CITIZENS UNITED RECIPROCAL EXCHANGE VS. NORTHERN NJ ORTHO SPECIALISTS (L-1933-15, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1669-15T3

CITIZENS UNITED
RECIPROCAL EXCHANGE,

Plaintiff-Appellant,

v.

NORTHERN NJ ORTHO SPECIALISTS,

Defendant-Respondent.
_______________________________

Argued June 1, 2017 - Decided June 23, 2017

Before Judges Lihotz, Whipple and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
1933-15.

Eric S. Poe argued the cause for appellant
(Mr. Poe, of counsel; Sonya Lopez Bright, on
the brief).

Judd B. Shaw argued the cause for respondent
(Shaw Kreizer, P.A., attorneys; Mr. Shaw, on
the brief).

PER CURIAM

In this appeal, plaintiff Citizens United Reciprocal Exchange

(CURE), appeals from a Law Division order affirming an arbitration

award that compelled CURE to arbitrate a Personal Injury Protection
(PIP) billing dispute with defendant Northern New Jersey Ortho

Specialists (Ortho). Defendant sought CURE's pre-certification

approval for surgery upon its insured following an automobile

accident. CURE denied the claim as not medically necessary,

stating independent medical examinations concurred its insured

reached maximum medical improvement. Notwithstanding this

determination, defendant performed the surgery and filed a demand

for payment, which CURE denied. Defendant initiated arbitration.

At the hearing, CURE submitted a report by a medical review

organization (MRO), which concluded the surgery was not medically

necessary. Defendant submitted its own expert medical report in

rebuttal, which reached a contrary conclusion. Ultimately, the

arbitrator concluded defendant rebutted CURE's claim the surgery

was not medically necessary and entered an award for defendant.

CURE requested clarification of the arbitrator's award,

maintaining its MRO report was presumptively correct. After

completing the arbitral review process, CURE filed to vacate the

award with the Law Division, pursuant to N.J.S.A. 2A:23A-13(c).

The judge rejected CURE's claims of legal error and in a written

opinion concluded CURE failed to provide authority for its claim

defendant was barred from submitting its own report to rebut CURE's

MRO report. The judge declined to disturb the arbitrator's factual

findings and re-weigh the submitted proofs, and confirmed the

2 A-1669-15T3
arbitrator's decision was grounded in substantial evidence found

in the record.

CURE now appeals from the November 2, 2015 order, asserting

the Law Division erred in in its application of the law.

Although parties to an arbitration may appeal to the Law

Division as matter of right, N.J.S.A. 2A:23A-13(a), judicial

review of an arbitration award is limited. An arbitrator's

decision is binding, subject to "vacation, modification or

correction" by the Superior Court in limited instances. Ibid.

First, the court must establish jurisdiction under N.J.S.A.

2A:23A-18.1 Second, in matters where jurisdiction exists, an

1
The appeal is from a proceeding conducted under the
Alternative Procedure for Dispute Resolution Act [APDRA], N.J.S.A.
2A:23A-1 to -30. Although proceedings under APDRA are frequently
referred to as "arbitrations," and are indeed similar in style and
substance to arbitrations, APDRA is distinct from the Arbitration
Act, N.J.S.A. 2A:23B-1 to -32.

To be sure, there are differences between the
Acts. The Arbitration Act does not require
any particular procedures, mandate discovery,
compel the maintenance of a record, command a
statement by the arbitrator regarding his
findings and conclusions, or an expression of
the reasons why he reached the result that he
did. See N.J.S.A. 2A:23B-1 to -32.

The APDRA differs from the Arbitration Act in
that it is designed to balance "streamlined
procedures necessary for efficient repose"
with "substantive safeguards necessary to
protect public rights." John V. O'Hara, Note,

3 A-1669-15T3
arbitration award may only be vacated if the rights of a party

were prejudiced by:

(1) Corruption, fraud or
misconduct in procuring the award;

(2) Partiality of an umpire
appointed as a neutral;

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

(4) Failure to follow the
procedures set forth in [this Act],
unless the party applying to vacate
the award continued with the
proceeding with notice of the defect
and without objection; or

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

The New Jersey Alternative Procedure for
Dispute Resolution Act: Vanguard of a "Better
Way"?, 136 U. Pa. L. Rev. 1723, 1751 (1988).
To that end, the APDRA includes procedures for
factual development through discovery,
N.J.S.A. 2A:23A-10, -11(e), the taking of
expert witness testimony, N.J.S.A. 2A:23A-
11(f), the submission by the arbitrator of a
written opinion stating findings of fact and
conclusions of law, N.J.S.A. 2A:23A-12(a), and
requires that awards be in accordance with
applicable legal principles, N.J.S.A. 2A:23A-
12(e), -13(c)(5), -13(e)(4).

[Johnson v. Johnson, 204 N.J. 529, 546
(2010).]

4 A-1669-15T3
 [Selective Ins. Co. of Am. v. Rothman, 414
N.J. Super. 331, 341 (App. Div. 2010) (quoting
N.J.S.A. 2A:23A-13).]

However, N.J.S.A. 2A:23A-18(b) makes clear, once the trial

court, sitting as an appellate court, has issued an order

"confirming, modifying or correcting" an arbitrator's decision,

"[t]here shall be no further appeal or review of the judgment or

decree." Ibid.

Our Supreme Court upheld N.J.S.A. 2A:23A-18(b)
in Mt. Hope Dev. Assocs. v. Mt. Hope
Waterpower Project, L.P., 154 N.J. 141, 148-
52 (1998). The Court ruled that "the language
of APDRA unmistakably informs parties that by
utilizing its procedures they are waiving
[their] right" to appeal beyond the trial
court, and that such a waiver generally must
be enforced. Id. at 148.

[Citizens United Reciprocal Exch. v. N. N.J.
Orthopedic Specialists, 445 N.J. Super. 371,
375-76 (App. Div. 2016).]

While there are exceptions to the bar set by N.J.S.A. 2A:23A-

18(b), they are limited.

While considering this section of the APDRA,
the Supreme Court concluded that although
appellate review is generally not available,
there are exceptions. Mt. Hope[, supra,] 154
N.J. [at] 152. One example identified by the
Court is a child support order, ibid.; another
example is an award of attorneys fees.
Allstate Ins. Co. v. Sabato, 380 N.J. Super.
463, 472-76 (App. Div. 2005). But in the
course of its opinion in Mt. Hope, supra, the
Court also said that there may be other
circumstances "where public policy would

5 A-1669-15T3
 require appellate court review." 154 N.J. at
152. In that regard, the Court gave as an
example review necessary for it to carry out
its "supervisory function over the courts."
Ibid.

[Morel v. State Farm Ins. Co., 396 N.J. Super.
472, 475-76 (App. Div. 2007).]

Absent a case "where public policy would require appellate

court review," this court lacks jurisdiction to hear the appeal.

Id. at 475.

[W]hen the trial judge adheres to the
statutory grounds in reversing, modifying or
correcting an arbitration award, we have no
jurisdiction to tamper with the judge's
decision or do anything other than recognize
that the judge has acted within his
jurisdiction. Accordingly, we review the
decision of the trial judge here for the
limited purpose of determining whether he
exceeded the authority granted to him by
APDRA.

[N.J. Citizens Underwriting Reciprocal Exch.
v. Kieran Collins, D.C., LLC, 399 N.J. Super.
40, 48 (App. Div.), certif. denied, 196 N.J.
344 (2008).]

"Any broader view of appellate jurisdiction would conflict

with the Legislature's expressed desire in enacting APDRA to

eliminate appellate review in these matters." Fort Lee Surgery

Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 104 (App.

Div. 2010). Only where it is apparent the trial court committed

"glaring errors" should this court review the merits of such an

6 A-1669-15T3
appeal. Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J.

Super. 228, 240 (App. Div. 2008).

CURE asserts the Law Division confirmed an erroneous

arbitration award by misapplying the law, which is a significant

public policy concern requiring this court's intervention. CURE

argues "[a]ppellate review is appropriate because the [t]rial

[c]ourt failed to properly apply the standards as established by

N.J.S.A. 39:6A-5.1 when considering the rebuttable presumption and

the submission of additional documentation following the issuance

of the MRO report and further failed to follow the mandate of

N.J.A.C. 11:3-29.4(e)(1) . . . ." We reject this argument as

unfounded.

CURE is a New Jersey based auto insurer. As such, it is

required to provide PIP benefits under its policies.

The No-Fault Act, N.J.S.A. 39:6A-1 to -35,
mandates that automobile liability insurance
policies provide PIP coverage, including
payment of "reasonable medical expenses,"
N.J.S.A. 39:6A-4(a).

[Cobo v. Market Transition Facility, 293 N.J.
Super. 374, 384 (App. Div. 1996).]

Disputes regarding the appropriateness and amount of PIP

coverage is determined in "dispute resolution." N.J.S.A. 39:6A-

5.1(a); see Citizens United Reciprocal Exch., supra, 445 N.J.

Super. at 376-77 (stating disputes between health care providers

7 A-1669-15T3
and insurers over billing disputes covered by PIP insurance

provisions are typically settled through arbitration).

Regulations establish health care providers are entitled to

reimbursement from PIP insurers of no more than the "usual,

customary and reasonable" fee for services rendered. N.J.A.C.

11:3-29.4.

Other statutory subsections provide the mechanics for

assuring a fair and independent review process, including the use

of MROs. N.J.S.A. 39:6A-5.1(d). Specifically, N.J.S.A. 39:6A-

5.1(d) states "[t]he determination of the medical review

organization on the dispute referred shall be presumed to be

correct by the dispute resolution professional, which presumption

may be rebutted by a preponderance of the evidence." Ibid.

CURE asserts defendant's submittal of an opinion addressing

the medical necessity of the surgery performed was insufficient

to rebut the presumptively correct MRO determination provided.

Not only is this a factual challenge to the sufficiency of the

evidence, it also ignores the arbitrator's and the Law Division

judge's detailed findings regarding the deficits of CURE's MRO

determination and why the medical evidence rebutted the

presumption of correctness to prove the need for surgery. As the

judge's opinion makes clear, the arbitrator did more than

"determine which was more persuasive," the MRO or rebuttal report.

8 A-1669-15T3
 This issue is not one presenting a significant public policy

question warranting our review. Morel, supra, 396 N.J. Super. at

475-76. Neither is the amount to be reimbursed. Accordingly, the

appeal is dismissed. N.J.S.A. 2A:23A-18(b).

Dismissed.

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