                            NOT FOR PUBLICATION WITHOUT THE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-1151-16T4

ALLSTATE NEW JERSEY INSURANCE
COMPANY, ALLSTATE INSURANCE
COMPANY, ALLSTATE INDEMNITY
COMPANY, ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY,
ALLSTATE NEW JERSEY PROPERTY
AND CASUALTY INSURANCE COMPANY,
and ENCOMPASS INSURANCE, f/k/a
CONTINENTAL INSURANCE COMPANY,
and COMMERCIAL INSURANCE
COMPANY OF NEWARK, N.J.,

                Plaintiffs-Respondents,

v.

GREGORIO LAJARA; PEDRO GONZALEZ;
MILEYDIS T. DIAZ a/k/a MILLY DIAZ;
AWILDA D. RODRIGUEZ a/k/a AWILDA D.
GONZALEZ; KENNETH J. VIAFORA;
JOSE ORLANDO HERNANDEZ;
FRANCISCA HERNANDEZ; FRANCISCO
CABA; AQUALINA RAMOS; HARSHAD
PATEL; ASHRAF Y. AZIR; MUHAMMAD
A. SHAMSHAIR; MICHAEL C. GOLOWSKI;
ELVIA BEDOYA; NYDIA MARTINEZ;
NEREDA ZUNIGA; ALEXANDRA
GALLEGOS; BIBARS KAGHDOU, D.C.;
STEPHEN LOMANTO, D.C.; DAVID
STEPHENS, D.C.; THOMAS J. BONACUSO,
D.C.; MICHAEL CARLESIMO, D.C.; BRYAN
SIEGEL, D.C.; KEITH LEWANDOWNSKI,
D.C.; WEI JU; LUCY LIU; JIANMIN LI, a/k/a
JIAN MIN LI; SHAN S. NAGENDRA, M.D.;
ALEKSANDR LEVIN, M.D.; MANOJ D.
PATHARKAR, M.D.; ALFRED REZK
TAWADROUS, M.D.; HOWARD KESSLER,
M.D.; DAVID WALKER, ESQ.; MEDICO
MANAGEMENT CO., INC.; UNION
COLLECTIONS, LLC; PLAINFIELD
MEDICAL MANAGEMENT, INC.; SPINAL
ADJUSTMENT CENTER, INC.; RAHWAY
SPINAL INJURY PC f/k/a RAHWAY SPINAL
CENTER CORP.; ADVANCED SPINAL
CARE, PC; MILLENNIUM TOTAL HEALTH,
PC; ALEVE CHIROPRACTIC, PC; IN-LINE
CHIROPRACTIC, PC; BAYVIEW HEALTH,
PC a/k/a BAYVIEW HEALTH SERVICE, PC;
BOUND BROOK CHIROPRACTIC, PC; NEW
WAVE CHIROPRACTIC, PC; ABSOLUTE
CHIROPRACTIC, PC; BACK PAIN PC;
AM PAIN CARE, PC; ACUPUNCTURE
ACADEMY PC; TCM ACUPUNCTURE, PC;
AMERICAN ACUPUNCTURE ACADEMY,
PC; CONVERY MEDICAL GROUP, PC;
RARITAN PAIN MANAGEMENT AND
REHAB CENTER, PC; ASBURY MEDICAL
AND REHABILITATION PC; PAIN
MANAGEMENT ASSOCIATES OF CENTRAL
JERSEY, PA; BEST HEALTH MEDICAL, PC;
PERTH AMBOY HEALTH CARE, LLC d/b/a
"PERTH AMBOY DIAGNOSTIC IMAGING";
A.P. DIAGNOSTIC IMAGING, INC.;
LIBERTY SUPPLIES, LLC; K-MED
SERVICES, INC.; PRESTIGE MEDICAL
SUPPLIES, LLC; THERAPEUTIC DEVICES, INC.,


                                            A-1151-16T4
                             2
           Defendants,

and

NATALIO DAMIEN, M.D.,

           Defendant-Appellant,

and

COMMISSIONER OF THE NEW JERSEY
DEPARTMENT OF BANKING AND
INSURANCE,

          Plaintiff/Intervenor-Respondent.
_____________________________________

           Submitted September 12, 2018 – Decided March 8, 2019

           Before Judges Yannotti, Gilson, and Natali.

           On appeal from Superior Court of New Jersey, Law
           Division, Union County, Docket No. L-4091-08.

           Bramnick, Rodriguez, Grabas, Arnold & Mangan,
           LLC, attorneys for appellant Natalio Damien, M.D.
           (Carl A. Salisbury, on the briefs).

           Pringle Quinn Anzano, PC, attorneys for respondent
           Allstate New Jersey Insurance Company (Daniel S.
           Hunczak and Doris Cheung, on the briefs).

           Brach Eichler LLC, attorneys for amici curiae Medical
           Society of New Jersey and Radiological Society of
           New Jersey (John D. Fanburg, of counsel; Joseph M.
           Gorrell, of counsel and on the brief; Richard B.
           Robins, on the brief.)


                                                                   A-1151-16T4
                                    3
PER CURIAM

      Defendant Natalio Damien, M.D., (Damien) appeals from an August 31,

2016 final order that dismissed claims against him, but which ordered

defendants A.P. Diagnostic Imaging, Inc. (APDI) and Harshad Patel (Patel) to

disgorge payments they received "based on Dr. Damien's violations" of

N.J.A.C. 13:35-2.6(m)(3), (m)(6), (m)(7), and (k)(8) (2005). Damien seeks

reversal of a December 8, 2015 decision that he violated those provisions,

which the court issued in a statement of reasons disposing of cross-motions for

summary judgment filed by plaintiffs Allstate New Jersey Insurance Company,

Encompass Insurance Company, their related entities (collectively, Allstate),

and defendants Damien, APDI, and Patel. Damien also challenges the court's

April 4, 2016 decision denying reconsideration of the December 8, 2015

decision. Having considered the parties' arguments in light of the record, we

reverse the court's determination that Damien violated paragraphs (k)(8) and

(m)(7), but affirm its decision as to paragraphs (m)(3) and (m)(6).

                                       I.

      Damien is a diagnostic radiologist certified by the New Jersey State

Board of Medical Examiners (the Board or BME). By 2005, Damien began

reading and interpreting MRIs and x-rays for APDI, a diagnostic testing


                                                                      A-1151-16T4
                                      4
facility that provides medical imaging services on a referral basis. Damien

became the medical director for the APDI facility located in Edison, New

Jersey, in 2008. At all relevant times, Allstate provided insurance coverage to

some of APDI's referred patients (the insureds).

        On December 15, 2008, Allstate filed a complaint alleging APDI, Patel,

Damien, and sixty other defendants violated several regulations and statutes,

including the New Jersey Insurance Fraud Prevention Act (IFPA), N.J.S.A.

17:33A-1 to -30, by engaging in a widespread automobile insurance fraud

scheme.1 In Count 27, Allstate sought a declaratory judgment that Damien,

APDI, and co-defendants violated, among other regulations, N.J.A.C. 13:35-

2.6(k)(8) and (m) by: performing diagnostic tests that were not medically

necessary; failing to disclose in MRI reports the existence of prior tests

performed on an insured that were "pertinent to" the same insured's presenting

medical condition or injury; and failing to "institute or follow procedures to

assure that sufficient clinical data was provided" to justify the requested tests.

        In Count 28, Allstate sought disgorgement of the payments those

defendants purportedly received in connection with their alleged regulatory

violations. Count 29 alleged those defendants fraudulently, knowingly, and

1
    The parties have not included the entire complaint in the record.


                                                                          A-1151-16T4
                                        5
intentionally misled Allstate to believe the tests were medically necessary and

were performed in accordance with the administrative regulations, and that

they knowingly benefitted from that misconduct in violation of IFPA.

      The Commissioner of the New Jersey Department of Banking and

Insurance (Commissioner) filed a motion to intervene, and for leave to file an

amended complaint as a co-plaintiff, which the court granted on January 6,

2012. The parties engaged in extensive discovery during which they explored

the practices and protocols in place at APDI during the timeframe of the

allegedly unlawful activity.

      For example, at an April 17, 2013 deposition, an MRI technician for

APDI from February 2003 to November 2005, Stuart Orange, testified that

APDI did not provide him with a physical written policy, procedure, protocol,

or manual to follow with respect to performing MRIs. Orange also testified

that, other than checking for contraindications (e.g., a pacemaker or metal in

the body) and claustrophobia, the prerequisite for testing at APDI was a

prescription.

      APDI's corporate designee Rajesh Bhagat similarly testified at a June 12,

2013 deposition that medical doctors at APDI "do not" take patient histories

prior to testing and that APDI used "the same process" for testing patients


                                                                       A-1151-16T4
                                      6
regardless of whether a chiropractor, medical doctor, or osteopath referred the

patient.   Bhagat further stated that APDI "is not there to decide medical

necessity. Our facility is licensed to do the testing."

      Damien testified at his deposition that while he worked for APDI, he did

not examine patients or "look at" their files prior to the tests. In addition, from

March 2005 to March 2011, Damien prepared reports that do not cross-

reference any other tests, even though there were prior tests performed at the

same facility on the same insured.

      Similarly, Thurairasah Vijayanathan, M.D., who also read films and was

a medical director at APDI, testified at his deposition that he never reviewed

patient files before tests were performed and never examined patients to

determine whether a medical necessity existed for the test. He opined, "it is

impossible for a radiologist reading all the teleradiology to decide whether . . .

there's a medical necessity or not." When discussing "an appropriate test,"

however, Vijayanathan testified that, "for example, [if] the patient has

headaches, and they are giving you an MRI of the foot, you have to find out

what happened. Somebody made a mistake." Vijayanathan stated he believed

the medical director would bear ultimate responsibility for such a mistake.




                                                                         A-1151-16T4
                                        7
      Malini Jayarama, an imaging technician at APDI who became an

administrator in 2003 or 2004, testified at her deposition that prior to testing,

she would check patients for contraindications, allergies, and pregnancy, but

"[n]ever" examined patients to determine if testing was medically necessary.

      At all relevant times, N.J.A.C. 13:35-2.6(k)(8) required referral-

receiving physicians to prepare a "comprehensive report" containing "[c]ross-

references to any other tests performed on the same patient pertinent to the

patient's presenting medical condition or injuries, if not addressed in a

consolidated report . . . ." Further, N.J.A.C. 13:35-2.6(m) (2008) provided:

            Any practitioner, in any location, whether or not
            licensed by DOHSS, accepting a referral for the
            performance of a diagnostic test, except with respect
            to emergency care, shall:

            1. Require that the referral be preceded by verbal
               communication or delivery of the written request
               (which may be faxed) as set forth in (l) above;[ 2]


2
    N.J.A.C. 13:35-2.6(l) (2008) mandated that practitioners who requested
another practitioner perform a "clinically supported" diagnostic test, id. at
(b)(2), to make that request:

            in writing or by a personal communication
            documented in the patient record . . . setting forth: 1)
            The patient's reported symptoms and objective signs,
            if any, pertinent to the problem; 2) A brief history of
            the reported medical condition; and 3) An indication
                                                                       (continued)
                                                                        A-1151-16T4
                                      8
              2. Retain a copy of the referring request or document
                 the personal communication in the patient record;

              3. Institute a procedure to assure that sufficient
                 clinical data has been provided to justify the
                 requested test;

              4. Personally consult with the referring practitioner in
                 advance of performing the test, if additional
                 information is needed to determine if the diagnostic
                 test requested is the most appropriate test to elicit
                 the clinical information sought;

              5. Perform a focused clinical examination if, in the
                 practitioner's discretion, such examination is
                 necessary;

              6. Verify the indications for and appropriateness of
                 diagnostic testing, if the referral has been made by
                 a practitioner with a limited license to a plenary
                 licensee;

              7. Prepare a report containing the information set
                 forth in section (k) above; and

              8. Assure that explanation has been provided to the
                 patient and, where there is significant risk or
                 likelihood of side effects, obtain informed
                 consent.[3]

(continued)
              of prior testing relating to the medical condition and
              results thereof.
3
   By amendment effective January 2, 2018, 50 N.J.R. 209(a) (Jan. 2, 2018),
the Board revised subsections (k) through (n), and other subsections of the
                                                                 (continued)
                                                                         A-1151-16T4
                                        9
      Allstate filed a motion for partial summary judgment against APDI and

Damien with respect to Counts 27 and 28, and sought disgorgement in the

amount of $188,038.72. Allstate claimed APDI and Damien violated N.J.A.C.

13:35-2.6(m)(3) and (m)(6) by failing "to verify the necessity and

appropriateness" of diagnostic tests requested by chiropractors and "did not

review a patient's file for medical necessity before the MRI test was performed

on the patient at APDI."     Further, Allstate argued that APDI and Damien

violated N.J.A.C. 13:35-2.6(k)(8) and (m)(7) because "none of the test reports"

that they prepared referenced any prior tests performed on the same insured.

      Allstate did not submit expert testimony to support its interpretation of

N.J.A.C. 13:35-2.6(k)(8). Instead, Allstate offered a certification of a non-

physician, special investigation unit analyst, Benjamin J. Hickey, which

attached as exhibits certain reports prepared by Damien and other

practitioners, and concluded that "none of the reports contain cross-references

to any other tests performed on the same patient pertaining to that patient's

presenting injury or condition."

(continued)
regulation, in an effort to "assur[e] that the rules are not interpreted in such a
way as to have a negative impact on the quality, cost, or access to diagnostic
testing or screening services." 49 N.J.R. 1660(a) (June 19, 2017).


                                                                        A-1151-16T4
                                      10
      Damien and APDI opposed Allstate's motion and filed a cross-motion

for summary judgment. APDI claimed that as a diagnostic office licensed by

the State Department of Health and Senior Services, the BME regulations did

not apply to it. Damien maintained he fully complied with the regulations.

Further, APDI and Damien claimed that if the court adopted Allstate's

interpretation of N.J.A.C. 13:35-2.6(m)(6), Damien and "similarly situated

physicians" would be required to discriminate against referrals from

chiropractors in violation of N.J.A.C. 13:35-6.9.4     Damien and APDI also

argued that Allstate was required, but failed, to produce expert testimony to

substantiate its claim that Damien violated N.J.A.C. 13:35-2.6(k)(8).

      At a December 8, 2015 hearing, a motion judge heard oral arguments

and issued a written statement of reasons detailing the court's decision on the

cross-motions for summary judgment. The court decided the regulations at

issue applied to Damien, but not to APDI, and stated there was no factual


4
   N.J.A.C. 13:35-6.9(b) requires physicians with plenary licenses to "provide
diagnostic radiological services to [a requesting] chiropractic or podiatric
physician without discrimination on the basis of classification of license,
provided the diagnostic radiological services requested pertain to skeletal areas
of the body." Further, N.J.A.C. 13:35-6.9(c) provides that "[d]enial of
professional diagnostic radiological services, as set forth herein, shall
constitute purposeful and intentional discrimination and shall subject the
licensee to appropriate disciplinary action by the [BME]."


                                                                        A-1151-16T4
                                     11
dispute that Damien failed to follow the regulatory protocol and, accordingly,

concluded "a judgment on liability will . . . be entered against him for those

tests for which he was responsible."

      The court based its decision on Damien's and Vijayanathan's deposition

testimony that they did not "examine patients referred by limited licensees . . .

to verify the necessity and appropriateness of the diagnostic test and did not

review the patient's file to determine necessity, in violation of [N.J.S.A. 13:35 -

2.6](m)(3) and (6)." The court also found expert testimony was not required to

prove Damien violated N.J.A.C. 13:35-2.6(k)(8). Thus, the court determined,

"on those films for which [Damien] was responsible, the mandatory protocol

established by N.J.A.C. 13:35-2.6(k)(8) and (m) was not followed" and

"Damien shall disgorge all payments made by Allstate . . . ."

      Trial proceedings on the remaining counts against Damien and other

defendants began on January 4, 2016. On January 13, 2016, while the bench

trial was ongoing, the BME met to discuss the court's December 8, 2015

decision and announced in a document entitled "open board minutes":

            The Board using its expertise carefully considered the
            [court's December 8, 2015] decision in conjunction
            with its regulations specifically N.J.A.C. 13:35-
            2.6(k)(8), (m)(3), [and] (m)(6) and found that the
            language of the [fifteen] year old regulation is capable
            of being interpreted in a manner that is inconsistent

                                                                         A-1151-16T4
                                       12
            with how the delivery of diagnostic testing services
            are actually scheduled and conducted. Indeed, the
            decision interprets the regulation in an expansive
            manner which was never the intent of the Board.
            Further, it appears to impose obligations, such as a
            physical examination and record review, on
            radiologists which are not practical, the medical
            standard or the intent of the Board. It is the Board's
            interpretation of the regulation that a radiologist's
            reliance on a legitimate prescription from a licensee
            legally authorized to make the referral for a diagnostic
            test is sufficient indication of appropriateness to
            accept the referral. Any further review prior to the
            performance of the diagnostic test is left to the
            professional discretion of the radiologist and not
            imposed as mandatory protocol by the Board
            regulation.

The minutes also explained, "[i]t is the position of the Board that it is within

the Board's jurisdiction to make findings as to whether or not Board

regulations are violated by a Board licensee (especially in a case like [this

case] where Board expertise should be utilized in interpreting the regulation)."

      On February 29, 2016, APDI and Damien filed a motion for

reconsideration of the court's December 8, 2015 decision based on the BME's

open board minutes. Counsel for the Commissioner submitted a letter to the

trial court, enclosing the open board minutes and explaining: 1) the minutes

were "draft minutes"; 2) the BME "typically approves minutes of a particular




                                                                       A-1151-16T4
                                     13
meeting at a subsequent meeting"; and 3) the next meeting was scheduled for

March 9, 2016.5

      At an April 4, 2016 hearing on the motion for reconsideration, the court

found:

            that the comments - the unsolicited and surprising
            letter from the attorney for the Board of Medical
            Examiners is not evidence, that it is not compelling.
            And, therefore, the [c]ourt[,] while it certainly
            understands why the motion [for reconsideration]
            would be made[,] respectfully declines it.

      On April 18, 2016, the court rendered its decision on the IFPA claims

that Allstate filed against Damien. The court found:

            As I've stated in this matter, [the motion judge] has
            already made a finding that there were Administrative
            Code violations by Dr. Damien that resulted in the
            determination that he is required to pay back any
            monies paid by Allstate, based upon his report
            submitted to that entity. I am not changing that
            decision in any way . . . .

                  ....


5
  Damien's brief advises that the Board "subsequently adopted the minutes as
drafted and published them on the Board's website." However, aside from the
Commissioner's counsel's letter, there is no indication in the record or the
website to which Damien directs our attention as to when that "subsequent
adopt[ion]" by the Board occurred. Thus, there is no competent evidence in
the record that the Board had adopted the draft minutes prior to the April 4,
2016 hearing.


                                                                     A-1151-16T4
                                    14
            Be that as it may, I cannot find that anything Dr.
            Damien has done constitutes a violation of [IFPA].
            His reports were his genuine and credible findings and
            there was nothing misleading about them. I further
            find that he did not conspire with anybody, including
            Harshad Patel, to mislead insurance companies
            regarding payment . . . for medical bills.

            And based upon all of the above the case of insurance
            fraud against Dr. Damien is dismissed with prejudice.

Consistent with these findings, the court signed a verdict sheet on April 18,

2016, which found, among other things, that plaintiffs failed to prove Damien,

APDI, and Patel had committed insurance fraud under IFPA "as a result of

violations" of N.J.A.C. 13:35-2.8(k)(8), (m)(3), (m)(6), and (m)(7).6

      The trial judge entered final orders of judgment on June 29, 2016,

resulting in judgments amounting to approximately ten million dollars in favor

of Allstate against APDI, Patel, and eight other defendants, but not Damien,

and a judgment in favor of the Commissioner. The June 29, 2016 orders do

not appear to have been based on the court's December 8, 2015 decision

because on or about July 18, 2016, Allstate filed a motion for certification of



6
  According to the court's April 18, 2016 decision, Allstate argued at trial the
motion judge's December 8, 2015 determination that Damien violated N.J.A.C.
13:35-2.6(k)(8) and (m) was "evidence" that Damien violated the IFPA.



                                                                        A-1151-16T4
                                     15
the court's December 8, 2015 statement of reasons and sought disgorgement

from Damien, APDI, and Patel pursuant to the December 8, 2015 decision.

        Following oral argument on that post-trial motion,7 the trial judge

entered an August 31, 2016 final order of judgment denying Allstate's motion

for disgorgement from Damien because it was "conceded by all parties that Dr.

Damien did not receive any payments" from Allstate to disgorge. In addition,

the order purports to dismiss with prejudice "all counts" against Damien.

However, the court's order required that any payments made to APDI and Patel

"based upon Dr. Damien's violations of the New Jersey Administrative Code"

were to be returned by APDI and Patel under Counts 27 and 28 of Allstate's

complaint. Thus, with respect to Damien, the August 31, 2016 order dismissed

all counts against him except Count 27 because the August 31, 2016 order, by

its own terms, was predicated upon the court's December 8, 2015 decision that

Damien violated the regulations under Count 27.

        Several cross-appeals were filed by various parties. On May 18, 2017,

we granted the Medical Society of New Jersey and Radiological Society of

New Jersey's motion to appear as amici curiae.              All of the remaining



7
    The parties did not include the transcript of that oral argument in the record.


                                                                          A-1151-16T4
                                        16
defendant-appellants have settled their appeals, except for Damien, who

remains the lone appellant before us.

                                         II.

      Before reaching the merits, we address a procedural and a justiciability

issue. First, for reasons unclear from the record, the court failed to render an

order or judgment on the parties' summary judgment motions, contrary to Rule

4:46-2(c), or an order memorializing its April 4, 2016 decision denying

Damien's motion for reconsideration. We recognize that appeals ordinarily are

taken only from orders or judgments. In re Berkeley, 311 N.J. Super. 99, 101

(App. Div. 1998). However, "[w]e have at times opted to overlook technical

insufficiencies in order to reach the merits of [an] appeal." State v. Benjamin,

442 N.J. Super. 258, 262 (App. Div. 2015). Here, the August 31, 2016 final

order clearly incorporated the December 8, 2015 and April 4, 2016

interlocutory decisions as the final order was entered against APDI and Patel

"based upon Dr. Damien's violations" of the regulations as determined by the

interlocutory decisions. Further, at the April 4, 2016 reconsideration hearing,

the court determined its December 8, 2015 decision was "an interlocutory

order," and at the April 18, 2016 hearing, the court stated the December 8,

2015 decision was an entry of summary judgment against Damien for


                                                                       A-1151-16T4
                                        17
violations of N.J.A.C. 13:35-2.6(k)(8), (m)(3), and (m)(6). Accordingly, we

address the merits of the court's December 8, 2015 and April 4, 2016

decisions, despite the absence of a formal order.

      Second, we acknowledge that "[o]nly a party aggrieved by a judgment

may appeal therefrom." Howard Sav. Inst. of Newark, N.J. v. Peep, 34 N.J.

494, 499 (1961).     Here, the August 31, 2016 final order, which Damien

identified in his case information statement as an order from which he

appealed, dismissed the claims against him, which would suggest that Damien

is not an aggrieved party. However, that final order, by its express terms, was

entered against APDI and Patel "based upon Dr. Damien's violations" of the

administrative code and after the court determined at the April 18, 2016

hearing that it would not change the December 8, 2015 decision "in any way."

Because "a party aggrieved is one whose personal or pecuniary interests, or

property rights, have been injuriously affected by the order or decree," Eugster

v. Eugster, 89 N.J. Eq. 531, 533 (E. & A. 1918), we conclude the reputational

harm that may visit Damien as a licensed professional adjudicated to have

practiced his profession in violation of the law is sufficiently injurious to his

professional and personal interests to be considered an aggrieved party for

purposes of this appeal.


                                                                        A-1151-16T4
                                     18
                                      III.

      Turning to the merits, Damien maintains the court incorrectly interpreted

N.J.A.C. 13:35-2.6(m)(3) and (m)(6) as requiring radiologists to examine

patients and review their records and medical files to determine whether

diagnostic testing was "medically necessary" for every patient referred by a

limited licensee, such as a chiropractor.8 Specifically, he claims the court's

interpretation is contrary to the BME's intent and placed Damien "and all other

New Jersey radiologists in jeopardy of violating" N.J.A.C. 13:35-6.9, which

prohibits plenary licensees from denying referrals based on a limited licensee's

status as such. Further, Damien argues his mere receipt of a referral from a

licensed practitioner constituted compliance with paragraphs (m)(3) and

(m)(6), which he contends required only that he verify the referring

practitioner had complied with N.J.A.C. 13:35-2.6(l) (2014).

      Similarly, amici contend the court's decision imposes a "more difficult"

standard of care for radiologists to satisfy than was "contemplated by the

regulation" by "forcing" radiologists to determine the "medical necessity" of a


8
   See N.J.A.C. 13:35-6.16(f)(3)(i) (explaining chiropractors are practitioners
with a limited scope of license, i.e. limited licensees, as opposed to plenary
licensees).



                                                                       A-1151-16T4
                                     19
patient's prescribed test when the radiologist "may not have the expertise" to

make that determination. 9

      In addition, Damien claims the court incorrectly concluded expert

testimony was not necessary for Allstate to prevail on its claim under N.J.A.C.

13:35-2.6(k)(8). Specifically, Damien maintains that whether a prior test was

pertinent to a patient's presenting medical condition or injury under paragraph

(k)(8) "requires an evaluation by a competent and qualified medical

professional because the medical and diagnostic relationship of a prior test to a

patient's presenting medical condition is beyond the ken of the average finder

of fact."   Further, Damien claims subsection (l) required the referring

physician to reference any relevant prior tests, and that he was "entitled to

presume" the referring practitioner complied with that duty and no pertinent


9
  Amici also inject a new issue into this appeal: whether Allstate had a private
cause of action to institute this litigation. "[A]s a general rule an amicus
curiae must accept the case before the court as presented by the parties and
cannot raise issues not raised by the parties." Bethlehem Twp. Bd. of Educ. v.
Bethlehem Twp. Educ. Ass'n, 91 N.J. 38, 48-49 (1982). Although Allstate
responded to this issue in its opposition brief, the issue was not raised by the
parties during the seven years of proceedings before the trial court, so we
conclude its resolution "should await a case in which the issue is squarely
presented." See Byram Twp. Bd. of Ed. v. Byram Twp. Ed. Ass'n, 152 N.J.
Super. 12, 18 (App. Div. 1977); see also State v. Gandhi, 201 N.J. 161, 191
(2010); Fed. Pac. Elec. Co. v. N.J. Dep't of Envtl. Prot., 334 N.J. Super. 323,
345 (App. Div. 2000).


                                                                        A-1151-16T4
                                     20
prior test existed when the referral did not mention such tests. Thus, he claims

he was not at fault under paragraph (k)(8) for failing to cross-reference any

test not mentioned in the referral, even if those tests were pertinent.

      We agree with Damien that expert testimony was required for Allstate to

satisfy its burden under subsection (k)(8). We also agree with Damien and

amici that the trial court incorrectly interpreted the regulations as requiring

Damien to conduct a physical examination of any patient to determine the

medical necessity of testing. Further, we agree with Damien that a referral-

receiving practitioner could satisfy paragraph (m)(6), by verifying the referring

practitioner complied with subsection (l).

      However, we disagree with Damien that he was "entitled to presume" the

referring practitioner had complied with subsection (l) and that his mere

receipt of a referral constituted compliance with N.J.A.C. 13:35-2.6(m)(3) and

(m)(6).   Accordingly, because Damien failed to present any competent

evidence in opposition to Allstate's summary judgment motion that he

instituted a procedure to ensure the referring practitioner complied with

subsection (l), or that he ever used particular care with respect to referrals

from limited licensees, we affirm on those limited grounds.




                                                                          A-1151-16T4
                                      21
                                        IV.

      We review summary judgment rulings de novo and apply the same

standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015).

Summary judgment is appropriate when there is "no genuine issue as to any

material fact challenged and . . . the moving party is entitled to a judgment or

order as a matter of law." R. 4:46-2(c). We consider "whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995)). A disputed fact is material if its

resolution in the non-movant's favor ultimately will entitle that party to

judgment. Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 297 (App.

Div. 2004) (quotation omitted). If no material factual issue exists, our inquiry

is limited to "whether the trial court correctly interpreted the law." DepoLink

Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333

(App. Div. 2013) (quotation omitted).

      When interpreting a regulation, the "paramount goal" is to discern the

intent of its drafters. US Bank, N.A. v. Hough, 210 N.J. 187, 199 (2012).


                                                                       A-1151-16T4
                                     22
That process begins with the regulation's plain language, giving the words used

their ordinary meaning unless they clearly have a technical or special meaning.

Safeway Trails, Inc. v. Furman, 41 N.J. 467, 478 (1964). We construe the text

of the enactment "in context with related provisions so as to give sense" to the

regulation "as a whole." Spade v. Select Comfort Corp., 232 N.J. 504, 515

(2018) (quoting N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J.

541, 570 (2017)); see N.J.S.A. 1:1-1. "We do not add terms which may have

been intentionally omitted," State v. Perry, 439 N.J. Super. 514, 523 (App.

Div. 2015), and where the drafters have "carefully employed a term in one

place and excluded it in another, it should not be implied where excluded," GE

Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 308 (1993).

      If a regulation is amenable "to more than one plausible interpretation,"

we may resort to extrinsic evidence of the drafters' intent. Bedford v. Riello,

195 N.J. 210, 222 (2008).       That extrinsic evidence includes an agency's

interpretation of its own regulation, to which we usually defer unless the

interpretation is "plainly unreasonable." Hough, 210 N.J. at 200 (quoting In re

Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262

(2010)). Applying these principles to the facts and regulation before us, we

begin our analysis with paragraphs (k)(8) and (m)(7).


                                                                         A-1151-16T4
                                      23
                                       A.

      Pursuant to N.J.A.C. 13:35-2.6(k)(8) (2014), Damien was required to

"prepare and retain a comprehensive written report" containing "[c]ross -

references to any other tests performed on the same patient pertinent to the

patient's presenting medical condition or injuries, if not addressed in a

consolidated report . . . ." See N.J.A.C. 13:35-2.6(m)(7) (2014) (requiring

practitioners to prepare a report containing the information in subsection (k)).

The trial court held that because Damien's reports did not cross-reference any

prior tests performed on the same patient, Damien violated paragraphs (k)(8)

and (m)(7).    Further, the court deemed expert testimony on the issue

unnecessary because "[o]ne does not need a medical degree to read a report

and see whether there are cross-references."     We disagree with the court's

interpretation and its determination that Allstate could satisfy its burden of

proving Damien violated these regulations without offering expert testimony.

      Under paragraphs (k)(8) and (m)(7), the only tests that Damien was

required to cross-reference were those "pertinent to" the patient's presenting

medical condition or injuries. N.J.A.C. 13:35-2.6(k)(8) (2014). This entails a

three-step inquiry: 1) what is the patient's presenting medical condition or

injury; 2) were other tests performed on the patient; and 3) are any of the prior


                                                                       A-1151-16T4
                                     24
tests "pertinent to" the patient's presenting medical condition or injury.

Damien's argument that expert testimony is necessary to determine whether a

prior test is pertinent to the patient's presenting medical condition or injury has

support in the plain language of the regulation and its history.

      As originally proposed, N.J.A.C. 13:35-2.6(k)(8) would have required

reports to cross-reference "any other tests performed on the same day . . . ." 32

N.J.R. 19(a) (Jan. 3, 2000). In response to comments, the BME amended the

proposed rule to require reports to cross-reference "any other tests performed

on the same patient pertinent to the patient's presenting medical condition or

injuries . . . ." 33 N.J.R. 670(a) (Feb. 20, 2001). As the BME explained:

            [T]he [Radiological] Society objected to the
            requirement of paragraph (k)[(8)] for cross-
            referencing the existence and conclusions of separate
            tests, contending that this should apply only when
            relevant or pertinent, that is when the multiple tests
            performed have some sort of relationship to one
            another.

                   ....

            [T]he Board is satisfied that when separate tests have
            been deemed appropriate in the judgment of the
            specialist testing practitioner and are or have been
            performed on the same patient for the same medical
            condition or injury, they are virtually always relevant
            or pertinent in treating the "whole patient."

            [Ibid.]

                                                                         A-1151-16T4
                                      25
      The BME's repeated use of "relevant or pertinent" indicates an

understanding that those terms were synonymous, an understanding which

comports with a common definition of the term.         See, e.g., Black's Law

Dictionary 1328 (10th ed. 2014) (pertinent defines as "[o]f, relating to, or

involving the particular issue at hand; relevant").    Further, the regulatory

history defines "relevant or pertinent" tests as those that "have some sort of

relationship to one another," and which would "virtually always" encompass

tests performed on "the same medical condition or injury . . . ." 33 N.J.R.

670(a) (Feb. 20, 2001).

      We conclude that such an analysis required expert testimony, and

without those proofs, Allstate failed to carry its burden as a summary judgment

movant. See R. 4:46-2(c) (requiring the movant to show there is no genuine

issue of material fact); Brill, 142 N.J. at 523 (explaining that whether a

material factual issue exists depends on "the competent evidential materials

presented"); Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205, 215-16

(App. Div. 2002) (affirming the trial court's grant of summary judgment to

defendant because plaintiff failed to produce necessary expert testimony).

Expert testimony is necessary when "the matter to be dealt with is so esoteric

that jurors of common judgment and experience cannot form a valid judgment"

                                                                      A-1151-16T4
                                    26
as to the reasonableness of a party's conduct. Butler v. Acme Markets, Inc., 89

N.J. 270, 283 (1982); Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 282–

83 (App. Div. 1995).

      Here, the "matter to be dealt with" is the medical relationship between a

patient's prior test and the patient's presenting medical condition or injury. We

conclude that a factfinder of ordinary knowledge could not reasonably be

expected to interpret a test, diagnose the medical condition or injury indicated

by the test, then relate that diagnosis to the patient's presenting medical

condition or injury. Accordingly, the court committed error when it decided

that Allstate satisfied its burden to show Damien failed to cross-reference

"pertinent" prior tests under N.J.A.C. 13:35-2.6(k)(8) without introducing

expert evidence to demonstrate that any prior test had some relationship to the

challenged report, including that the tests were performed on the same medical

condition or injury.

                                       B.

      Under N.J.A.C. 13:35-2.6(m)(3), Damien was required to "[i]nstitute a

procedure to assure that sufficient clinical data has been provided to justify the

requested test . . . ." In addition, pursuant to paragraph (m)(6), Damien was

required to "[v]erify the indications for and appropriateness of diagnostic


                                                                        A-1151-16T4
                                      27
testing, if the referral [was] made by a practitioner with a limited license to a

plenary licensee . . . ." N.J.A.C. 13:35-2.6(m)(6) (2014). The court addressed

paragraph (m)(3) in conjunction with paragraph (m)(6), and concluded that

under those rules, Damien was required to "examine patients referred by

limited licensees . . . to verify the necessity and appropriateness of the

diagnostic test" and to "review the patient's file to determine [the] necessity"

of the tests.   Specifically, the court found "the gravamen" of Damien's

"infraction is that there was no effort to independently determine whether the

diagnostic testing requested was medically necessary, as was required by the

regulations."

      Initially, we reject Damien's claim that the court's interpretation of

paragraph (m)(6) placed practitioners "in jeopardy of violating" N.J.A.C.

13:35-6.9. A practitioner violates that regulation by denying a referral from a

limited licensee "on the basis of" the referring practitioner's status as a limited

licensee. See N.J.A.C. 13:35-6.9(b); Brodie v. State Bd. of Med. Exam'rs, 177

N.J. Super. 523, 530 (App. Div. 1981). The court's interpretation of paragraph

(m)(6) did not require Damien to deny any referrals "on the basis of" the scope

of the referring practitioner's license.     Instead, the court's interpretation

required referral-receiving practitioners to perform an independent evaluation


                                                                         A-1151-16T4
                                      28
of patients referred by limited licensees to determine whether, in the judgment

of the referral-receiving practitioner, the requested testing was medically

necessary. Any proper denial of a referral pursuant to the court's interpretation

of paragraph (m)(6) would have been based on the referral-receiving

practitioner's independent professional judgment, after a physical examination

of the patient, that the requested diagnostic testing was not medically

necessary.

      Nonetheless, we disagree with the court that paragraph (m)(6) required

Damien to examine patients referred by limited licensees to determine whether

testing was medically necessary. We also disagree with the court's conclusion

that paragraph (m)(3) required Damien to institute a procedure of examining

patients to determine medical necessity.         The only reference to any

examination in subsection (m) appears in paragraph (m)(5), which gives the

referral-receiving practitioner "discretion" to perform a "focused clinical

examination" if he or she deems one is necessary. N.J.A.C. 13:35-2.6(m)(5).

Although the difference between a "focused clinical examination" and any

other examination is not clear from the face of the regulation, the regulatory

history explains:

             this term is readily understood in the medical
             community. A patient referred for a diagnostic test

                                                                        A-1151-16T4
                                     29
            has been sent by the treating practitioner in order to
            answer a medical diagnosis question or a treatment
            question. The consultant is expected to perform a
            clinical examination, when indicated, which, at a
            minimum, is not necessarily a comprehensive physical
            examination but, rather, one which brings the
            specialist's knowledge to bear upon the particular
            problem to be solved, that is, "focused clinical
            examination."

            [33 N.J.R. 670(a) (Feb. 20, 2001) (emphasis added).]

Accordingly, because the only physical examination to determine "the

particular problem to be solved" is a discretionary one under paragraph (m)(5),

we agree with Damien that the court incorrectly interpreted paragraphs (m)(3)

and (m)(6) as requiring Damien to "examine" patients.

      Further, the phrase "medically necessary" does not appear anywhere in

the regulation. Those words should be given their ordinary meaning , and the

Legislature's definition in N.J.S.A. 39:6A-2(m) is consistent with that

meaning:

            "Medically necessary" means that the treatment is
            consistent with the symptoms or diagnosis, and
            treatment of the injury (1) is not primarily for the
            convenience of the injured person or provider, (2) is
            the most appropriate standard or level of service
            which is in accordance with standards of good practice
            and standard professional treatment protocols, . . . and
            (3) does not involve unnecessary diagnostic testing.

            [N.J.S.A. 39:6A–2(m); see also N.J.A.C. 11:3-4.2.]

                                                                       A-1151-16T4
                                     30
      Because part of the definition of "[m]edically necessary" is that the

treatment is "the most appropriate standard or level of service," N.J.S.A.

39:6A-2(m), the words "[v]erify the indications for and appropriateness of

diagnostic testing" in N.J.A.C. 13:35-2.6(m)(6) (2014) must require less than

verifying the test was medical necessary.

      Nonetheless, we reject Damien's claim that his mere receipt of "a written

or documented referral from a chiropractor, without more, meets the

verification requirement" under paragraph (m)(6) and was, in itself, a

procedure that meets the requirements of paragraph (m)(3), 10 notwithstanding

Damien's argument that extrinsic evidence of the Board's intent, specifically

the BME draft minutes, supports his interpretation. 11


10
    Allstate's opposition brief states Damien argued "documents produced in
response to [p]laintiffs' discovery requests for APDI's protocols, policies
and/or procedures and employee handbooks and/or manuals . . . rebut
[p]laintiffs' claim that APDI did not have any written procedures regarding
standard protocols for MRI studies." Damien makes no such argument in his
briefs, so, to the extent he ever made that claim, his failure to brief it operates
as a waiver. 539 Absecon Blvd., L.L.C. v. Shan Enterprises Ltd. P'ship, 406
N.J. Super. 242, 272 n.10 (App. Div. 2009). Further, the discovery documents
Allstate references do not indicate any procedure existed for ascertaining
whether sufficient clinical data has been provided to justify diagnostic tests.
11
    Damien also argues that the court failed to make the requisite findings to
justify its conclusion that he violated paragraph (m)(3). However, he does not
                                                                    (continued)
                                                                         A-1151-16T4
                                      31
      In 1991, the BME adopted N.J.A.C. 13:35-2.5 in response to the

increasing number of diagnostic medical practices where physicians abdicated

their medical decision-making to technicians and staff.       23 N.J.R. 2858(a)

(Sept. 16, 1991). The BME found this inappropriate delegation of medical

duties led to reduced quality of patient care, so N.J.A.C. 13:35-2.5 was

adopted to require physicians to implement protocols to avoid unnecessary

testing or retesting. Ibid. The BME noted that the regulation would "most

likely" have an economic impact on radiologists who "merely attended the

office to pick up and provide a reading of the films and authorize bills." Ibid.

      In December 1998, pursuant to legislative directive, L. 1998, c. 21, § 12,

the BME adopted N.J.A.C. 13:35-2.6 to "govern the validity of diagnostic tests

intended to establish medical diagnoses for the purpose of recommending an

appropriate course of treatment." N.J. Coal. of Health Care Prof'ls v. N.J.

Dep't of Banking and Ins., Div. of Ins., 323 N.J. Super. 207, 227 (App. Div.

(continued)
raise that argument in his merits brief, and as we have previously stated,
"[r]aising an issue for the first time in a reply brief is improper." Borough of
Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.
2001). Further, the court's determination that Damien violated section (m)(3),
when read in context with the court's other factual findings, e.g. that Damien
was not "relieved" of his "duty to verify . . . referrals," support the conclusion
that the court determined Damien's mere receipt of a prescription, without
more, was not a procedure that satisfied paragraph (m)(3).


                                                                        A-1151-16T4
                                      32
1999).   N.J.A.C. 13:35-2.6 was also adopted to address the "widespread

recognition that the problem of inappropriate diagnostic testing had reached

such proportions that individual disciplinary actions by the several health care

Professional Boards were insufficient to stem the tide." 33 N.J.R. 670(a) (Feb.

20, 2001).      In 2001, N.J.A.C. 13:35-2.5 was repealed, and replaced by

amendment of N.J.A.C. 13:35-2.6, in "an effort to avoid diversion of scarce

monetary and personnel resources from meeting the legitimate health care

needs of the public." 33 N.J.R. 670(a) (Feb 20, 2001).

      As originally proposed, N.J.A.C. 13:35-2.6(m)(3) would have required

the referral-receiving practitioner to "[a]scertain whether sufficient objective

or clinical data have been provided to determine that the requested diagnostic

test is appropriate . . . ." 32 N.J.R. 19(a) (Jan. 3, 2000). However, in response

to comments, the BME amended that proposed rule and adopted the language

that appeared in the regulation throughout the relevant times of this litigation:

the referral-receiving practitioner was required only to "[i]nstitute a procedure

to assure that sufficient clinical data has been provided to justify the requested

test . . . ."   N.J.A.C. 13:35-2.6(m)(3) (2005).     As the BME noted in its

summary of the 2001 amendments to N.J.A.C. 13:35-2.6(m), although "the

practitioner need not ascertain him or herself whether there is sufficient


                                                                        A-1151-16T4
                                      33
objective or clinical data to support the referral," he or she "must institute a

procedure that will ensure that such data has been provided." 33 N.J.R. 670(a)

(Feb. 20, 2001).

      Thus, paragraph (m)(3) required Damien to do more than merely receive

a referral, but he was not required to perform a clinical examination to

determine the medical necessity of the testing, as the trial court incorrectly

held. Instead, paragraph (m)(3) required Damien to institute some procedure

to assure himself that the referring physician had provided to Damien clinical

data sufficient, in Damien's professional judgment, to justify the requested test.

Merely verifying that the referral was from a licensed practitioner was

insufficient to satisfy that duty. Indeed, the BME noted that it "expects that

the practitioner receiving a patient referral shall implement a procedure to

assure that a referring physician has complied with the requirements of

subsection (l), to facilitate the exercise of professional judgment on whether

and how the referral should be accepted." 33 N.J.R. 670(a) (Feb. 20, 2001).

In light of that clear expression of intent, we reject Damien's claims that he

was "entitled to presume" the referring practitioner complied with subsection

(l) and that Damien's mere receipt of a referral could constitute a sufficient




                                                                        A-1151-16T4
                                      34
procedure to enable him to exercise "professional judgment" as to whether a

"referral should be accepted." Ibid.12

      Similarly, with respect to paragraph (m)(6), the notes preceding the

proposed regulation explain simply that "[p]articular care shall be exercised

when accepting a referral from a practitioner who does not hold a plenary

license." 32 N.J.R. 19(a) (Jan. 3, 2000). Paragraph (m)(6) was adopted as

proposed. 33 N.J.R. 670(a) (Feb. 20, 2001).       Therefore, we conclude that

merely receiving a referral and verifying it was from a licensed physician,

without more, was insufficient to satisfy either N.J.A.C. 13:35-2.6(m)(3) or

(m)(6), and there was no factual dispute that any pre-testing procedure Damien

might have employed was limited to, at most, receiving a referral and verifying

that it was from a licensed practitioner.

      For example, Bhagat testified that APDI did not take new patient

histories and that "as long as the patient has a valid prescription from a


12
    Although Damien states in a footnote that "[t]here was no claim in this case
that any party ever violated [subsection] 2.6(l) of the regulations," the fact
remains that Damien was required to institute a procedure to verify the
referring practitioner's compliance with that subsection. Damien's claim that
he was "entitled to presume" the referring practitioner complied with
subsection (l) demonstrates that Damien did not, in fact, institute a procedure
to verify the referring practitioner's compliance with subsection (l), and there
is no competent evidence in the record to suggest a different conclusion.


                                                                       A-1151-16T4
                                      35
qualified registered physician and somebody is going to pay the bill APDI

would perform the MRI testing." Bhagat also testified that the only review or

screening of the patient prior to MRI testing was done by the technologist for

contraindications, and other APDI staff members provided similar testimony.

Further, he testified that APDI used "the same process" for testing patients

regardless of who made the referral, as opposed to using particular care when a

limited licensee made the referral.

      Thus, the undisputed evidence established that, upon receipt of a referral

or prescription from a licensed physician, no procedures existed or were

employed to assure sufficient clinical data existed or had been provided to

justify the compliance with N.J.A.C. 13:35-2.6(m)(3) (2014), and no particular

care was used when a referral was made by a limited licensee to comply with

paragraph (m)(6). If the BME intended for receipt of a prescription to satisfy

N.J.A.C. 13:35-2.6(m), the BME knew how to express that intention. See 33

N.J.R. 670(a) (Feb. 20, 2001) (explaining a treating physician may request

another physician perform diagnostic testing without providing "a formalized

written report" as "a prescription will be sufficient" under former N.J.A.C.

13:35-2.6(l), but omitting any similar language from the summary of the

requirements under former N.J.A.C. 13:35-2.6(m)).


                                                                       A-1151-16T4
                                      36
                                        V.

      Finally, because there is no competent evidence in the record to support

the notion that the trial court was provided with anything more than a draft of

the minutes of the BME's meeting to consider at the April 4, 2016

reconsideration hearing, we perceive no abuse of discretion by the court in

declining reconsider its decision. See R. 4:49-2; Cummings v. Bahr, 295 N.J.

Super. 374, 389 (App. Div. 1996). Further, even assuming the draft minutes

were competent evidence or were adopted by the BME by the time of the April

4, 2016 hearing, we owe no deference to "plainly unreasonable" agency

interpretations of a regulation. Hough, 210 N.J. at 200 (quoting In re Election,

201 N.J. at 262). As we have concluded, the interpretation that mere receipt of

a referral from a licensed physician constituted compliance with paragraphs

(m)(3) and (m)(6) is in direct conflict with the intent of the BME as expressed

in 33 N.J.R. 670(a) (Feb. 20, 2001) (stating clearly the BME's expectation that

a referral-receiving practitioner would exercise "professional judgment on

whether . . . the referral should be accepted").

      To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).




                                                                       A-1151-16T4
                                      37
Affirmed in part, reversed in part. We do not retain jurisdiction.




                                                                 A-1151-16T4
                               38
