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

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1151-16T4

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., 
3

A-1151-16T4

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 

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.)

March 8, 2019
4

A-1151-16T4

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 
5

A-1151-16T4

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. 
6

A-1151-16T4

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 
7

A-1151-16T4

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 crossreference 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.
8

A-1151-16T4

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 referralreceiving physicians to prepare a "comprehensive report" containing "[c]rossreferences 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)
9

A-1151-16T4

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)
10 A-1151-16T4

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 nonphysician, 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).
11 A-1151-16T4

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]."
12 A-1151-16T4

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 
13 A-1151-16T4

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 
14 A-1151-16T4

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.
15 A-1151-16T4

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.

 
16 A-1151-16T4

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.
17 A-1151-16T4

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 
18 A-1151-16T4

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. 
19 A-1151-16T4

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).
20 A-1151-16T4

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). 
21 A-1151-16T4

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 referralreceiving 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.
22 A-1151-16T4

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). 
23 A-1151-16T4

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). 
24 A-1151-16T4

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]rossreferences 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 
25 A-1151-16T4

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 crossreferencing 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.]
26 A-1151-16T4

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" 
27 A-1151-16T4

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 
28 A-1151-16T4

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 
29 A-1151-16T4

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 
30 A-1151-16T4

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.] 
31 A-1151-16T4

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)
32 A-1151-16T4

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). 
33 A-1151-16T4

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 
34 A-1151-16T4

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 
35 A-1151-16T4

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.
36 A-1151-16T4

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)). 
37 A-1151-16T4

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). 
38 A-1151-16T4

Affirmed in part, reversed in part. We do not retain jurisdiction.