ARBITRATION AWARD. Nicole Jones, Esq. from The Morris Law Firm, P.C. participated by telephone for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Medical Care of Western New York (Applicant) - and - Central Mutual Insurance Company (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 03/16/2018 Declared closed by the arbitrator on 03/16/2018 Nicole Jones, Esq. from The Morris Law Firm, P.C. participated by telephone for the Applicant Paul McCormick, Esq. from Goldberg Segalla, LLP participated by telephone for the Respondent 2. The amount claimed in the Arbitration Request, $ 1,521.12, was AMENDED and permitted by the arbitrator at the oral hearing. Per stipulation of Applicant the amount in dispute was amended to $ based upon Applicant's withdrawal of its claim for dates of service September 15, 2015, to September 24, 2015, and October 6, 2015, to December 7, 2015, based upon Respondent's prior payment for these dates of service in the total amount of $ 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 the following as a result of an April 2, 2015, motor vehicle accident: Page 1/8

2 1. 2. Physical therapy rendered from December 11, 2015, to February 16, 2016; and December 21, 2015, February 1, 2016, and March 14, 2016, office visits. Respondent denied reimbursement based upon an orthopedic independent medical examination ("IME") performed by George Hochreiter, D.O., on November 30, 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 The 59 year old EIP was reportedly involved in a motor vehicle accident on April 2, 2015, when the vehicle in which she was a restrained passenger was involved in a head-on collision. According to the records, the EIP did not seek emergency medical treatment immediately following the accident. On December 21, 2015, the EIP was seen in physiatric follow-up reportedly complaining of low back pain rated 4/10 at current and 10/10 at worst in the past week. The EIP reported that she went to the emergency room on November 6, 2015, due to increased low back pain and significant muscle spasms. Examination reportedly revealed decreased lumbar range of motion in all planes, lumbar paraspinal muscle tenderness and spasms, and positive Straight Leg Raise test. Diagnoses were cervical, thoracic and lumbosacral sprain/strain, lumbosacral radiculitis/radiculopathy, probable lumbosacral disc herniation, post-traumatic headache, ligamentous instability, and palpable myospasm. On February 1, 2016, and March 14, 2016, the EIP was again seen in physiatric follow-up reportedly complaining of low back pain rated 3/10 at current and 10/10 at worst in the past week. Examination findings on these dates were identical to those reported on December 21, RESPONDENT'S IME On November 30, 2015, the EIP underwent an orthopedic IME performed by George Hochreiter, M.D. Page 2/8

3 At the time of this IME the EIP was reportedly complaining of back pain occasionally radiating into the buttocks and right leg and difficulty with standing and walking. A past medical history significant for a work-related low back injury resolved with physical therapy was reported. Dr. Hochreiter noted the review of a June 29, 2015, lumbar MRI with findings of multi-level foraminal narrowing with mild stenosis at L4-L5 and disc protrusion at L5-S1. The findings of Dr. Hochreiter's examination are set forth in his report as follows: Physical examination reveals a pleasant 60 year old female in no acute distress. Her height is 5' 8" and weight is 246 lb. Assessment of her lumbar spine shows that she is non-tender to palpation. Her range of motion demonstrated forward flexion to 70/90, backward extension of 30/40, side bending left and right to 30/45, rotation left and right to 60/60. Neurological examination of the lower extremities shows no evidence of motor weakness with isolated muscle testing. Deep tendon reflexes are equal bilaterally. Sensation is normal to fine touch. There is a negative straight leg raise bilaterally. Dr. Hochreiter diagnosed the EIP with lumbosacral strain with mild residuals and opined: I suggest that the claimant can treat with an independent exercise program to be monitored by the treating physician once every 6 weeks for the next three months, after which a reevaluation can be done I see no need for additional physical therapy Based upon Dr. Hochreiter's opinion, Respondent denied Applicant's claim for the treatment rendered from December 11, 2015, to March 14, ANALYSIS Page 3/8

4 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. Hochreiter's IME fails to set forth a clear factual basis and a medical rationale for Respondent's denials of Applicant's claims for the treatment rendered from December 11, 2015, to March 14, 2016, and as such I find that Respondent has failed to establish a lack of medical necessity for same. Dr. Hochreiter failed to explain why an independent exercise program would be better suited to treat the EIP's lumbar injury than formal physical therapy. In addition, Dr. Hochreiter opined that every six weeks for the next three months the EIP's exercise program should be monitored by the treating physician which translates to re-evaluations by the treating physician on or around January 11, 2016, February 22, 2016, and April 4, As such, Respondent should have allowed payment for the three office visits in dispute herein. Therefore, based upon the foregoing, Respondent's denials of Applicant's claims for the treatment rendered from December 11, 2015, to March 14, 2016, cannot be upheld. AMOUNT AWARDED With respect to the amount to be awarded Applicant herein for the treatment rendered from December 11, 2015, to March 14, 2016, on April 1, 2013, the Fourth Amendment to Regulation 68-C became effective which amended 11 NYCRR (g) in part as follows: 1. Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances: (ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers. Page 4/8

5 There are three physical therapy dates of service for which Applicant is entitled to reimbursement. For each of these three dates Applicant billed for CPT codes which are subject to Physical Medicine Fee Schedule Ground Rule 11 which limits reimbursement to 8.0 RVU's or the amount billed whichever is less. For each of these three dates Applicant charged for greater than 8.0 RVU's and as such Applicant's charges were in excess of the allowable Fee Schedule amount. Applicant is a Region II provider which has an assigned conversion factor of $6.80. As such, Applicant is awarded $54.40 for each of the three physical therapy dates of service for a total award amount of $ As regards the three office visits, Applicant charged the amount of $74.79 each for CPT code which is the allowable Fee Schedule amount for same. As such, Applicant is awarded the total amount of $ for the three office visits. ACCORDINGLY, APPLICANT IS AWARDED THE AMOUNT OF $ TOGETHER WITH INTEREST, ATTORNEY'S FEE, AND FILING FEE AS SET FORTH BELOW. THE REMAINDER OF APPLICAN'S CLAIM IS DENIED IN ITS ENTIRETY. 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. Medical From/To Claim Amount Amount Amended Status Page 5/8

6 Medical Care of Western New York at Buffalo 09/15/15-03/14/16 Awarded: $1, $ $ Total $1, Awarded: $ B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 06/15/2016, 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 6/8

7 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. 03/23/2018 (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 7/8

8 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: c9dfafc19580d10194b Electronically Signed Your name: Michelle Murphy-Louden Signed on: 03/23/2018 Page 8/8