ARBITRATION AWARD. Naomi Cohn, Esq. from Ursulova Law Offices 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: Avenue C Medical PC (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No Insurer's Claim File No NAIC No ARBITRATION AWARD I, Toby Susan DeSimone, 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 03/16/2017 Declared closed by the arbitrator on 03/16/2017 Naomi Cohn, Esq. from Ursulova Law Offices P.C. participated in person for the Applicant Robert Pollock, Claim Representative from Geico Insurance Company participated in person for the Respondent The amount claimed in the Arbitration Request, $ 4,014.75, was NOT AMENDED at the oral hearing. Stipulations WERE NOT made by the parties regarding the issues to be determined. Summary of Issues in Dispute Assignor/injured party, a 43 year old male, allegedly was involved in an accident on October 6, Applicant, assignee medical provider is seeking reimbursement for Range of Motion/Manual Muscle (ROM/MMT) testing and physical therapy performed from 7/6/14-5/29/15 and its right to be compensated $4, for same. Respondent denied the claims based upon its insurance examinations. 4. Findings, Conclusions, and Basis Therefor Page 1/7

2 There were no witnesses at the hearing. Applicant was represented by counsel. Counsel and Respondent's representative appeared and argued in support of their respective positions. I have reviewed the documents contained in the ADR Center as of the date of the hearing. The facts as adduced at the hearing from the parties' written submissions are as follows: I note that this matter was heard along with three other cases involving the same EIP which were on my calendar for 3/16/17 - AAA Case #s: ; and I have incorporated all medical reports and IME reports from the four cases. On 10/4/13, the injured party was initially examined by Dr. Salehin Sayeedus. The patient complained of neck pain radiating to the right shoulder, right elbow pain, mid back pain and low back pain radiating to the right knee. The examination revealed limited range of motion of the cervical and lumbar spine, right shoulder, right elbow and right knee. The patient was started on a course of physical therapy. The injured party appeared for an acupuncture insurance examination with Yong Gon Kim, L.Ac. on 3/20/14. The claimant noted he was receiving physical therapy, massage, chiropractic treatment and acupuncture four times a week. He complained of pain in the neck, mid back, low back, right knee and right shoulder. He had been out of work since the accident. The TCM examination revealed a pink tongue with a thin coat. The pulse was normal and thready. There was no tenderness to palpation of the paravertebral muscles of the cervical, thoracic or lumbar spine. Range of motion was within normal limits. The examination of the right shoulder revealed minimal tenderness on palpation. Range of motion was limited in all planes. The claimant had undergone right shoulder arthroscopic surgery on 1/22/14. The balance of the examination was within normal limits. Mr. Kim diagnosed resolved cervical, thoracic and lumbar spine strains and resolved right knee sprain/strain. The right shoulder strain/sprain was resolving. There was stagnation of Qi and Blood in the LI channels of the right shoulder that was resolving. The claimant had a mild disability. Mr. Kim recommended the claimant continue to follow a course of acupuncture twice a week for six weeks. He had not yet reached an end result with acupuncture treatment. On the same day, the injured party appeared for an orthopedic insurance examination with Dr. Richard Weiss. The claimant made the same complaints. Dr. Weiss' examination revealed minimal tenderness to palpation of the cervical and lumbar paraspinal musculature and right shoulder. In contrast to Mr. Kim, Dr. Weiss found range of motion was limited in the cervical and lumbar spine and right shoulder in all planes. Dr. Weiss diagnosed resolving cervical and lumbar spine sprain/strain and resolving right shoulder sprain/strain. The claimant Page 2/7

3 exhibited a mild orthopedic disability. He had not yet reached pre-accident status. Dr. Weiss recommended additional physical therapy three times a week for six weeks. Mr. Kim re-examined the claimant on 6/5/14. He was still receiving treatment four times a week. He complained of radiating pain to the neck and low back, right shoulder pain, right elbow pain, bilateral hip pain and right knee pain. The TCM examination revealed a pink tongue and normal pulse. Range of motion of the cervical and lumbar spine was within normal limits. There were no complaints of paraspinal tenderness in the cervical, thoracic or lumbar spine, right shoulder, right elbow, bilateral hips or right knee. Qi and Blood stagnation had resolved. No additional acupuncture treatment was necessary. Based upon Mr. Kim's examination of 6/5/14, all acupuncture No-fault benefits were denied as of 6/18/14. Additionally on 6/5/14, the claimant was examined in an orthopedic insurance re-examination with Dr. Frank Oliveto. Dr. Oliveto noted complaints of minimal tenderness to palpation of the cervical, thoracic and lumbar spine, as well as bilateral hips, right shoulder and right knee. Range of motion of the cervical, thoracic and lumbar spine was limited in all planes. Dr. Oliveto opined that the restricted ranges of motion were due to the patient's subjective complaints of pain. Applicant relied upon the case of Torres v. Garcia, 59 AD3d 705, 874 N.Y.S.2d 527 (2 nd Dept. 2009) for the proposition that an IME doctor who describes restrictions in range of motion as "self-restricted" must explain or substantiate, with objective medical evidence, the basis for such conclusion. Applicant argued that Dr. Oliveto failed to substantiate how he determined the claimant's decreased range of motion was due to subjective complaints of pain. Dr. Oliveto diagnosed resolved cervical, thoracic and lumbar spine sprain/strain and resolved right elbow, bilateral hips and right knee sprain. Based upon Dr. Oliveto's examination, all orthopedic No-fault benefits were denied as of 6/18/14. At a re-examination by Dr. Sayeedus on 6/22/14, the patient noted he was attending physical therapy 2-3 times a week. He had undergone right shoulder arthroscopic surgery on 1/22/14. He continued to complain of neck pain, back pain, right shoulder pain, right elbow pain and right knee pain. He was advised to continue therapy. Page 3/7

4 By 1/4/15, Dr. Sayeedus noted the patient made the same complaints. On 3/25/15, the patient complained of low back pain only. He was receiving physical therapy 1-2 times a week. It was Applicant's position that the post-ime re-evaluation reports by Dr. Sayeedus clearly show that the patient continued to have complaints of pain in the neck, shoulders and back. The patient's injuries had not resolved as of 6/18/14, the date of the denial of benefits. According to Dr. Sayeedus, as stated in the IME rebuttal, these conditions required a continued course of physical therapy until the patient's conditions were fully resolved. With respect to the physical therapy treatment performed from 7/6/14-5/29/15, I find for Applicant. I find the IME reports and examinations submitted by Respondent to be inconsistent and unreliable as to the necessity for additional treatment. Applicant billed for ROM/MMT allegedly performed on 7/28/14. Respondent did not issue a denial for that claim. Applicant has submitted proof of mailing for the claims for physical therapy. However, there is no proof of mailing for the claim for the testing performed on 7/28/14. I find that Applicant has failed to establish a prima facie case for reimbursement for the studies performed on 7/28/14. I find that Applicant has established its claim for reimbursement for the services performed as follows: Dates of service 7/6/14-5/29/15 in the amount of $3, Accordingly, Applicant is awarded $3, 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 Page 4/7

5 A. 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 Avenue C Medical PC 07/06/14-05/29/15 Awarded: $4, $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 07/20/2016, which is a relevant date only to the extent set forth below.) For the following claim: Dates of service 7/6/14-5/29/15 in the amount of $3,832.21, Respondent shall pay the Applicant interest computed from7/20/16, the date on which the AR-1 was received by the American Arbitration Association at a rate of 2% per month, simple, and ending with the date of payment of the award subject to the provisions of 11 NYCRR C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below The insurer shall also pay the Applicant an attorney's fee upon the amount(s) awarded and the interest, as calculated in section "B" above, and in accordance with 11 NYCRR (d), for the following awarded claim: Page 5/7

6 Dates of service 7/6/14-5/29/15 in the amount of $3, 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, Toby Susan DeSimone, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 03/30/2017 (Dated) Toby Susan DeSimone 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: 9ee e651f19bc46c26c82b49a Electronically Signed Your name: Toby Susan DeSimone Signed on: 03/30/2017 Page 7/7