ARBITRATION AWARD. The amount claimed in the Arbitration Request, $ 3,297.55, was AMENDED and permitted by the arbitrator at the oral hearing.

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Advanced Orthopedics & Joint Preservation PC (Applicant) - and - Esurance Property and Casualty Insurance Company (Respondent) AAA Case No Applicant's File No. SS Insurer's Claim File No. NYA NAIC No ARBITRATION AWARD I, Frank Marotta, the undersigned arbitrator, designated by the American Arbitration Association pursuant to the Rules for New York State No-Fault Arbitration, adopted pursuant to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and having heard the proofs and allegations of the parties make the following AWARD: Injured Person(s) hereinafter referred to as: EIP-TS Hearing(s) held on 05/11/2017 Declared closed by the arbitrator on 05/11/2017 Greg Itingen, Esq. from Samandarov and Associates, P.C. participated in person for the Applicant Omid Khani, Esq. from Law Offices of Michael G. Nashak participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 3,297.55, was AMENDED and permitted by the arbitrator at the oral hearing. For the reasons noted in greater detail below the Applicant amended its fee to $2, Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute The record reveals that the EIP-TS, a 46 year old male, reportedly sustained injuries in a motor vehicle accident on August 20, On December 1, 2015 the Applicant, by Dr. Stanislav Avshalumov, performed arthroscopic surgery on the EIP's left wrist assisted by Alex Wicker RPA-C. The Applicant submitted a bill in the amount of $2, for Page 1/8

2 the services provided by Dr. Avshalumov and $ for the services provided by Mr. Wicker for a total fee of $3, The Respondent denied the claim based on a peer review conducted by Dr. Donald Heitman. The issues for determination include with the services provide were medically necessary, whether the Respondent established its fee schedule defense and further whether the Applicant's attorney should be awarded a fee for the services provided (see 11 NYCRR (h). 4. Findings, Conclusions, and Basis Therefor The Applicant filed this claim in the amount of $3, for disputed fees in connection with arthroscopic surgery on the EIP's left wrist performed on December 1, 2015 following a motor vehicle accident that occurred on August 20, Respondent timely denied reimbursement for the services based on a peer review performed by Dr. Donald Heitman. This hearing was conducted using the documents contained in the Electronic Case Folder (ECF) maintained by the American Arbitration Association. All documents contained in the ECF are made part of the record of this hearing and my decision was made after a review of all relevant documents found in the ECF as well as the arguments presented by the parties during the hearing. A provider of health care services demonstrates prima facie entitlement to reimbursement of assigned no-fault benefits by submitting proof that payment of no fault benefits are overdue and its statutory billing form was mailed to and received by the Respondent. Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 114 A.D.3d 33, 977 N.Y.S.2d 292 (2d Dept. 2013), aff'd 25 NY 3d 498 (2015). In support of their claim, the Applicant provides their bills for the services provided. The Respondent provided their denial acknowledging receipt of the Applicant's bills on December 21, Together the documents are sufficient for the Applicant to establish the submission and receipt of their claim for the purposes of establishing its prima facie burden of proof. Eagle Surgical Supply, Inc. v Allstate Insurance Company, 42 Misc. 3d 145(A), 2014 NY Slip Op (U) (App Term 2d 11th & 13th Jud. Dists 2014); Lopes v. Liberty Mutual Ins. Co., 24 Misc.3d 127 (A), 2009 N.Y. Slip Op (U), 2009 WL (App. Term 2d, 11th & 13th Dists. Jan. 26, 2009). Once the Applicant establishes an entitlement to reimbursement of assigned benefits the medical necessity for the services provided is presumed and the burden shifts to the Respondent who may rebut the Applicant's prima facie showing by establishing that the services provided were not medically necessary based either on a medical examination or a peer review report. Rockaway Boulevard Medical P.C. v. Travelers Property Casualty Corp., 2003 N.Y. Slip Op (U), 2003 WL (App. Term 2d & 11th Dists. Apr. 1, 2003). In support of its denial the Respondent relies on the peer review report by Orthopedic Surgeon Dr. Donald Heitman dated December 23, Dr. Heitman provides a history of the EIP as a 46 year old male with an injury date of August 20, Dr. Heitman Page 2/8

3 notes that the EIP was seen by Dr. Marc Rybstein on September 27, 2015 noting that he sustained an injury to his left wrist as he gripped the steering wheel which caused undue stress on the tendons and ligaments. The EIP was diagnosed with, among other things, a left wrist sprain/strain. An MRI of the EIP's left wrist was performed on October 6, 2015 revealing a small partial tear of the triangular fibrocartilage (TFC), underlying arthritic and degenerative changes involving the carpal bone and sprain/strain of the extensor carpi ulnaris tendon. No fractures or dislocations were noted. The EIP was evaluated by Dr. Andrew Dowd, an Orthopedic and Hand Surgeon, on November 4, 205 and diagnosed with a probable derangement of the left wrist. The plan was to consider arthroscopic treatment of the left wrist. Nerve testing resulted in a finding consistent with left carpal tunnel syndrome affecting sensory and motor components. On November 18, 2015 the Applicant diagnosed the EIP with traumatic internal derangement and TFCC injury. Arthroscopic surgery of the left wrist was recommended as the EIP failed conservative nonsurgical treatment. According to Dr. Heitman based on his review of the documents provided the EIP aggravated a pre-existing left wrist condition. The MRI testing revealed underlying arthritic changes as well as mild to moderate degenerative changes. EMG study revealed mild carpal tunnel syndrome. More likely than not the EIP aggravated a pre-existing condition. According to the AAOS, "Osteoarthritis can develop due to normal wear and tear in the wrist particularly in people who have a family history of arthritis. It may also develop as a result of a traumatic injury such as a broken wrist bone of a wrist sprain". Based on his review Dr. Heitman notes that there was no medical necessity for the services as it related to the motor vehicle accident. In support of their claim, the Applicant submits a rebuttal to Dr. Heitman's peer review prepared by Dr. Dr. Avshalumov. Dr. Avshalumov maintains that the surgery was not only medically necessary but causally related to the motor vehicle accident of August 20, Dr. Avshalumov asserts that the accident in question caused an unexpected force on the EIP's left wrist. The EIP had no prior wrist complaint and was asymptomatic prior to the accident. Therefore Dr. Avshalumov maintains that the symptoms documented in the EIP's medical records and in his examination where a direct result of the motor vehicle accident. The EIP's clinical evaluations and MRI revealed a tear in the left wrist causing symptoms that did not respond to conservative treatment and did not self-resolve. As such, it would have been against the medical standard of care in this case not to further treat the EIP who was experiencing pain. After a review of the documents contained in the ECF and in consideration of the arguments made by the parties, If find that the Respondent failed to meet its prima facie burden of proof in support of its defense that the services provided by the Applicant were medically unnecessary and/or unrelated to the motor vehicle accident with the peer review report of Dr. Heitman. Not only has the Applicant provided sufficient evidence in support of the medical necessity for the surgery, unlike actions in negligence where a plaintiff must prove causation, a party seeking to recover first party no-fault payments bear no such initial burden, as causation is also presumed. Kingsbrook Jewish Medical Center v. Allstate Ins. Co., 61 A.D.3d 13, 21, 871 N.Y.S.2d 680, 686 (2d Dept. 2009). Therefore, once the Applicant establishes its prima facie entitlement, the burden shifts to the Respondent to rebut Applicant's prima facie case by establishing that the service Page 3/8

4 provided were not only medically unnecessary but also unrelated to the motor vehicle accident. Mount Sinai v. Triboro Coach, 263 A.D. 2d. 11, 699 N.Y.S. 2d 77 (Second Dep't, 1999). Here, the Respondent's expert acknowledges, as noted by Dr. Avshalumov, that the EIP aggravated a pre-existing left wrist condition and aggravations of pre-exiting conditions are covered by no fault. Kingsbrook, supra. For the reasons noted above, the Applicant is entitled to reimbursement for the services provided. At the start of the hearing Applicant amended the amount in dispute based on the multiple procedure ground rule. Respondent Counsel objected to any amendment, cited to 11 NYCRR (h) and argued that should an award be made Applicant Counsel should be denied a fee since the Applicant's bill was in excess of the Workers' Compensation Fee Schedule (WCFS). 11 NYCRR is entitled, "Limitations on attorney's fees pursuant to section 5106 of the Insurance Law". This section of the regulation was amended as to claims for services on or after April 1, 2013 and states in 4.6 (h), "Notwithstanding any other provision of this section and with respect to billings on and after the effective date of this regulation, if the charges by a health care provider, who is an applicant for benefits, exceed the limitations contained in the schedules established pursuant to section 5108 of the Insurance Law, no attorney's fee shall be payable by the insurer. This provision shall not be applicable to charges that involve interpretation of such schedules or inadvertent miscalculation or error." Applicant counsel amended the amount in dispute to $2, Taking into consideration the multiple procedure ground rule in the Surgical Section of the WCFS. Applicant seeks reimbursement of $1, for CPT Code (synovectomy complete) plus 50% of the lesser fees billed for CPT Code (arthroscopy, wrist) in the amount of $ and CPT Code (arthrocentesis) in the amount of $28.63 for a total reimbursement for the surgeon in the amount of $2, Applicant also seeking reimbursement for the services of the Physician Assistant in the amount of $ or 10.7% of the surgeon's bill pursuant to surgical ground rule 12. Counsel for the Respondent argued that the Applicant is only entitled to reimbursement in the amount of $2, Respondent reduced the Applicant's fee by eliminating from the bill the synovectomy (CPT Code 29840) for both the surgeon and physician assistant arguing that the services were not performed. Once the Applicant's prima facie burden of proof is established, Respondent has the burden of coming forward with competent evidentiary proof to support its fee schedule defenses. St. Vincent Medical Care PC v. Countrywide Insurance Company, 26 Misc. 3d 146 (A), 907 NYS 2d 441 (App. Term 2d, 11th and 13th Dists. 2010); Robert Physical Therapy PC v. State Farm Mutual Auto Ins. Co., 2006 NY Slip 26240, 13 Misc.3d 172, 822 N.Y.S.2d 378, 2006 N.Y. Misc. LEXIS 1519 (Civil Ct, Kings Co. 2006); Power Acupuncture PC v. State Farm Mutual Automobile Ins. Co., 11 Misc.3d 1065A, 816 N.Y.S.2d 700, 2006 NY Slip Op 50393U, 2006 N.Y. Misc. LEXIS 514 (Civil Ct, Kings Co. 2006). If Respondent fails to demonstrate by competent evidentiary proof that Applicant's claim is in excess of the appropriate fee schedules, Respondent's defense of Page 4/8

5 noncompliance cannot be sustained. First Aid Occupational Therapy, PLLC v. Country-Wide Ins. Co., 26 Misc.3d 135(A), 907 N.Y.S.2d 100 (Table), 2010 N.Y. Slip Op (U), 2010 WL (App. Term 2d, 11th & 13th Dists. Jan. 29, 2010). Continental Medical PC v. Travelers Indemnity Co., 11 Misc.3d 145A, 819 N.Y.S.2d 847, 2006 NY Slip Op 50841U, 2006 N.Y. Misc. LEXIS 1109 (App. Term, 1st Dep't, per curiam, 2006); Jesa Medical Supply, Inc. v. GEICO Ins. Co., 25 Misc.3d 1098, 887 N.Y.S.2d 482,6 Civil Ct. Kings Co. 2009). The Respondent did not provide any proof in the form of an expert opinion to establish their fee reduction but maintains that the Applicant is not entitled to reimbursement for the services billed under CPT Code based on a reading of the operative report. I find this insufficient to support the reduction as such a finding would requires the opinion of a medical expert. I further find that the Attorney is entitled to a fee for the services provided. In support of their argument that the Applicant Counsel should not be entitled to recover a fee Respondent made reference to what appeared to be a somewhat heated conversation between the attorneys prior to the hearing. Since the attorney who had the earlier discussion with Respondent counsel was not before me at the time of the hearing I was presented with only one side of the conversation but more importantly, the zeal by which Respondent argued its fee schedule position suggests that the fee owed was not clear cut. For the reasons note above the Applicant is entitled a fee in the amount of $2, together with statutory interest and attorney fees. 5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, I do NOT impose the administrative costs of arbitration to the applicant, in the amount established for the current calendar year by the Designated Organization. 6. I find as follows with regard to the policy issues before me: The policy was not in force on the date of the accident The applicant was excluded under policy conditions or exclusions The applicant violated policy conditions, resulting in exclusion from coverage The applicant was not an "eligible injured person" The conditions for MVAIC eligibility were not met The injured person was not a "qualified person" (under the MVAIC) The applicant's injuries didn't arise out of the "use or operation" of a motor vehicle The respondent is not subject to the jurisdiction of the New York No-Fault arbitration forum Accordingly, the applicant is AWARDED the following: A. Page 5/8

6 Medical From/To Claim Amount Amount Amended Status Advanced Orthopedi cs & Joint Preservati on PC 12/01/15-12/01/15 Awarded: $3, $2, $2, Total $3, Awarded: $2, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 03/31/2016, which is a relevant date only to the extent set forth below.) The Respondent shall pay interest at a rate of 2% per month, calculated on a pro rata basis using 30 day month and in compliance with 11 NYCRR Interest shall begin to accrue from the date of the filing for arbitration with the American Arbitration Association and end on the date the award is paid. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below The Respondent shall also pay the Applicant an attorney fee in accordance with 11 NYCRR (e). If, however, the benefits and interest awarded thereon is equal to or less than the Respondent's written offer during the conciliation period, then the attorney fee shall be based upon the provisions of 11 NYCRR (b). D. The respondent shall also pay the applicant forty dollars ($40) to reimburse the applicant for the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award. This award is in full settlement of all no-fault benefit claims submitted to this arbitrator. State of New York SS : County of Nassau I, Frank Marotta, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. Page 6/8

7 05/26/2017 (Dated) Frank Marotta IMPORTANT NOTICE This award is payable within 30 calendar days of the date of transmittal of award to parties. This award is final and binding unless modified or vacated by a master arbitrator. Insurance Department Regulation No. 68 (11 NYCRR ) contains time limits and grounds upon which this award may be appealed to a master arbitrator. An appeal to a master arbitrator must be made within 21 days after the mailing of this award. All insurers have copies of the regulation. Applicants may obtain a copy from the Insurance Department. Page 7/8

8 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 26c78c90c173e1a296a330235dcf49a3 Electronically Signed Your name: Frank Marotta Signed on: 05/26/2017 Page 8/8