ARBITRATION AWARD. 05/10/2016, 07/26/2016, 01/03/2017, 01/17/2017, 02/28/2017 Declared closed by the arbitrator on 02/28/2017

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1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Advantage Massage Therapy Chiro. & Acupuncture PLCC (Applicant) AAA Case No Applicant's File No and - Allstate Insurance Company (Respondent) Insurer's Claim File No. NAIC No. ARBITRATION AWARD I, Joseph Endzweig, 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: patient 1. Hearing(s) held on 05/10/2016, 07/26/2016, 01/03/2017, 01/17/2017, 02/28/2017 Declared closed by the arbitrator on 02/28/2017 Michael Spector, Esq. from The Odierno Law Firm P.C. participated in person for the Applicant Joseph Schnurr from Allstate Insurance Company participated in person for the Respondent The amount claimed in the Arbitration Request, $ 52.75, was NOT AMENDED at the oral hearing. Stipulations WERE NOT made by the parties regarding the issues to be determined. Summary of Issues in Dispute The issue in this case is Applicant's unpaid bill for massage therapy, denied based on an IME. 4. Findings, Conclusions, and Basis Therefor Page 1/5

2 I have reviewed the documents contained in the Electronic Case Folder as of the date of the hearing and this Award is based upon my review of the Record and the arguments made by the representatives of the parties at the Hearing. This arbitration arises out of treatment of a 16 year old female for injuries sustained in a motor vehicle accident occurring on 1/17/13. Applicant seeks reimbursement for massage therapy performed on 6/12/13 and billed at $ Respondent issued a timely denial denying reimbursement based on the IME report of Dr. Dorothy Scarpinato dated 4/25/13. At the time of the underlying treatment the patient was below the age of majority. As such, the claim is not amenable to arbitration absent judicial leave. (See, CPLR 1209) CPLR 1209 provides: A controversy involving an infant, person judicially declared to be incompetent or conservatee shall not be submitted to arbitration except pursuant to a court order made upon application of the representative of such infant, incompetent or conservatee; provided, however that a claim brought on behalf of an infant pursuant to paragraph one or two of subdivision (f) of section three thousand four hundred twenty of the insurance law may be submitted to arbitration without a court order. I am aware of the decision, NY Med, assignee of Tanise Washington v. Government Employees Ins. Co., Index No /2015 (S. Ct., Queens County, 5/11/15) in which the Court permitted a medical provider, with an assignment executed by a minor's parent or guardian, to arbitrate claims for first party no-fault benefits without judicial scrutiny and prior approval. The Court found that the execution of an assignment "divested all control and right to the claim." Based thereon, the Court concluded that the child "was no longer a party to the action and the petitioner assignee [medical provider] was the proper party in interest (citations omitted)." However, as stated by Arbitrator Jeffrey Grob in AAA Case No : That the medical provider in this context is a proper party in interest cannot be gainsaid. However, post-assignment, the minor, and the Court by extension under the doctrine of parens patriae, continue to retain at least a vestigial interest in the matter in light of limited no-fault insurance benefits available to provide for such minor's medical care. It is this factor that distinguishes assignments in this context from those in the commercial realm. Moreover, the applicability of the dual doctrines of res judicata and collateral estoppel in arbitration, and the potential adverse impact that a related claim's disposition may have upon an infant's entitlement to on-going first party no-fault benefits raise similar concerns. Arbitrator Grob further notes that CPLR 1209 was amended in 1997: Page 2/5

3 to cull an exception to the general rule and eliminate the need to obtain judicial leave as a prerequisite to the arbitration of controversies involving minors where, in contradistinction to the instant matter, the claim is directed toward the recovery of uninsured or underinsured motorist benefits under Insurance Law 3420 (f) (1 & 2). The Legislature, cognizant of the statutory safeguard embodied within CPLR 1209, elected to limit the breadth of the amendment to the variety of claims expressed therein. The instant claim, however, was brought to secure no-fault benefits which fall within the parameters of Article 51 of the Insurance Law and beyond the ambit of the 1997 amendment to CPLR When viewed from this perspective, the absence of judicial leave remains an impediment to arbitration of the instant claim. I find Arbitrator Grob's reasoning on this issue to be persuasive. Moreover, the record does not contain an Assignment of Benefits. Inasmuch as leave to proceed was not obtained prior to the service of the Applicant's demand for arbitration, and inasmuch as there is no assignment of benefits in the record, Applicant's claim is dismissed without prejudice to renew upon issuance of a court order granting leave to proceed. 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 claim is DISMISSED without prejudice This award is in full settlement of all no-fault benefit claims submitted to this arbitrator. Page 3/5

4 State of New York SS : County of Nassau I, Joseph Endzweig, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 03/01/2017 (Dated) Joseph Endzweig 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 4/5

5 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 2353b99be0ff55a3d27dcbe6e049780b Electronically Signed Your name: Joseph Endzweig Signed on: 03/01/2017 Page 5/5