ARBITRATION AWARD. Erin McFadzen, Esq. from Law Offices of Rachel Perry participated in person for the Respondent

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: 21st Century Pharmacy Inc (Applicant) - and - Progressive Insurance Company (Respondent) AAA Case No Applicant's File No. RXPH Insurer's Claim File No NAIC No ARBITRATION AWARD I, Anthony Joseph Bianchino, 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 04/03/2017 Declared closed by the arbitrator on 04/03/2017 Naomie Jean-Philippe, Esq. from Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf LLP participated in person for the Applicant Erin McFadzen, Esq. from Law Offices of Rachel Perry participated in person for the Respondent The amount claimed in the Arbitration Request, $ 2,430.90, 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 dispute is whether the topical compound pain cream the patient, a 37 year old female, received on March 15, 2015 was medically necessary. The Respondent has denied the Applicant's claim based upon a peer review report by Dr. Hadhoud. 4. Findings, Conclusions, and Basis Therefor Page 1/5

2 cream. The amount in dispute is $2, which is for topical compound pain This matter falls under the first amendment to Regulation 68D and as such only the documents submitted by the Applicant at the time of filing and by the Respondent during the conciliation will be considered. Therefore all documents contained in the Electronic Case Folder at the time of the Hearing have been considered. This is a motor vehicle accident which occurred on March 15, As a result of the accident the patient saw Dr. Sudberg on March 25, On April 22, 2015 Dr. Prajapati prescribed topical compound pain with three refills. On April 28, 2015, May 22, 2015 and July 13, 2015 the patient received the topical compound pain cream. After reviewing Dr. Sudberg's report, Dr. Zai's rebuttal to the peer review report, which was submitted in a linked case, AAA case number and Dr. Hadhoud's peer review report I find that the topical compound pain cream received on July 13, 2015 was not medically necessary. At the time of the March 25, 2015 examination the patient made complaints of neck and low back pain. During that examination Dr. Sudberg found the patient to have normal muscle testing in the upper and lower extremities, decreased deep tendon reflexes in the upper and lower extremities, a normal sensory examination in the upper and lower extremities, a negative cervical compression test, a negative Adson test, decreased range of motion of the cervical and lumbar spine, a positive straight leg raising test, a negative Slump test, a negative reverse Thomas test, a negative Gaenslen's test, a negative Ober's test, tenderness and swelling of the left knee, a negative Valgus stress test of the left knee, a negative Varus stress test of the left knee, a positive Apley's compression test of the left knee, a positive McMurray test of the left knee and decreased range of motion of the left knee. Based upon this examination Dr. Sudberg recommended the use of over the counter and prescription pain medication, physical therapy, chiropractic treatment and acupuncture treatment. Dr. Hadhoud, the Respondent's peer review doctor, was of the opinion that the topical compound pain cream received on July 13, 2015 was not medically necessary. Dr. Hadhoud states: "The submitted records do not explain the medical circumstances to order muscle relaxant, anti-inflammatory and analgesic medications in a topical form. There is no documentation as of how these specific medications in form of a cream (Topical Cyclobenzaprine, Lidocaine, Baclofen and Flurbiprofen) would provide any better results than the same or other common oral NSAIDs and muscle relaxants." Dr. Hadhoud goes on to discuss each specific medication in the topical compound pain cream. Dr. Zai, in his rebuttal to the peer review report, disagrees with Dr. Hadhoud's opinion that the topical compound pain cream was not medically necessary. While Dr. Zai discusses each of the four medications contained in the topical compound pain cream, he does not address Dr. Hadhoud's main point why the compound pain cream was not medically necessary, specifically the lack of any documentation, medical Page 2/5

3 records or reports as to why the topical compound pain cream was medically necessary. Moreover Dr. Zai at no time in his rebuttal to the peer review reports mentions the patient's condition and his basis of why the topical compound pain cream relative to the patient's condition was medically necessary. As such I find that Dr. Zai fails to rebut Dr. Hadhoud's opinion that the topical compound pain cream was not medically necessary. Therefore since the Applicant has not submitted anything indicating why the topical compound pain cream was medically necessary based upon the patient's condition I agree with Dr. Hadhoud's opinion that the topical compound pain cream in dispute was not medically necessary. Accordingly the Applicant's claim for the topical compound pain cream received on July 13, 2015 is denied. This is in full disposition of all No-Fault benefit claims submitted to the Arbitrator. 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 Suffolk I, Anthony Joseph Bianchino, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 04/03/2017 Page 3/5

4 (Dated) Anthony Joseph Bianchino 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: 73964a82a614cd0b1c0750d a Electronically Signed Your name: Anthony Joseph Bianchino Signed on: 04/03/2017 Page 5/5