ARBITRATION AWARD. Hearing(s) held on 11/29/2016, 04/24/2017 Declared closed by the arbitrator on 04/24/2017

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: NY Medical Arts, PC (Applicant) - and - Allstate Fire & Casualty Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No DB NAIC No ARBITRATION AWARD I, Burt Feilich, 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: Claimant. Hearing(s) held on 11/29/2016, 04/24/2017 Declared closed by the arbitrator on 04/24/2017 Eva Gaspari, Esq. from The Law Offices of Eva Gaspari, PLLC participated in person for the Applicant John Palatianos, Esq. from Karen Lawrence, Esq. participated in person for the Respondent The amount claimed in the Arbitration Request, $ 3,021.16, 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 a. Whether the electrodiagnostic testing services performed by applicant for the eligible injured person/assignor were reasonable and medically necessary for the treatment of injuries this patient sustained in the accident; and, if so, whether the services were billed in accordance with the fee schedule and the regulations. 4. Findings, Conclusions, and Basis Therefor Page 1/5

2 I have reviewed all documents included in the ADR system consisting of the submissions made by the parties. This case involves a claim in the original amount of $3, and concerns EMG/NCS testing services rendered by applicant on behalf of claimant for the diagnosis and treatment of injuries sustained in an accident that occurred on July 2 nd, Respondent contends that the services rendered were not medically necessary on the basis of a peer review report. It also contends that applicant did not bill in accordance with the fee schedule and regulations. Initially, according to First Amendment to Regulation 68-D, 11 NYCRR , the arbitrator shall be the judge of the relevance and materiality of the evidence offered. The arbitrator may independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance Law and Insurance Department regulations. I have carefully reviewed the medical evidence submitted by the parties pertaining to claimant, a 51-year old male who was a passenger in a vehicle at the time of the accident, including the following: the initial pain management evaluation of Amr El Sanduby, MD of NY Medical Arts, PC, dated August 24 th, 2015, and his followup progress report from August 31 st, 2015; the results of upper and lower extremity EMG/NCS testing performed by Dr. El Sanduby on August 31 st, 2015 showing a right L4-S1 and a left L5-S1 radiculopathy and moderate bilateral CTS (median nerve entrapment at the wrists affecting the motor and sensory components); results of cervical and lumbar MRIs taken on August 4 th, 2015 showing bulging discs at C3-7 and L4-S1 and hypertrophic changes; an initial physical therapy evaluation dated August 25 th, 2015; the results of functional evaluation testing from July 29 th, 2015; results of range of motion and/or muscle strength testing from July 21 st, 2015; records from Dr. Jason Brattner of Queens Chiropractic Associates, PC including sensory nerve testing performed on August 11 th, 2015 with normal results; and daily physical therapy and chiropractic treatment records. In defense of the claim respondent submits the peer review report of Dr. Ajendra Sohal, a physiatrist, dated September 26 th, Dr. Sohal strongly questioned the need for any of the testing claimed in this case. In particular, she stated it was impossible for a patient injured in a car accident to have had the extensive radiculopathy found based on the type of subjective complaints recorded by Dr. El Sanduby on August 24 th, She indicated that the actual clinical examination by Dr. El Sanduby found no muscle weakness or reflex abnormalities in the extremities and no clear objective sensory deficits. There was no rational, credible differential diagnosis of peripheral neuropathy or myopathy, in her opinion. Furthermore, Dr. Sohal believes that Dr. El Sanduby Page 2/5

3 mis-interpreted the test results to show a lumbar radiculopathy when she contends the testing found no radiculopathy. In her opinion, the treatment records showed axial spinal pain rather than true radicular pain. The test finding of carpal tunnel syndrome had nothing at all to do with the clinical findings, according to Dr. Sohal. She cited to medical literature to support her opinion that the testing was unnecessary for this patient. In a rebuttal to the peer review report, undated, Dr. El Sanduby stated that claimant had persistent pain and symptoms into his upper and lower extremities despite his having received at least 4-6 weeks of treatment by the date of the testing. The testing needed to differentiate between radiculopathy and peripheral neuropathy, possibilities based on the clinical examination findings from August 24 th, Dr. El Sanduby also wrote that claimant had an abnormal clinical evaluation when he first examined him. Dr. El Sanduby cited to medical authority to support his view that testing performed was medically necessary for claimant. After having evaluated all of the medical documentation submitted and having listened to the arguments of the parties, I find that respondent has met its burden of establishing that the upper and lower extremity EMG/NCS testing performed by applicant on August 31 st, 2015 was not medically necessary. I agree with most of the criticisms made by Dr. Sohal with regard to the lack of necessity of this testing. In addition to her comments I would add that even before claimant was subjected to this testing, on August 24 th, 2015 Dr. El Sanduby had already recommended the possibility of cervical and lumbar epidural steroid injections that were dependent on claimant first going through drug screening. So this testing was not really needed to see if claimant needed such pain management injections. Also, since claimant had an initial physical therapy evaluation only on August 25 th, 2015, he had not received a sufficient trial of therapy, as compared to chiropractic treatment, before Dr. El Sanduby ordered this testing. I am also not persuaded by the medical evidence submitted by applicant or the rebuttal by Dr. El Sanduby that this testing was needed for this patient. Consequently, I sustain the denial(s) of claim and find that the upper and lower extremity EMG/NCS testing performed on August 31 st, 2015 was not medically necessary for this patient. Therefore my award is in favor of respondent, and the claim is denied in its entirety. 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. Page 3/5

4 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 DENIED in its entirety 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, Burt Feilich, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 04/26/2017 (Dated) Burt Feilich 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: bb6f1a65f5b9211b6d7c088b7c24e40b Electronically Signed Your name: Burt Feilich Signed on: 04/26/2017 Page 5/5