ARBITRATION AWARD. Injured Person(s) hereinafter referred to as: Eligible Injured Person "EIP"

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Choice Surgical Supply Company (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No Insurer's Claim File No NAIC No ARBITRATION AWARD I, Jeffrey Held, 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: Eligible Injured Person "EIP" Hearing(s) held on 04/13/2017 Declared closed by the arbitrator on 04/13/2017 Kurt Lundgren, Esq. from Thwaites, Lundgren & D'Arcy Esqs participated by telephone for the Applicant Jason Corrar, Eq. from Geico Insurance Company participated in person for the Respondent The amount claimed in the Arbitration Request, $ , 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 Whether Applicant, as assignee of the EIP, a 23-year old female with a history of a July 23, 2015 motor vehicle accident is a restrained driver with causally related injuries reportedly include, inter alia, cervical radiculopathy, has established entitlement to reimbursement of the claim for durable medical supplies, denied the concededly timely manner based upon peer reviews from Brian Wolin, DC. Page 1/9

2 4. Findings, Conclusions, and Basis Therefor Pursuant to 11 NYCRR (o)(1), an arbitrator shall be the judge of the relevance and materiality of the evidence offered. The arbitrator may question any witness or party and independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance Law and Department Regulations. This award is rendered based upon the documents that appear in the ADR center, as well as the arguments and concessions made at the time of the hearing. There were no witnesses at the hearing. Insofar as claims for health service benefits must be medically necessary (see, N.Y. Insurance Law 5102[a] (McKinney Supp. 2002), a fortiori, Respondent's ability to establish that the services were not medically necessary, is a valid defense. The defense may properly be established with a peer review. See, Jacob Nir, as assignee of John Doe and Allstate, 7 Misc.3d 544, 547, 796 N.Y.S.2d 857, 860 (Civ. Ct. Kings Co. 2005). However, the peer review is required to "set forth a sufficiently detailed factual basis and medical rationale for the claims rejection" and is "insufficient if it is unsupported by or controverted by evidence of medical standards." See, Jacob Nir, as assignee of John Doe and Allstate, supra. Further, "(a) no-fault insurer defending a denial of first-party benefits on the ground that the billed-for services were not 'medically necessary' must at least show that the services were inconsistent with Page 2/9

3 generally accepted medical/professional practice. The opinion of the insurer's expert, standing alone, is insufficient to carry the insurer's burden of proving that the services were not 'medically necessary'." CityWide Social Work & Psy. Serv., P.L.L.C. v. Travelers Indemnity Co., 3 Misc.3d 608, 609, 777 N.Y.S.2d 241, 242 (Civ. Ct. Kings Co. 2004). "Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling." Id. at 616, 777 N.Y.S.2d at 248 Succinctly stated, Applicant, as assignee of the EIP, commenced this proceeding for reimbursement of two bills for durable medical supplies, to wit: cervical traction unit for date of service September 23, 2015 in the amount of $371.70, and in LSO and TENS unit in the amount of $ for date of service October 23, 2015, as prescribed by Mark Slamowitz, DC. Respondent denied the claim in the concededly timely manner based upon two peer reviews submitted by Brian Wolin, DC. A rebuttal to the peer review was submitted by Dr. Slamowitz, which was followed by an addendum from Dr. Wolin. As to the cervical traction unit, the peer reviewer wrote, in part: "(i)n this particular case it is not understood why the claimant needed this particular device for home treatment rather than having the treatment performed in Page 3/9

4 the clinical setting with Dr. Mark Slamowitz." Dr. Wolin further relied on the absence of "daily treatment notes which show that cervical traction was performed in the clinical setting." The doctor further cited to medical authority to question the efficacy of traction. As to the TENS unit, the doctor opined, in substance, that same is not medically necessary in the absence of proof that the EIP had intractable pain but did not respond to conservative care over the course of time. The peer review further contains a citation entitled "TENS is not indicated in the management of acute low back pain (Level II evidence.) It is noted that the peer review covering the follow-up date of service included no discussion regarding the LSO. In his rebuttal to the peer review, Dr. Slamowitz summarized, in part, his evaluation findings from July 29, 2015, as well as further examinations performed by Dr. Daniel Schapiro, inter alia, on August 4, 2015 and August 18, (Reports from Dr. Schapiro, as well as an ER chart were submitted into the hearing record by the Respondent.) Dr. Slamotitz further describes his August 28, 2015 re-evaluation findings as well as MRI and range of motion test results. The rebuttal further includes a discussion of medical necessity, supported by medical authority coupled with rebuttal argument. Page 4/9

5 On August 3, 2017, Dr. Wolin, in substance, reaffirmed his initial opinion following his review of the aforesaid rebuttal from Dr. Slamowitz. Based upon the evidence adduced in this hearing, as well as any arguments and/or concession made at the time of the hearing, I now hold for the Applicant. Initially, I find that the peer reviews are facially insufficient to support a medical necessity defense based upon apposite standards as summarized above. To that end, I find that each peer review contains a perfunctory and incomplete discussion of case history that is clearly not commensurate with the breadth of records reviewed, as delineated on the first page of the peer reviews, coupled with a perfunctory discussion of medical necessity. (The initial peer on covering the LSO, as noted, contained no discussion of medical necessity.) Further, to the extent that the tenor of the peer reviews is based upon insufficient evidence, the peer reviews may be deemed to be improperly shifting the burden of proof to the Applicant to establish medical necessity, albeit with no request for verification of a letter of medical necessity. Accepting arguendo the facial sufficiency of the peer reviews, I nevertheless find that the rebuttal from the referring doctor is sufficiently comprehensive and Page 5/9

6 credible when, considered with the balance of the records adduced in the hearing, to establish medical necessity of the supplies that issue. Finally, while it is patent that the purpose of an addendum is not to establish medical necessity and anew, but to respond to additional proof, such as the rebuttal at bar, I nevertheless find that under whatever standard applied, the addendum is still found to insufficient to carry the day for the Respondent. To that end, I find that opinion rendered in the addendum is still not supported by a comprehensive review of the case history. Further, the discussion of medical necessity is found to be generic and unpersuasive. (It is noted that the rebuttal does address the LSO.) Applicant's prima facie case is sustained. Award for Applicant in the amount of $770.93, plus interest and attorney's fees, in accord with LMK Psychological Services PC v. State Farm Mutual Auto Insurance Company, 12 N.Y. 3d 217, 879 N.Y.S. 2d 14 (2009), and as computed as per opinion letter of the Office of General Counsel of the NY Insurance Department No [Oct. 2003]. Applicant is further awarded return of filing fee. 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 6/9

7 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. Medical From/To Claim Amount Status Choice Surgical Supply Company 09/23/15-10/23/15 Awarded: $ $ Total $ Awarded: $ B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 08/03/2016, which is a relevant date only to the extent set forth below.) The interest rate shall be 2% per month, simple, on a pro rata basis using a 30 day month. The insurer shall compute and pay Applicant from August 3, 2016 to the date of payment of the award. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below As this matter was filed after February 4, 2015, this case is subject to the provisions promulgated by the Department of Financial Services in the Sixth Amendment to 11 NYCRR 65-4 (Insurance Regulation 68-D). Accordingly, the insurer shall pay the Page 7/9

8 applicant an attorney's fee, in accordance with newly promulgated 11 NYCRR (d). 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 New York I, Jeffrey Held, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/09/2017 (Dated) Jeffrey Held 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 8/9

9 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 34373f315f64c148f4c84d220f111e11 Electronically Signed Your name: Jeffrey Held Signed on: 05/09/2017 Page 9/9