ARBITRATION AWARD. Hearing(s) held on 10/06/2016, 04/13/2017 Declared closed by the arbitrator on 04/13/2017

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Excel Surgery Center, LLC (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Sandra Adelson, 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: the patient. Hearing(s) held on 10/06/2016, 04/13/2017 Declared closed by the arbitrator on 04/13/2017 Elke Mirabella, Esq. from Dino R. DiRienzo Esq. participated in person for the Applicant Michael Morra, claims representative from Geico Insurance Company participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 29,935.82, was AMENDED and permitted by the arbitrator at the oral hearing. The applicant amended this claim to $16, This amendment was a fee schedule correction. Stipulations WERE made by the parties regarding the issues to be determined. The parties stipulated that there was no fee schedule issue to be litigated due to the fee schedule correction. 3. Summary of Issues in Dispute Page 1/7

2 The applicant seeks payment for facility fee associated with right shoulder surgery performed on 10/8/13. The respondent issued a denial based on the peer review report of Dr. Howard Kiernan, orthopedist. 4. Findings, Conclusions, and Basis Therefor The record consisted of claimant's submission, respondent's submission, as well as documents not enumerated within this decision but which are contained in the case file maintained by the American Arbitration Association. THE ARBITRATOR SHALL BE THE JUDGE OF THE RELEVANCE AND MATERIALITY OF THE EVIDENCE OFFERED. 11 NYCRR (o) (1) (Regulation 68-D), reads as follows: The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary. 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. Based on a review of the documentary evidence submitted to the case file, the claim is decided as follows: Applicant establishes "a prima facie showing of their entitlement to judgment as matter of law by submitting evidentiary proof that the prescribed statutory billing forms [setting forth the fact and the amount of the loss sustained] had been mailed and received and that payment of no-fault benefits were overdue." Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.3d 742, 774 N.Y.S.2d 564 (2nd Dept. 2004). Once Applicant has established a prima facie case the burden is on the insurer to prove the treatment was medically unnecessary. See, Citywide Social Work & Psychological Services, PLLC a/a/o Gloria Zhune v. Allstate Ins. Co., 8 Misc.3d 1025A, 806 N.Y.S.2d 444 (App. Term 1st Dept. 2005); A.B. Medical Services, PLLC v. GEICO Ins. Co., 2 Misc 3d 26, 773 N.Y.S.2d 773 (App Term 2nd & 11th Jud Dist 2003). In order to support a lack of medical necessity defense respondent must "set forth a factual basis and medical rationale for the peer reviewer's determination that there was a lack of medical necessity for the services rendered." See, Provvedere, Inc. v. Republic Western Ins. Co., 2014 NY Slip Op 50219(U) (App. Term 2nd, 11th and 13th Jud. Dists Respondent bears the burden of production in support of it lack of medical necessity defense, which if established shifts the burden of persuasion to applicant. See generally, Bronx Expert Radiology, P.C. v. Travelers Ins. Co., 2006 NY Slip Op (App. Term 1st Dept. 2006). The Appellate Courts have not clearly defined what satisfies this standard except to the extent that "bald assertions" are insufficient. Amherst Medical Supply, LLC v. A Central Ins. Co., 2013 NY Slip Op 51800(U) (App. Term 1st Dept. 2013). The patient was a 34-year old right and dominant male who was involved in a motor vehicle accident on 6/21/13. As a result of the accident, the patient sustained injuries to Page 2/7

3 his neck, to his back and his right shoulder. The patient came under the care of Dr. Steven Horowitz and Dr. Raz Winiarsky for the right shoulder pain. The patient underwent an MRI scans of the right shoulder, lumbar spine and cervical spine. It is significant that the MRI scan of the right shoulder performed on 7/18/13 diagnosed intermediate grade interstitial tear in the distal subscapularis tendon, bursal surface fraying along the distal supraspinatus tendon, bursal surface fraying along the distal infraspinatus tendon, and effusion and edema about the acromioclavicular joint. The patient also began physical therapy on 7/1/13. It is significant that the physical therapy rendered a diagnosis of 1) brachial neuritis or radiculitis, 2) thoracic or lumbosacral neuritis or radiculitis. The treatment diagnoses included 1) brachial neuritis or radiculitis and 2) thoracic or lumbosacral neuritis or radiculitis. Dr. Kiernan's peer review report was premised on his opinion that the surgery was not shown to be medically necessary due to the fact that there was no conservative care. However, Dr. Kiernan ignored the fact that the patient was treated for a brachial condition. According to the US National Library of Medicine and National Institutes at "brachial neuritis" is described as follows: " Brachial neuritis (BN) is a rare inflammatory condition of peripheral nerves, usually involving the cervicobrachial plexus. These patients present with sudden onset of shoulder and arm pain that evolves into muscle weakness and atrophy." This arbitrator chooses to take judicial notice of the definition of "brachial neuritis" provided by the National Institutes of Health in a medical article as authoritative and accurate. In Kingsbrook Med. Ctr. V. Allstate Insurance Co, 61 AD 3d 13, (2009 Appellate Division Second Department), the Appellate Division held that the concept of judicial notice is elastic (see Richardson on Evidence Section 52 (10 Edition) and applicable to a wide range of subject matter, including official promulgation of government and material derived from official government websites which may be the subject of judicial notice. The National Institute of Health falls within the foregoing. The definition of brachial neuritis clearly establishes that the patient was treated for not only a cervical spine injury but shoulder and arm pain. Therefore, it is questionable if Dr. Kiernan carefully reviewed the physical therapy records from Back to Health PT, P.C. The 8/26/13 and 9/1/13 physical therapy record also established that the patient was treated for brachial neuritis or radiculitis. The physical therapy records clearly and cogently establish that the patient received treatment for a right shoulder condition. Additionally, the patient had received further conservative treatment on 9/9/13 by the performance of the steroid injection to the right shoulder. On 9/9/13, the patient had tenderness over the greater tuberosity and tenderness of the AC joint, positive Hawkins sign, and positive O'Brien's test. It is further significant that after Dr. Raz Winiarsky, the orthopedist, performed the right shoulder surgery on 10/8/13. The operative report established that patient had a full blown SLAP lesion confirmed by arthroscopic photos. The surgery in issue also repaired the right shoulder partial rotator cuff tear, impingement and SLAP lesion. In light of the foregoing, applicant's proof credibly established that the peer review report of Dr. Kiernan failed to reliably document and incorporate the information contained on the physical therapy records into his peer review report analysis. He also failed to consider the epidural injection as a form of conservative treatment. In light of the foregoing, Dr. Kiernan ignored the clearly documented medical need for the surgery. However, his premise was based on the misstatement that there was Page 3/7

4 non-operative treatment attempted. This clearly was not the case. Therefore, Dr. Kiernan fails to establish that the orthopedist who treated this patient deviated from a generally accepted medical standards. In this case, the Applicant has submitted medical records and reports rendered by the treating physicians. It is not the quantity of the proof but the quality of the proof that will or will not establish a prima facie case of medical necessity. Moreover, given the opinion offered by applicant whose reports provide objective medical findings and rationale for the need for the surgery in issue, this tribunal is not prepared to second guess a treating doctor who decides that a further treatment is necessary for this patient's diagnosis or treatment. See, James M. Liguori, Physician, vs. State Farm Mut.Auto Ins., 15 Misc.3d 1103A, 836 N.Y.S.2d 499, (District Ct. Nassau Co., 2007). After reviewing the evidence, I find that Applicant has submitted sufficient credible evidence to establish a prima facie case of medical necessity for the unpaid portion of the claim. See, Mary Immaculate Hospital v. Allstate Insurance Co., 2004 N.Y. Slip Op (2d Dept. 2004); Amaze Medical Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] (App Term, 2d and 11th Jud Dists 2003). Based on the proof presented I find in favor of the applicant. I find that the more credible proof in this case has been submitted by the applicant and find in favor of the applicant. The claim is granted 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. 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) Page 4/7

5 A. 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: Medical From/To Claim Amount Amount Amended Status Excel Surgery Center, LLC 10/08/13-10/08/13 Awarded: $29, $16, $16, Total $29, Awarded: $16, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 10/13/2015, which is a relevant date only to the extent set forth below.) Interest to run from the date of filing-10/3/15. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below Applicable attorney fees on $16, in accordance with 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. Page 5/7

6 State of New York SS : County of Suffolk I, Sandra Adelson, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/20/2017 (Dated) Sandra Adelson 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 6/7

7 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: bc867155df4be9a99de27501 Electronically Signed Your name: Sandra Adelson Signed on: 05/20/2017 Page 7/7