request tor PRO review, and that where an insurer uses the Peer Review Process, its potential liability is limited to the amount ot the claim plus interest. Defendant's argument is without merit. First, Barnua w~s a case in which the Court dismissed the insured's claim altogether, because Mr. Barnum had tiled suit without first seeking PRO reconsideration. In so doing the Court relied heavily upon its prior decision in TeraiDato v. pennsylvania wational Ins. co., ~22 'a. superior ct. 92, '18 A.2d 1032 (1993) which held that the Peer Review Process in Section 1797 was mandatory, and that an insured who did not avail himself of reconsideration was foreclosed from proceeding to court at all. That flawed reasoning was expressly overruled by our Supreme Court on August 4, 1994, well before this action was tiled. Terainato v. pennavlvania National Ins. Co., 'a. ____, '45 A.2d 1217 (1994). Therefore, since Barnua haB been overruled and its reasoning specifically disapproved, any reliance upon that case is of questionable validity. Second, there is no statutory support for Defendant'. position. While Section l797(b) (6) does indeed provide for a nondiscretionary award of counsel fees to a prevailing p1aintitf 3 in the situation where an insurer has denied payment without 8eeking PRO review, nowhere in Section 1797 is there language to the etf~ct that claimant may never recover counsel fees if the insurer has submitted claims for peer review. Nor do Sections 1716 and 1798 contain such a limitation. Unlike Section 1797(b) (6), which mandates an award of counsel fees for a specific violation of Section 1797, Section 1716 and 1798 are general provisions which allow, but do not require, the court to assess counsel fees against an insurer which is found to have refused to pay benefits without having a reasonable foundation for doing so. This is a determination that simply cannot be made at the pleading stage in a case such as this. It must await a final determination on the merits. Even though Defendant has used the Peer Review Process, that dOGS not necessarily rule out a finding of no reaaonab1e foundation for refusing to pay benefits. For instance, Insurance Department regulations contain standards for when an insurer may utilize the Peer Review Process. 31 Pa. Code !69.52 provides: (a) A provider's bill shall be referred to a PRO only when circumstances or conditions relating to medical and rehabilitative services provided cause a prudent person, familiar with PRO procedures, standards and practices, to believe it necessary that a PRO determine the reasonableness and necessity of care, the appropriateness of the setting where the care is rendered, and the appropriateness of the delivery of the care. An insurer shall notify a provider, in writing, when referring bills for PRO review at the time of the referral. 4 (b) An insurer shall make a referral to a PRO within 90 days of the insurer'8 receipt ot sutficient documentation supporting the bill. An insurer shall pay billa for care that are not reterred to a PRO within 30 days after the insurer receives sutticient documentation 8upporting the bill. It an insurer makes its reterral atter the 30th day and on or betore the 90th day, the provider'S bill for care shall be paid. (c) During an initial determination, a PRO shall request in writing from the provider the recorda and documents necessary to undertake its review. The PRO shall afford the provider an opportunity to discuss the case with the reviewer and to submit information to the reviewer prior to a final determination. (d) A PRO's initial determination shall be completed within 30 days after the receipt ot requested intormation. When a provider fails to respond to the PRO's inquiry or provide requested information, a PRO may commence its review 30 days after the request tor intormation is postmarked. It additional intormation critical for the outcome of the determination is submitted by a provider or requested by a PRO, the 30-day review period may be tolled up to 20 days for the information to be received and taken into consideration. (e) A PRO shall provide a written analysis, inCluding specitic reasons for its decision, to insurers, which shall within 5 days of receipt, provide copies to providers and insureds. Without the written analysis, the review may not be considered an initial determination and unpaid provider bills Subject to the review shall be paid by the insurer. An insurer may request another initial determination if the request is made within 90 days of its receipt of the bill and supporting documentation in accordance with subsection (b). The written analysis of the initial determination shall notify all parties that they have 30 days from the day the initial determination is effected to request a reconsideration and the process and location for tiling a request for reconsideration. ,', t ",-+ '::1~:'i;I:)1 ;-~:.';;-ri~ -~. '-"-' . _.~~~t.;':~~;t " ~ , .,:Jlfi ...".f!fI ,'~:~~ .:~~ (I: 5 (f) A PRO's initial determination re8u1ting in the denial of a provider's claim, in whole or in part, shall be effected by a licen8ed practitioner of like speciality or a licensed practitioner with experience providing and prescribing the care subject to the review. (g) Absent a chanqe of condition, a decision of not medically necessary by the PRO i. basis for an insurer to deny payment for similar services to the same insured resulting from the same accident. The insured or 8ubsequent provider has the riqht to request a reconsideration of the initial determination for subsequent treatment or services received or provided. (h) An insurer, provider or insured may request, in writing, reconsideration of the initial PRO determination within 30 days from the date the initial determin&tion is effected. A PRO may set a reasonable charge for a reconsideration but the charge for a reconsideration may not exceed the charge for the initial review. An insurer shall make full payment of the charqe for reconsideration to the PRO, but the amount paid for the reconsideration shall be ultimately borne by the party against whom a reconsideration determination is made. (i) A reconsideration shall be effected by a licensed practitioner of like speciality as the provider subject to the reconsideration review. The licensed practitioner effecting the reconsideration review may not be the same licensed practitioner who rendered the PRO's initial determination. (j) A PRO shall afford the party requesting reconsideration an opportunity to discuss the case with the reviewer and to submit additional information identified by the reviewer before making a final determination of the reconsideration. (k) A reconsideration shall be based upon the information that led to the initial determination, new information found in medical records or additional evidence submitted by the requesting party. 6 (1) A PRO shall complete a reconsideration with 30 days after receipt of the information 8ubmitted under subsection (k). If additional information critical for the outcome of the determination is submitted by a provider or requested by a PRO, the 30-day review period aay be tolled up to 20 days for the information to be received and taken into consideration. A PRO shall ewnd writtsn notification of the reconsideration determination to the insurer, which shall within 5 days of receipt provide copies to providers and insureds. The written notice shall contain the basis and rationale for the reconsideration determination. (m) Upon determination of a reconsideration by PRO, an insurer, provider or insured may appeal the determination to the courts. (n) The insured may not be billed during the peer review process. If State Farm is found to have made an inappropriate PRO referral, or if the PRO did not follow the mandatory procedures, it is not inconceivable that state Farm could be found to have acted without a reasonable foundation in denying payment. Furthermore, there is considerable question as to whether PRO's are in fact unbiased and objective. Several Courts, including the Pennsylvania Supreme Court in Terminato, have determined that many times they are not. ~, e.g. Sloane , Ronca, "High Court Ends Handatory Peer Review Reconsideration In Auto Cases" 11 P.L... 713, August 29, 1994 (attached) and cases cited therein. Again, if development of an evidentiary record were to disclos. bias on the part of the PRO used in this case, it could be 8aid that Defendant denied payment without having a foundation for doing so. reasonable 7 In short, Defendant'. Preliminary Objection. must be dismis8ed. There is no statutory or caselaw authority which would forec1o.e asse88ment of counsel fees as a matter of law, and a determination of whether State Farm aoted without a reasonable foundation in this case must await development of an eVidentiary record and a determination on the merits. Respectfully submitted, GRIFFIE , ed H. e Jennifer C. Deitohman, Esquire 200 North Hanover street Carlisle, PA 17013 (717) 243-5551 8 CsTll'Mn P.liU-.I 11 nw 111 MONlJA'I.AI..'GIJST J'. 19M P'vo1troTl\,II..""., 1..-..WUu.'. II ~ High Court Ends Mandatory Peer Revie\v Reconsideration in Auto Cases Justices Cle,,, a Less Expensive Path to Common Pleas Court for Claimants .pSt"..lm...', . 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Qbj.-cllon, cl"ml'" IIUI Ih. In,,,...nu CommWldM'.' a.JuluiON ,,"ltft (11''1' """ld.. dId noI ".,.htlllt II )I 'a. Gkf.- '69. " ~.. ., ..,... .dllllnlu"".. ,,"'.d...- b, w,Ir,". pnxtdlU'if wl'lc... ,'''' IUI~'" IMuI-- ~hcoIuw...,_ IN,. ..,.""'1....... I.CD""".UUG" !ufGI. .pp~'1. .,,'" comp.'" Ihu ".lid blf,(1I ,",in. NCUUIuJ ann ,,, IP'Jlft.II. c:.o.a- ~ul'lllld, J1 10 JO ."101I' ,,-., fin,.parl' lwnffiu a" b,h.l( 0/." 'leu G;.un. '-'It "ndend b, Ih. Common "n. Ittlured iftWttd. cOIIld conlnel d'''ll, Thrr PfUllrm IhI, .".. wwla fDARJ Gauu .w..Iin. wlIh Ih" 'IIUI. _"h I pftI .-,.. OI'rmtlllOn IPRO) (IrcumllllWn W'U lft.al I pft'tICl~'1 bill A 1.'jOfll, of It,,", op,nlon. I'lfld 10 dcurmi,..,. I" ,n -inll..1 cktCfJlli".. far err-lIm.n, (0.""4 0, .1,. ltu,"1 II'lM 1M MOI\/ItdtnllGl1 prGCfU ... ~ (,Oft:.( iIlIIUU,....,j.' l'fWdinl tfftf,,","1 all.rlnl".flGII m., ,,"'. 1M." ~.'\d.t ra.nd.t'of"J'. Nr.~"h~lnl. th. SIlPf'!Iar ~ medicall, I\f(fWf"J'. 11.000. ~. 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"' 1101 ,......1-'.- .....,. .-,..p, .. _". .. braw.'" .,.11'lII , rut' _"- _a tI"..I_, III IUt~" thM 1M tin,," ........ I_ ...., IIw Mkftfl. " ., I"" .4'1"'" 1111 ., hr. ...IIC, Of """"'''''''', .... ,hi OWfltfthi,. ,..... ,Ien II 1'..fnI allhe 'lthll'l. ,ft IIOiI i.......... .. ...... .....a. ..ill bt n.... h.lllii.. Ill'*' ,... ol4 1..1. U)-H). bu. ,hi _WIll....' COMi" tMil'll,. ....,,1 ...... wilholM ItwI, ....111. ,he .<<1'(1 eI ......... Ob..loual,. (III'" 01 Mlia" ..i.I". .:-, adwf .tMft 1MIItt1f7 relief' llue_ II 1qII1- ..it ,.ltl'fl or .-tIll "' IIIIw1' I"''' dim. '.. .. pmlNlllIlllty or ,.."., eM"," I" (wctt .. bftu" allOlI,nu) 11I11 ,.qui" Jp.ClrlC .111.. Com,...,," I"'t ...... ",.Iuplt cau"D. tDIl'lt ,J .heh IN, Peer Review . nI\Il.... bod,- Sinn Ihf inau,..n" com. pili' 111<<11 lh, ,ao IN.' -III ,....". lhe cla,m, PROs "'.. . .uon. (""ncl,1 l"'I1lIl.' 10 .pptu flU in the ".., cI It... illlURnct lam~n, _lIh _hch IhI'y (onll'1ltl. GlheIWU', Iht inwnnn com. pany willi'" ilt bwilWU .I....him... . ;r,- ( ..ltCl Ih. .ao Ill.. .iII "..il. Iht .I,un. The inlUnM. campi"" jllilitJl, ,.,. Ib, '10 lo' III unic... Thr In'1I11'd pl"1 no roI, '" ,hi' ..IKllon pIOt1"IL Qb.....a,. PlOt hi,., . llroft' ICC'" .n4 ,...1_ conniClln. ","ical nnanclAl",""u'" IG .ppNf 1I.i. in IIw ...id'lIC1' .H.rt" b, In in."r,d a. .,11 ol Ih. "UIIUlI" camp"'. ,.-1,," .. ,." 011'" P"'""" Ulllillt Othrrwll', IN lNuruc1 corn~n, .111 III tdmu..."au... '.tftCJ.' PRO &ilt\p1, rab III bullnaI ,Iw.~, on 1M DIM RJCKT O. A"IAL IMda ,It "pml. lo.n In","" 'M hM hind. Ih. ,RO it ruM lonnr,," .111'1 !to IUIUtOl" 1..ltMHU, 10 fftOl., di.. how IIw llU"m ,..... IIw '11.0 bl''II\111 pir'AII" If i. imporunc la 1'1011 IMt pula: Itua .illllOl ,Ifft1 111 NIII" b\lIUW1L lhe Supmnf eo.,n hII implitdly "Il~ TlItu(ol.. ,h. Sllprtm. Co.n Conlol'qllClId,. IIw '10 dort NIt hut Cit'd lhe CQI'iU'pC lhaC cllm: _ould be .. I'Ipft'UI'd In OpllUOIIlMI ,'RO.-...W II\t ChUI(IIf1IIlCl ol.ft ,"d,pud.nl ,i.hl of .ft IN,.,I 10 Common P1..11 ft01 be "'Ill"'" 10 lilt .."'" iv-licW dd". bl;xl, ro. .""h the Lr,illll"" w,",ld COllll '.om .n, .d...... P<<' ,....it'_ "I"" ,Ilord,d .o.n .dmlnillflli... ..II JYdil'''' ~," dn.nniMllon- Ttllllud bftn wb,..ct 10 'II.M,. 'n tddlllOft, 'M mort' .1IIpol'- Cln,I,. 11'1I Suprnnt Coun il ,_,. mUlCh lonw'''llon,1 lnal)'1illn connre-. un' I,. ltw Solp'""" Coun. lot the lint ,hll' pt'fr "....,.... 011_"'111101'1 ...net" han _lIh pr'Of hlll"10n bofroll ,hi 111IW......II'.........n..~ ,-~.An,~.~,..lCUl... .~....A~J...W~q.. IM...lMtJ e1. nO IIndtt Ad" ~ .~......,. da.lma &Del' ., An , br 1M Wtdiul Socllt' .ncI (1JUn tal'" 1"1. .... hJlwdrac'UMftl it INld b, Ih.1 illlllranu compln,. OlM tuth h..hhCVI.n:JUpL .... MWI...liry rrqlluwd oi a Nee.IiNn ~" '1'0 mtlUnl, rIlUld nac be In Ioddm"", If ahould br nacf'd IhaC " caNpt(YOUII, .blrnl In 11'1I ntnCf'1ll'- lo,,,idlf'C"d. ~lW\Ilf'll~ bod,. s.... ,h.o. Itw Sa.ipmnt Coun mo.n11t'd In , fuoc- .' . ,\lid ~bltal"""p bn........ . ,ao tnd In H,.I'" /thJII./ C,.'I<' .. J,." F.f. 1'IOft' Ih.rol MM. TllmlMlo Iud .ha tN.l- l"IoI"".~ T"'r,.("r. J....ill bppal' h..,..u C... A.D. 1991.l91IC.' 111'ljrd _hnlw1' pao _Id bt' .",Iho- ~rd r,am H.-..n _ C.-.I "'"".., 1,..nlllul Coulll' OK. ., 1992). WMII ri..d 10"",,~ lml",",,' fot In ""wi 1..-... CA. 419 ,. Supn'" I", 161, JudpJohlll. ""iln Mil'" Ihlc: canl'lt"Ctian 10 ,n ,ulomobil. I('(,dr:nl, 61' A.2d 71. '1(1992). .htth quartd. !bl' (OlIn.... 1M '101 U IMf'I"" Tht Coun ".It'd IMIII did not h,~ 10 ~ II J,.,. F.,.I.J"'" Ca, 140 I, 1'I1I~ 1\1" ru IIw INIII""IC' cam~- tddrr:u Ihe a"..li., ilWf II Ih'l C1~ PLJ. 71, 12IC.' AIII.htft, Coun., ntft.. . ~ It\u.II br pnnnlltd 10 b<<,yM' al ill rl"lOllIlIon bUN an Ihe 199~)' .UOCllllr d.nlrd _ PI. _, politr 11'1. 111'IIO",hlp b.....II Ih. cunup' oI,n"'WlIOft alUIIUCory..me-- 6J'J A.ld 119(199)1. .hrmll Jud,. I. Inllllln ,nd 1M 'lOI 10 inlur. Ih. dIG. 11u, IUut' oI.twthrt '" NIt a prct Sunloll W'HI(k, hom AII..".n, pnxWuft m,nrkrN by Lrlidllurt an 1'r'I.... can dI'Inmil'lllhr uUIAI coruwc- CGatn'l'. who hat wnlt"" ntf'ftll....' on not twin. utrd la Iht diud"",,.. 01 lion btt",",n an KCtdr'" .nr.: Il'I"IlmI'nl \tw P"' I'r'I1I"W pronu. I,,"d: IN 100"Rd and ~Ift Uti Pf'O"idcn .. bat a11'1"1d, t.rt'n 1M IUb,..., ol'f"'P'UIIl. _A ,ao i... a 11I'\I11"11 bod,. W'ftilt ..j INul, I_I.... (1lIftl~ pi..... coun dc~a. . '10 cannac '- crwtIlI'd by at br OIhn. SIt tho, C......... _ Jill" F..... '.U '*". t'lf"t'I'Il or .hlCh hut held IhA, a "IM aRihlled .il" IhI' iNllrtft(.",""" '.L J. 12 (C.P. All..".", Co"nl'), ,10cannoll eM1t'lmU'lt ul&Mlirr. ... pin, HI'.. (Qdc SIc. 6I.l(d)). .hllt- . .twfttnJ...... WrulCi. Mllrd: III aM,.. JUl" F_. 6)1 A,2d 64. pro'I'ldn lot lhe In'II"111nn tompl"' 10 ~Unda Itl\a lc.i.u.lioI'I' '11.0 it not (,.. Suprr. C.. 199"1, Slnior J..d... C_.-4"..,.II Fee Dispute c___Jo-'.J 1ft diipUlG 11'1' ~ la 'fOl"n- u,., btr ,UG(tIUOfI1 by IN bOoud. 1M INJIM'lry ~ .Uw corn",",1I ea OW' 1"ln 01 ,roI...ioul CO"dlKl do nOI 'IIm .hll "" adW,.11I po'flll pnlln- ~ontl -.olllllll." or.,nIUIION. like bu Ul(Xlllioru, 11110 11"1 01 aort"U,.rAlu ,nlllln. tnd Uw7 do nor InnUorm COftoo "nau.a pIl"11 pnxttdi"" illlO .,..nd6- lor'J' olf'lCW M.... NIl Of 1I'"l1l1(IMMwd ft'.WwIYdIlt.Upracrd..m....- Tht hi.1'I court rrflt"trd IOMNwci..' ,r,umtftC dill the "1111" la 'ppl, 1M ,blOluu "i..il... _o",ld IIndlllllin, pwbhc poil" f,9Oft". IhI' "JIOI1iA' 01 La.,..., milConduc. ..... -ad dllCoun.. IhI' rrpotllll. 01 "'"'I'" 01 UlI,ropt" rmloIDlaJt.la&IOoCl'1I0""'~ IICu-lrd.td thll pDI"l. but "id lhal il ... intpplic,blr UIICI' P"I"" _" I'IOf . 'rnN,lnnll'UOI'nry'. -nw pruurdln. ," the inlLl"1 mtHIt .. d..I, p"nll ,nd n111d Oftl, ,freoCl IhoIe wl\o ConMlllld 10 il.'" Plr,aI'.at .rau. ~Thll b.III, Ih. CII., . "..1 tldlCI buom.. ob.ioll' .. onc.. Appell". AllaIn" PII'I"'. _.. noc . membe, OllM AII..hllI, Counl' Bu Auocl.uon. IIG' ... hi' , P,nn"III.ni. ",..,...1 H. Nul\lr rnpondcod 10 not lon~ IInled 10 th. plocndill.I, bUI "Ih.. mid ,n 'pp,ap"'" ulIon In I 'UIf coun 10 rftOI.. IN dilpuCl. . . . ~I'ot . pnfllr.. 10 IpPI, 10 a p,i....'. pnJllUIONI pI"If.rrr.- pnxndin. . IhI- '1I1"'t'd. o. II\t mpond,nl In 1M P""'......I"I. "'",.. COfU,lU in 10"'" -., 10 btin. . pin of IhI- p'oe......I".I. AI IIUf ..nln. IN opillton.l'I'ItOftin. 1"'1 lhe 'lcomm."dtlIO" ollh. S..p"",, Coun Dllfliplillu, 101'" ...llIi". to IIbrlf'llion oi lrn dhpu,n did ftOl', ill lhi. inlla,,", CINt'fftt IhI Illu~ ..oIU""" bI, ...~ion infO' P"'""mtnul mil- ., ..,. Tht "",,,,,1""11 It, ~iltion tnd ,II COU"I, bar ..IOCII"Oft. in It. 1"1t trY -non_ICl..,nlrd: lhal i.. nwrnbt,~ ,hip I' "01 "ccu"r, 10 ."bi.CI .h. 11.,1' III 1'" l"lho,i" .llh. II"" s..,f'ImI'Coun. 1IIh,l. IhI'lhl"IIIM 10. rnrdilliOft 0/ . cmTl"trN:" ",11 PL"" 1:. ,raNi",",. 'N ~ "",n i( ~dull lhe ComnlOll...hh I.. Iior ,hi .11II,.......... abw plin, .. tit toirwdl. The rlI'ftli... ." rJ I"'" c....".... ... bftrI....... br IIw Su,..-"" c..n III in otdn to be""'. I. 1994. bu. Ii'll 0I'II6tt don "0' ,,,0(' whflh.. Ih. .m."". 1M"" IppI, co ICtlftftI ('It"""in. Oft lhl. dI,. 1M' Oftl, IG Itlow ..a"'" It....r..r..,. 1_ GIll ,nor "...11C'. i. ....W ...., IhI. a.. .mendmene oIlhit I"", .-ltI ,ppI, ,a .111'1"..... pendln,_ IIw tff..- ,i" d.u, Tlwmon, ......." AMort Jm Stpt. 1.....nill.uirl(O"'u"'fWl'lI p". .hl'lI'lO, m., cak. ,d..n.... ollh,... .m.ndfodrukt. Allo.n..,. m', Iha tH pl"1t'd 10 1..,,\ I~C .r,lt Sorrc. I, ant f'lO .......rr hulO .,..t 11'11'1'I' t"('in 01 in.trm,.lo. ,i.. b.cu.. lul. 400' hll bt-tn 10 UMndtd. · John G. IIrcaII,. If'I"'llIn. liar 1M ....jaI~ it, on . T~I..'''I'pt .pp'ol 11111'. ,"tI'd in diCl. ,hat. nndin, Ihat I"IU"" we.. IIIJI tllo,,'" fa .he occident .... limp, .lIOIhtt _, oltn'in. .t., .h., .1'1' no' ml'diull, IItU""" Howt'f"I'f, J\Id,. KII. JIanIlllion. in 0 (anClIffln. arlnion. .u.1'd Ih.. Ihcrr _.. no "'llIlory alol,t-ifJ ..... '''0 to dcunni,. uldlli.., 01 ..I............ ShI tho poinud 0..1 Ihit III'" _.. nn' tHrall tht CO..II ...... cI....(lM'e. .a. onl, Jiel.. n.... IhI' iauf 01 ,.1,'-- tl&I brttll.,.. lot d<<i~ on arwxhl'l J., - . by I he Suptt'1M Caun. .A u.u J:.Jull'lun., MOU -" BA.LM'IaD SYS'nIM~...~' #' Th, SloIpltlll' COIIIII" dl'ci.ion ill T_,UI. .hauld no. mAkt I'" ,...... ''''It'W pnxI'U , lna ....t.... .,teftft IllI(t IN hftllh nl'l' pnl".... _ill ......... a cha". of .ilM -"in, lot lft1II\Iidfn.o rian 0' p'<<......ln. to Co.,,,,,''' ,Int Ca...U 10 ch,lI,n.t "' ........ ifti.I.1 dllumill"ion, The "o'l'idtt anti In'lul"d no Ion." ,ilk. 60 perunc CMMe of 100in. on r'I"COMirkrsliar'l. 1M It"''lIb, incllnin. 1M muhin. ,...... ,idl"lill" In. lIoprrllll, ""lIin. .... rI'Clln.ld.nllon plot"' ._a' .m (I'''' at! inn""..t lOf .he ,..OS .0 make .he procru' IM1'I' bill.... ..,..,. in onIlf 10 cOfllin"" to a"net fa.. _I,h lalYptIl"'idrr, · Ii"...,., 1n.&1. htOl' Ilhr mull brA.."'" tin ol'N DI'I"I"I_ CWftlII.niq ct.. pnxndln.. . 'Ow lourt twirl I"" brill' . I~ 'lIall'lt'f in ,.... Unl..... Srarft. ... .... ,pl'Ciall, 'pP'"i". I" '.n""I..... (lIt'I, i, n~ tM<oI.h .. 1Ubtec. . ..... lon."lin. at""" IG' pri- ~ pYlC pcocft'djll' in -+Melt chi ~'. plC'ldinp .... p'1.iltprl tpi.... ..... IlOftclaimL TIw caun did _ ....... In ..u", .. 10'0'11" .nOl~ who ale ..-bIn f1.... tN, I..ocia.i,,", ,h.. c.......... .tIe ..... Ircdin.t. Uk..i... let NII-, 414 ." npr'I'UI, r:uwt It.,.,... ..... ......... la ptKlIA ifl ~... batt ....... ... IOII'11'd IIw ,",,,1111." bII....,a.ciolll. . ~_. 6/t./8() ....-; ).)(i-+tl-d) ~: ' '., -~{C(I :;; '-///(110 - q :COV' V)({tCf' ->~'~I !foC/{I(l!l/ _ U?~ ~/ ,Pfl.Z-3/'-Ir ,~,AjJYI il It{;{(. tl2/JJjJ '--flu/Il-; /1t1j / Z?7{JI/t . ROL' 11:. 1Ul0LL, ISQUIRI Pa. Supreme Court I.D. No. 47243 RlYNOtDS , HAVAS 101 Pine Stnet poat Ottice Box 932 Harriaburg, Pennaylvania 17108-0932 Talephone, 'ax I [717 ) 236-3200 (717) 236-6863 Attorney tor Detendantl STATB 'ARM MUTUAL AUTOMOBItB INSURANCB COIlPANY WADE BIRT and CATHY BIRT, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-5693 v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPB TO ATTACH BXHIBITS Kindly attach the appended Peer Review Reports identified as Exhibits "A" through "0" hereof to State Farm's Preliminary Objections so that they may be properly considered by the Court. Respectfully submitted, Attorneys for Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Dated:;l}JJ /1il exhibit A 'I' ~"""LI ,.., ';-, OMNP,MEDICDRP December 1, 1993 ,w~_""""" Mr. Bill Weitzel stat. Farm Insurance Co. 115 Limekiln Road P.O. Box 257 Ne~ Cumberland, PA 17070 RE: Wade Blrt OM/: OM! 01-07-2750A CL/: 38-6593-731 0/": 7/9/93 AGE: 30 years Dear Mr. Weitzel: This letter contains the initial determination of reasonableness and necessity pursuant to state Farm Insurance company's challenge in the case cited above. Omni-Medicorp, Ltd. is certified as a comprehensive peer review organization by the Pennsylvania Insurance commissioner, and this determination is rendered pursuant to the provisions of PA Act Six of 1990. State Farm Insurance company challenged the reasonableness and necessity of durable medical equipment not yet provided to its insured pursuant to a prescription signed by Thomas A. Boch, D.C. We note that all documents provided by the respective health care provider(s) pursuant to our request by certified mail of September 30, 1993, were made part of the permanent record of this determination. Our determination of reasonableness and necessity is as follows. I am in receipt of your recent request for review of the above case. I am aware of your concerns regarding the reasonableness and necessity of the prescribed durable medical equipment. I am in receipt of the fOllowing photocopies of records for review: 1. An undated, signed "To whom it may concern" letter from Thomas A. Bach, D.C. consisting of 4 line ~:atement described a "waterbed" as part of the therapeutic regimen for spine rehabilitation of Wade and Cathy Birt due to their auto injury. There are no other elements of criteria for a Certificate of Medical Necessity as required by the HCFA/Medicare/AHA Standards. ~mnt Me~i(at'1 .~d. - -.. ..,.. .. .. ....:" ~, ".. .. '.... ...., . . .- - =-", ..___11__ RE: Wade Dirt Page Two 2. An incomplete unsigned narrative summary (incomplete, 1 page only), dated July 14, 1993. This indicates that the patient's symptoms had been present for 4 days prior to a trsatment by Dr. Boch. 3. An abbreviated, short-form, number coded progress page (1 page) with dates from July 13, 1993 to July 26, 1993. 4. An unsigned "supplemental report" (form type) dated July 26, 1993 with a nonspecific destination. 5. An x-ray report dated July 13, .1993 referring to the cervical, thoracic and lumbar vertebral spines. 6. Carlisle Hospital Emergency Room bills without medical statements or records. 7. A Commonwealth of Pennsylvania Police Accident report of July 9, 1993 which indicates that the above patient's car was rear-ended and that he and his wife were transported to Carlisle Hospital by ambulance. Both cars were able to be driven away from the seen of the accident. ~ This is a 30-year-Old male whose motor vehicle was rear-ended (Dr. Boch's forwarded medical records never stated the patient's age). The single page of narrative background reveals muscle spasm of the cervical, thoracic and lumbosacral areas. The narrative is incomplete and the progress notes are poorly descriptive of anything more than muscle strain and sprain. ~ Based solely on the forwarded documentation, it does not appear to be reasonable or necessary to purchase a "waterbed" for the treatment of the above injuries.. *Due to a lack of appropriate physician documentation, it appears that the above item (a waterbed) is for comfort and not therapeutic utilization, as indicated in HeFA/Medicare guidelines. Further justification from the attending physician as to unique therapeutic efficiency of this item would be indicated. There must be evidence of a definite vertebral instability with objective neurOlogical morbidity; the severity and frequency of the subjective and objective findings for a specific condition must be clearly stated to necessite a specific type of bed or mattress. , ,.. ,.. ~ , ~ _ J '.., _ -'''' ,... _ ._ - I. I. ~ " :. _~..J ___ RE: Wade Birt page Three As express above, based upon the forwarded documentation, it does not appear to be reasonable or necessary to purchase a waterbed for the above specific injuries. Theretore, we have determined that the referral rendered by Thomas A. Boch, D.C. tor a water bed is not reasonable or necessary as defined by PA Act Six ot 1990. Under the provisions ot PA Act six ot 1990, the insurer, the provider(s), and/or the insured has thirty (30) days from the date of this determination in which to request reconsideration of this initial determination. Should you wish to request reconsideration, pleas. direct your written request for reconsider3tion to Omni- Medicorp, Ltd., attention: PRO Review coordinator. It additional information becomes available and a further elucidation is required, please do not hesitate to call upon my office. ~in e~elY yours, //1 rI/ # C:A' l1/ ~ ' ~,u"/ 1,ft- .pI. /"ff ulian M. B~ M.D., F.A.C.. Independent Consultant JMB/hj. :M:.'. ......... ..t .. .. '. ... I"'l ;.... ~ 0' I'. .-_.1 ~_I.._J .. . .. ,. . ..-- :~~._~.J_""; - f/ARIl1"_ ,j \.1 I) .,.,." \.t rfi~ I,A' . ( I~ .)' ;.')'4 ,~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT A (omp[i'1.r;;~/V20 Pur Review OrIaniulion c.nined by !he CommonweaJI/I of Pennsylvania April II. 1994 ReCEIVEO AiJR 2 6 /994 CRC RE: Wadi Sirt FILENO.: 31-6593.731 D/ A; 719/93 .. - . ". A comprehensive revilw of the above referenced file has been completed with anention to evaluate and detennine if chiropractic care was appropriate and medically nec:essuy. The (allowing documentation was submitted for my review: 1. Application for Benmts 2. Estimate of Auto Repair along with Picture ofVerucle 3. Invoice from the Emergency Room of Carlisle HOlpit&! 4. Records from Boch Chiropractic Clinic. dated 1/13/93 through 3122/94 HISTORY: This history as related in the records reveals that this 30 year old male was involved in a motor vehicle accident on 1/9/93 The records state lhat while this claimant was driving his motor vehicle, and wu at a complete stop. in tum anolher automobile struck the rear of th. vehicl. claimant wu traveling in. According to the records this claimant presented to the emera<<ncy room of Carlisle Hospital following the incident where the claimant \l S examined. diagnosed as having sustained sprain NOS There exiSls no records stlling Ihallh . c1ai" .nl had a.peri.need any loss of consciousness. nor sustained any fractures from the incident d1/9/9J. I'1n.'. .'pIY fll :611\ N. Rroar,BI. ~o Bnll7l9 !.;n\dJle. JI" 1~.u^.IIK2:' ':1~1""Q~.:1~O .\., I;~~ ')lp.:.l~q i I 203ft Mlp6t Avcnuc HIlldon HCllhll :'It'" JtnlY 0100' 'fJI.)q\ 5.&1.~JU ;-:-".'( IN;.q) ~47.q:~.. . ll.,.....lB'..... 5......1 Pi,"bUflh.'" IS:31 ,ll.h.16ft......'iN ''',\:I.&I:I.'~n.'' 'd/HI/:;i3URr: . . ., . 'il i : "N,. ~ .J !.... ,)...., RECEIVED P...2 Wad. Bin Subsequently, this claimant prOMnted to the ol1lce of Boch Chiropractic Clinic, on 7/13/93, where it wu noted that upon IXIIIIinarion the followinS diapo... were rendend to lhi. claimant by this f&cility: cervical hypert1ation/hyperlXlellJion injury, cervical ncuralai.. lumboACrll sprainI.train, and cervical, dorsal and lumbar subluxalion complex. Bued upon the above diaJllOsos I treatment relimen wu implemented II Bach Chiropractic Clinic consi.linS of physiological therapeulics. alons with manual manipulation of the spine. From I review of the medical records, il is noted that this claimant initialed cue II Bach Chiropractic Clinic on 7/13193 and continued through 3194. II iJ unclear Ihrough Ih. records submitted (or my review if this claimant continued to receive Ufe at Boch Chiropractic Clinic beyond 3/94. In lIISWer to your correspondence dated 4/12/94, the followioS is my profeuionaJ opinion concerning your qUCSliOIU: J. REVIEW OF RECORDS TO DETERMINE IF ALL CARE RENDERED BY BOCH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR. MY A INJURIES SUSTAINED ON 7/9193 IF EXCESSIVE, PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT, If the claimant. complaints, mechanism of injury and history of the accident u presented are correct, this claimant initiated csre at Bach Chiropractic Clinic on 7/13/93, for Ireatment o( injuriea suslained in a mva which OCCllrred on 7/9/93. It Ippear. by the file Ivailable for my review Ihat chiropractic Ufe rendered 10 this claimant II Bach Chiropractic Clinic WIS approprillle, reasonable and necessary in tho! initial months of Ufe. Trealment consisting of physiological therapeutics and or manipulation for soft tissue injuries is usually juslified for a J month period of time At which point, a home based rehabililalive type program consisting of therapeutic stretches and exercises could be incorporated effectively in returning the patient to normal function as weU IS to help prevent ilgainst any aggravation/exacerbation in the future, There exists Iinle coml'eUing evidence suggestina that the ongoina use of office centered physiological therapeutic modalities and or manipulatM therapy, beyond this time period, is more efficacious than a home based program consisting of heating, .tretching and exercise. Funhermore, I am unilware of any subspecialty consultations and or any advanced diagnostic evaluation studies concerning this case, In fa.ct. an article wnnen bv Vert Mooney. MD, In the Journal of Musculoskeletal Medicine. September. 1989. Slales. 'j(. ':]:11. '~r::r'~l"-i) '- ..~.... II c.: I PII' 3 Wid. Bitt with r'pI'd 10 the Ircalmat of 10ft liou. injuria, .Currenlly, mana..menc i. focuMcl on active c'"' whicb doe. not crtll. chronicity I<<.ond.vy to prolonpd rat, dependenq on pauive modaliti... or patitllt IlIpecwions olunrelOlvabl. disability. Several pasaive treatment modaJiti.. can make Ih. patient feel better briefly, but the loal of Ireatment is 10 return Ih. pltienllo hOrma1 function Among the modalilia that are unwarranled, becau.. Ibey do not correspond 10 thi. loal of ROnnal function, are protonled chiropractic manipulation and physical lherapy modalities Nch u ultn 1Ound. hol packs and bio-feed blCk. The goal ofthanpy is to enhance nutrition to Ihe soft lissues of the back, including Ihe disc This is senenlJy accompliahcd with an exercise program aimed at improving "nlO of mOlion and, if prolonsed activity has relUlted in wuJenJCS', strengthening. . Bued upon the above principles along with the documentation praented for my te'lliew conuming w. cue, it is my professional opinion that this claimant had reached a point of maximum improvement of further in office therapeutic we ine1udins manipulalive lherapy al BlXh Chiropractic Clinic by 10/13/93. Progress noles submitted for my review from the treating chiropractic physician &iJs to document tballhis t1aimanl wu making any further improvement wilb the treall11enl regimen which was being implemenlod. Furthermore. it should be noted thai accordins to lhe documental ion, lhis claimant underwent approximately 4S visits It Boch Chiropn~c Cenler through to my recommended MMI date of 10/13/93. It is my professional opinion tJw lhis frequency of treatmenl was more than a sufficient amount of are for the lratment olthi. claimant's alleged injuries sustained on 7/9193. IUther. it i. my professional opinion lhat I home based rehabilitative Iype program consisling of therapeutic stretches and ellCrciscs, coupled with home heating lechniques, would have been appropriate in and oritself beyond 10/13193, to incrcaJe strength, l1~bilily ~nd endurance as well as 10 help prevent against any aggravation/exacerbation of the alleged injuries suslained on 7/9/93. There exists no further objective clinical documentalion 3Ubmitted for my review from the crealing chiropractic physician of Boch Chiropractic Clinic supporting the ncce33ity or need of continued ongoing chiropractic care beyond 10/13/93. Therefore, any and all care rendered 10 lhis claimant at Boch ChiropraC1ic Clinic beyond 10/13/93 cannol be con31rued as treatmenl which WI! appropriate, rMsonable or necessary for the treatmenl of the alleged injuries sustained on 7/9/93. Additionally, it is my professional opinion lhalthe use o(hollcold packs {97010j as performed 10 lhis claimant at Bach Chiropractic Clinic WiU appropriate and re330nablc (or. one month period of lime. At which poin!, this claimant could have performed this therapy effectively at home for Ihe wne therapeutic benefit. The commen!3 contained in lhis report are my professional opinions concerning lhis case based upon Ihe documentalion submitted for my review. Thank you for allowing me to review this case. ., "l.)Ui7r: "'''i' I) j 19.94 =teCCIVeo PI.e 4 Wade Bitt I1her auilUnce, pleue feel tee to contact our office. cSP Academy of Pain Manaacment ent CllitopracticIMedical EumJncr Me/amt ExhitlIt B ..,.I.'...""c1......".., ''''''~''''' ,,,., .,...."", @ 1~1'5"'~61994 HARRISSOAa ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT ..JUI'I ~ 'J 199" RECEIVED ^ comprehensive Pur Review Orsalliudon certified by the Commonwea.1I11 of Pennsylvania AT'll IIcn PASTOR, R.N. Ds WADI DIRT CLI 31.6593-731 D/I: 7/9/93 6/22/94 RECONSIDERATION RBVIBW ltiPOM Dear M~. 'astor: 'or the purpose of thi. review, I have utilized the following reGord.: 1. APPLICATION POR BENEFITS 2. AUTO BSTIMAn WITH PICTURE Ii~C~/"'~(J 3. Ea BILLS, 1/9/93 \/UN 2 J 1994 4. ,RlCQRtlS OF OR. BOCR CIiC - REQUEST FOR RECONSIDERATION AND REBUTTAL - X-RAY REPORTS, 7/15/93 AND 9/1/93 - OO"SUL~A~XOM, 7/15/93 - EXAMs, 7/15 , 12/8/93 - ACCIDENtAL INJURY REPORT, 7/14/93 - TREATMENT RECORDS, 7/13/93-3/23/94 - SUPPLEHiNTAL REPORTS, 1/21/94, 7/26/93, 9/1/93, 11/12/93, 10/4/93 - BILLINQ, 7/13/93. 1/21/94 - REPORT DATED 7/14/93 .'LETTER OF 12/17/93 TO STATE FARM - MUSCLETESTINQ REPORTS - CONSULTATION SHEETS, ROM WORK SHEETS - PEER REVIEW OF HARK CAVALLO, 4/18/94 According to the records, on 7/9/93, this 30 year old male wa. the driver of an auto that wa. struck in the rear by another vehicle. He complained of neck and back pain after the accident and went to an ER but was released on the same day. He presented to Dr. Boch on 7/15/93 with complaint8 of low back pain and right shoulder pain. There was also radiation reported into the right arm and leg. Examination revealed Bigns and symptoms consistont with a cervical and lumbosacral strain/sprain. Treatment in the form of ;'~1C it:;Jj~ ,;"" -: :616 S_ Bro.w:il P,O. 800 1719 un..a.l. P4 Iq..U~..~":1 -: :036 M.plc: "..en.... Haddon KilJI"U ~(W lena'l flAm,. :: 3113 8.bccclr. 81,d, Suil4 " 121!S ':0' 31& 1 'j''). ?1I4 WAD. 81M', rAg '!'WO. DADipulatioft and phyaioth.~apy was iastituted on a frequeaoy of thz.e tt... per _Ie anel .ppe.~.d 1;0 avuage once a week by the last vi.it on 3/23/94. Thi8 patient wa. p~t on di8ability fo~ eeve~al month. during the cours. of oar., eo I don't think that his occUpation as a truck driver can be said to have continually exacerbated hia condition. I can find no ~NaOD then, for the exten8ive amount of treatment rendered in thia ca... The documentation 8Ubmitted does indicate a atrain/8prain to the cervical and luabar area., and while the patient perceive. neural defiCits, there are no diagaoatica to show that auoh a condition axista. While it wouldn't be proper to order such teating in tbe firat month or two, it the patient ia not improving, as was the case here, then it would be appropriate, In IIfY opinion, the documentation does not support the l8Dgth of oar., .specially since there appears to be little improv8D8nt in the patient's complaints in the eight monthe that he had been treating. I don't agree with the first review, stating that 90 days would be sufficient, aa hie radiographic reports indicate long term spinal degenerative eftecta. Thi. could hamper progree8. However, there did not appear to be any change in the program to counter the patient'. lack of progress. The addition of closely supervi8ed exercise would have been an asset. A change in technique =dght have been also. This i. speculation, but since the treatment seemed to remain the same tor 60 long, I oan't agree continuing it beyond a reasonable period would have been appropriate. As atated, there are findings that indicate more care would be necessary, and the patient should h4ve the benefit ot that doubt. However, since nothing 8eemed to change in response to tre4tment, I cannot agree that more then .Ix months treatment would have been necessary. This ia an average length for moderate strain/sprains. M~ximum improvement in this case should not be later then 1/13/94. Dr. Boch did not give any additional information r~gardin9 this case, meaning, he did not s'4te why he thought the treatment length was reasonable. Be d1~ no. ~rite a aepar4te letter ot this claimant, but named ~~~ claimants names together on one rebuttal. , r.) -, .; Exhibit C ',.. /1/(/ ...;,-. , " ., Rr=,.. , '-'Jr=/'f.-." ." . :11 P'I' 2 Cathy Bin thi. claimant presented 10 lhe emerpncy room ot Carlisi. Ho.pitallOUowinl the incid<<lt whet. the claimant w.. eumined. diaposed IS baWls susuined sprain NOS. There exisu no records statinllhat lhit cllimant had experienced any loss of consciousneSs, nor sustained any lhccurcs from th. inc:idlllt of7/9/9J. Subsequently, thi. cleimant presented to the office of Boch Chiropraaic Clinic, on 7116193, where it Wit noted that upon examination Ih. following diaposcs were rendered to this claimant by this facility: cervical hypcrflcxtioll/hyperntension injut'j'. ctrvical. dorsal and lumbar vertebral lUbluxations. Based upon the lbove diasnoses . treatmlllt resiJncn was implemented It Boch Chiropnaic Clinic consisting of physiological therlpeutics, along with office visit/manual manipuJation of the spine. From a review of the medical records. it is nOled dIAl this claimant initiated car. 11 Bach Chiroprlctic Clinic on 1/16193 and continued through 4/1194. II is unc:lear throuah the roc:ords submitted for my review if this claimant continued to receive care 11 Boch Chiropractic Clinic beyond 411/94. In anawer to your COITCSpondlllc:e dated 4/12194, the following is my professional opinion concerninl your questions: 1 REVIEW OF RECORDS TO DETER..'dINE IF ALL CARE RENDERED BY BOCH CHIROPRACTIC CLINIC WAS REASOr-:ABLE OR NECESSARY FOR MV A INJUllIES SUSTAINED ON 719193. IF EXCESSIVE. PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT If th. claimants complaints, mechanism of injury and history of Ihe .ccident as presented are COlTect, this c1aillWlt initiated care 11 Boch Chiropractic Clinic on 7/16/93, for ueatlll8llt of injuries sustained in a mva whic:h OcallTed on 7/9/93. II appears by the file lIvailable for my review that chiropractic care rendered to lhis claimant by Boc:h Chiropractic Clinic wu appropriate. rea!onable and necessary in the initial months of care. Treatment consisting of physiologicallherapeutic:s and or manipulation for soll tinue injuries i. usually justified for a 3 month period of time At which poinl, a home based rehabilitative type progt'am c:on~i~tin8 of lherapeutic: stretches and exercisC3 could be incorporated effeclively in retuming Ihe patient to nonnal function lIS well lIS to help prevent a<:'.l1llSt any awavationlcxllccrllation in lhe future. There exists little compelling evidence !uuestinl that the ongoinl UK of office c:entered physiologic:a1 therapeutic mO<! 'Iities lInd or manipulative therapy, beyond this time period. is more efficacious lhan a hoer . ba;~d 'ogram consi,tins of hCllting. stretching and e:cercise. rn fac:t, lilerature suggest! the; t~, --c ,nged utilization of :..I1H/...../ 'n 'J" Il-tr ... 4 ' . .. : I. ".' :. :=t,:::,.. '=/ V - - '.' - .;.: fJ Pile J Cathy Bin puaive moclalitla and manipulation may actually promote chronicity of symptoms, sec:ondary to disuse, dcconditioning, and patient expcc:tatioM ofunresolveable disability {Vert Mooney, MD, The JoumaJ of Musculoakeletal Medicine. September, 1989}. If significant lUnctional disability penisu. the most appropriate course of treatment is an active and asgressive exercise and stretchin, Proaram. Additionally, I am unaware of any medic:al subspecialty consuharion and or any advanud diagnostic cvaluation studies concerning this case. Based upon the above principles alool with the documentation presented fur my review conc:eming this case, it is my professional opinion that this claimant had reached a point of maximum improvement offurthcr in office therapeutic care including manipulative therapy at Bach Chiropnctic Clinic by 10/1 SI9J, Proaress notes submitted for my review from the treating chiropractic physician t\iJs to document dtat this claimant was making any lUrther improvement with the treatment regimen which was being implementt.d. It is my professional opinion that · home bued ruhabi1itative type program consisting of therapeutic stretches and exercises, coupled with home hanDS techniques. would have been appropriate in and ofiuelfbeyond 10/1 SI9J, to help inc:rase strength. flexibility and endurance IS well as to help prevent against any aggravation /exacerbation of the aIIeSed injuries sustained on 7/9/93. There exislJ no fUrther objective c:1inic:al documentation for my review from the treating chiropractic physician of Bach Chiropractic Clinic supponing the neeeuhy or need of continued ongoing chiropractic care beyond 1011 S/93. Funhermore, it is my professional opinion that the use of hot/cold packs {97010} as perfurmed to tllis claimant at Boch Chiropractic Clinic was appropriate and reasonable for a one month period of time. At which point. thi, claimant could have performed this therapy effectively at home for the same therapeutic benefit. The comments contained in this rc:pon are my professional lJpinions concerning this case bued upon the documentation submitted for my review. Thank you for allowing me to review this case. Should you require lUnher asaistan;e, please feel free to contact our office. Marie Cay 0, . Diplomate American Academy of Pain Management Cenified Independent ClliropracticIMedic:al Examiner '.' .,..ro.,......",...". . ....."..., .".. ...,.."tI f.!) Exhibit 0 I' 121~7,]619<J" P..,7 ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT ~RRasiM _.... I ~ ~ A comprehensive ~ Peer Review ~~~ ' uttified lly 1Ji~ El Commollwealth of Pcnnsylvwa A~I Biela PAS'l'OR, 1'.N. U: CATHY BIRT eLl 38-6593-131 0/1: 1/9/93 6/22/96 RECONSIOEIlATION llEVIEW IUll'OllT Dear M8. PaatoJ;: For the pUJ;pose of this review, I have utilized the following J;ec:ord8: . - 1. APPLICATION FOR BENEFITS 2. AU'l'O ESTIMATE WITH PIC'rlIRE 3. &R BILLS, 1/9/93 4. nEcoaos OF DR. BOCH _ REQUEST FOR PCONSIOEIlATION AND RlBtrrl'AL _ X-RAY REPORTS, 1/15/93 AND 9/1/93 _ CONSULTATION, 1/15/93 _ EXAMS, 7/15 , 12/8/93 _ ACCIDINTAL INJURY REPORT, 7/14/93 _ TREA~ RECORDS, 7/15/93-4/1/94 _ SUPPLEMENTAL REPORT, 1/21/94 -'SILLiNG, 7/15/93-3/4/94 _ REPO~ D~ED 7/16/93 _ MUSCLE 'rESTING REPORTS, ROM woRJt SHEE'rS According to the records, on 7/9/93, this 22 lear old f...le ~a8 the passenger of an auto that was struck n the rear by . anoth.r vehicle. She complained of neck and back pain after the accident and went to an ER but waB released on the .ame day. She pJ;e8ented to Dr. Bach on 7/15/93 with complaint. of low baok pain and left shoulder pain. Her low back pain was the, main complaint and she stated that there was no neck pain on that day. She relates that she hos h^d loW back pain on an on and off basia aince November of 1992 when she was pregnant. Driving and standing aggravate it. , RECEIIIED JUN2 J /994 CRC Examination on 1/15/93 ahowed a 5'4" 221 pound female with no discernable cervical problems. The exam sheet did not list ?'eJle Rqlly to :"' 1I U Bobcock Blvd, SUlre .. PIlUbulah. PA IJZJ1 t i I")' 'tM.4. <04 . = :'616 ~l. 8ro~ 51. PO, Boo 1119 Lansdlle. P,-..l9-l46-0811 = :036 M.~l. A"tnuc H>dJon IlCllhu S.." j<noy OHOJl 12l'5736l'J~" P.1il9 HARRISBURC .....0. 2'J 1991t RECEIVED (:AmY DIRT, PAGE 1'WO. Any abnonul f1nd1Dgs. The l'''''h.ir region rev_led aome positive findings such as Xemp's and slight low back pain with the SLa bilateral. The patient wa. aS8essed as baving austAined atrain/sprains to the cervical and lumbosacral spinal regioD8. '1'raat.DKmt in the form of manipulation lUld physiotherapy was instituted on a three times or 80 per week basi8 on 7/17/93 and remained at a similar level to the last date in the file, 4/1/94, a total of almoat five months. This amount8 to around 111 office visits, and according to the patient'. syasptom reports, there is little to no improvement. In the first review regarding this caa., it i. stated that the patient should have reached MHI within 90 days and that she could have handl~ any other .ymptoma with bome care. I dis4gree with 'parts of that review, bowever, there is nothing in thi8 file to substantiate 111 office visit. ove? an eight and cne half month period tor wbat appears to be a moderate strain/.prain to the affected area.. Dr. Boch has written a response to the first review, but in it he only criticizes the reviewers credentials and opinions, he doe. not in any way try to def.nd his actions regarding this patient's car.. Although the latest codes on the treatment not.. show "6" for the last month, whereas these had been "8" or "9", the objective findings column i. still stuck at "8", meaning I assume a 20 , rate of improvement in those findings. I see no change in the program in respon.. to the patient'. lack of progress. The x-ray findings that are being listed 48 objective findings are for the mo.t par.t long term vertebral disrelationship., as these are "wedge effectsft that take a considerable time period to come about. The facets, discs, and other .upportive structures must accommodate in order to give that radiographic appearance. If this happened all at once, then the result would be severe tissue tearing which would present much different physical findings then that given in this ca... Utilizing these as objective findinge for the purpose of long term treatment does not seem reasonable for the injuries sustained in the accident of 7/9/93. However, aa the patient doee poase.. these deficits, treatment cannot nec~ssari1y be limited to what would be termed a minor injury, 90 days or so. . C"~I.ICA~. o. ...~C. I HEREBY CERTIFY that I have served a true and correct copy of the toregoing document upon all coun.el and partie. of record this day of , 1994, by placing the same in the United states First Class Mail, postage prapaid, at Harrisburg, Pennsylvania, addressed as follows: Fred H. Hait, Esquire Griffie . As80ciates 300 North Hanover street Carli.le, PA 17013 Mary E. Dunlap, Secretary . CBRTlrICATB or 8BRVICB I HEREBY CERTIFY that 1 have served a true and correct copy of the ;or~JOing docWDent upon all counsel and parties of record this ,.g,)' day of f)tce.,\,\\C\ ,1994, by placing the same in the United states First Class Mail, postage prepaid, at Harrisburg, pennsylvania, addressed as follows: Fred H. Hait, Esquire Griffie , Associates 200 North Hanover street Carlisle, PA 17013 , , 0- -:r <-n .. ::r.: -... C" ,,' ~ "-p~ ," .... "'-' = v : IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I I I NO. 94-5693 I I CIVIL ACTION - LAW I I JURY TRIAL DEMANDED WADE BIRT AND CATHY BIRT, Plaintiffs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant IN REI DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE SHEELY. P.J.. HOFFER. J. AND OLER. J. ORDER OF COURT AND NOW, this _1I,H- day of MARCH, 1995, we hereby DENY defendant's preliminary objections to plaintiffs' request for counsel fees. By the Court, /JL~.lr: . /V Harold E. Sheely, P.J. Fred H. Hait, Esquire For the Plaintiff ~ ~ ~J~{'iS-. ..s.P, Rolf E. Kroll, Esquire For the Defendant :sld q 'HAIlll ~ ZG rK '9S ,; .: I ~ 1 .. OJ -: .! i~i(Hi:'\,\hV ~t:)ojS:'IL .".~'; ':(\:;ta'f r~f' Il~'i". V'; t WADE BIRT AND CATHY BIRT, I Plaintiffs I I V I I STATE FARM MUTUAL AUTOMOBILE I INSURANCE COMPANY, I Defendant I I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-5693 CIVIL ACTION - LAW JURY TRIAL DEMANDED IN REI DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE SHEELY. P.J.. HOFFER. J. AND OLER. J. OPINION AND ORDER OF COURT The present action arose after plaintiff filed an action seekinq an award of counsel fees pursuant to section 1716 and 1798 of the Motor Vehicle Financial Responsibility Law.1 Before us today are defendant's preliminary objections in the nature of a demurrer. FACTS The relevant facts in this matter are as fol10wsI On July 9, 1993, plaintiffs were injured in an automobile accident and souqht payment of certain medical expenses from defendant, claiminq them to be first party medical benefits. Defendant submitted these expenses for review by a peer review orqanization [hereinafter PRO] pursuant to section 1797 of the Motor Vehicle Financial Responsibility Law [hereinafter MVFRL]. Defendant denied payment to plaintiffs upon the PRO's determination that the treatment was not reasonable or necessary. Plaintiffs then 1 75 Pa.C.S.A. 551701 et seq. requested reconsideration of the PRO'. determination pursuant to eection 1797(b) of the MVRFL. The PRO again decided in favor of defendant. Plaintiff then filed a complaint on October 5, 1994, seeking, inter alia, an award of couneel fees pursuant to section 1716 and 1798 of the HVFRL.J Defendant has demurred to this claim. 2 Section 1798 states as follows: (a) Basis for reasonable fee - ~o attorney's fee for representing a claimant in connection with a claim for first party benefits provided under Subchapter B. (relating to motor vehicle liability insurance first party benefits) or a claim for catastrophic loss benefits under Subchapter F. (relating to Catastrophic Loss Trust Fund) shall be calculated, determined or paid on a contingent fee basis, nor shall any attorney's fees be deducted from the benefits enumerated in this subsection which are otherwise due such claimant. an attorney may charge a claimant a reasonable fee based upon actual time expended. (b) Unreasonable refusal to pay benefits - In the event an insurer is found to have acted with no reasonable foundation in refusing to pay the benefits enumerated in subsection (a) when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended. Section 1716 states as follows: Benefits are overdue if not paid within thirty (30) days after the insurer receives reasonable proof of the amount of the benefits. If reasonable proof io not supplied as to all benefits, the portion supported by reasonable proof is overdue if not paid within thirty (30) days after the proof is received by the insurer. Overdue benefits shall bear interest at the rate of 12' per annum from the date the benefits become due. In the event the insurer is found to have acted in an unreasonable manner in refusing to pay the benefits when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended. 1984, Feb. 12, P.L. 26, No. 11 53, effective Oct. 1, 1984. 2 ~ NO. 94-5693 CIVIL ACTION - LAW DISCUSSION We first note the well-settled standard of review for granting or denying a demurrer I ...A11 material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for purposes of review. Ecke11 v. K1ll2fi, 409 Pa.Super. 132, 135, 597 A.2d 696, 698 (1991). However, we cannot accept as true conclusions of law. IS. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. IS. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. IS. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory. IS. at 135-36, 597 A.2d at 698. PittsburQh National Bank v. perr, 431 Pa.Super. 580, 584, 637 A.2d 334, 336 (1994). The issue this court must decide in light of the above standard is whether plaintiffs have lost the opportunity to request counsel fees where they have requested reconsideration of a PRO's denial of first party benefits and have subsequently been denied. Both parties have directed us to Barnum v. State Farm, 430 Pa.Super. 488, 635 A.2d 155 (1993). Defendant argues that although the Pennsylvania Supreme Court overruled Barnum, the 3 NO. 94-5693 CIVIL ACTION - LAW court only addressed the narrow issue of whether a claimant is required to seek reconsideration of a PRO review in order to seek redress in the courts. ~ Terminato v. Pennsv1vania Nat'l Ins. ~, ____ Pa.____, 645 A.2d 1287 (1994) (holding that an insured is not required to request reconsideration of a peer review deoision bAfore proceeding to court). Defendant urges that in Terminato, our supreme court did not address the following dicta in Barnum and therefore, the dicta still carries precendential weight I Where the insured denies a claim without first obtaining a PRO evaluation, the claimant may immediately commence a court action. If the court finds in favor of the claimant, the insurer becomes liable, in addition to the amount of the claim, for counsel fees, costs, and interest at the rate of 12\. Moreover, if the court finds that the insurer acted wantonly in denying a claim, treble damages may be awarded. Conversely, if the insurer uses the Peer Review Drocess. its Dotential liabi1itv is limited to the amount of the claim D1us interest. Barnum, 430 Pa.Super. at 493, 635 A.2d at 157. On the other hand, plaintiffs contend that since the supreme court has overruled Barnum, any precendential value of the dicta defendant cites is questionable. Plaintiffs also note that defendant can cite to no statutory provision that explicitly denies a claimant the opportunity to recover counsel fees if the 4 , NO. 94-5693 CIVIL ACTION - LAW insurer has submitted claims for peer review. Plaintiffs have cited to the particular sections of the MVFRL that allow for counsel fees if the insurer is found to have acted with no reasonable foundation in refusing to pay benefits. ~ SUDra at footnote 2. Plaintiffs have also cited to the regulations that contain standards for when an insurer may use the peer review process,] contending that if they can develop an evidentiary record to prove a violation of one of theee regulations, they should be entitled to collect counsel feee. After examining the Barnum and Terminato cases and the relevant statutes and regulations, we find that plaintiff .hould not be denied the opportunity to submit their claim for counsel fees to the court. The dicta to which defendant directs us, even if it still carries precedentia1 weight, is inapposite here. We believe the dicta should be interpreted as meaning that tho.e plaintiffs who seek reconsideration of their claim and succeed should receive an award limited to the amount of the claim plus intereet. In the present caSA, plaintiffs have been denied their benefits and seek redress in the court. If we were to grant defendant's demurrer and plaintiffs were to later succeed in court on their first party benefits claims, our decision here would be inconsistent with 75 Pa.C.S.A. S1798(b) which direct. the insurer to pay counsel fees. In conclusion, we find it premature to dismies plaintiff.' ] See 31 Pa. Code S69.52 5 . NO. 94-5693 CIVIL ACTION - LAW claim for counsel fees. If plaintiffs proceed to court and are successful on their first party benefit claim, we believe they should also be entitled to claim counsel fees at that time. ORDER OF COURT AND NOW, this / ~~ day of MARCH, 1995, we hereby DBNY defendant's preliminary objections to plaintiffs' request for counsel fees. By the Court, /s/ Harold E. Shee1v Harold B. Sheely, P.J. Fred H. Bait, Bsquire For the Plaintiff Rolf B. Kroll, Esquire For the Defendant Isld 6 .. RIYllOLDS . !lAVAS A Prof...ional Corporation By: ROL' I. JAOLL, ISQOIRI 'a. Supra,. Court I.D. Mo. .72.3 LAllRALII B. BAltIll - ST.AIUl, ISQlJ1U 'a. Supr... Court I.D. Mo. 5887. 101 pina Str..t 'o.t Of fica Box 932 Harri.bur;. '.nn.ylvania 17108-0932 Tal.pbon.. 'ax, [717] ~36'3200 [7171 ~36-6863 Attornay for D.fendant. STAB 'ARX MlJTtJAL A1l'1'OIlOBILI UStJIlA)ICI COJIlIAIlY WADE BIRT and CATHY BIRT, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION -- LAW NO. 94-5593 VS. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. JURY TRIAL DEMANDED DBPENDANT' S ARBITRATION MEMORANDUM I. STA'l'BMEN'l' 01' PACTS. The question before the Board in this case is simple and straightforward: How much chiropractic care and treatment is reasonable and necessary for tb~ injuries sustained in this accident? A summary of the facts pertinent to this issue follows. On July 9, 1993, Cathy Birt was a passenger in the right front seat of a vehicle driven by her husband, Wade Birt. Apparently, the Birt vehicle was stopped at a stop sign and was struck in the rear by another vehicle. Relatively modest damage was sustained to the vehicle. Following the accident. the Birts were treated in the emergency room of the Carlisle Hospital. The records reflect that neither Mr. or Mrs. Birt experienced any ~ . loss of consciousness or sustained any fractures from the incident. Both were diagnosed with soft tissue injuries. Subsequently, Mr. Sirt presented to the office of Boch Chiropractic Clinic ("Boch Chiropractic") on July 13, 1993. At that time, Mr. Birt complained of neck pain which was ultimately diagnosed as cervical hyperflexion/hyperextension injury, lumbosacral sprain/strain and cervical, dorsal and lumbar subluxation complex. Based on these findings, treatment was initiated and continued through March 1994. Like her husband, Mrs. Sirt began treatment at Boch Chiropractic on July 16, 1993. Her diagnoses were very similar to those of her husband, including cervical hyperflexionl hyperextension injury, cervical, dorsal and lumbar vertebral subluxations. Mrs. Birt's treatment continued through April 1994. The Birts requested first party benefits for the above- referenced treatment that was provided by Boch Chiropractic. Because the treatment was inordinately long, State Farm requested a review of both cases by a peer review organization ("PRO"). The PRO ultimately referred the cases to Mark Cavallo, D.C., i~ order to determine if the treatment that had been provided was reasonable and necessary. After reviewing both Mr. and Mrs. Birt's cas~s, Dr. Cavallo opined that treatment for soft tissue injuries was justified for only a three-month period of time. - ..:: - . Sased on established medical literature and his experience, Or. Cavallo indicated that Mr. and Mrs. Sirt reached a point of maximum medical improvement on October 13, 1991, and October 15, 1993. respectively. A copy of Or. Cavallo's expert reports concerning Mr. and Mrs. Sirt are attached hereto, incorporated herein and marked Exhibit "A" and "S," respectively. After Plaintiffs requested a reconsideration of Or. Cavallo's opinions, the medical reports were again examined by Kevin W. Emmons, D.C. Or. Emmons gave Mr. and Mrs. Sirt the "benefit of the doubt" and indicated that six months treatment would have been adequate for the moderate strains/sprains they both had sustained. Accordingly, Dr. Emmons opined that only the care and treatment rendered through January 13, 1994, and January 15, 1994, was reasonable and necessalY. A copy of Or. Emmons' reports concerning Mr. and Mrs. Sirt are attached hereto, incorporated herein by reference and marked Exhibits "C" and "0," respectively. In view of the foregoing, it is submitted that State Farm's denial of benefits after six months of treatment was reasonable and appropriate under the circumstances. II . APPLICAllLE LAW. The question at bar is whether the care and treatment at issue was reasonable and necessary and related to the underlying motor vehicle accident at issue. Necessary medical - 3 - . ~ treatment and rehabilitation services are defined by the Motor Vehicle Financial Responsibility Law as follows: Treatment, accommodations, products or services which are determined to be necessary by a licensed health care provider unless they shall have been found or determined to be unnecessary by a state-approved peer review organization ("PRO"). 75 Pa. Cons. Stat. ~1702. In this instance, a state-approved PRO, upon reconsideration, has determined that the care and treatment at issue is unnecessary after six months. Accordingly, it is submitted that this Board should find likewise. Respectfully submitted, Date: ';-/2/ f~ , REYNOLDS & HAVAS A Professional Corporation ..-----, / ///A"'/ . . 1/ ."' By: .' C,Llr- { /';;/'1 [eLL: ROLF :t:. KROLL LAURALEE'B. BAKER-STARR Attorneys for Defendant . 4 - . ExhIbIt A '" "."......., "",I,."'" .".. '''0''''''. (f) 121~-1.1~9" HARRISMAG .. ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT ..JUI'I 2 :;11$9'1 RECEIVED ^ compRl1ca&lve Pev Review Oraaniz;ulon certified by lhc eo-wea1tb 01 PennsYlvania A~. ilClrl PASTOR, R.N. U: WADI lIllT CL: JI.'!93-731 0/1: 7/9/93 6/22/94 IlICONatDEftATION RlVIIW RlPORr Dear Ma. '..tor: For the purpo.e or this review, I have utilized the following reoorda: Plql<<Il.,:ply r,) 1. APPLICATION POR DENEFITS :I. AU'l'O IITDlATE WITH PICTUIUl 3. Ba DILLS, 1/9/93 4. RlCQRtlS 01 OR. BOCII - UQUEST FOR RECONSIDERATION AND REBUTTAL . X.RAY REPORTS, 7/15/93 AND 9/1/93 - COMSULTAT10N, 7/15/9) - EXAMs, 7/15 , 12/8/9) . ACCIDIN~ INJURY REPORT, 7114/93 - TRlA~NT RICaRDa, 7/13/93-3/23/94 - SU'PLIHINTAL REPORTS, 1/21/94, 1/~6/93, 11/12/93, 10/4/93 - aILtINQ, 1/13/93- 1/21/94 - JE'ORT DATiD 7/14/93 - t",'J,-.la;J\ OF U/1'1/93 TO STATE rAllM - MUSCLE TESTING REPORTS - CONSULTATION SHEETS, ROM WORK SHEETS - PEER REVIEW OF MARY- CAVALLO, 4/18/94 Accordinq to the records, on 7/9/93, this 30 year old male wa. the driver or an auto that waa struck in the rear by another vehicle. Ke complained of neck and back pain after the accident and went to an ER but was released on the same day. He presented to Dr. Boch on 7/15/93 with complaints of low baCK pain and right shoulder pain. There was also radiation reported into ehe rlght arm and leg. Examination revealed algna and symptom9 consistent with a cervical and lumbouacral .tr~in/9praln. Treatment in the form of IiECEJII~ \/1/, l) 'N2J~ CIiC 9/1/93, r: ;611\ ~ 8f'I.!;1 '0, ft,}. Ill'} un",141. P4 1'i4.A.'l:~ -; ~OJ6 M.plc A "tCllU4 HaoJ4:Jn H(1ihlJ ~f!'" fO!M.eY lj~O')" = JISJ Babcock Blvd. Sui....l lZ15"'3619~4 p.e.... .' WADI: BIR1', PAQB TWO. manipulation and phYSiotherapy Was instituted on a frequency of three time. per week and appeared to average once a week by the laat vi8i~ on 3/23/94. This patient was put on disability for a.veral months during the Course of oare, 80 I don't think that his Occupation as a truck driver can be said to have continually exacerbated hi. condition. r can find no reason then, tor the extensive amount of treatment rendered in this case. The documentation submitted does indicate a strain/aprain to the cervical and lumbar areas, and while the patient perceives neural deficits, there are no diagnostics to show that such a condition exists. While it Wouldn't be proper to order such testing in the first month or two, if the patient is not improving, as was the case here, then it Would be appropriate. In my opinion, the documentation does not support the length of care, especially since there appears to be little improvement in the patient's complaints in the eight months that he had been treating. I dcn't agree with the first review, stating that 90 days would be sufficient, as his radiographic reports indicate long term spinal degenerative effects. This could hamper progress. However, there did not appear to be any change in the program to Counter the patient's lack of progress. The addition ot cl~sely supervised exercise would have been an aaset. A change in technique might have been also. This is speculation, but since the treatment seemed to remain the same tor so long, I can't agree continuing it beyond a reasonable period would have been appropriate. As stated, there are findings that indicate more care would be necessary, and the patient should have the benetit of that dOUbt. However, since nothing seemed to change in response to treatment, I cannot agree that more then six months treatment would have been necessary. This is an average length for modQrate strain/sprains. Maximum improvement in this case should not be later then 1/13/94. Dr. Boch did not give any additional information regarding this case, meaning, he did not state why he thought the treatment length Was reasonable. He did not write a separate letter of this Claimant, but named the claimants names together on one rebuttal. . exhibit B .., ,UII- ,.,...... _",'n ....'~ 10" ~'~';'.II ~'i> . lZl~7361""3" P.II? ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT A'l"r: uen PAS'1'OR, R.N. RI s CA'rBY DIRT CLs 38-6593-731 D/I: 7/9/93 ~CONSIDERATION REVIEW REPORT Dear Me. Pastors ~~ A compreh;nsi'~e t. ~ ~ Peer Rel/iew ~~l!fiV certified lly 1Ii:-- ED Commonwwth of Pennsylvania 6/22/94 For the purpose of this review, I have utll1%8d the following records: 1. APPLICATION FOR BENEFITS 2. AU'l'O ESTlMA'l'E WITH PICTURE 3. Eft DILLS, 7/9/93 4. RECORDS OF DR. BOCR _ REQUEST FOR RECONSIDERATION AND REBUTTAL _ X-RAY REPORTS, 1/15/93 AND 9/1/93 _ CONSULTATION, 7/15/93 _ EXAMS, 7/15 , 12/8/93 _ ACCIDENTAL INJURY REPORT, 1/14/93 _ TREATMENT RECORDS, 7/15/~3-4/1/94 _ SUPPLEMENTAL REPORT, 1/21/94 -'BILLING, 7/15/93-3/4/94 _ REPO~ D~D 7/16/93 _ MUSCLE 'rESTING REPORTS, ROM WORK sHEETS Aocording to the records, on 1/9/93. this 22 year old female was the passenger of an auto that was struck in the rear by anoth.r vehiole. She complained of neck and back pain after the accident and went to an ER but was released on the same day. She presented to Dr. Booh on 7/15/93 with complaints of low back pain and 1ett shoulder pain. Her low back pain was the,main c~mplaint and she stated that there was no neck pain on that day. She relates that she hns h~d loW back pain on an on and off basis 8ince Novembor of 1992 when she was pregnant. Driving and standing aggravate it. . . RECEIVED JUN 2 J 1994 CRe ", Examination on 7/15/93 ahowed a 5'4" 221 pound female with no discern<lble cervical prob1sms. The exam sheet did not list. Plene Reply Ta C :616 S. Bcoa4 Sf. PO. Bo. 1119 I..n$d.le, p,' \9.\.16.0311 ~ Z036lwhpl. A'tcnuc H>ddon Il...hu Se'" Icney 0803S ..... ............ .:1 )IU B.bcockBlvd. Sulle _. P"LSbu'ah. PA 13231 tt", u"'.....~o.& IZl'373bl'~9" P.lil8 . HARRISBURG .....,. 2 ':J 1994 RECEIVED CA1'BY BIBT, PAGE 1'WO. any abno%lUl findingll. The 1111'lMr region revealed .ome po.itlve findings such as ~emp'8 and slight low back pain with the SLR bilateral. The patient was asse.sed aa hav1ng 8ustained 8train/sprains to the cervical and lumbosacral spinal region.. Treatment ln the form of manipulation and physiotherapy was instituted on A three times or GO per week baal. on 7/17193 and remained at a similar level to the l.at date in the file, 4/1/94, a total of almost five months. ~i. amounts to around 111 office visita, and according to the patient's symptom reports, there 1s little to no improvement. In the first review regarding this case, it 18 stated that the patient should have reached MMI within 90 days and that she could have handled any other symptoms with home ear.. I dia.agree with 'parts of that review, however, there ia nothing in this file to substantiate 111 office via ita over an eight and one half month period for what appears to be a moderate strain/sprain to the affected areas. Dr. Boch has written a response to the first review, but in it he only criticizes the reviewers credentials and cpinions, he does not in any way try to defend his actions ragarding this pat1ent's car.. Although the latest codes on the treatment notss show "6" for the last month, whereas these had been "8" or "9", the objective findings column i. still stuck at "8", meaning I assume a 20 , rate of improvement in those findings. 1 see no change in the program in response to the patient'. lacx of progress. The x-ray findings that are being listed as objective findings are for the most part long term vertebral disrelationshipa, as these are "wedge effects" that taxe a considerable time period to come about. The facets, discs, and other supportive structures must accommodate in order to give that radiographic appearance. If this happened all at once, then the re8ult would be severe tissue tearing which would present much different physical findings then that given in this ca.e. Utilizing these as objective findings for the purpose of long term treatment does not seem reasonable for ths injuries sustained in the accident of 7/9/93. However, as the patient does posses8 these deficits, treatment cannot necessarily be limited to what would be termed a minor injury, 90 days or so. .." "~"...,.., _'n.....'" """"'@ Exhibit C ",;dil/saURG 1.'\1 C j 133/, RECEIVED Paae2 Wade Birt Subsequently, this claimant pmented to llIe office of Bocb Chiropractic Clinic, on 7/13193, where it wu noted that upon examination the followina diagnoleS were rendered to this claimant by this facUity: ~cal bypertlationlhyperextension injury, cervical ncuralJi.. lumbosacral sprain/strain, and cervical, dorsal and lumbltsublwcation complex. Bued upon llIe above diagnoses & trcatmem regimen wu implemented at Boch Chiropractic Clinic consistinl of physiologicaltherapcutics, along with manual manipulation oftbe 5pine. From a review of the medical records, it is noted that this claimant initiated care at Boch Chiropractic Clinic on 7/13/93 and continued through 3/94. It is unclear through the recordJ submitted for my review jfthis claimant continued to receive cite at Boch Chiropractic Clinic beyond 3/94. In answer to your correspondence dated 4/12194, the following is my professiolUll opinion concerning your questions: 1. REVIEW OF RECORDS TO DETERMINE IF ALL CARE RENDERED BY BOCH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR MY A INJURIES SUST AlNED ON 7/9193. IF EXCESSIVE, PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT. If the claimants complaints, mechanism of injury and history of the accident as presented are correct, this claimant initiated cite at Boch Chiropractic Clinic on 7/13/93, for treatment of injuries sustained in a mva which occurred on 7/9/93. It appears by the file available for my review that chiropractic care rendered to this claimant at Boch Chiropractic Clinic WI3 appropriate, rC830nable and necessary in the initial months of care. Treatment consisting of physiological therapeutics and or manipulation for soft tissue injuries is usually justified for a J month period of time At which point, a home based rehabilitative type program consisting of therapeutic stretches and exercises could be incorporated effectively in returning the patient to nonnal function as well as to help prevent against any aggravation/exacerbation in the future. There e:(ists linle compelling evidence ,u8gesting thaI the ongoing use of office centered physiological therapeutic modalities and or manipulative therapy, beyond this time period. is more efficacious Ihan a home based program consisting of heating, stretching and exercise. Furthennore, I am unaware of any subspecialty consultations and or any advanced diagnostic evaluation studies concerning this case. In fact, an article written by V crt Mooney, \ID, in the Journal of ~(usculoskeletaJ Medicine. Seplember, 1989. Slales. '~.;U'J!'h~ 'IM ','.i 1994 ~ECEIVED Paa' ] Wade Bin with r.....d to the treatment of 10ft tiuu. injuria, .Cunendy, mll1lsement i, foeuMd on activ. l;atI which does not cmte chronicity secondary to prolonged rest, dependeney on passive modaliti.s, or patient expectations ofunrelOlveabl. disability. Several puslve treatment mod.uiti.. un make the patient feel better briefly, but the soal of treatment is to return the patient to normal function Among the modalities that are unwarranted, bec:aull they do not l:OrTespond to thi. goal of DOntW fimction. are prolonged chiropractic manipulation and physical therapy modalities such u ultn sound, hot pICKS and bio.feed bICK. The goal of therapy is to enhance nutrition to the soft tissues of the back, including the disc. This is generally accomplished with an exercise prognm aimed at improving range of motion and, if prolonged activity Iw resulted in weakncu, strengthening. It Bued upon the above principles along with the documentation presented for my review concerning this cue. it is my professional opinion that this claimant had reached a point of maximum improvement of further in office therapeutic care including manipulative therapy at Boch Chiropractic Clinic by 10/13/93. ProgreS3 notes submitted for my review from the treating chiropractic physician fails to document that this claimant was making any further improvement with the treatment regimen which was being implemented. Furthermore, it should be noted that according to the documentation. this claimant underwent approximately 4S visits at Boch Chiropractic Center through to my r:comrnended MMI date of 10/13/93. It is my professional opinion that this frequency of treatment was more than a sufficient amount of care for the treatment of this claimant's alleged injuries sustained on 7/9/93. Rather, it is my professional opinion that a home based rehabilitative type program consisting of therapeutic stretches and exercises, coupled with home heating techniques, would have been appropriate in and oritself beyond 10/13/93, to increase strength, tlCltibility and endurance as well as to help prevent against any aggravation /exacerbation of the alleged injuries sustained on 7/9/93, There elOsts no further objective clinical documentation submitted for my review from the treating chiropractic physician of Boch Chiropractic Clinic supporting the necessity or need of continued ongoing chiropractic cue beyond 10/13/91 Therefore, any and all care rendered to this claimant at Boch Chiropractic Clinic beyond 10/13/93 caMot be construed as treatment which was appropriate, reasonable or necessary for the treatment of the alleged injuries sustained on 1/9/93. Additionally, it is my professional opinion that the use of hot/cold packs (97010) as performed to this claimant at Boch Chiropractic Clinic was appropriate and reasonable for a one month period of time. At which point. this claimant could have performed this therapy e!fectively at home for the same therapeutic benefit. The conunents contained in tltis report are my professional opinions conceming this case based upon the documentation submitted for my review Thank you for allowing me to review this case ''', I ")/JUFIO ;"M( U J 199; RECEIVED P... 4 Wad. Birt nher wimnc:.. pi... feel a... to contact our oftlce. CSF Academy o( Pain Mana.ement i:lcnt ChiropracticIMedical Examintr Me/amt ." ,'.il" ",.. ..,:u ,"'~ exhibit 0 @ ;." "e",'HI: . :'111 f j. .) ~,' ," , ~RC) Consolidated Rehabilltation Company R~~~IVei) A compnllcnsive Pwr Review Oqaniulion ccrtllild bl' the Commaawaltll of Pcnn.ylvanii CONFIDENTIAL REPORT 'eUII ~c)ll:" T'l . April 1', 1994 RECEIVED 4P/y' C 0 /994 CRC RE: Cathy Birt FILE NO.: 31-6S93.731 RECEltI.~ 4Pf/ < ' 6/994 CRC CIA: 719193 . A comprehensive review olthe above re(erenced lile hu been completed with ettention to evaluate and detmnine if chiropnctic care WI.! appropriate and medically n<<cnary. The following documentation was submitted (or my review: 1. Application for Benefits 2. Estimate of Auto Repair along with Picture of Vehicle ]. Invoice from the Emergency Room of Carlisle Hospital. dated 7/9/9] 4 Records from Bach Chiropractic Clinic con~i~tin8 of history, exam, re.exams, progress notes and invoices. dated 7/16/9] through 4/1/94 HISTORY: This history I.! related in the records reveals that this 22 year old female was involved in a motor vehicle accident on 7/9/9] The records state that while this claimant WI.! a pusenger in a motor vehicle. in turn the vehicle claimant was traveling in was .t . complete stop whib another automobile struck the rear of the vehicle claimant WI.! traveling in. According to the records : :616~. 9""4 SI. PO 30.1111 LJnui.;1lc. p", 1~.1J.27 . 114, QQ"l."'tll = :0)6 Moapl. "venue H_n IfclcJlU ~lc..., leney 03033 'N'I41 ("'''.(II~ :: 1115 B.bcock BI.d Suilc'l PillJOUlsJI. P4 Il~J7 .'1" '" "C04 . , rlMoW'" '.J., ,~,... . 't: '7)1 f' . .".J i~.' I RECEIVE;) Paae 2 Cathy Bin thl. claimant presented to the emergency room of Carlisle Hospital followina the incident where the claimant wu ewnined, dll8llOsed as having sustained .prain NOS. There exists no records statina that this claimant hed experienced any loss of consciousness, nor sustained any fractures ft'om the incident of 7/9193. Subsequently, this claimant pre.ented to the office of Boch Chiropractic Clinic, on 7/16/93, where it was noted that upon examination the following diagnoses were rendered to thi. claimant by this facility: cervical hyperflel(lionlhyperextension injury, cervical, dorsal and lumbar vertebral subluxations. Based upon the above diagnoses a treatment regimen WI.! implemented at Bach Chiropractic Clinic consisting of physiological therapeutics, along with office visit/manual manipulation of the spine. From a nMew ofthll medical records, it is noted that this claimant initiated care at Boc;h Chiropractic Clinic on 7/16/93 and continued through 4/1/94. It is unclear through the records submitted for my review if this claimant continued to receive care at Boch Chiropractic: Clinic beyond 4/1/94. In an.wer to your correspondence dated 4/12/94, the following is my professional opinion concerning your questions: 1 REVIEW OF RECORDS TO DETERMINE IF ALL CARE RENDERED BY BOCH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR MY A INJURIES SUSTAINED ON 7/9/9]. IF EXCESSIVE, PLEASE ADVISE OA TE OF MAXIMUM MEDICAL IMPROVEMENT. If the claimants complaints, mechanism of injury and history of the accident B5 presented are correct, this claimant initiated carll at Boch Chiropractic Clinic on 7/16/93, for treatment of injuries sustained in a mVB which occurred on 7/9/93. It appears by the file available for my review that chiropractic care rendered to this claimant by Boch Chiropractic Clinic was appropriate, reasonable and necessary in the irutial months of CBre. Treatment consisting of physiologic:altherapeutics and or manipulation for soft tissue injuries is usually justified for a J month period of time, At which point, a home based rehabilitative type program con~i~ting nftherapeutic stretches and exercises could be incorporated effectively in returning the patient 10 normal function as well as to help prevent against my aggravation/exacerbation in the future. There exislS little compelling evidence suggesting that the ongoing use of office centered physiological therapeutic modalities and or manipulative therapy, beyond this time period, is more efficacious than a home based program consisting of heating, stretching and exercise, In fact. literature suggests that the prolonged utilization of . "',"HHI""'/'R ,"\./ r 1'1 ,\ . .." I).j . ". ....1 R~""eIV- <;;"'~ cO P...3 Cathy Birt pwive modalitlea and manipulation may KtUalIy promote chronicity o( symptoms, secondary to disuse, deconditioning. and patient expectations ofunresolveabl. disability {Vert Mooney, MD, The Iournal of Musculoakelatal Medicine, September, 1989}. If significant functional disability penists, the most appropriate course of treatment is an active and aaressive exercise and stretchins program. Additionally, I am unaware o( any medical subspecialty consultation and or any advllllUd diasnostic evaluation studies concerning this case. Based upon the above principles alonl with the documentation presented for my review concerning this case, it is my professional opinion that this claimant had reached a point of mammum improvement of funher in office therapeutic care includina manipulative therapy at Boch Chiropractic Clinic by 10/1519]. Progress notes submitted for my review from the treating chiropractic physician fails to doc:umentth.at this claimant WI.! making any further improvement with the treatment regimen which wu being implemented. It is my professional opinion that e home based rehabilitative type program consisting of therapeutic stretches and exercises, coupled with home heating techniques, would have been appropriate in and of itself beyond 10/1519], to help increue strength, flexibility and endurance as well as to help prevent against any aggravation lexacerbation of the alleged injuries sustained on 7/9/93. There exi.su no further objmive clinical documentation for my review from the treating chiropractic physician ofBoch Chiropractic Clinic supporting the necessity or need of continued ongoing chiropractic care beyond 1011 5193. Furthermore, it is my professional opinion that the use ofhotico!d packs (97010} as performed to this claimant at Boch Chiropractic Clinic WI.! .ppropriate and reasonable (or a one month period of time. At which point, this claimant could have performed lhis therapy effectively at home for the same therapeutic benefit. The comments contained in this report are my professional opinions concerning this case based upon the documentation submitted for my review. Thanlc you for allowing me to review this case. Should you require further assistance, please feel free to contact our office. Mark Cav 10, P Diplomate American Academy of Pain Management Certified Independent ChiropracticlMedical Examiner 002112-00002/March 19. 19961CRWISLFlI51480 WADE BIRT and CATHY BIRT, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-5693 CIVIL TERM CIVIL ACTION. LAW Plaintiffs v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant NOTICE OF ARBITRATORS' HEARING TO: Jennifer C. Deitchman, Esquire McGraw, Halt & Deitchman 4 Liberty Avenue Carlisle, PA 17013 Rolf E. Kroll, Esquire Reynolds & HavIS 101 Pine Street, P.O. Box 932 Harrisburg, PA 17108-0932 AND NOW, this 19'" day of March, 1996, you are hereby notilled that the arbitrators appointed in the above-captioned ection will hold a hearing for the purpose of their appointment IS follows: Date: May 3, 1996 TIma: 9:00 a.m. Location: THE LAW OFFICES OF JOHNSON, DUFFIE, STEWART & WEIDNER, 301 MARKET STREET, LEMOYNE, PENNSYLVANIA CAVEATS: 1. THOSE PARTIES WISHING TO INTRODUCE VIDEOTAPE EVIDENCE WILL BE EXPECTED TO HAVE THE NECESSARY EaulPMENT TO DISPLAY THE VIDEOTAPE PRESENT AT THE ARBITRATION LOCATION. 2. IN THE EVENT THAT DEPOSITION TRANSCRIPTS ARE TO BE USEO AS EVIDENCE, TRANSCRIPTS SHOULD BE PROVIDED TO EACH ARBITRATOR AT LEAST ONE WEEK PRIOR TO THE HEARING. 3. PARTIES WISHING TO ARGUE LEGAL POINTS WILL BE EXPECTED TO HAVE COPIES OF STA TUTES, CASEa, ETC., WITH RELEVANT PORTIONS HIGHUGHTED FOR EACH ARBITRATOR AND OPPOSING COUNSEL AT THE COMMENCEMENT OF THE HEARING. .----, C. Roy Weidner,..k, Ire, Chairman Brian Joseph Puhala. Esquire. Arbitrator Diane G. Radcliff, Esquire, Arbitrator c: Brian Joseph Puhala, Esquire Diane G. Radcliff, Esquire Court Administrator Bulletin Board. Prothonotary's Office ThereBfter, Plaintiffs sent discovery requests to SlBte Farm which produced the claim file in response. State Farm objected to B multitude of interrogatories and requests for production seeking infornlation concerning the peer review process, criteria for review, and their contracts with the doctors who performed them. Thereafter, arbitration WBS scheduled to be held on May 3, 1996. OUESTIONS PRESENTED 1. Did State Farm have a reBsonable foundation for refusing to pay first party medical benefits? 2. Was the peer review completed by a Commonwealth approved, competent and qualified chiropractor? DISCUSSION State Farm did not have reasonable foundation for refusing to pay Wade and Cathy Birt's first party benefits and did not use good faith in its fBilure to submit pertinent material to the peer review organization. The pc::er review reports themselves, when read in conjunction with the claim tile, reveal that State Farm did not send records from the ambulance service, the Carlisle Hospital Emergency room, nor Three Springs Family Practice where the Birt's received lr:atment on July 12, 1993. The reconsideration reviews had no more documentation to review other than the additional PRO report. On the other hand, the auto estimate with pictures were reviewed, as well as the hospital bills. 2 What relevance these items have to whether Dr. Boch's treatment conformed to professional standards and whether such treatment was reasonably I is unknown. More importantly, State Farm must prove that the reviewers were in conformwtce with Pa. Code Title 31, M69.5 I - 69.55. Specifically, the determination may be challenged if the initial determination is not done by a "licensed practitioner with experience providing and prescribing the care under review." llL Bt ~69.S2(t). The initial review of both Wade and Cathy's claims were done by Mark Cavallo, D.C. Although it is anticipated that Dr. Cavallo's report will be submitted as a defense exhibit, Plaintiff also intends to present it, in a highlighted version as an exhibit as well. The purpose of this is to demonstrate exactly how much of Wade Birt's and Cathy Birt's reports are the same. The fact that virtually the same findings were made for two entirely different individuals raises an inference of an incompetent review. State Fann hss refused to provide information concerning its guidelines for peer review. It is incomprehensible to imagine that. State Fann never utilized Consolidated Rehabilitation Company or Dr. Cavallo prior to the Birts' reviews. Given the "cookie- cutter" or "boilerplate" nature of Dr. Cavallo's reports, we can infer that State Farm has knowledge of the reviewer's opinion that "treatment consisting of physiological therapeutics and or manipulation for soft tissue injuries is usually justified for a three month period of time." (report of Dr. Cavallo on Wade Birt, p. 2; report of Dr. Cavallo I necessary (75 Pa.C.S.A. ~1797(b)(1) ] on Call1y Bir!, p. 2). This could prompt State Farm to Butomatically PRO such claims exceeding three months Qf treatment. 2 Dr. Bach's rebuttal was not provided with the reconsideration. nor with the claim record formally requested from Statc Farm. The reviewers misquotc Dr. Boch's rebuttal and shed it in a false light. Dr. Boch did provide explanations for the treatment rcndered and the omission of his report ex.hibits a callous disregard on the part of S18te Farm and the reviewers for the rights ofthc Birt's and Dr. Bach under the MVFRL. CONCLUSION Based on the aforesaid reasons, i.e. the irregularities and omissions involved with these particular PRO's, PlaintitT3 request that judgment be entered in their favor; damages in the amount of$2.5 I 1.18 for Wade Birt; $4]76.18 for Cathy Birt; interest Bt the rate of 12% per annum pursantto ~1716 of the MVFRL and Judge Sheely's opinion; counsel fees pursuant to ~ 1716, 1798 of the MVFRL, costs of suit. and such additionBI relicf u the panel deems appropriate. 1 Although State Farm waited after three months 10 PRO this maner, the initial report found maximum medial improvemenlto be approximately 3 months after commencement ofueaunent. ~1797(b)(7) provides: Kif it i. detennined by a PRO or court that a provider has provided UMece5S3l')' medical Uealmenl or rehabilitative servic.... .or that future provi.ion of .uch Ueaunenl... will be UMece5S3l')' .... the provider may nol collect payment for the medically unnece.sary Uealment.... If the provider has collected such payment, it must retwn the amount paid plus inleresl al 12% per year within 30 days." The record will reflecl thaI Slale Farm paid benefits for bodl Wade and Cathy through January of 1994. A PRO deci.ion in its favor enlitles ilto a 12% rale of interest on funds it had paid to Dr. Boch. Although it may not be the best invesUdenl. there is an incentive to pay and the PRO in the insurance indusuy. 4 ::: . it: .-.... '.~ '''-I "="> . '-oJ ;0: _ c: /> ., UI< <H ~Z ...:1< 11<> ...:I Z>< OUl ~~ O~ UII< . ~1Il ll::.... H.... /Xl.... +J ><c: :t:.... ~Ill <~ UII< 'tl c: III ~ ll:: H /Xl ~ :il ~ r.. . 0>< ~ ~U ll:: "" ::JC '" OZ \0 U< If\ ...:I I ~ll:: .... :t:~ '" ~/Xl ~ ' Z::J 0 HU Z ). .r '"- ;" ~,: .,' r ",_ . '; ~.,l . . . , ~ ...:I H /Xl o ~ +J o c: ~ III ::J 'tl < c: .Qj ...:I>t.... ~:i!8 ~~ , ~o III U > ~ ~Hj r..z ~;:i ~::J <UI ~~ ll:: ~ - ~ ~~ r.. H~ ~~ ZZ H <0 ...:I~ II< l>l ~ ~ Ul :i! :!l t; ... ~ ~m w:r w 1(1 z -' ...n ~ _ I: i5 '3 "'o(ZU i ~ Cl 5 ~ ~ 0( ~ III II. ~ ~ ~ ~ 1: i ~ ~ ~ ~ = ~ ~ u WADE BIRT and CATHY BIRT, Plaintitts IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VB. No. 94-5693 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Detendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAIHTIlJ'8' AlI/81fl1R TO OW IIATTlIR Plaintitts, Wade and Cathy Birt, by and through their attorneys, Griffie & Associates, reply to Detendant'. New Matter all tollows: 1. Admitted, 2, Admitted. 3, Denied. After reasonable investigation, Plaintiffll are without knowledge or intormation sutficient to form a belief as the truth at this averment and the same is therefore denied, 4, Denied as stated, After reasonable investigation, Plaintifts are without knowledge or intormation sutficient to torm a beliet as to whether Detendant sought professional assistance in assessing the reasonable, necessity and relatedness based upon the totality ot the circumstances and/or lack of objective evidence of injury, 5. Admitted in part and denied in part. It is admitted that state Farm submitted Plaintitfs' bills to a Peer Review Organization (PRO), It is also admitted that State Farm is required by the terms ot MVFRL to contract with Commonwealth approved PROs tor the purpose of assessing the reasonableneslI and necessity at treatment, It is denied that the MVFRL authorizes PROs to assess the relatedness of treatment, By way of further denial, after reasonable investigation, Plaintiffs are without knowledge or intormation sutticient to torm a beliet aa to whether Plaintitt.' bill. were eubmitted to a Commonwealth approved Peer R~view Organization and strict proof thereot will be demanded at trial, 6, Admitted in part and denied in part, After reasonable investigation, Plaintiffs are without knowledge or intormation sutficient to form a belief as to whether the PROs referred to in Exhibits A and B are Commonwealth approved and strict proot thereat will be demanded at trial, It is admitted that Exhibits A and B are copies of the Peer Reviews submitted, but the validity at the PRO determinations are specifically denied, 7, Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a beliet as to whether the PRO that performed the reconsideration is Commonwealth approved, Strict proof thereof will be demanded at trial, 8, Denied as stated, The reports at reconsideration tor Cathy Birt concluded that "treatment beyond 1/15/94 did not e..m reasonable or necessary." The validity of the determination aa to the period after 1/15/94 is specifically denied, 9. Admi tted that report is attached as Exhibit tIC" , The validity at the Findings and Conclusions is specifically denied. 10, Denied. After reasonable investigation plaintiffs are without ~owledge or information sufficient to form a belief .a to the truth of this averment and the same is therefore denied. By way of further denial, the remainder of the averment contains conclusion of law to which no responsive pleading is required. 11 - 13. The averments contained herein are conclusions of law to which no responsive pleading is required, 14. Denied. It is specifically denied that the amounts in dispute represent charges for excessive treatment which was neither reasonable nor necessary. Rather, the amounts in dispute relate to treatment which was both reasonable and necessary within the meaning of the applicable insurance cover&ge and/or the Motor Vehicle Financial Responsibility Law. 15. Denied for the same reasons as Paragraph 14 is denied. By way of further denial the charges were incurred for conditions related to and/or caused by the automobile accident in question. 16. Admitted in part and denied in part. It is admitted that Defendant is contesting the nature and extent of Plaintiffs' injuries, damages and other losses. Plaintiffs deny that Defendant's dispute is valid because their injuries are serious, and all of the medical care in question was related to their HVA and was reasonable and necessary, 17 - 22, The averments contained herein are conclusions of law to which no responsive pleading is required, WHERErORE, Plaintift., Wade Dirt and Cathy Dirt, demand jud9Dent in their tavor and again.t Detendant with cost. at .uit and attorney's tees assessed to Detendant, Respecttully .ubmitted, GRIPPIE , ASSOCIATES Attorneys tor Plaintifts Oatel 61/ ?It./' ter C, Deitchman, Esqu re North Hanover street Carlisle, PA 17013 (717) 243-5551 . U'J'IDAVIT I verify that any facts not of record set forth in the foregoing document are true and correct to the best of my knowledge, information, and belief, I acknowledge that any false etatements herein are made subject to the penalties of 18 Pa,C,S. section 4904 relating to unsworn falsification to authorities, Date f..p, 4, q')' ~/l~ Wade Birt t1Lt1 0 --t}~ /; Cathy rt Date 1r.-9- 9R CI.'X'XcaT. 0' ...VlC. The un1er.igned hereby certities that concurrent with Submitting the toregoing Plaintitts' Answer to New Matter, I have served a copy at same by United states mail, tirst cla.s, postage pre-paid to the tollowing addresses: Rolt E. Kroll, Esquire Reynolds , Havas 101 pine street P.O, Box 93~ Harrisburg, PA 17108-093~ iter c. tchman, E.qu re r ttie , Associates 200 North Hanover street C~rlisle, PA 17013 ~~ I 1 i i I I I i I i I , i i I ( r 01, S(~ ~ Iw....~, J 5.;J(" q(., 5 d1ft; 'I" ('d.~ ;...:..JU ~ 4 1;.;.;i .>W1 4f ,tU? c~ p.k.c.d ........ (,~ Jd..............J :2'~ n ROLl I, ltROtL. IIQUIRI pa. lup~... cou~t I,D, Mo. 47243 RlYllOLllI . IiIlVU 101 Pl.". .t~..t foat Offl.c. 80. 932 Ha~rl.abu~9. p.""aylva"l.a 17108-0932 Telaphon.. '1lJC. (717) 236-3200 (717) 236-6863 Atto~ney for Def.ndant. STAn ,J\RH KU'l'tJ1IL ADTOM08ILa IllSU1\J\IICI COIIPAN'l WADE BIRT and CATHY BIRT, Plaintiffs : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVAlIIA NO, 94-5693 v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED BOTIC!! TO PLDD TO: Wade Birt and cathy Birt c/o Fred H, Hait. Esquire Griffie , Associates 200 North Hanover Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from serviae hereof or a default judgment may be entered against you. DATE: ,.--:.... - -j-, ( - -.j .'-)) REYNOLDS;' HAVAS A prjfe~ional.corporation ,!%'d / Ii " f i... -7 'I! /.' .c',/ ./.. "~-(> /1 / ( By: i , ROLF E. ~ Attorneys for Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY IlOLI' I. DOLL. IIlQl1IU 'a. 'up~'" ~ourt 1.0, .0. 47~43 IUIYIIOLDS . BAVU 101 .1ne Street poat ott10e Box 93~ H~r1.bur9. 'enn.ylvanla 17108-0933 Telephone. .ax. (717 J H6-3~00 (717 J 236-6863 Attorney tor Detendant. STAU ,AIIK IlU'1'UAL All'l'OIIOII1.I I.SU1IANC1I COMPAIIY WADE BIRT and CATHY BIRT. Plaintitts IN THE COURT OF COMMON PLEAS I CUMBERLAND COUNTY. PENNSYLVANIA v, I NO. 94-5693 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED D8WD WITH 11ft OftD OJ' DBJ'JDl1)AJIT, 8'1'A'1'. J'AU Jlu'l'u.A.L At:rrOKOBIL1!I nrstJRAJIc1!I COHPAJrY TO PLAIJlTIJ'J'8' cmlPLAIJI'l' AND NOW. comes Defendant. State Farm Mutual Automobile Insurance Company ("state Farm") by and through their counsel. reynolds , Havas, a professional corporation to answer the complaint of Plaintiffs, Wade Birt and Cathy Sirt ("Plaintiffs") as follows; 1. Admitted. 2. 3 - 11, Admitted, Denied, WBBRBJ'ORB, Defendant. State Farm demands judgment in its favor and against PlaintiffS. Wade Sirt and Cathy Sirt with costs of suit assessed to Plaintiffs. COUJl'l J J 13. Admitted. 13. Paragraphs 1 through 13 hereot are inoorporated herein by reterence aa if .et forth in full, 14 - 19, Denied, "".70.., Defendant, state Farm demands judgment in its favor and against Plaintiffs, Wade Birt and Cathy Birt with costs of suit assessed to Plaintifts, lID MAMBa 1, The claims ot Plaintift are limited by the terms at the Pennsylvania Motor Vehicle Financial Responsibility LaW, 75 Pa, C,S.A. Section 1701 ~ ~. as amended by Act 6, April 15, 1990 ("Act 6"), 2. The bills in dispute were incurred after the ettective date at Act 6. 3. state Farm has paid $9,936,70 to various health care providers on behalt at Wade Birt and Cathy Birt. 4, Thereafter, based upon the totality ot the circumstances including a lack ot objective evidence at injury, state Farm sought professional assistance in assessing the reasonablenellls, necessity and relatedness ot said injuries. 2 5. Therefore, state rara .u~ltted Plaintiff.' bill. to a Commonwealth approved peer review organiaation e.tabli.hed tor the purpoee of evaiuating treatment and health care .ervice. provided to an injured person, state rarm is required by the terms of the Pennsylvania Motor Vehicle rinancial Responsibility Law to contract with such Commonwealth approvad peer review organizations for the purpose of assessing the reasonableness, necessity and relatedness of treatment, 6. A Commonwealth approved peer review organization has opined that the medical expenses at issue were neither reasonable or necessary under the terms of the policy under pennsylvania law. On the basis of the peer reviews dated 1~/1/93 for Wade airt and 4/18/94 for Cathy airt State Farm has denied treatment. Copies of the peer review are attached hereto as Exhibits "A" and "B". 7, A Commonwealth approved peer review organization performed reconsiderations ot the findings rendered in the initial peer reviews, 8. The reports of the reconsideration for Cathy airt provided that none of the care at issue was reasonable or necessary as it relates to the motor vehicle accident in question, 3 9. A copy of the report of reconaideration 6/~~/94 t~r Cathy Sirt is attached hereto and made a part hereof .s Exhibits He.. 10. On the basis of the reconsideration, state Fara affirmed its denial at payment for the services rendered because the benefita at isaue were not recoverable under the teras of state Farm'a policy and the Motor Vehicle Financial Responsibility Law as amended, 11, Plaintiff has not and cannot sustain damagee ae a result of diminished payment or nonpayment of automobile accident related bills. ~, 75 Pa, Cons. stat. Section 1797(a), 13. Since plaintiffs, Wade sirt and cathy Sirt cannot sustain such damages, they lack standing to sue State Farm, 13. This Honorable Court lacks jurisdiction to entertain this matter as State Farm performed a peer review and a subs~ent reconsideration of same in accordance with the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law, Accordingly, Plaintiff's claimS are barred by the terms of Section 1797(b)(4), 14. The amounts in dispute in this case represent chargee for excessive treatment which was neither reasonable nor necessary within the meaning of the insurance policy in question and/or the Motor Vehicle Financial Responsibility Law. 4 15. The charges at is.ue in this ca.e and for which insurance cOVerage i. clai.ed trom answerinq Defendant are unre.son.Dl. and unnec..sary and/or are for injuries and/or conditions unrelated to the accident in que.tion. 16. The nature and extent of injuri.., d.mages and other losses alleged DY Plaintiff. are denied, 17, plaintiffs' claim for insurance benetits is barred by lack of consideration, 18, Any application of a legal rule so as to broaden Defendant's liability under the insurance policy in que.tion i. barred .. a matter of equity. 19, Plaintiffs are not entitled to recover attorney's fe.. incurred in obtaining any insurance benefits which may Ultimately be paid by Defendant, since Defendant's withholdlng or of .aid benefita wa. made in good faith and for reasonable cauae. 20, Plaintiffs have not pled any claims in respect to Plaintiffs, Wade Birt and Cathy Birt. Therefore, Plaintiffs, Wade Birt and Cathy Birt, have failed to atate a claim for which relief can be granted. 21, Plaintiffs have failed to state a claim in whole or in part upon which relief can be granted, 22. Plaintifls' claims are barred by the applicable Statute ot Limitations. 5 ~, Delendant, state 'ara clalland. jud~nt in it. favor ancl again.t Plaintiff. with co.t. of .uit a.....ed to the plaintiff.. Re.pectfully .ubmitted, BYI UYJIQLDe I Dna A Profe~ional corporation (7[lJ(f)/:2;::>'d~ (gOlf ~;Krcill / ", Attorney. for Defendant, Dated I {; - 2 '2 95- , YDIYIc.a'f'IO. I, .JOIIII 1I1UOW8.1, hereby acknowledge that 1 _ the ft) 8UDn_ at 8'1a1'. .... IIU'l.'VU AcrrOllOIIL. 1..GIlAJIC. COIDU'I', one at the Detendante in thia action; that I have read the toreqoinq pl.adinq; and that th4 tacta atated therein are true and corr<<ct to the beat at my knowledge, intorwation and beliet. I under.tand that any ralae state.ent. herein are .ade aubject to penalti.. ot 16 Pa,C.S,A, section 4904, relatlnq to un.worn talairlcation to authorltle., DATE; S\n\'\( 8y: .hi l-'/;k~L .JOB .~OW..I ~ ;J.ff!.I~Ij,...'1: (TItle) - 6 - exhibit A .",.."..."". .....""." ...."" G> UMN1AMEDICDRP December 1, 1993 /WuJ IMIIigIibII Hr. Bill Weitzel state Farm Insurance Co. 11S Limekiln Road P,Q, Box 257 New Cumberland, PA 17070 RE: Wade Birt OH#: DHE 01-07-27S0A CLI: 38-6593-731 D/A: 7/9/93 AGE: 30 years Dear Hr. Weitzel: This letter contains the initial determination of reasonableness and necessity pursuant to state Farm Insurance Company's challenge in the case cited above. omni-Hedicorp, Ltd. is certified as a comprehensive peer review organization by the Pennsylvania Insurance C01DlDissioner, and this determination is rendered pursuant to the provisions of PA Act six of 1990. state Farm Insurance Company challenged the reasonableness and necessity of durable medical equipment not yet provided to its insured pursuant to a prescription signed by Thomas A, Bach, D.C. We note that all documents provided by the respective health care provider(s) pursuant to our request by certified mail of September 30, 1993, were made part of the permanent record of this determination. Our determination of reasonableness and necessity is as follows. I am in receipt of your recent request for review of the above case, I am aware of your concerns regarding the reasonableness and necessity of the prescribed durable medical equipment. I am in receipt of the following photocopies of records for review: 1. An undated, signed "To whom it may concern" letter from Thomas A, Bach, D,C, consisting of 4 line stat_ent described a "waterbed" as part of the therapeutic regimen for spine rehabilitation of Wade and Cathy Birt due to their auto injury. There are no other elements of criteria for a Certificate of Medical Necessity as required by the HCFA/Medicare/AHA Standards. '.' . .., _"":' - '4' . . I "....\I.I..._..~ ;... Omni Meditorp, lId. I ,\\lffidoworoCK lCI'e. :,,,,~.\. (hr.ilonr, ?A i 19! I 'j 215'1'17 :1CO ': 1'17 r:l - -,.. "\ 2 ~l.,_.. _':1"" \J .-.:. ... -:---'-'\/< . I~":' \.....:.. ~-' RE: Wade Birt Page Two ~, An incomplete unsigned narrative summary (incomplete, 1 page only), dated July 14, 1993, Thia indicate. that the patient'. symptoms had been pre.ent tor 4 day. prior to a treatment by Or. Boch. 3. An abbreviated, short-torm, number coded progre.s page (1 page) with date. tram July 13, 1993 to July 26, 1993, 4. An unsigned "supplemental report" (torm type) dated July ~6, 1993 with a nonspecitic destination, 5. An x-ray report dated July 13, 1993 reterring to the cervical, thoracic and lumbar vertebral spine.. 6. Carlisle Hospital Emergency Room bills without medical statement. or records. 7. A Commonwealth ot Pennsylvania Police Accident report at July 9, 1993 which indicate. that the above patient'. car wa. rear-ended and that he and hi. wite were tran.ported to Carlisle Hospital by ambulance. Both cars were able to be driven away trom the seen ot the accident, CASE..BEYlElY;. This is a 30-year-Old male whose motor vehicle was rear-ended (Dr. Boch's forwarded medical records never stated the patient'. age). The single page at narrative backqround reveals muscle spaslI at the cervical, thoracic and lumbosacral areas. Tha narrative i. incomplete and the progress notes are poorly descriptive ot anything more than muscle strain and sprain, ~ Based solely on the torwarded documentation, it does not appear to be reasonable or necessary to purchase a "waterbed" tor the treatment at the above injuries.* *Due to a lack of appropriate physician documentation, it appear. that the above item (a waterbed) is tor comfort and not therapeutic utilization, as indicated in HCFA/Hedicare guidelines, Further justification troll the attending physician as to unique therapeutic etticiency ot this item would be indicated, There must be evidence ot a detinite vertobral instability with objective neuroloqical morbidity; the severity and trequency ot the subjective and objective findings tor a specific condition must be clearly stated to necesaite a specitic type at bed or mattress, . . ."~'- .' ~ -" "2 .,,-, 'J':' J v..... '" ,",'''' ,- ":" 1 '/;;.::J .. ...-- . --. ,." , " " '" ',' ' . RE: Wade Birt Page Three As expr..s abov., based upon the forw.r~ed documentation, it doe. not .pp.ar to be rea.onabl. or n.c.ssary to purchas. a w.terbed for the above specific injuri.s. Th.r.~or., we have det.rmined th.t the r.t.rr.l rend.r.d by Thomas A. Boeh, D.C, tor a wat.rbed is not r.asonabl. or n.c....ry .s d.fin.d by PA Act six of 1990, Under the provisions of PA Act six of 1990, the insur.r, the provider(s), and/or the insured has thirty (30) days from the date of this determination in which to request reconsideration of this initial determination, Should you wish to rlllque.t reconsideration, pl...e dir.ct your written request for r.consideration to oani- Medicorp, Ltd., attention: PRO R.view Coordinator. If additional information become. available and a furth.r elucidation i. requi~ed, please do not hesitate to call upon my off ic.. ~in erely yours, /,? rt1" ~ . ;p ~ , /Jfp'/ l~ft.CP. /'/fft ulian M. B~ M.D., 1'.A.C.. Ind.p.ndent Consultant JMB/hj. :-:;.",..._.: .. .....: --~ "2"'-) ..r:':'~'" \..I ...:.,_ !" . - - I,' ,- ,"'\ ~.;;.......:.. _:.J Exhibit B "<0 '.J' Hi"' 1,.. f~1 I.' 1'1~ f Ij.) ;'.. , ~RC) Consolidated Rehabilitation Company Flt....c,./V ." ~ ~jl A compnllcnsivl! her Review Oraaniution ccrtifilld by the Commaaweallll of Pcnn.ylnnii CONFIDENTIAL REPORT . April 1 I, 1994 RECEIVED 4Prr ~ 0 /994 CRC RE: Cathy Birt FILE NO.: 31-6S93.13 1 ., R~C~/I/'::,,,, 4PI/ ',-' < 6 1994 eRC O/A: 719193 . A comprehensive review oflhe above referenced lilo has been complered with attention to evaluate and determine if chiropractic care was appropriate and medic:ally necessary. The following documentation was submitted for my review: I, Application for Benefits 2. Estimate of Auto Repair along with Picture of Vehicle ], Invoice from the Emergency Room of Carlisle Hospital, dated 7/9/93 4, Records from Boch Chiropractic Clinic con~i~ting of history, exam, re.exams, progres~ notes and invoices, dated 7/16/9] through 4/1194 HlSTOR Y: This history I.! related in the records reveals that this 22 year old female was involved in I motor vehicle accident on 7/9/9], The records state that while this claimant was a pusenpr in a motor vehide. in turn the vehicle claimant was traveling in was at . complete stop while another automobile struck the rear of the vehicle claimant WI.! traveling in. According to the records C 2616 S. Brood Sf, P.O. !lo. 1119 t....w.. P", 1'loW6-1l121 (11~'QO'l.""" ::J 2036 "'.pia A Yen... H_. ffe,cJlu S.... J...,., 03035 fNjq\ <.41.4;11.& C J I., 8._. Ilvd. 3ui.. 1\ Pilt>llurJh. PA 13231 Ltl"\1".""'" ',AHtil";', 'J" !If' - <1 '1).j f I, , 'J.J /~: , RECEIVEr) Paso 2 Cathy Birt this claimant presented to the emersenc:y room o(Carlisle Hospiul followinl the incident where tile claimant was eumined, diagnosed as having sustained sprain NOS. Ther. exists no records stating that this claimant had experienced any loss of consciousness, nor sustained any fractures from the incident of 7/9/93. Subsequently, this claimant presented to the office of Doch Chiropractic Clinic, on 7/16193, where it was noted that upon examination the following diagnoses were rendered to this claimant by this facility: cervical hyperflextionlhyperlJl:tension injury, cervical, dorsal and lumbar vertebral subluxations. Based upon the above diagnoses a treatment regimen was implemented at Boch Chiroprac:tic Clinic consisting of physiologic:a1therapeutics, along with office visit/manual manipulation of the spine. From a review of the medical records. it is noted that this claimant initiated Clre &I Boch Chiropractic; Clinic on 7/16/93 and continued through 4/1194. It is unclear through the records submitted for MY review if this claimant continued to receive CBre at Boch Chiropractic Clinic beyond 4/1/94. In answer to your correspondence dated 4/12/94, the following is my professional opinion conc:emins your questions: 1 REVIEW OF RECORDS TO DETERMINE IF ALL CARE RENDERED BY BOCH CHIROPRACTIC CLINIC WAS REASONABLE OR NECESSARY FOR MV A INJURIES SUSTAINED ON 7/9/9], IF EXCESSIVE, PLEASE ADVISE DATE OF MAXIMUM MEDICAL IMPROVEMENT. If the claimants complaints, mechanism of injury and history of the accident as presented are correct, this claimant initiated care at Boch Chiropractic Clinic on 7/16/93, for treatment of injuries sustained in a mva which occurred on 7/9/9]. It appears by the file available for my review that chiropractic care rendered to this claimant by Boch Chiropractic Clinic was appropriate. reasonable and necessary in the initial months of care. Treatment consisting of physiological therapeutics and or manipulation for soft tissue injuries is usually justified for a 3 month period of time. At which point, a home based rehabilitative type program cOMi~ting of therapeutic stretches and lJI:ercises could be incorporated effectively in returning the patient to normal function as well as to help prevent against any aggravation/exacerbation in the future. There exists little compelling evidence suggesting that the ongoing use of office centered physiological therapeutic modalities and or manipulative therapy, beyond this time period, is more efficacious than a home based program consisting of heating, stretching and exercise, In fact, literature suggests that the prolonged utilization of :1. lifH'" "I , "'I,d7r ''14 ' , . ; 1...1.) .":"., ~f=f"'~1 "- ""~ V:::-O 0.,;, Page 3 Cathy Birt puaive modalities and manipulation may actually promote chronicity o( symptoms, secondary to disuse, d~condltioning. and patient expec:tations ofunresolveable disability {Vert Mooney, MD. The Iournal or Musculoskeletal Medicine. September, 1989}. Ifsisniticant functional disability persists, the most appropriate course of treatment is an active and aggressive exercise and stretching program. Additionally. I am unaware of any medical subspecialty consultation and or any advanced diasnostic evaluation studies concerning this case. Based upon the above principles along with the documentation presented for my review concerning this case, it is my professional opinion that this claimant had reached a point of maximum improvement of further in office therapeutic care including manipulative therapy at Boch Chiropractic Clinic; by 10/1519]. Prosress notes submitted for my review from the treating chiropractic physician fails to document that this claimant was making any further improvement with the treatment regimen which was being implemented. It is my professional opinion that a home based rehabilitative type program consisting of therapeutic stretches and exercises, coupled with home heating techniques, would have been appropriate in and ofitselfbeyond 10/lSI93, to help increase strength, flexibility and endursnce as well as to help prevent against any eggravation lexacerbation of the alleged injuries sustained on 7/9/9]. There exisu no further objective clinical documentation (or my review from the treating chiropractic physician ofBoch Chiropractic Clinic supponing the necessity or need of continued ongoing chir.opractic care beyond 1011 5193, Furthermore, it is my professional opinion that the use ofhotlcold packs {97010} as performed to this claimant at Boch Chiropractic Clinic WI.! appropriate and reasonable (or a one month period of time. At which point, this claimant could have performed this therapy effectively at home for the same therapeutic benefit. The comments contained in this report are my professional opinions concerning this case based upon the documentation submitted for my review. Thank you for allowing me to review this case. Should you require further assistance, please feel free to contact our office. Mlirk Cav 10, P Diplomate American Academy of Pain Management Certified Independent Chiropractic:IMedicaJ Examiner Exhibit C .,,,,, Ii) 121~?3bt994 P."? ~ Consolidated Rehabilitation Company CONFIDENTIAL REPORT ~ ~..,~.~ A compreht:nsivt: Peer Review ~~i:fi\t c.erti tied Ily iii,}' eo Commonwealth of Pennsylvania A'l"rs Bicn PAS'l'OR, R.N. Us CATHY BIR'r eLs 38-6593-731 0/1: 7/9/93 6/22/96 RECONSIDERATION REVIEW REPORT Dear Me. Paliltorl For the purpose of this review, I have utilized the following reeords: 1. APPLICATION FOR BENEFITS 2. AUTO ESTIMATE WITH PICTURE 3. ER DILLS, 7/9/93 4. RECORDS OF DR. BOCR _ REQUEST FOR RECONSIDERATION AND REBUTTAL _ X-RAY REPORTS, 7/15/93 AND 9/1193 _ CONSULTATION, 7/15/93 . EXAMS, 7/15 ~ 12/8/93 _ ACCIDENTAL INJURY REPORT, 7/14/93 _ TREATMENT ~CORDS, 7/15/93-4/1/94 _ SUPPLEMENTAL REPORT, 1/21/94 .'BILLING, 7/15/93-3/4/94 _ REPORT DNrEO 7/16/93 _ MUSCLE 'l'ESTINGl REPORTS, ROM WOl'U( SHEETS According to the records, on 7/9/93, this 22 year old female was the passenger of an auto that was struck in the rear ~y anoth.r vehicle, She complained of neck and back pain after the accident and went to an ER but was released on the same day. She pre.e~ted to Dr. Booh on 7/15/93 with complaints of low baok'pain and left shoulder pain. Her low back pain was the. main c~mplaint and she stated that there was no neck pain on that day. She relateQ that she hOB h~d low back pain on an on and off basi. since November of 1992 when she was pregnant. Driving and standing aggravate it. ' . . RECEIlIEO JUN2 J /991/ CRC , Examination on 7/15/93 "howed a 5'4" 221 pound temale with no discernable cervical problems. The exam sheet did not list Plea.. kepi)' To , a 1616 N. 6",04 Sl. P,o. Bo. 1719 lansd.le. PA 1_0327 o 1036 M.pl. A'enue Haddon Iw.hU Ne., loner 080J5 ................. C1 31!.l B.bcockBlv.!. Sui.. .1 PlIUbW.h. PA 1"137 Itl"\~.4<44 t:.ll'57'61994 P.08 HARRISBURG ....... 2::1 199, REce'VED . CA1'BY BIRT, PAQE TWO. any abnormal findings. The lUMbar region revealed some positive findings such as Xemp'. and slight low back pain with the SLR bilateral. The patient was assessed as having Bustained strain/sprains to the cervical and lumbosacral spinal regions. ~r.atment in the form of manipulation and physiotherapy was instituted on a three times or so per week basi8 on 7/17/93 and remained at a 8im11ar level to the last date in the file, 4/1/94, a total of almost five months. This amounts to around 111 office viSits, and according to the patient's symptom reports, there 1s little to no improvement. In the first review regarding this case, it i. stated that the patient should have reached MHI within 90 days and that she could haVe handled any other symptoms with home care. I disagree with 'parts of that review, however, there is nothing in this tile to substantiate 111 office visits over an eight and one half month period tor what appears to be a moderate strain/sprain to the affected areas. Dr. Boch has written a re.ponse to the first rGview, but in it he only criticizes the reviewers credentials and opinions, he does not in any way try to defend his action. regarding thls patient's care. Although the latest codes on the treatment note. show "6" for the last month, whereas these had been "S" or "9", the objective findings column i. still stuck at "8", meaning I assume a 20 \ rate of improvement in those findings. I see no change in the program in response to the patient'. lack of progress. The x-ray findings that are being listed as objective findings are for the most part long term vertebral disrel4tionship., as these are "wedge effects" that take a considerable time period to come about. The facets, discs, and other supportive s~rue~ure9 must accommodate in order to give that radiographic appearance, If this happened all at once, then the result would be severe tissue tearing which would present much different physical findings then tbat given in this case. Utilizing theBe as objective findings for the purpose of long term treatment does not Be8m reasonable for the injuries lustained in the accident of 7/9/93. However, as the patient does possess these deficits, treatment cannot necessarily be limited to what would be termed a minor injury, 90 daYB or so.