ARBITRATION AWARD. Matt Viverito, Esq., from Costella & Gordon 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: Edward M Ha MD (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Drew M. Gewuerz, Esq., CPC, 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: CD Hearing(s) held on 05/04/2017 Declared closed by the arbitrator on 05/04/2017 Matt Viverito, Esq., from Costella & Gordon LLP participated in person for the Applicant Robert LoFurno, from Geico Insurance Company participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 2,476.00, was NOT AMENDED at the oral hearing. Stipulations WERE made by the parties regarding the issues to be determined. See Section 3,infra. 3. Summary of Issues in Dispute This arbitration to recover allegedly overdue PIP benefits involves a female Assignor, D.O.B. 1981, who was involved in a motor vehicle collision on 12/14/15, as a driver. Following the collision, the Assignor complained of various injuries, and sought and received treatment from the Applicant who performed electrodiagnostic studies of the Assignor's upper and lower extremities on 03/01/16 and 03/15/16, respectively. The Page 1/6

2 Applicant submitted claims for PIP benefits to the Respondent which denied payment based on peer review reports by Dr. Mitchell Weisman, M.D., dated 03/29/16 a dn 04/15/16, respectively. At this matter's hearing, the parties stipulated to the following facts and/or legal issues: The Applicant submitted the disputed overdue claims for $2, to the Respondent. As a result, it establishes its prima facie entitlement to an Award for said claims and the services are presumed to be medically necessary. See Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 498 (2015); The Respondent's denials of claims were timely issued and preserved a defense of lack of medical necessity based on said peer review reports; and The Applicant's claims charge fees within the limits set by the New York State Workers' Compensation Fee Schedule adopted by the Superintendent of Insurance (Department of Financial Services). As per the parties' stipulations, the issue to be decided is whether the services were medically necessary. 4. Findings, Conclusions, and Basis Therefor This Award is rendered after diligent review and consideration of the parties' evidence submitted to and maintained by the American Arbitration Association's electronic case filing system, "MODRIA," as well as the parties' oral arguments and any testimony presented at this matter's hearing. Evidence that was submitted after this matter's "closing" and without this Arbitrator's authorization was not considered. All citations in this Award to the Applicant's "Application Document" submission and Respondent's "Defense" submission shall be denoted as "(AXX)" and "(RXX)," respectively. The Respondent's denials are upheld and the claims are dismissed with prejudice. The Respondent's defenses are based on legally sufficient peer review reports that credibly prove by a preponderance of the evidence that the Applicant breached the applicable standard of care when treating the Assignor. Although the Applicant submitted a rebuttal affirmation from the performing physician, said affirmation fails to reestablish the services' medical necessity. In setting forth the factual basis and medical rationale for his opinion that the subject electrodiagnostic studies of the Assignor's upper and lower extremities were not medically necessary, the peer reviewer opines that there was no "relevant differential diagnosis." (R36). He believes that Assignor's history and physical exam findings clearly demonstrate that she was suffering from a mild post-traumatic cervical and lumbar radiculopathy. (R36, 42). EMG/NCV was not necessary to make these diagnoses. (R36, 42). Furthermore, the records do not indicate how the results would Page 2/6

3 modify the Assignor's treatment in any way. (R36). The peer reviewer cites to medical literature to support his opinions. Based on their statements, the peer review reports articulate a standard of care that was breached by performing the subject electrodiagnostic studies. Thus, they set forth a sufficiently detailed factual basis and medical rationale establishing that the subject services lacked medical necessity.see Amaze Med. Supply v. Eagle Ins. Co., 2 Misc. 3d 128(A) (App. Term, 2d Dep't 2003). As a result, the burden shifts to the Applicant to re-establish the subject services' medical necessity.see Park Slope Med. & Surg. Supply, Inc. v. Travelers Ins. Co., 37 Misc. 3d 19, 22 n.1(app. Term, 2d Dep't 2012). The Applicant submits a rebuttal affirmation by the performing physician, Dr. Edward M. Ha, M.D., dated 08/31/16, to rebut the Respondent's defenses. The rebuttal is generic, repetitive, and does not articulate with specificity why the studies were necessary. As a result, it fails to meaningfully refers to or discuss the peer reviewer's determinations.see Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc. 3d 136(A) (App. Term, 2d Dep't 2009). Dr. Ha challenges the peer reviewer's contention that radiculopathy may be clinically diagnosed, stating that EMG substantiates the diagnosis in patients with pain and/or radiculopathy problems.seeapp. Supp. Doc. at 4. The rebuttal cites medical literature for the proposition that "the physical examination cannot give an exact or confirm the [ ] deferential (sic.) diagnoses."id.throughout the rebuttal, Dr. Ha aggressively harps in bold and underline that the peer reviewer did not examine the Assignor and ignored documented objective findings of neuropathy. He, however, fails to detail which specific findings led to what specific suspicions. Dr. Ha's generic reference to "positive objective findings and neurological deficits,"id.at 5, are unsupported by him and the Assignor's medical records. Dr. Ha claims to have examination reports from the respective dates of service, yet fails to produce said reports. Although he may be referring to the brief description of present complaints and findings listed at the top of each respective electrodiagnostic report (R91, 111), said findings are unpersuasive and the peer reviewer reviewed said records. Additionally, Dr. Ha's argument that all radiculopathy must be diagnosed by EMG is counterintuitive. If true, the treating physician would not have waited several months to refer for electrodiagnostic studies. The Assignor had already been recommended for and undergone a course of conservative treatment. If the diagnosis was unconfirmed or lacking specificity, it should have been confirmed to ensure that the Assignor was receiving proper rehabilitative treatment. Instead, the medical records show that the treating physician was comfortable with the Assignor receiving physical therapy based on clinical examination findings for at least two months. Thus, the Assignor's treatment plan diminishes Dr. Ha's opinion's weight and persuasiveness. Dr. Ha's argument that the studies were needed to confirm and rule-out competing diagnoses is more compelling, but the medical evidence does not support his assertion. Dr. Jean Rhee, M.D., the referring physician, examined the Assignor on 12/14/15 Page 3/6

4 (R72-76) and 01/14/16 (R77-79), and did not list any peripheral neurologic impression. The diagnoses were radiculopathy and sprain/strain. According to the 01/14/16 examination report, sensory examination was normal, motor strength in the extremities was normal, and reflexes were active and symmetrical. These findings were significant improvements from the 12/14/15 exam where there were numerous documented sensory, reflex, and motor deficits. From this, the records fail to show a lack of documented medical evidence of a differential diagnosis necessitating electrodiagnostic studies. The lack of medical evidence of a differential diagnosis is perhaps why there is also no evidence of an actual referral to Dr. Ha. In sum, the medical evidence does not show that the studies were necessary or even contemplated. Accordingly, the Respondent's denials are upheld and the claims are dismissed with prejudice. 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 claim is DENIED in its entirety 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, Drew M. Gewuerz, Esq., CPC, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/25/2017 (Dated) Drew M. Gewuerz, Esq., CPC Page 4/6

5 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: be45228d52243c bef3cc7 Electronically Signed Your name: Drew M. Gewuerz, Esq., CPC Signed on: 05/25/2017 Page 6/6