ARBITRATION AWARD. Injured Person(s) hereinafter referred to as: Eligible injured person

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Specialty Surgery of Secaucus LLC (Applicant) - and - American Transit Insurance Company (Respondent) AAA Case No Applicant's File No. RFA Insurer's Claim File No NAIC No ARBITRATION AWARD I, Charles Blattberg, 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 Hearing(s) held on 02/10/2017, 04/19/2017 Declared closed by the arbitrator on 04/21/2017 Emily Bennett, Esq. from Russell Friedman & Associates LLP participated in person for the Applicant Randy Roonan, Esq. from Short & Billy PC participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 12,924.78, was AMENDED and permitted by the arbitrator at the oral hearing. Applicant reduced the amount claimed to $9, pursuant to fee schedule. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute The claimant was a 46 year-old female rear seat passenger of a motor vehicle that was allegedly involved in an accident on 5/11/15. Following the accident the claimant suffered injuries which resulted in the claimant seeking treatment. On 10/27/15 Maxim Tyorkin, M.D. of Applicant's office performed right shoulder surgery consisting of right shoulder arthroscopy, right shoulder partial synovectomy, right shoulder debridement, Page 1/10

2 right shoulder bursectomy, and right shoulder subacromial decompression with acromioplasty. The associated facility fee is at issue here. 4. Findings, Conclusions, and Basis Therefor THIS HEARING WAS CONDUCTED USING THE ELECTRONIC CASE FOLDER MAINTAINED BY THE AMERICAN ARBITRATION ASSOCIATION. ALL DOCUMENTS CONTAINED IN THAT FOLDER ARE MADE PART OF THE RECORD OF THIS HEARING. THE ARBITRATOR SHALL BE THE JUDGE OF THE RELEVANCE AND MATERIALITY OF THE EVIDENCE OFFERED. Based on a review of the documentary evidence, this claim is decided as follows: An Applicant establishes its prima facie showing of an entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed, received by the Respondent and that payment of no-fault benefits is overdue. Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.2d 742, 774 N.Y.S.2d 564 (2 Dept 2004). A facially valid claim has been defined as one that sets forth the name of the patient, date of accident, date of service, description of services rendered and the charges for those services. See, Vinnings Spinal Diagnostic P.C. v. Liberty Mutual Insurance Company, 186 Misc. 2d 128(A), 784 N.Y.S.2d 918 (2003). The burden then shifts to the Respondent to prove a defense to payment of the claim. Proof of Claim First, I must address whether the claim is premature. At the hearing Respondent did not argue that Applicant's claim was premature. However, this issue was raised in Respondent's counsel's brief. Here, Respondent received both UB-04 and NF-2 forms. It is Respondent's position that the forms sent by Applicant constitute insufficient proof of claim. In support of this contention, Respondent cites Sound Shore Medical Center v. New York Central Mutual Fire Insurance Company, 106 Ad.3d 157 (2d. Dep't, 2013) wherein the court noted that a UB-04 form is not the "functional equivalent" of an NF-5 form. Respondent also cites Mount Sinai Hospital v. New York Central Mutual Fire Insurance Company, 120 Ad.3d 561 2d. Dep't, 2014). There the Second Department cited its prior decision in Sound Shore and stated again that the UB-04 form is not the functional equivalent of a hospital facility form (NF-5). It held that "{u}nder 11 NYCRR Section (g), a UBF-1/UB-4 form together with an NF-5 form must be accepted by a no-fault insurer. The regulation does not state that a UBF-1/UB-4 form alone must be treated as the 'functional equivalent' of an NF-5 form." In response to the regulations and the aforementioned cases the New York State Department of Financial Services (DFS) on February 3, 2015 issued Insurance Circular Letter No. 1. The Circular Letter states that in the event that an insurer receives a UB-04 from a hospital facility unaccompanied by an NF-5, the insurer should provide the Page 2/10

3 hospital with an opportunity to submit a completed NF-5 form. The Circular Letter further states as follows: "In the event the eligible injured person previously submitted an NF-2 to the insurer, the insurer need not request an NF-5, but may seek additional verification as necessary by promptly sending the hospital an NF-4." I note that in contrast to Sound Shore and Mt. Sinai Hospital, here Applicant's UB-04 form was not the sole form sent to Respondent; in this case, Respondent received both a UB-04 and an NF-2. I find that in this instance, the NF-2 provided written notice of claim. The issue in this case is whether the UB-04 was sufficient to provide proof of claim in connection with the NF-2. Arbitrator Jeffrey Grob analyzed this same issue in AAA Case No.: There, as here, the respondent had received an NF-2 prior to receipt of the UB-04. Arbitrator Grob reasoned: "The carrier's receipt of the Applicant's UB-04 should not be viewed in isolation. By virtue of the prior transmission of the patient's N-F 2, the carrier had received "written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident" (11 NYCRR [b]), and, in the context presented, its receipt of the Applicant's UB-04, implicated 11 NYCRR (f), in contradistinction to subdivision g thereof, and afforded an opportunity, if it deemed it necessary, to insist on the submission of the prescribed hospital facility form or N-F 5. There is no indication in the Record that the carrier deemed it necessary or useful." Arbitrator Susan Haskel analyzed this very same issue. See, AAA Case No.: Arbitrator Haskel found: "This reasoning is line with the Insurance Department's guidance in its circular letter. There, the Insurance Department indicates that when a hospital sends a carrier an NF-2 and UB-04, the carrier has received sufficient documentation to determine whether it requires an NF-4 to verify treatment. Tacit in this statement is that the NF-2 and UB-4 together establish proof of claim absent a verification request." Since the record in the within matter indicates that Respondent received an NF-2 prior to its receipt of the Applicant's UB-04 form, I agree with Arbitrators Grob and Haskel that the Applicant's submission of a UB-04 form in the within matter was sufficient to establish a prima facie case. Thus, I find that the decisions of the Appellate Division, Second Department in Sound Shore and Mt. Sinai Hospital are distinguishable from the within matter. See AAA Case No.: In accordance with the Circular Letter from the New York State Department of Financial Services referenced above, upon receipt of the Applicant's UB-04 form the Respondent could have requested an NF-4. However, it did not do so in this matter. Having determined that the Applicant established a prima facie case, Respondent's specific defenses must be addressed. Respondent's counsel's brief also argued that Applicant is subject to a fifty percent reduction penalty pursuant to New Jersey fee schedule N.J.A.C. 11:3-4.4(d). The fact that the services were rendered in New Jersey does not make New Jersey No-Fault Regulations (requiring notification and pre-certification) applicable to the subject case herein. See, AAA Case No.: (Arbitrator Maslow 11/17/10) and AAA Page 3/10

4 Case No.: (Arbitrator Tola 4/29/15). Respondent's counsel's brief also noted that "[t]his case should be denied and submitted to the workers compensation board to process and/or make any determinations. The claim was denied based upon workers' compensation." This claim was not "denied based upon workers' compensation." The 2/10/17 hearing was continued so that Applicant could "review the submitted billing and if necessary amend the AR-1." Applicant amended the AR-1 and total amount in dispute from $2, to $12, It was decided that interest would be stayed pending the continuance. The claimant was a 46 year-old female rear seat passenger of a motor vehicle allegedly involved in an accident on 5/11/15. The claimant reportedly injured her neck, right shoulder, low back, and right knee. There was no reported loss of consciousness. There were no reported lacerations or fractures. Following the accident the claimant was transported to St. Barnabas Hospital where she was evaluated, treated, and released. On 5/22/15 the claimant presented to Good Hands Chiropractic, P.C. and was initiated on chiropractic treatment. On 5/22/15 the claimant presented to Jong Hun Park. L.Ac. of EMP Acupuncture, P.C. and was initiated on acupuncture care. On 6/1/15 the claimant presented to Gamil Kostandy, M.D. and the claimant was initiated on physical therapy. On 6/15/15 the claimant presented to Jean-Baptiste Simeon, M.D. for an examination preliminary to upper extremities and lower extremities EMG/NCV testing performed the same day that suggested evidence consistent with right C5-C6 radiculopathy. On 6/26/15 Bruce Jacobson, D.C. performed cervical and lumbar pf-ncs testing. The 7/1/15 brain MRI produced a normal study. The 7/1/15 cervical spine MRI produced an impression of disc bulges with compression of anterior thecal sac and partial effacement of anterior subarachnoid space C5-C6 and C6-C7. The 7/1/15 right wrist X-ray indicated no fracture, but osteoarthritic changes. The 7/1/15 right forearm X-ray produced a normal study. The 7/1/15 right hand X-rays indicated no fracture, but osteoarthritic changes. The 7/15/15 right knee MRI produced an impression of intrameniscal tear in the posterior body/posterior horn of the medial meniscus, anterior subcutaneous soft tissue swelling and edema consistent with recent trauma or bursitis, and mild joint effusion which may be seen in a setting of trauma or synovitis. The 7/15/15 right shoulder MRI interpreted by Steve B. Losik, M.D. produced an impression of thickening with intrasubstance T2 signal of the distal subscapularis tendon consistent with intrasubstance partial tear in combination with tendonosis/tendinopathy in an appropriate clinical setting, thickening with intrasubstance T2 signal of the distal supraspinatus tendon consistent with intrasubstance partial tear in combination with tendinosis/tendinopathy in an appropriate clinical setting, the infraspinatus and teres minor tendons are intact without MRI evidence of a tear or tendinosis/tendinopathy, and fluid in subacromial/subdeltoid region which is associated with rotator cuff tears or subacromial/subdeltoid bursitis in an appropriate clinical setting. The 8/12/15 lumbar spine MRI produced an impression of L4-5 disc bulge with impingement on the neural foramina. On 8/26/15 the claimant presented to Tim Canty, M.D. for a pain management consultation. On 10/27/15 Maxim Tyorkin, M.D. of Applicant's office performed right shoulder surgery consisting of right shoulder arthroscopy, right shoulder partial synovectomy, right shoulder debridement, right shoulder bursectomy, and right shoulder subacromial decompression with acromioplasty. The preoperative diagnosis was right Page 4/10

5 shoulder derangement. The postoperative diagnosis was right shoulder derangement, right shoulder partial rotator cuff tear, right shoulder partial labral tear, right shoulder post-traumatic bursitis, and right shoulder post-traumatic synovitis. The associated facility fee is at issue here. Respondent's explanation of benefits (EOB) states: "1) ENTIRE CLAIM IS DENIED BASED ON THE EXAMINATION UNDER OATH HELD 10/16/15. IN ADDITION, CLAIM IS ALSO DENIED DUE TO CLAIMANT NOT BEING LISTED ON THE POLICE REPORT. 2) THIS SERVICE(S) WAS DENIED BASED ON THE ATTACHED PEER REVIEW BY DR. PIERCE FERRIER. 3) YOUR BILL IS IN EXCESS OF THE NF FEE SCHEDULE. SEE CALCULATION ABOVE." I find the misspelling of Dr. Ferriter's name to be a de minimis error unlikely to mislead the Applicant. Examination Under Oath held 10/16/15 and claimant not being listed on the police report In the linked AAA Case No.: this Arbitrator found that Respondent failed to support a defense based on this "CLAIMANT NOT BEING LISTED ON THE POLICE REPORT." In the linked AAA Case No.: this Arbitrator found both defenses deficient. There I found: Inconsistent testimony at the Examination Under Oath conducted on 10/16/15 The burden of establishing fraud lies with the insurance carrier. See Mt. Sinai Hospital v. Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 177 (2nd Dept. 1999). It has been recognized that evidence of fraud will often appear through circumstantial evidence, and that the strength of inferences must be measured by common sense. A.B. Medical PLLC v. State Farm Mutual Auto Ins. Co.. 25 Misc3d 822 (Civil Ct. Kings Ct. 2008). After a thorough review of the 10/16/15 EUO of the claimant here I am unconvinced that it is sufficient to establish that the subject accident was not a covered event. As noted above, Respondent was provided the opportunity to indicate what inconsistencies they were relying on but did not. The claimant flagged down a cab near her job [pg. 9 line 13-17]. The claimant's co-worker, her co-worker's daughter and the co-worker's daughter's friend were already in the vehicle [pg. 9 line 24- pg. 10 line 5]. The accident occurred on the Cross Bronx and there was a lot of traffic [pg. 10 line 14-19]. The claimant stated that at the time of the accident "the music was on very loud", "the driver was on his phone", she suddenly "felt a big impact" and "felt kind of dizzy" [pg. 10 line 19-21]. The claimant stated that the taxi cab she was in "hit the car in front of it" [pg. 10 line 23-25]. The claimant stated that as result of the impact the right side of her body impacted the "plastic in the back of the passenger-seat saying rules and instructions" [pg. 11 line 4-21]. The claimant described the impact as "strong" [pg. 12 line 10-12]. The claimant stated that immediately following the impact she felt pain in her right hand and right leg [pg. 12 line 13-19]. The claimant indicated areas that were swollen and bruised [pg. 12 line 21-22]. The claimant described injuries to her head, neck, back and right shoulder along with possible surgery [pg. 12 line 23-pg. 13 line 7]. The claimant stated that after 20 to 25 minutes an ambulance arrived and paramedics assisted her out Page 5/10

6 of the vehicle [pg. 13 line 22-24]. The claimant stated that the driver called the police but wasn't sure if they arrived [pg. 14 line 8-16]. When asked "Do you remember giving the police any information?" the claimant responded "No, just the ambulance" [pg. 14 line 17-18]. The claimant stated that ambulance personnel gave her ice, bandages, and "alcohol to smell" at the scene of the accident [pg. 15 line 6-10]. She stated that they took her to Saint Barnabas hospital [pg. 14 line 11-12]. I find that the subject EUO does not contain any inconsistent testimony that warrants the denial of this claim. The eligible injured person answered all question put to her. She did fail to remember some things, but these were inconsequential, in my view. I am not persuaded that these minor lapses correlate to "inconsistent testimony." Based on my reading of the EUO transcript, I find Respondent's defense to the claim invalid. Claimant not being listed on the police report AAA Case No.: involved the same defense, the same Respondent, a different Applicant (there chiropractic treatment provided 8/11/15-9/8/15 was at issue) and a different claimant (another rear seat passenger of the livery vehicle that claimant occupied). There Arbitrator Joanne Andreotta determined: Subsequent to the issuance of the first denial on 10/12/15, the Respondent submitted an "amended" denial dated 11/6/15 which includes the same information as the first denial but has added that the "entire claim is denied on the basis of the claimant not listed on police report." I am assuming that the Respondent has taken the position that the patient has committed fraud and was not actually involved in the accident. In reviewing the entirety of the record before me, it does appear as though the name of the patient was not listed on the police report or the MV104 of the driver. I find, however, that as a question of fact, that alone does not constitute sufficient proof of fraud. The Respondent did not take a statement from the driver of the vehicle or the patient. No EUOs were scheduled or held and there is no statement from anyone indicating that any investigation was undertaken in this case prior to the outright denial. The Respondent has fallen far short of establishing "fraud"/ "lack of coverage" in this case. The "amended" denial cannot be sustained. The rationale and findings of Arbitrator Andreotta are adopted as consonant with my own findings. Irrespective of the aforesaid award, Respondent has not submitted anything to support or explain this defense. The claimant is listed as one of the passengers of the livery vehicle (along with the claimant in AAA Case No.: ) on her MV-104. There are several possible explanations as to why the claimant is not listed on the police report that do not involve fraud. In addition to the above-referenced decisions by Arbitrator Joanne Andreotta (in AAA Case No.: ) and this Arbitrator in (AAA Case Nos.: and ); Arbitrator John Kannengieser (in AAA Case Nos.: Page 6/10

7 and ) also found that Respondent failed to set forth a defense based on this "CLAIMANT NOT BEING LISTED ON THE POLICE REPORT." 11/12/15 peer review by Dr. Pierce Ferriter Additionally, Respondent timely denied the right shoulder arthroscopy based on the 11/12/15 peer review by Pierce J. Ferriter, M.D. After reviewing the claimant's history, treatment, and medical records, Dr. Ferriter asserts "according to the examination report by an orthopedic surgeon. Maxim Tyorkin, M.D., she presented on 09/24/2015 with complaints of pain in the right shoulder and right knee. Physical examination revealed decreased and painful range of motion of the right shoulder with positive impingement sign. There was decreased and painful range of motion of the right knee. There was bilateral joint line tenderness as well. The diagnostic impression included right shoulder internal derangement and impingement and right knee internal derangement and meniscal tear. As part of the treatment plan, the claimant was referred for activity modification, physical therapy, anti-inflammatories, pain management consultation, and right shoulder arthroscopy." Dr. Ferriter opines "based on a thorough review of the submitted medical file, the right shoulder surgical procedure performed on 10/27/2015 may have been medically justified. The claimant had shoulder pain, loss of range of motion, positive impingement sign with failure to improve with active conservative care, however, in order to provide definitive commentary I would need to review the MRI report of the right shoulder obtained prior to the surgical procedure." Dr. Ferriter then cites authority regarding rotator cuff injuries ( and shoulder arthroscopy ( generally. Dr. Ferriter concludes "taking into consideration all of the above, I am unable to conclude with a reasonable degree of medical certainty that the medical justification and necessity for the "Arthroscopy, shoulder, surgical; debridement, extensive and Arthroscopy, shoulder, surgical; decompression of subacromial space with partial acromioplasty, with or without coracoacromial release" performed at Specialty Surgery of Secaucus, has been established and should be recommended for payment at this time." I am not persuaded that Dr. Ferriter established that the services at issue were not medically necessary. Dr. Ferriter does not set forth a standard of care or explain how or in what manner there was a deviation from that standard of care here. Dr. Ferriter concludes that "the right shoulder surgical procedure performed on 10/27/2015 may have been medically justified." Dr. Ferriter also notes that "in order to provide definitive commentary I would need to review the MRI report of the right shoulder obtained prior to the surgical procedure." Respondent did not provide Dr. Ferriter with all of the claimant's medical records. Even if Respondent did not possess all the medical records necessary to properly evaluate the claim, it should have requested them. Indeed, the fact the reviewer lacked sufficient information does not, in and of itself, demonstrate the existence of a triable issue of fact, without showing that the Respondent sought to obtain such missing information by a request pursuant to the verification procedures (see A.B. Medical Services PLLC v. American Manufacturers Mut. Ins., 6 Misc. 3d A [App. Term 2d & 11th Dist. 2005]). I also note that Dr. Ferriter concedes that the "claimant had shoulder pain, loss of range of motion, positive impingement sign with Page 7/10

8 failure to improve with active conservative care." Further, I note the treating physician rule which gives great deference to the determinations of the medical provider who is actually rendering care to the patient. Accordingly, Applicant is awarded $9, 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 applicant is AWARDED the following: A. Medical From/To Claim Amount Amount Amended Status Specialty Surgery of Secaucus LLC 10/27/15-10/27/15 Awarded: $12, $9, $9, Total $12, Awarded: $9, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 01/04/2016, which is a relevant date only to the extent set forth below.) Page 8/10

9 Interest runs from 1/4/16 (the filing date for this case) until the date that payment is made at two percent per month, simple interest, on a pro rata basis using a thirty day month. As described above interest is stayed for the period 2/10/17-4/19/17. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below Pursuant to 11 NYCRR (d), "... the attorney's fee shall be limited as follows: 20 percent of the total amount of first-party benefits and any additional first-party benefits, plus interest thereon for each applicant for arbitration or court proceeding, subject to a maximum fee of $1,360." 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 Nassau I, Charles Blattberg, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/15/2017 (Dated) Charles Blattberg 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 9/10

10 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: adf29a42d2d95fc28ac3f1bb0a9fe903 Electronically Signed Your name: Charles Blattberg Signed on: 05/15/2017 Page 10/10