ARBITRATION AWARD. Steven Palumbo, Esq. from Palumbo & Associates, PC participated in person for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Evan Pasqua (Applicant) - and - Progressive Casualty Insurance Company (Respondent) AAA Case No Applicant's File No. EP-308 Insurer's Claim File No NAIC No ARBITRATION AWARD I, Marina O'Leary, 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: PD Hearing(s) held on 11/29/2017 Declared closed by the arbitrator on 11/29/2017 Steven Palumbo, Esq. from Palumbo & Associates, PC participated in person for the Applicant Danielle Mazzola, Esq. from Law Offices of Rachel Perry participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 2,034.56, was NOT AMENDED at the oral hearing. Stipulations WERE made by the parties regarding the issues to be determined. The parties stipulated that the only issue in controversy is the medical necessity of the chiropractic treatment rendered herein. 3. Summary of Issues in Dispute PD, a 39 year-old male driver, was purportedly injured in a motor vehicle accident on October 3, He was treated at applicant's facility from January 21, 2016 through September 29, The services in dispute consist of chiropractic care. Applicant seeks to be reimbursed $ for Page 1/8

2 these services. Respondent asserts that all claims were all timely denied based on the defense of lack of medical necessity. To that end, Respondent relies upon the Independent Medical Examination ("IME") performed by Gerald Silverman, DC on January 06, 2016 which resulted in a cutoff of benefits effective January 21, The issue is whether continued chiropractic treatments were medically necessary. 4. Findings, Conclusions, and Basis Therefor The case was decided on 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. These findings and conclusions are based on my review of the records on the ADR Center maintained by the American Arbitration Association as of the date the hearing was declared closed and oral argument at the hearing. 11 NYCRR (o)(1) provides that an arbitrator shall be the judge of the relevance and materiality of the evidence offered, and strict conformity to the legal rules of evidence shall not be necessary. The arbitrator may question or examine 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. The issue of whether treatment is medically unnecessary cannot be resolved without resort to meaningful medical assessment, Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 2009 NY Slip Op (App Div 2d Dept., Jan. 20, 2009, such as by a qualified expert performing an independent medical examination, conducting a peer review of the injured person's treatment, or reconstructing the accident. Id. 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); Delta Diagnostic Radiology, P.C. v. Progressive Casualty Ins. Co., 2008 Slip Op 52450(U), 21 Misc.3d 142(A) (App Term 2d Dept., 2008). An insurance carrier may utilize an independent medical examination (IME) to determine whether an eligible injured person is entitled to further care and treatment or other first-party benefits. See Rowe v. Wahnow, 26 Misc.3d 8, (App Term, 1st Dept 2009, McKeon, P.J., dissenting). Page 2/8

3 "An IME is a snapshot of the injured party's medical condition as of the date" it is conducted. Amato v. State Farm Ins. Co., 2010 NY Slip Op (Dist. Ct. Nassau Co., Fred J. Hirsh, J., Oct. 13, 2010). An IME report must set forth a sufficient factual basis and medical rationale for the conclusion that further services are not medically necessary. See Ying E. Acupuncture, P.C. v. Global Liberty Insurance, 20 Misc.3d 144(A), 2008 N.Y. Slip Op (U) (App Term 2d &11th Dists. Sept. 3, 2008). The determination that an eligible injured person no longer needs treatment is generally based upon an examiner's findings that result in the conclusion that: (1) the patient has fully recovered from the injuries; (2) the patient has made as full a recovery as is possible taking into account the nature and extent of the injuries, the patient's age, pre-existing conditions or other factors; and/or (3) additional treatment or testing will not provide any medical benefit to the patient. Amato v. State Farm Ins. Co., 2010 NY Slip Op (Dist. Ct. Nassau Co., Fred J. Hirsh, J., Oct. 13, 2010). IME OF GERALD SILVERMAN, DC In support of its contention that the chiropractic care was not necessary, Respondent relies upon the examination of Gerald Silverman, DC., dated January 6, When, as here, an insurer interposes a timely denial of claim form that sets forth a sufficiently detailed factual basis and adequate medical rationale for a claim's rejection, the presumption of medical necessity attached to the applicant's properly completed claim is rebutted and the burden shifts back to the claimant to refute the peer review and prove the necessity of the disputed services. Id. In order for an applicant to prove that the disputed expenses were medically necessary, it must meaningfully refer to, or rebut, the conclusions set forth in the peer review. Ortho-Med Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 2012 NY Slip Op 50149(U) (App Term 2d, 11th & 13th Jud Dists Jan. 24, 2012;. High Quality Medical, P.C. v. Mercury Ins. Co., 2010 N.Y. Slip Op (U) (App Term 2d, 11th & 13th Dists. Mar. 10, 2010). A letter of medical necessity sworn to by a provider who had examined assignor, along with other medical documentation, may be sufficient to rebut the peer review report and establish the medical necessity of the services rendered. See Quality Psychological Servs., P.C. v. Mercury Ins. Group, 2010 NY Slip Op 50601(U) (App Term 2d Dept., April 2, 2010). See also Vinings Page 3/8

4 Spinal Diagnostic, P.C. v. Geico Gen. Ins. Co., 2010 NY Slip Op 51897(U) (App Term 2d Dept., Nov. 8, 2010) (an affidavit from a chiropractor "meaningfully referred to" the IME and "sufficiently rebutted the conclusions set forth therein"). It is ultimately the provider who must prove, by a preponderance of the evidence, that the services were reasonable and necessary. See Dayan v. Allstate Ins. Co., 2015 NY Slip Op 51751(U) (App Term 2d Dept. Nov. 30, 2015). On the date of the IME, Dr. Silverman noted that the injured party complained of non-radiating neck and back pain. The injured party indicated that he was receiving chiropractic treatment three times per week. Examination of the cervical, thoracic and lumbar spine was entirely unremarkable. Bechterew's, SLR test, Bragard's test, Thomas test, Faere-Patrick sign, Nachlas, Yeoman's, Hibb's and Sacral tests were all negative bilaterally. There were no signs of comparative atrophy noted in the lower extremities. The Patella and Achilles deep tendon reflexes were equal and symmetrical. The curvature of the thoracic and lumbar spine appears to be normal. Dr. Silverman noted that the MRI report evidenced disc aberration. He dismissed these findings stating that these are often found in the general population. As such, in the absence of specific clinical presentations, he diagnosed resolved cervical and thoraco-lumbar spine sprain/strain injury without correlative objective evidence of residuals or permanency. He thus concluded that no further chiropractic treatment is necessary Applicant established its prima facie case, the burden therefore shifts to Respondent to establish lack of medical necessity for the items at issue, See Citywide Social Work & Psychological Services, PLLC v. Allstate Ins. Co., 8 Misc 3d 1025 A (2005). A denial premised on a lack of medical necessity must be supported by competent evidence such as an independent medical examination, a peer review or other proof which sets forth a factual basis and a medical rationale for denying the claim. Healing Hands Chiropractic, P.C., v. Nationwide Assur. Co., 5 Misc., 3d 975, 787 N.Y.S. 2d 645 (Civ. Ct., New York County, 2004); King's Med. Supply Inc. v. Country Wide Ins. Co., 5 Misc. 3d 767, 783 N.Y.S. 2d 448. As Respondent's denial was Page 4/8

5 timely (as stipulated by the parties), it was within its rights to assert lack of medical necessity as a defense. Liberty Queens Medical, P.C. v. Liberty Mutual Insurance Co., 2002 WL (App. Term 2d & 11th Dists. June 27, 2002); cf. Country-Wide Insurance Co. v. Zablozki, 257 A.D.2d 506, 684 N.Y.S.2d 229 (1st Dept. 1999). Applicant has provided medical records, January 11, 2016, as the most contemporaneous care rendered. The record from Robert Marini, MD corroborates the IME findings of neck and back pain. On this date, Dr. Marini conducted an EMG/NCV of the lower extremities. This test revealed a left L5-S1 radiculopathy. Later, on 2/25/2016, Dr. Marini performed a lumbar nerve root block in the same region to alleviate the symptoms of lumbar radiculopathy. I also note the MRI finding of the lumbar spine was not that of "disc aberration" as dismissed by Dr. Silverman but that of L4/5 subligamentous disc bulge, with left lateral disc herniation causing proximal left neural foraminal stenosis and L5/S1 broad based disc herniation indents central thecal sac, nearly abutting the traversing right S1 nerve root. With the exception of the complaints of pain, these findings directly contradict the findings of Dr. Silverman. In fact, in addition to dismissing the MRI findings altogether, I note that Dr. Silverman did not discuss the EMG/NCV records at all. Thus, Dr. Silverman's diagnosis of sprain/strain is simply incorrect. Although the range of motion appeared to be normal in the IME, the patient reported that he was receiving chiropractic treatment three times a week, which apparently was helping. I find that applicant has adequately rebutted the findings of the IME report. Therefore, applicant's claim is granted. 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 Page 5/8

6 A. 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: Medical From/To Claim Amount Status Evan Pasqua 01/21/16-09/29/16 Awarded: $2, $2, Total $2, Awarded: $2, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 12/21/2016, which is a relevant date only to the extent set forth below.) Applicant is awarded interest pursuant to the No-Fault regulations. See generally, 11 NYCRR Interest shall be calculated "at a rate of two percent per month, calculated on a pro rata basis using a 30-day month." 11 NYCRR (a). A claim becomes overdue when it is not paid within 30 days after a proper demand is made for its payment. "If an applicant does not request arbitration or institute a lawsuit within 30 days after receipt of a denial of claim form or payment of benefits calculated pursuant to Department of Financial Services regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken." 11 NYCRR (c). The Superintendent and the New York Court of Appeals has interpreted this provision to apply regardless of whether the particular denial at issue was timely. LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 12 N.Y.3d 217 (2009). Interest is to be calculated from the date this case was filed in arbitration. Page 6/8

7 C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below As the claim was filed subsequent to the Sixth Amendment to 11 NYCRR 65-4 (Insurance Regulation 68-D) which took effect on February 4, 2015, Attorney's Fees shall be calculated pursuant to the amended terms, as follows: 20 percent of the amount of first-party benefits, plus interest thereon, subject to a maximum fee of $1,360. [11 NYCRR (d)]. There is no minimum fee. 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, Marina O'Leary, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 12/31/2017 (Dated) Marina O'Leary 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 7/8

8 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 3643d93b388bec302fe16b222721f800 Electronically Signed Your name: Marina O'Leary Signed on: 12/31/2017 Page 8/8