ARBITRATION AWARD. Greg Vinal, Esq. from Vinal & Vinal, 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: Orthofix, Inc (Applicant) - and - MAPFRE Insurance Company of New York (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Michelle Murphy-Louden, 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 05/12/2017 Declared closed by the arbitrator on 05/12/2017 Greg Vinal, Esq. from Vinal & Vinal, P.C. participated in person for the Applicant Inna Vilig, Esq. from Law Office Of Deirdre J. Tobin & Associates participated by telephone for the Respondent 2. The amount claimed in the Arbitration Request, $ 4,995.00, was AMENDED and permitted by the arbitrator at the oral hearing. Per stipulation of Applicant, the amount in dispute was amended to $3, to comport with the N.Y.S. Medicaid Durable Medical Equipment Fee Schedule. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute Whether Applicant is entitled to reimbursement for a bone growth stimulator dispensed on December 13, 2010, as a result of injuries allegedly sustained in an August 6, 2010, motor vehicle accident. Page 1/10

2 Respondent denied reimbursement based upon an orthopedic independent medical examination ("IME"). The hearing in this matter was conducted using all of the documents contained within the ADR Center electronic case file maintained by the American Arbitration Association, thereby rendering said documents a part of the record of this hearing. This Award is based upon a review of all of the documents contained within the ADR Center electronic case file as of the date of the Award, as well as upon any oral arguments of the parties and any testimony given during the hearing. 4. Findings, Conclusions, and Basis Therefor Pursuant to 11 NYCRR (o)(1), 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. The 41 year old EIP was reportedly involved in a motor vehicle accident on August 6, 2010, when the vehicle in which she was the restrained driver was struck on the driver's side. According to the records, the EIP did not seek emergency medical treatment following the accident. On September 24, 2010, the EIP presented for initial orthopedic evaluation with Christopher Frendo, D.O., reportedly complaining of neck and left shoulder pain with intermittent left upper extremity radiculopathy and intermittent left hand tingling. Examination reportedly revealed paraspinal muscle and left-sided trapezial tenderness, mildly decreased cervical range of motion secondary to stiffness, 5/5 muscle strength and intact sensation throughout the bilateral upper extremities, intact and symmetrical reflexes, and negative Spurling's Maneuver. Dr. Frendo diagnosed the EIP with cervical spine degenerative disc disease, neck pain, cervical sprain/strain, and left upper extremity radiculopathy and recommended physical therapy. On October 22, 2010, the EIP was seen in follow-up by Dr. Frendo reportedly complaining of increasing left-sided neck pain radiating down to the left shoulder and arm with occasional numbness and tingling into the hand. Examination reportedly revealed mainly left-sided paraspinal muscle and left-sided trapezial tenderness with Page 2/10

3 mild spasms, decreased cervical range of motion secondary to pain, good motor strength, and intact neurological. Dr. Frendo recommended a cervical MRI and continuation of physical therapy. On December 2, 2010, the EIP was seen in follow-up by Dr. Frendo for a pre-operative evaluation. Dr. Frendo noted that the cervical MRI showed a large extruded disc herniation at C5-C6 and a small herniation at C4-C5. Dr. Frendo also noted that the EIP was scheduled for an anterior cervical discectomy and fusion at C4-C5 and C5-C6 on December 10, On December 9, 2010, Dr. Frendo prescribed a bone growth stimulator. RESPONDENT'S IME On November 10, 2010, the EIP, at the request of Respondent, underwent an orthopedic IME performed by Alan Zimmerman, M.D. At the time of this IME the EIP was reportedly complaining of neck and left shoulder pain. The findings of Dr. Zimmerman's examination are set forth in his report as follows: The claimant is in no apparent distress. The claimant is cooperative, alert and oriented. The claimant ambulates without aide. The claimant is not wearing any braces or supports. Gait is normal and without a limp. The claimant is able to walk on toes and heels and perform routine activities without difficulty and was able to get on and off th e examining table, lie down, sit up and turn from side to side wi thout difficulty. Ranges of motion are measured with a hand held goniometer and are based on the New York State Workers' Compensation Board Medical Guidelines, 1996 Edition. Examination of the cervical spine: The claimant turns head freely to speak to me during this interview and shakes it up and down in response to my questions. Examination of the cervical spine reveals normal muscle contours without spasm or atrophy. There is subjective tenderness on the left. CERVICAL SPINE - Range of motion: Page 3/10

4 Observed Normal Flexion 45 degrees degrees Extension 45 degrees degrees Lateral Flexion (R) 45 degrees degrees Lateral Flexion (L) 45 degrees degrees Rotation (R) 60 degrees degrees Rotation (L) 60 degrees degrees These movements are carried out without complaints. SHOULDER TESTS: Impingement Sign Negative Supraspinatous Test Negative SHOULDER - Range of motion: Observed Normal Forward Elevation (R) 180 degrees 180 degrees Forward Elevation (L) 180 degrees 180 degrees Abduction (R) 180 degrees 180 degrees Abduction (L) 180 degrees 180 degrees Adduction (R) 45 degrees 45 degrees Adduction (L) 45 degrees 45 degrees Internal Rotation (R) 70 degrees 70 degrees Page 4/10

5 Internal Rotation (L) 70 degrees 70 degrees External Rotation (R) 90 degrees 90 degrees External Rotation (L) 90 degrees 90 degrees Examination of the lumbar spine: The following were tested and noted to be negative. Supine Straight Leg Raise - For evaluation of sciatic nerve inflammation and radiculopathy Negative Reverse Seated Straight Leg Raise - For evaluation of sciatic nerve and Inflammation and radiculopathy Negative Lasegue Sign - For evaluation of sciatic nerve inflammation and Radiculopathy Negative There was no spasm or tenderness noted. LUMBAR SPINE - Range of motion: Observed Normal Flexion 90 degrees 90 degrees Extension 30 degrees 30 degrees Lateral Flexion (R) 30 degrees 30 degrees Lateral Flexion (L) 30 degrees 30 degrees Rotation (R) 30 degrees 30 degrees Rotation (L) 30 degrees 30 degrees Page 5/10

6 These movements are carried out without complaints. Neurological examination was performed. Motor strength is 5/5 in all groups tested. Deep tendon reflexes are symmetrical in the upper and lower extremities. No specific sensory loss pattern can be elicited. Dr. Zimmerman diagnosed the EIP with resolved cervical sprain, shoulder complaints cervical in origin, and no lumbar injury (lumbar spine examined for purposes of completeness) and opined in part that the EIP did not require further orthopedic treatment, supplies, or surgery. Based upon Dr. Zimmerman's opinion, Respondent denied Applicant's claim. ANALYSIS Once an applicant has established a prima facie case of entitlement to No-Fault benefits, the burden then shifts to the insurer to prove that the disputed services were not medically necessary. To meet this burden, the insurer's denial(s) of the applicant's claim(s) must be based on a peer review, IME report, or other competent medical evidence that sets forth a clear factual basis and a medical rationale for the denial(s). Amaze Medical Supply, Inc. v. Eagle Ins. Co., 2 Misc. 3d 128A (App. Term, 2 nd Dept., 2003); Tahir v. Progressive Cas. Ins. Co., 12 Misc. 3d 657 (N.Y.C. Civ. Ct., N.Y. Co., 2006); Healing Hands Chiropractic, P.C. v. Nationwide Assurance Co., 5 Misc. 3d 975 (N.Y.C. Civ. Ct., N.Y. Co., 2004); Millennium Radiology, P.C. v. New York Cent. Mut., 23 Misc. 3d 1121(A) (N.Y.C. Civ. Ct., Richmond Co., 2009); Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co., 27 Misc. 3d 1218(A) (N.Y.C. Civ. Ct., Kings Co., 2010); All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 34 Misc. 3d 1219(A) (N.Y.C. Civ. Ct., Kings Co., 2012). I find that Dr. Zimmerman's IME fails to set forth a clear factual basis and a medical rationale for Respondent's denials of Applicant's claim for the bone growth stimulator in dispute herein and as such I find that Respondent has failed to establish a lack of medical necessity for same. I find it interesting that with respect to the cervical spine Dr. Zimmerman indicates that normal range of motion is anywhere from degrees yet with respect to the shoulders and lumbar spine normal ranges of motion are represented by singular values. I do not find the reported cervical ranges of motion to be very credible especially given that Dr. Zimmerman failed to explain the noted discrepancy. Page 6/10

7 In addition, Dr. Zimmerman's resolution of the EIP's cervical injury is contradicted by his opinion that the origin of the EIP's left shoulder pain was her cervical spine. If the EIP's cervical spine is causing her left shoulder to hurt, then it is reasonable to conclude that her cervical injury was not in fact resolved. Furthermore, the EIP's cervical MRI indicates that the EIP was suffering from more than just a cervical sprain. Therefore, based upon all the foregoing, Respondent's denial cannot be upheld. ACCORDINGLY, APPLICANT IS AWARDED THE AMOUNT OF $3, TOGETHER WITH INTEREST, ATTORNEY'S FEE, AND FILING FEE AS SET FORTH BELOW. 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) 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. Page 7/10

8 Medical From/To Claim Amount Amount Amended Status Orthofix, Inc 12/30/10-12/30/10 Awarded: $4, $3, $3, Total $4, Awarded: $3, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 11/20/2015, which is a relevant date only to the extent set forth below.) Pursuant to 11 N.Y.C.R.R (a), the insurer shall calculate interest at the rate of two percent per month, simple, calculated on a pro rata basis using a 30-day month. Pursuant to 11 N.Y.C.R.R (c), 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 Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken. Since Applicant herein did not request arbitration within 30 days of receipt of the denial of claim form, Respondent shall pay interest from the date the arbitration was commenced as set forth above to the date of payment of the Award in accordance with 11 N.Y.C.R.R (c). C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below The insurer shall pay the Applicant an attorney's fee in accordance with 11 N.Y.C.R.R (d) as Amended by the Sixth Amendment to Regulation 68 effective February 4, 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 8/10

9 State of New York SS : County of Erie I, Michelle Murphy-Louden, 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) Michelle Murphy-Louden 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: 29b4c3142c1f79fde9d83c5feb48c08b Electronically Signed Your name: Michelle Murphy-Louden Signed on: 05/20/2017 Page 10/10