ARBITRATION AWARD. Hearing(s) held on 10/10/2016, 02/13/2017 Declared closed by the arbitrator on 03/01/2017

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: (Applicant) AAA Case No Applicant's File No. 12PS352 - and - Allstate Insurance Company (Respondent) Insurer's Claim File No. NAIC No. ARBITRATION AWARD I, Lucille S. DiGirolomo, 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: Applicant 1. Hearing(s) held on 10/10/2016, 02/13/2017 Declared closed by the arbitrator on 03/01/2017 Susan Schenck, Esq. from Mallilo & Grossman participated in person for the Applicant Brian Kratenstein, Esq. from Peter C. Merani Esq. participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 11,392.48, was AMENDED and permitted by the arbitrator at the oral hearing. At the hearing, Applicant's counsel reduced the amount in dispute to $6, as more fully set forth below. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute In dispute is billing in the reduced amount of $6, for a facility fee, surgeon's fee and assistant's fee. Whether Respondent's denials based on a physical examination can be sustained. Page 1/6

2 4. Findings, Conclusions, and Basis Therefor I have reviewed the documents contained in the ADR Center as of the date of the hearing in this matter and have considered all pertinent documents contained therein for the purpose of rendering this award. The parties did not make any additional submissions on the hearing date. Applicant was a front seat passenger in a motor vehicle involved in an accident on June 12, She underwent right shoulder arthroscopic surgery on January 29, The operative report indicates: BRIEF CLINICAL NOTE: This is a 41-year-old with persistent right shoulder pain since she was involved in a motor vehicle accident on 06/18/2012. She states that the symptoms have been persistent and increasing with no improvement on a prolonged conservative treatment program. On examination, the right shoulder had tenderness mostly laterally as well as has some tenderness over the trapezius muscle. She had pain on range or motion both with abduction and internal rotation which was limited. She had a positive impingement sign. An MRI of her right shoulder had findings consistent with an intrasubstance tear of the supraspinatus tendon. With persistent and now increasing symptoms, she was scheduled for right shoulder arthroscopy. The post-operative diagnosis was right shoulder partial thickness rotator cuff tear, labral tear, synovitis, impingement with bursitis. New York Surgery Center of Queens LLC billed $27, for a facility fee for the surgical procedure. Of this amount, the Applicant paid $2, and submitted proof of payment. It was noted at the hearing that the charge was in excess of allowable reimbursement. As a result, Applicant's counsel reduced the amount sought for this bill to $1, Applicant has submitted an invoice from New York Surgery Center Queens, LLC which evidences a zero balance due. Applicant's counsel advises that benefits were never assigned to this provider of service and there is no proof the bill was ever submitted to Respondent for payment. Forest Hills Orthopedic Group, P.C. billed $ for an office visit on January 23, 2014 performed by Robert Donadt, M.D.. Forest Hills Orthopedic Group, P.C. also billed $4, for the surgical services of a Robert Donadt, M.D. and the same amount for the services of Adrian Tapija, the surgical assistant. At the hearing, Applicant's counsel reduced the assistant's fee to $ Respondent timely denied this billing based on an examination performed by Raghava R. Polavarapu, M.D. on December 5, As a result of this examination, benefits were terminated December 20, Forest Hills Orthopedic Group, P.C. submitted a release of assignment of benefits and checks showing payments to Forest Hills Orthopedics, Robert Donadt, M.D. and Ardian Page 2/6

3 Tapija. At the hearing, Applicant was given the opportunity to submit an affidavit from Forest Hills Orthopedic Group, P.C. confirming that it has been paid in full for the surgical procedure. By post hearing submission dated February 23, 2017, Applicant submitted an affirmation from Robert Donadt. M.D. advising he is the owner of Forest Hills Orthopedic Group, P.C. and the Assignor paid his office a total of $9, and Assignor has a zero balance. Even though Applicant paid Forest Hills Orthopedic Group, P.C. $9,000.00, recovery in this forum is limited to the amount allowed under the Workers' Compensation Fee Schedule. As to the denials based on the IME, Dr. Polavarapu found no tenderness on palpation, normal ranges of motion and no impingement sign on the right shoulder examination. This is contradicted by the MRI findings on July 24, 2012 of an intrasubstance tear of the supraspinatus tendon and the operative report. At the hearing, Respondent's counsel argued that the surgery was performed one year and almost two months after the accident and, therefore, the findings in 2014 are too far removed from the IME and may have been caused by a different event. Respondent did not use that rationale to deny the claims; instead relying on the IME report. Respondent is bound by the defense set forth in the denial. Respondent also argues that New York Surgery Center of Queens LLC has not established a prima facie case, as it has failed to establish that it sent its claim to Respondent. In Matter of State Farm Insurance Company v. Domotor, 266 A.D.2d 219, 697 N.Y.S.2d 348 (2d Dep't 1999), the Insurance carrier had notified the injured party that all future benefits would be denied based on the opinion of its medical experts. The injured party then continued treatment without submitting any further claims to the carrier. The Court found that this "disclaimer of coverage" excused the injured party's obligation to comply with the notice requirements set forth in the Regulations and stated: An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy. Rather, the insurance carrier "must 'stand or fall upon the defense upon which it based its refusal *221 to pay'... i.e., because 'no treatment [was] necessary' " (King v State Farm Mut. Auto. Ins. Co., 218 AD2d 863, 865, quoting Beckley v Ostego County Farmers Coop. Fire Ins. Co., 3 AD2d 190). While I am aware of the opinion of the Office of the General Counsel In No-Fault Denials, Inf. Op. N.Y. Ins. Dep't (Sep. 2, 2004), I cannot ignore the holding of the Appellate Division which is contrary thereto. Accordingly, Applicant is awarded $6, in full satisfaction of this claim. Page 3/6

4 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. Amount Claimed Amount Amended Medical $ 11, $ 6, TOTAL $ 11, $ 6, Amount Awarded $ 6, $ 6, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 06/06/2016, which is a relevant date only to the extent set forth below.) The insurer shall compute interest and pay the Applicant the amount of interest computed from the filing date as indicated above at the rate of 2% per month, simple, not compounded, calculated on a pro rata basis using a thirty day month, and ending with the date of payment of the award. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below The Respondent shall pay the Applicant an attorney's fee in accordance with 11 NYCRR (d) of 20 percent of the total amount of first-party benefits and any additional first-party benefits, plus interest thereon subject to a maximum fee of $1, Page 4/6

5 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 Queens I, Lucille S. DiGirolomo, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 03/01/2017 (Dated) Lucille S. DiGirolomo 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: a4eff94a0e53e65bab8a96c152f85a16 Electronically Signed Your name: Lucille S. DiGirolomo Signed on: 03/01/2017 Page 6/6