ARBITRATION AWARD. Tricia Smith, Esq. from The Law Office of Cohen & Jaffe, LLP participated in person for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Health East Ambulatory Surgical Center (Applicant) AAA Case No Applicant's File No and - Geico Insurance Company (Respondent) Insurer's Claim File No. NAIC No. ARBITRATION AWARD I, Joseph Endzweig, 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: patient 1. Hearing(s) held on 02/28/2017 Declared closed by the arbitrator on 02/28/2017 Tricia Smith, Esq. from The Law Office of Cohen & Jaffe, LLP participated in person for the Applicant Alberto DeChavez from Geico Insurance Company participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 7,995.42, was AMENDED and permitted by the arbitrator at the oral hearing. The amount was amended to $5, to conform to the fee schedule. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute The issue in this case is Applicant's unpaid bill for a facility fee in connection with a left knee arthroscopy, denied based on a peer review. Page 1/8

2 4. Findings, Conclusions, and Basis Therefor I have reviewed the documents contained in the Electronic Case Folder as of the date of the hearing and this Award is based upon my review of the Record and the arguments made by the representatives of the parties at the hearing. This arbitration arises out of treatment of a 48 year old female for injuries sustained in a motor vehicle accident occurring on 1/25/15. Applicant seeks reimbursement for a facility fee in connection with a left knee arthroscopy performed on 9/15/15, billed at $7, The amount was amended to $5, to conform to the fee schedule. Respondent issued a timely denial denying reimbursement based on the Peer Review report of Dr. Richard Weiss. Respondent also argues that Applicant's bill (as amended) is in excess of allowable fees under the fee schedule. According to review of the records, the patient is a 48 year old female who was the restrained driver of a vehicle which was involved in a motor vehicle accident on 1/25/15. She reports there was a rear impact to her vehicle, with no airbag deployment. There was no reported loss of consciousness. She did not go to a hospital for an evaluation following the accident. Shortly after the accident the patient came under the care of Dr. Shaikh Ahmed, an internist, and Dr. Jerold Kaminsky, a chiropractor. She received physical therapy, massage therapy and chiropractic treatments. She claims injury to several parts of her body including her left knee. MRI of the left knee performed on 2/16/2015 revealed tear of the posterior horn of the medial meniscus joint effusion and diffused hypertrophic changes. The patient received conservative treatment for about four months. Left knee arthroscopic surgery was performed on 9/15/15. Respondent submits a Peer Review report of Dr. Richard Weiss. Dr. Weiss concludes " there is no established causality between the surgical findings and the accident on 01/25/15." He notes that he saw the patient for an orthopedic evaluation on 05/04/15 and that there were complaints in the neck, lower back, and right knee but no complaints in the left knee. He further notes that he again saw the patient for an orthopedic re-evaluation on 09/09/15, one week before the surgery of 09/15/15, and at that point, the patient's main complaint was of left knee pain. He notes that at that time examination of the left knee revealed that there was peripatellar tenderness but no effusion. Motion was from degrees. McMurray's test was negative. He noted that there was no need for surgery causally related to the accident on 01/25/15. Dr. Weiss concludes "Therefore, the left knee arthroscopic surgery performed by Dr. Thomas Scilaris on 09/15/15, should be disallowed due to lack of causal relationship, along with the assistant surgeon services, anesthesia services, and facility services provided in association with the procedure." Applicant submits a rebuttal from Dr. Thomas Scilaris, the surgeon who performed the disputed surgery. He notes that on 8/12/2015, the patient presented to him for orthopedic consultation with persistent complaints of left knee pain with swelling along with giving away sensation and difficulty with ascending and descending stairs. Examination of the left knee revealed exquisite pain and tenderness in the medial joint line, positive McMurray's click and decreased range of motion. He states that based on the aforementioned complaints and findings he diagnosed left knee symptomatic medial Page 2/8

3 meniscal tear and discussed cortisone injection and arthroscopic intervention. The patient elected to proceed with surgical intervention. He notes that on 9/15/2015 the patient presented to him at Health East Ambulatory Surgical Center for the scheduled surgery. At that time, the patient's complaints and findings upon examination were consistent with the diagnosis of left knee medial meniscal tear and chondromalacia patella. He then performed the surgery which revealed the following intra-operative findings: Inner 30% tear was noted in posterior horn of medial meniscus, Multiple tears on body of lateral meniscus, Chondromalacia along the lateral compartment of the tibial plateau, Patellofemoral joint revealed extensive synovitis, and Grade 3 chondral defect noted along the medial facet of the patella. He states that based upon the patient's continued complaints, positive examination results, diagnostic test findings and the resulting diagnosis, the left knee arthroscopy was medically necessary for the treatment of the patient's injuries. Dr. Scilari notes that Dr. Weiss referenced his IME report dated 5/4/2015 and noted that there were no complaints of left knee pain at that time, however the examination report by Dr. Ilyce Maranga dated 5/18/2015 (performed just 14 days after the IME) clearly noted complaint of left knee pain with buckling and locking with positive McMurray test, McIntosh test and Apley's test. Dr. Scilaris further notes that the MRI of the left knee was performed on 2/16/15, well before Dr. Weiss' IME, clearly evidencing the injury to the left knee. Dr. Scilaris further maintains that Dr. Weiss' contention that the there was no need for surgery causally related to the accident of 1/25/2015 is impossible to substantiate. He notes that the patient was completely asymptomatic prior to the accident; she said she never had any complaints pertaining to left knee any time prior to the 1/25/2015 accident. He states that "There is no way Dr. Weiss could know the meniscal tear was caused by any other reasons apart from the accident." Dr. Scilaris concludes "The above discussion clearly indicates that this patient's left knee tears were causally related to the 1/25/2015 MVA and the patient was in need of surgical intervention to treat her left knee." Respondent submits an addendum from Dr. Weiss. Dr. Weiss notes that the MRI showed "diffuse hypertrophic changes" i.e. osteoarthritis. He states that inner third tears are frequently degenerative. He states that in this age group, with other degenerative findings, it was incumbent upon the surgeon to perform a cortisone injection which may have obviated the need for surgery, particularly on a 48 year old with osteoarthritic changes. He cites no authoritative source for this statement nor does he indicate that this is the generally accepted medical standard. Significantly he states that "These changes are frequently made worse by motor vehicle accidents but may have very well have responded to a cortisone injection." He therefore seems to concede that if the patient had an osteoarthritic condition in her left knee prior to the accident, the accident may have exacerbated that condition which necessitated the surgery. In should further be noted that in Dr. Weiss' IME report of 9/9/15 his diagnosis included "Left knee sprain/strain, objectively resolved." He further states "Assuming the claimant's history is accurate and complete, and timely medical records document the history and injuries, causal relationship appears to exist between the initial injuries and the accident of 1/25/15." It is Applicant's prima facie burden to establish its entitlement to payment for the subject surgery. Page 3/8

4 It is well settled that a health care provider establishes its prima facie entitlement to payment as a matter of law by proof that it submitted a proper claim, setting forth the fact and the amount charged for the services rendered and that payment of no-fault benefits was overdue (see Insurance Law 5106 a; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD 3d 742, 774N.Y.S. 2d 564 [2004]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc. 3d 128A, 784 N.Y.S. 2d918, 2003 NY Slip Op 51701U [App Term, 2d & 11th Jud Dists]). If an insurer asserts that the medical test, treatment, supply or other service was medically unnecessary the burden is on the insurer to prove that assertion with competent evidence such as an independent medical examination, a peer review or other proof that sets forth a factual basis and a medical rationale for denying the claim. (See A.B. Medical Services, PLLC v. Geico Insurance Co., 2 Misc. 3d 26 [App Term, 2nd & 11th Jud Dists 2003]; Kings Medical Supply Inc. v. Country Wide Insurance Company, 783 N.Y.S. 2d at 448 & 452; Amaze Medical Supply, Inc. v. Eagle Insurance Company, 2 Misc. 3d 128 [App Term, 2nd and 11thJud Dists 2003]). Since Applicant submitted a timely and proper claim the burden is on the respondent to prove that the service was unnecessary. In the event an insurer relies on a peer review report to demonstrate that a particular service was medically unnecessary the peer reviewer's opinion must be supported by sufficient factual evidence or proof and cannot simply be conclusory or may be supported by evidence of generally accepted medical/professional practice or standards. See Nir v. Allstate Insurance Company, 2005 NY Slip Op 25090; 7 Misc.3d 544; 796 N.Y.S.2d 857; 2005 N.Y.Misc. LEXIS 419 and Citywide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc. 3d 608; 777 N.Y.S.2d 241; 2004 NY Slip Op When an insurer interposes a timely denial of claim 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. See, e.g., CPT Med. Servs., P.C. v. New York Cent. Mut. Fire Ins. Co., 2007 NY Slip Op 27526, 18 Misc.3d 87 (App. Term 1st Dept.); Eden Med., P.C. v. Progressive Cas. Ins. Co., 2008 NY Slip Op 51098(U), 19 Misc.3d 143(A) (App Term 2d & 11th Jud Dists., 2008); Bath Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 50347(U) (App. Term 2d Dept., Feb. 26, 2008) (since the provider failed to rebut peer review's showing of a lack of medical necessity, defendant was entitled to dismissal of complaint). Where Respondent has set forth a medical rationale and factual basis in support of its contention that the treatment was not medically necessary, the burden then shifts to Applicant, who bears the ultimate burden of persuasion. Upon consideration of the arguments of counsel and after a thorough review of all submissions I find that Respondent has failed to meet its burden of demonstrating that the subject surgery was not causally related to the accident or medically necessary. The Page 4/8

5 peer refers to prior IME's, one of which clearly indicates that the left knee injury was causally related to the accident. The peer further concedes that if the patient had a prior knee condition it may have been exacerbated by the accident. Clearly the patient had MRI of the left knee on 2/26/15.The peer neglects to indicate what the generally accepted standards of medical practice are for performing knee arthroscopy, nor does he cite any specific authoritative source in support of his position. The Peer Review therefore fails to set forth a factual basis and medical rationale for denying the claim. It should be noted that even if the peer report made a prima facie showing of lack of causal relationship and medical necessity the rebuttal would be sufficient to adequately refute the peer review and prove the causation and necessity of the disputed surgery. With reference to the fee dispute Respondent claims that the correct fee under the N.J. fee schedule should be $5, However a review of the fee schedule indicates that Respondent used the Physician's Fee column under the subject CPT codes instead of the ASC (Ambulatory Surgical Center) column. Using the ASC column clearly indicates that Applicant's computation was correct. Consequently, Respondent's fee schedule defense cannot be sustained. Accordingly, I find in favor of the Applicant and award the sum of $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 Amount Amount Page 5/8

6 B. Claimed Medical $ 7, $ 5, TOTAL $ 7, $ 5, Amended Awarded $ 5, $ 5, The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 07/15/2016, which is a relevant date only to the extent set forth below.) Interest shall run from date of filing. 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 NYCRR (d). 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, Joseph Endzweig, 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) Joseph Endzweig IMPORTANT NOTICE This award is payable within 30 calendar days of the date of transmittal of award to parties. Page 6/8

7 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: 14c17076dc4be02ba1e78bef41359bef Electronically Signed Your name: Joseph Endzweig Signed on: 03/01/2017 Page 8/8