ARBITRATION AWARD. Kimberly Saasto, Esq. from Goldstein & Flecker participated in person for the Respondent

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Longevity Medical Supply, Inc. (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. BS Insurer's Claim File No NAIC No ARBITRATION AWARD I, Ellen Weisman, 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 Hearing(s) held on 05/25/2018 Declared closed by the arbitrator on 05/25/2018 Diana Usten, Esq. from Baker, Sanders, L.L.C. participated in person for the Applicant Kimberly Saasto, Esq. from Goldstein & Flecker participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ , was NOT AMENDED at the oral hearing. Stipulations WERE made by the parties regarding the issues to be determined. The parties stipulated that Respondent issued a timely denial. 3. Summary of Issues in Dispute This arbitration stems from treatment of a 36 year-old male patient who sustained injuries as a passenger of a motor vehicle involved in an accident on October 26, The issue is the medical necessity for a custom fitted lumbosacral orthosis ("LSO") dispensed to the patient on December 23, Page 1/6

2 4. Findings, Conclusions, and Basis Therefor The defense of lack of medical necessity for this custom-fitted LSO is premised on a Peer Review Report of Dominick Garofalo, D.C. dated and sworn on February 3, Applicant submitted a Letter of Medical Necessity of Karen Risse, D.C. dated December 21, All submissions will be considered. Applicant's Medical Records: The Initial Chiropractic Examination Report of dated October 27, 2016, the day after the accident, reflects that the patient presented complaining of radiating neck and low back pain, as well as bilateral shoulder and mid back pain. Clinical orthopedic tests were positive and range of motion was decreased, resulting in the diagnoses of cervicalgia, cervical, thoracic and lumbar radiculopathy and subluxations, as well as lumbar myofascitis and lumbalgia. Chiropractic treatment was advised. An Initial Examination Report of Denny X. Rodriguez, M.D. dated September 9, 2016, reflects that the patient complained of neck, thoracic spine, lower back and bilateral shoulder pain. Based on positive exam findings including tenderness, decreased range of motion and clinical orthopedic tests, the diagnostic impressions included cervical and lumbosacral sprains/strains as well as lumbago. The recommendations included cervical, lumbosacral and right shoulder MRI studies, as well as chiropractic care, acupuncture, physical therapy and specialty evaluations. A lumbar MRI report dated December 14, 2016, ruled out fracture, instability and impingement, and revealed two disc bulges and a cyst. A receipt for an "LSO AP/L Sagittal (sic) Control, Adjustable/Fitted," confirms that an LSO was dispensed to the patient, and a "Measurement Chart" reflects that a waist measurement was obtained. Respondent's Peer Review Report: Dr. Garofalo concluded that this custom-fitted LSO was not medically necessary. There was no evidence of lumbar fracture or spinal instability based on a lumbar MRI report. The initial chiropractic report is devoid of a neurological assessment of the lower extremities. This prescription should be made in conjunction with a complete orthopedic and neurological assessment of the involved region. Additionally, he stated that the LSO is a rigid device reserved for patients with spinal instability, spondylolisthesis or those who recently underwent spinal surgery. Its use would be counterproductive to the goals of manipulation which include restoration of movement and function. Applicant's Letter of Medical Necessity: A "Medical Supplies/Letter of Medical Necessity" of Dr. Risse dated December 21, 2016, reflects that the patient suffered serious injuries, and had decreased strength and Page 2/6

3 spasm. She reviewed the findings of the lumbar MRI report. She stated that the LSO was necessary to correct lumbar position, decrease pressure, and prevent inadequate movement to facilitate faster recuperation. Arguments of Counsel: Applicant's counsel argued that the lumbar MRI report was markedly positive and justified the prescription for this item. She highlighted the Letter of Medical Necessity which confirmed the need for it. Respondent's counsel countered that the thorough and credible Peer Review Report suffices to sustain the defense. Findings: Applicant has established its primae facie entitlement to reimbursement for the custom-fitted LSO at issue based on submission of a properly completed claim form setting forth the amount of the loss sustained, and establishing that No-Fault payment is overdue. The denial is found to be sufficient as a matter of law. Therefore, Applicant's burden is also established by submission of sufficient medical records. Ave. T MPC Corp. v. Auto One Ins. Co., 32 Misc.3d 128(A) 934 N.Y.S.2d 32 (Table), 2011 N.Y. Slip Op (U), 2011 WL (App. Term 2d, 11th & 13th Dists., 7/5/2011); Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.3d 782, 774 N.Y.S.2d 564 (2d Dept., 2004), Vista Surgical Supplies, Inc. v. Metropolitan Property and Casualty Ins. Co., K C., 2006 N.Y. Slip Op (U), June 2, The burden then shifts to Respondent to establish lack of medical necessity for the custom-fitted LSO at issue which warrants competent, expert proof in admissible form. Citywide Social Work & Psy. Serv., P.L.L.C. v. Travelers Indemnity Co., 3 Misc.3d 608, 777 N.Y.S. 2d 241, 2004 N.Y. Slip Op (Ci v. Ct., Kings Co., 2004 ), aff'd., 8 Misc. 3d 1025 (2005). I find that Respondent's Peer Review Report is sufficient to meet its burden of proof of lack of medical necessity and to rebut Applicant's evidence. Thereafter, the burden shifts back to Applicant to present competent medical proof as to the medical necessity for this LSO by a preponderance of the credible evidence. West TremontMedical Diagnostic, P.C. v. GEICO, 13 Misc.3d 131[A], 824 N.Y.S.2d 759 (Table), 2006 N.Y. Slip Op (U), 2006 WL (App. Term 2d & 11 th Jud. Dists. 9/29/06), A. Khodadadi Radiology, P.C. v. N.Y. Central Fire Mutual Insurance Company, 16 Misc. 3d 131[A ], 841 N.Y.S.2d 824, 2007 WL (App. Term 2d & 11 th Dists. 7/3/08). Ultimate ly, t he burden of proof rests with the Applicant (See, Insurance Law Section 5102). I find further that this burden has not been met by Applicant's medical records, the Letter of Medical Necessity, or the evidence collectively. Rather, I find that the Peer Review Report is thorough and credible, and as such it suffices to sustain the defense. Page 3/6

4 While there were positive findings reflected in the lumbar MRI report, that report also ruled out spinal fracture, instability and impingement, and the patient had not undergone spinal surgery. Therefore, the conditions which might justify the use of a custom-fitted LSO were not present. Further, the medical reports of the treating doctors do not include a recommendation for this item, and the Letter of Medical Necessity is found to be boilerplate in nature which diminishes its credibility. As a result, I am convinced that the LSO was not medically necessary under the circumstances. Accordingly, in light of the foregoing, based on the arguments of counsel, and after thorough review and consideration of all submissions, I find in favor of Respondent and deny this claim in its entirety with prejudice. 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 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, Ellen Weisman, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/30/2018 (Dated) Ellen Weisman Page 4/6

5 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 5/6

6 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 6cf4948eefb763594f4e572fd Electronically Signed Your name: Ellen Weisman Signed on: 05/30/2018 Page 6/6