UNIVERSITY PHYSICIANS ASSOCIATES VS. TRANSPORT DRIVERS, INC. (DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE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-3350-15T2

UNIVERSITY PHYSICIANS
ASSOCIATES,

Petitioner-Appellant,

v.

TRANSPORT DRIVERS, INC.,

Respondent-Respondent.
————————————————————————————

Argued April 6, 2017 – Decided August 22, 2017

Before Judges Hoffman and Whipple.

On appeal from the Division of Workers'
Compensation, Department of Labor, Claim
Petition No. 2013-18665.

Robert A. Solomon argued the cause for
appellant (Robert A. Solomon, PC, attorneys;
Mr. Solomon, of counsel and on the briefs).

Edward C. Kein argued the cause for respondent
(Cipriani & Werner, PC, attorneys; Mr. Kein,
on the brief).

Susan Stryker argued the cause for amicus
curiae Insurance Council of New Jersey
(Bressler, Amery & Ross, PC, attorneys; Ms.
Stryker, of counsel and on the brief).

PER CURIAM
 Petitioner University Physicians Associates1 appeals from the

March 22, 2016 order entered by the Division of Workers'

Compensation (Division) dismissing its claim petition with

prejudice. Petitioner argues the Division should have concluded

defendant Transport Drivers, Inc. (Transport) owed it $53,793.52.

We disagree and affirm the trial court.

I.

On October 10, 2012, a pallet dropped from a forklift and

seriously injured Manuel Bonilla, a Transport employee. An

ambulance transported Bonilla to University Hospital (Hospital),

a Level I trauma center in Newark. There, he received treatment

for his injuries, including a left hip dislocation and left

acetabular fracture. First, Dr. David Livingston, a general

surgeon, completed a hip relocation procedure on Bonilla "under

conscious sedation." Two days later, Dr. Mark Adams, an orthopedic

surgeon, performed "[o]pen reduction and internal fixation"

surgery, under general anesthesia, to repair Bonilla's acetabular

fracture. Dr. Livingston billed $10,343 for his services ($952

for consultation and $9391 for the hip relocation), and Dr. Adams

1
Petitioner is a professional practice group of the faculty of
the Rutgers New Jersey Medical School (previously UMDNJ). As
appointed faculty members of the medical school, all physicians
must operate a private practice and do so through petitioner.
2 A-3350-15T2
billed $71,374 for his services. Both doctors billed at the

ninety-fifth percentile.

As billing agent2 for the doctors, petitioner received

reimbursement from respondent's workers' compensation carrier

pursuant to the New Jersey Workers' Compensation Act (the Act),

N.J.S.A. 34:15-1 to -146.3 The carrier paid $3688.98 for Dr.

Livingston's treatment and $24,234.50 for Dr. Adams' treatment.

The payments made were at the seventy-fifth percentile, which the

respondent's insurer considered the industry standard in New

Jersey. Dissatisfied with the payments received, petitioner filed

a petition to recover the remaining $53,793.52.

The Division held a trial over three days; as stipulated by

the parties, the only matter at issue was the determination of the

usual, customary, and reasonable (UCR) charges for the services

provided by Dr. Livingston and Dr. Adams.

Petitioner presented only two witnesses: Dr. Livingston and

petitioner's chief financial officer (CFO). Addressing Dr.

2
Both Dr. Livingston and Dr. Adams belong to an independent
trauma group associated with petitioner, but are required to use
petitioner to submit their bills.
3
Section 15 of the Act provides, in relevant part, that "all
fees and other charges for such physicians' and surgeons' treatment
and hospital treatment shall be reasonable and based upon the
usual fees and charges which prevail in the same community for
similar physicians', surgeons' and hospital services." N.J.S.A.
34:15-15.
3 A-3350-15T2
Livingston, the judge of compensation found, "The doctor is not

qualified as a professional coder" and has "no expertise in medical

billing." While "[h]e testified about what he does in his group

and the trauma center in Newark," he submitted no figures "for

[no-fault] claims other than himself. No figures were submitted

for Medicaid allowed payments." Similarly, the judge found the

testimony of petitioner's CFO "neither helpful nor informative."

The judge concluded, "Petitioner has failed to present any expert

testimony. It has failed to present proofs to persuade the court

that the fees paid are not reasonable, usual and customary."

In contrast, the judge found persuasive the testimony of

respondent's witness, Sandra Corradi, vice president of a bill

review company retained by respondent's insurer. Noting her

experience as a professional coder with expertise in medical

billing, the judge credited Corradi's testimony "that in her

experience . . . , the industry standard of reimbursement is paid

at the seventy-fifth percentile as indexed by [FAIR] Health[4] for

New Jersey." The judge therefore concluded:

4
According to its website, "FAIR Health is a national,
independent, nonprofit organization dedicated to bringing
transparency to healthcare costs and healthcare insurance
information and data products, consumer resources and health
systems research support." About FAIR Health,
http://www.fairhealth.org/About-FH (last visited Aug. 16, 2017).
FAIR Health, Inc., was established in 2009 "to create a conflict-
free, robust, trusted and transparent source of data to support
the adjudication of healthcare claims and to promote sound
4 A-3350-15T2
 Although the court is not bound by that
figure, it is persuasive because it reflects
the insurance industry's concentration of
approved and accepted payments to medical
providers. As such, the court finds that the
fees paid were reasonable because [the
insurer] made its determination on the
prevailing fees paid in that community
. . . .

Consequently, the judge dismissed petitioner's claim "with

prejudice for failure to sustain the burden of proof." This appeal

followed.

II.

When reviewing the decision of a judge of compensation, our

role is "limited to 'whether the findings made could reasonably

have been reached on sufficient credible evidence present in the

record, considering the proofs as a whole, with due regard to the

opportunity of the one who heard the witnesses to judge of their

credibility.'" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156,

163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599

(1965)); Hersh v. Cty. of Morris, 217 N.J. 236, 242 (2014).

However, we owe no special deference to the Division in its

resolution of legal questions. Mayflower Sec. Co. v. Bureau of

Sec., 64 N.J. 85, 93 (1973) (applying de novo review to

determinations of legal issues).

decision-making by all participants in the healthcare industry."
Ibid.
5 A-3350-15T2
 We remain guided by the remedial nature of the Act, which is

"entitled to liberal construction in order to comport with its

presumptive beneficence." Brunell v. Wildwood Crest Police Dep't,

176 N.J. 225, 235 (2003). The Act allows for the filing of claim

petitions by — and on behalf of — injured employees. N.J.S.A.

34:15-15 states that an

employer shall not be liable to furnish or pay
for physicians' or surgeons' services in
excess of $50.00 and in addition to furnish
hospital service in excess of $50.00, unless
the injured worker or the worker's physician
who provides treatment, or any other person
on the worker's behalf, shall file a petition
with the Division of Workers' Compensation.

[N.J.S.A. 34:15-15.]

N.J.S.A. 34:15-15.1 then provides for reimbursement where another

person or organization has paid expenses under the Act.

Specifically,

[w]henever the expenses of medical, surgical
or hospital services, to which the petitioner
would be entitled to reimbursement if such
petitioner had paid the same as provided in
section 34:15-15 of the Revised Statutes,
shall have been paid by any insurance company
or other organization by virtue of any
insurance policy, contract or agreement which
may have been procured by or on behalf of such
petitioner, or shall have been paid by any
person, organization or corporation on behalf
of such petitioner, the deputy directors or
referees of the Division of Workmen's
Compensation are authorized to incorporate in
any award, order or approval of settlement,
an order requiring the employer or his
insurance carrier to reimburse such insurance
6 A-3350-15T2
 company, corporation, person or organization
in the amount of such medical, surgical or
hospital services so paid on behalf of such
petitioner.

[N.J.S.A. 34:15-15.1.]

"All fees and other charges for such physicians' and surgeons'

treatment and hospital treatment shall be reasonable and based

upon the usual fees and charges which prevail in the same community

for similar physicians', surgeons' and hospital services."

N.J.S.A. 34:15-15.

On appeal, petitioner argues the judge erred in concluding

the seventy-fifth percentile payments made by respondent's insurer

were reasonable, emphasizing the fact that the treatment under

review was rendered at a Level I trauma hospital. Petitioner

argues the Division should treat trauma services rendered to an

injured worker at a Level I trauma hospital no differently than

the same services rendered to an automobile accident victim at the

same facility.

N.J.S.A. 39:6A-4.6 mandates that no-fault policies reimburse

healthcare providers pursuant to medical fee schedules

incorporating the "reasonable prevailing fees of 75% of the

practitioners within the region." However, the implementing

regulation exempts trauma services at Level I and Level II trauma

hospitals from the fee schedule. See N.J.A.C. 11:3-29.4. Thus,

7 A-3350-15T2
petitioner argues for payment of its bills at the ninety-fifth

percentile, as submitted.

We reject this argument. While the no-fault regulation

exempts trauma services at Level I and Level II trauma hospitals

from the fee schedule, such charges must still be usual, customary,

and reasonable.

[D]etermination of the usual, reasonable and
customary fee means that the provider submits
to the insurer his or her usual and customary
fee by means of explanations of benefits from
payors showing the provider's billed and paid
fee(s). The insurer determines the
reasonableness of the provider's fee by
comparison of its experience with that
provider and with other providers in the
region. National databases of fees, such as
those published by Ingenix
(www.ingenixonline.com), FAIR Health
(www.fairhealthus.org) or Wasserman
(http://www.medfees.com/), for example, are
evidence of the reasonableness of fees for the
provider's geographic region or zip code. The
use of national databases of fees is not
limited to the above examples. When using a
database as evidence of the reasonableness of
a fee, the insurer shall identify the database
used, the edition date, the geozip and the
percentile.

[N.J.A.C. 11:3-29.4(e)(1).]

In reaching her decision in this case, the judge appropriately

employed this process and also relied upon our decision in

Coalition for Quality Health Care v. New Jersey Department of

Banking and Insurance, 358 N.J. Super. 123, 128 (App. Div. 2003),

where we upheld the Insurance Department's use of paid fees rather
8 A-3350-15T2
than billed fees as representing a more accurate measure of

"reasonable and prevailing fees."

Because the judge based her determination upon the usual fees

and charges that prevail in New Jersey for similar physicians' and

surgeons' services, we affirm substantially for the reasons set

forth in the judge's cogent and well-reasoned March 17, 2016

written decision and her subsequent written amplification. We

have considered petitioner's remaining contentions and conclude

they lack sufficient merit to warrant further discussion. R.

2:11-3(e)(1)(E).

Affirmed.

9 A-3350-15T2