ARBITRATION AWARD. Melissa Zelli, Esq., from Zelli & Cahill, P.C. participated in person for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: 21st Century Pharmacy Inc (Applicant) - and - Mid-Century Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Fred Lutzen, 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: EIP Hearing(s) held on 03/08/2017 Declared closed by the arbitrator on 03/08/2017 Melissa Zelli, Esq., from Zelli & Cahill, P.C. participated in person for the Applicant Derek Sohi, Esq., from Bryan M. Rothenberg Esq. participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 4,330.95, was AMENDED and permitted by the arbitrator at the oral hearing. Applicant amended its claim down to $3, in agreement with the Respondent's view of the correct fees based on the coder affidavit provided in this case. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute After reviewing the submissions of both parties, and hearing arguments from both sides I determine that the Applicant has established its prima facie case for overdue claims, and that the Respondent's denials were timely issued. The issue is whether the Terocin Patch and/or the compound cream medication prescribed was medically necessary. Page 1/6

2 4. Findings, Conclusions, and Basis Therefor This case was decided based upon the submissions of the parties as contained in the electronic file maintained by the American Arbitration Association, and the oral arguments of the parties' representatives. There were no witnesses. I reviewed the documents contained in MODRIA for both parties and make my decision in reliance thereon. The disputed claim herein, in the amended amount of $3,847.57, is for a compound cream pain medication and a Terocin Patch, prescribed on 11/30/15, and provided to the EIP, a 23 y/o male, who was injured while driving an automobile on 11/11/15 when he was involved in an accident. The patch and the topical medications were prescribed by Dr. Andre J. Duhamel, M.D., an internist at Morris Park Primary Medical Care. The compound cream included: Baclofen, Tetracaine, Ketorolac, Diclofenac sodium, and Verapamil powders, as well as VersaPro Cream Base. The Respondent obtained a peer review from Dr. Stuart Stauber, M.D., an internist. Dr. Stauber was asked to comment on the medical necessity of the medications provided to the EIP by the Applicant. Dr. Stauber reviewed the relevant medical records as noted in his report dated 2/8/16, and opined that medical necessity had not been established and that the standard of care for prescribing such medications had not been followed. Based on Dr. Stauber's report, the Respondent-carrier issued a denial on 2/10/16 stating that "[b]ased on Peer Results, treatment is not medically necessary." Respondent also asserted a fee schedule defense to the amount claimed, however that has been resolved by amendment. For the Respondent to sustain its medical necessity defense, it 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. 2014). 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, Bronx Expert Radiology, P.C. v. Travelers Ins. Co., 2006 NY Slip Op (App. Term 1st Dept. 2006). An insurance carrier must, at a minimum, establish a detailed factual basis and a sufficient medical rationale for its asserted lack of medical necessity. Vladimir Zlatnick, M.D.,P.C. v. Travelers Indem. Co., 2006 NY Slip Op 50963(U) (App Term 1st Dept., 2006). Here, Respondent relies upon the peer review report of Dr. Stauber. PEER Terocin Patch Dr. Stauber states the standard of care for injuries such as these does include prescribing the disputed Terocin Patch, which the FDA reports may be indicated for "pain associated with post-herpetic neuralgia." Dr. Stauber states that standard, conservative Page 2/6

3 management of pain should be implemented first. However, this was not followed as the EIP received these medications just 19 days after the accident. With respect to the Terocin Patch, for which Dr. Stauber agrees that it is sometimes necessary, but not in this particular case and under the circumstances of the EIP's diagnoses, I find that Dr. Stauber provides support for his opinion and a medical rationale that the Terocin Patch was not medically necessary. Dr. Stauber states that the diagnosis for which the FDA approves use of this patch was not present in this case. Since Dr. Stauber cites to authority in support of his position, outlines a standard of care that he opines was not followed, and provides factual support for his opinion, Respondent has demonstrated that the patch prescribed was not medically necessary. Accordingly, the burden now shifts to Applicant, who bears the ultimate burden of persuasion. See, Bronx Expert, supra. Compound Cream Regarding the compound medication, Dr. Stauber provides a standard of care that was not followed. He states that such topical medications are not proven to be effective, but concedes that "these can be prescribed for pain", but that " there is no evidence of efficacy." Dr. Stauber opines that other more efficacious medications, such as NSAIDs, should be implemented first. He further states that there is no evidence in the medical literature that OTC creams are any less or more effective than a prescription cream. I find that Dr. Stauber provides medical support for his opinion and a medical rationale that the compound cream was not medically necessary. Since Dr. Stauber cites to authority in support of his position, outlines a standard of care that he opines was not followed, and provides factual support for his opinion, Respondent has demonstrated that the compound cream was not medically necessary. Accordingly, the burden now shifts to Applicant, who bears the ultimate burden of persuasion. See, Bronx Expert, supra. REBUTTAL Applicant relies on the rebuttal letter prepared by Dr. Muzaffar Zai, D.O., dated 10/17/16, as well as the medical records submitted to the MODRIA electronic case file. In the first instance, it is noted that the EIP was evaluated at Dr. Leonid Shapiro's office (Metro Pain Specialists, PC) on 12/22/15, by Inna Levtsenko, GNP, which was 3 weeks after he was prescribed the medications in dispute here. His pain level was 2-3 out of 10. Pain was alleviated by occasional nonsteroidal anti-inflammatory medication. He has not tried anything other than NSAIDs, which gave him partial relief. The plan included continued nonsteroidal anti-inflammatory as needed, and no opioids. The "rationale and common side effects of these medications were reviewed." There was no mention of his use of a Terocin Patch, prescription topical compounded pain cream, or topical NSAIDs, during this pain specialist office visit. The same or similar notes were made on 1/12/16, with no mention of daily use, or any use, of a Terocin Patch or compounded pain medication. The remaining treatment records offer no opinion on the medical necessity of these topical pain medications. Page 3/6

4 Dr. Zai does not discuss the use of a Terocin Patch or why one would be medically necessary under these circumstances. Dr. Zai states that topical pain creams will aid the patient in a quicker recovery, but offers no support for this proposition. He downplays the relevance of the CWCI publication, as not dealing with automobile accident injuries, but then relies on the alleged fact that topical pain relievers are useful like general anesthetics for in-office procedures or surgeries. I am not persuaded or convinced by Dr. Zai's rebuttal letter. Neither Dr. Stauber nor Dr. Zai ever treated this patient, but it is my determination that Dr. Stauber provides a significantly more detailed summary of the actual medical records than does Dr. Zai. Dr. Zai suggests that only the treating physician can determine what is justified. If this were the case, then the absence of any detailed letter of medical necessity from the treating physician explaining why topical medication was justified might be more persuasive, although it is certainly not required as rebuttal evidence. Where, as here, there is no explanation on medical necessity from the treating physician, we can rely on the expert witnesses from both sides. The evidence submitted by Applicant makes it difficult to ascertain why the Terocin Patch or the compound cream was necessary. See, Pan Chiropractic P.C. v. Mercury Ins. Co., 24 Misc. 3d 136A (App Term, 2d, 11th & 13th Jud Dists 2009). See also Flushing Traditional Acupuncture, P.C. a/a/o AK v. GEICO Ins. Co, 36 Misc. 3d 156A, (App Term 2d Dept. 2012). It is ultimately Applicant who must prove, by a preponderance of the evidence, medical necessity. Dayan v. Allstate Ins. Co,39 Misc.3d 151(A) (App. Term 2d, 11th & 13th Dists. 2015); Park Slope Medical and Surgical Supply, Inc. v. Travelers Ins. Co., 37 Misc.3d 19, 952 N.Y.S.2d 372. (App. Term 2d, 11th & 13th Dists. 2012). This was not done herein. After a careful review of the record, and considering the oral arguments of the parties, I am not persuaded by Dr. Zai's rebuttal or by the remaining medical records, and Applicant failed to overcome Dr. Stauber's supported opinion that the medications were not medically necessary. 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 4/6

5 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, Fred Lutzen, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 03/29/2017 (Dated) Fred Lutzen 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: 30d21e6918b69692fe8609b e Electronically Signed Your name: Fred Lutzen Signed on: 03/29/2017 Page 6/6