ARBITRATION AWARD. Patricia Daugherty, Esq. from Law Offices of Gabriel & Shapiro, LLC. participated by telephone for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In e Matter of e Arbitration between: Metro Pain Specialists PC (Applicant) - a - Geico Insurance Company (Respoent) AAA Case No Applicant's File No. GS Insurer's Claim File No NAIC No ARBITRATION AWARD I, Alison Berdnik, e uersigned arbitrator, designated by e American Arbitration Association pursuant to e Rules for New York State No-Fault Arbitration, adopted pursuant to regulations promulgated by e Superinteent of Insurance, having been duly sworn, a having heard e proofs a allegations of e parties make e following AWARD: Injured Person(s) hereinafter referred to as: Claimant Hearing(s) held on 05/04/2017 Declared closed by e arbitrator on 05/04/2017 Patricia Daugherty, Esq. from Law Offices of Gabriel & Shapiro, LLC. participated by telephone for e Applicant Jaime Drantch from Geico Insurance Company participated in person for e Respoent 2. The amount claimed in e Arbitration Request, $ 1,577.95, was AMENDED a permitted by e arbitrator at e oral hearing. Applicant reduced e amount in dispute for services reered July 30, 2015 to $1, to conform to e New Jersey Fee Schedule. Accordingly, e aggregate amount in dispute is reduced to $1, Stipulations WERE NOT made by e parties regarding e issues to be determined. 3. Summary of Issues in Dispute The Claimant, CG, a 43-year-old female, was e operator of a motor vehicle involved in an accident March 27, At issue in is case is an aggregate sum of $1,213.04, for e following services: Page 1/9

2 July 30, 2015: cervical facet injection $1, August 25, 2015: lumbar epidural injection $ Respoent timely denied e claim for e cervical injection administered July 30, 2015 based upon a peer review report prepared by Sammy Dean, M.D. dated September 4, Respoent reduced Applicant's claim for e lumbar epidural steroid injection administered August 25, 2015, paid Applicant e reduced amount, a denied e remaining balance based upon e fee schedule. The issues presented for determination are: 1) Wheer e services reered July 30, 2015 were medically necessary; a, 2) Wheer e fees billed by Applicant are in accordance wi e applicable fee schedule. 4. Fiings, Conclusions, a Basis Therefor This case was decided based upon e submissions of e parties as contained in e electronic file maintained by e American Arbitration Association, a e oral arguments of e parties' representatives. There were no witnesses. I reviewed e documents contained in MODRIA for bo parties a make my decision in reliance ereon. An Applicant establishes its prima facie showing of an entitlement to judgment as a matter of law by submitting evidentiary proof at e prescribed statutory billing forms had been mailed, received by e Respoent a at payment of no-fault benefits is overdue. Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.2d 742, 774 N.Y.S.2d 564 (2 Dept. 2005). A facially valid claim has been defined as one at sets for e name of e patient, date of accident, date of service, description of services reered a e charges for ose services. See, Vinings Spinal Diagnostic P.C. v. Liberty Mutual Insurance Company, 186 Misc. 2d 128(A), 784 N.Y.S.2d 918 (2003). The submission of Respoent's NF-10s established at Respoent received Applicant's claims a at Respoent has not paid e claims. Thus, Applicant has met its burden in is instance. Date of Service 7/30/15 - Cervical Facet Injection Respoent relies upon a peer review report prepared by Sammy Dean, M.D. dated September 4, 2015 in support of its denial of Applicant's claim for services reered July 30, Page 2/9

3 Respoent bears e burden of production in support of its lack of medical necessity defense, which, if established shifts e burden of persuasion to applicant. See, Bronx Expert Radiology, P.C. v. Travelers Ins. Co., 2006 NY Slip Op (App. Term 1st Dept. 2006); A. Khodadadi Radiology, P.C. v. NY Central Mutual Fire Insurance, 16 Misc.3d 131(A), 841 N.Y.S.2d 824 (2007). If an insurer asserts at e medical test, treatment, supply or oer service was medically unnecessary, e burden is on e insurer to prove at assertion wi competent evidence such as an iepeent medical examination, a peer review or oer proof at sets for a factual basis a a medical rationale for denying e claim. (See A.B. Medical Services, PLLC v. Geico Insurance Co., 2 Misc. 3d 26 [App Term, 2 & 11 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, 2 & 11 Jud. Dists. 2003].) The trial courts have held at a peer review report's medical rationale will be insufficient to meet respoent's burden of proof if: 1) e medical rationale of its expert witness is not supported by evidence of a deviation from "generally accepted medical" staards; 2) e expert fails to cite to medical auority, staard, or generally accepted medical practice as a medical rationale for his fiings; a 3) e peer review report fails to provide specifics as to e claim at issue, is conclusory or vague. See, Nir v. Allstate Ins. Co., 7 Misc.3d 544, 547, 796 N.Y.S.2d 857, 860 (Civ. Ct. Kings Co. 2005); see also, All Boro Psychological Servs. P.C. v. GEICO, 2012 NY Slip Op 50137(U) (Civ. Ct. Kings Co. 2012). Dr. Dean opines at facet injections are acceptable when used as a diagnostic tool a in e context of treatment plan at includes an initial medial branch block a, if positive, subsequent facet neurotomy at e diagnosed levels. The use of e injection as a erapeutic tool is not recommeed. Dr. Dean cites to e Return to Work Guidelines (2012 Official Disability Guidelines, 17 edition) Integrated wi Treatment Guidelines (ODG Treatment in Workers' Comp, 10 Edition ("RTWG 2012 Guidelines") to support his conclusion. According to Dr. Dean, e plan of care did not include neurotomy if e initial injection was fou to be effective. There is also no mention of e block being used as a diagnostic modality, which is recommeed as stated above. Information which states how is injection would influence e current treatment plan is necessary in order to justify e procedure, which, Dr. Dean opines, was lacking in is instance. Consequently, Dr. Dean opines at e cervical facet injection was not medically necessary. The report of Dr. Dean is sufficient to support Respoent's denial based upon a lack of medical necessity as it maintains a factual basis a medically cogent rationale to support his opinion at e service at issue was not medically necessary. Where e Respoent presents sufficient evidence to establish a defense based on e lack of medical necessity, e burden en shifts to e Applicant which must en present its own evidence of medical necessity. Arew Caroers, M.D., P.C. v. GEICO Iemnity Company, 2008 NY Slip Op U, 18 Misc.3d 1147A, 2008; West Tremont Medical Page 3/9

4 Diagnostic, P.C. v. Geico Ins. Co., 13 Misc.3d 131, 824 N.Y.S.2d 759 (App. Term 2 Dept. 2006). In support of its claim, Applicant submits e records of e treating physician, Vincentiu Popa, M.D., togeer wi a report prepared by Leonid Shapiro, M.D. in rebuttal to Dr. Dean's peer review. Contrary to e opinion of Dr. Dean, Dr. Shapiro's Rebuttal states at facet joint injections have two goals: to help diagnose e cause a location of pain, a to provide pain relief. Contrary to Dr. Dean, Dr. Shapiro states at a facet block may be erapeutic a/or diagnostic. He furer states at facet joint injections or medial branch blocks can be used for more an just pain relief. They can also be effective diagnostic tools for identifying what is causing e neck a back pain at patients may be experiencing. Dr. Shapiro cites to medical auority to support his opinion. Dr. Shapiro opines at when performed uer fluoroscopic visualization, facet joint injections are accurate a clinically useful in e diagnosis a erapeutic management of chronic spinal pain. The diagnostic accuracy of facet joint blocks is strong for cervical a lumbar facet joints. According to Dr. Shapiro, in contrast to clinical evaluation a imaging techniques, diagnostic injections can identify facet joint pain wi a remarkably higher level of certainty. According to Dr. Shapiro, e fiings documented in e Claimant's medical records demonstrated at e patient was not respoing to conservative treatment a her injuries were not resolved as of e date e service was reered. Therefore, in is instance, e administration of e cervical facet injection was wiin generally accepted staards of care. Based upon my review of e evidence, I fi Dr. Dean's peer review regarding e cervical facet injections raises a question as to wheer ese services were provided in accordance wi e staard of care described by Dr. Dean. Dr. Dean stated quite emphatically at ese injections are not meant to be used erapeutically, but raer are to be administered as a diagnostic tool only. Once e diagnosis is made utilizing e facet block injection he clearly stated at a subsequent procedure (a neurotomy) is e erapeutic procedure at is e staard of care. However, Dr. Dean cites only to e RTWG 2012 Guidelines a does not cite to any additional medical journals or articles to support his opinions. Wi respect to e facet injections, Dr. Shapiro refutes Dr. Dean's opinion, unequivocally stating at facet injections may be erapeutic or diagnostic. The Claimant's complaints of pain were unresolved despite a course of conservative care. Dr. Shapiro cites to various medical auorities to support his opinion. Since ere is such a divergence of medical opinions as to e necessity of e disputed services, I feel bou to defer to e opinions of e Claimant's treating physician, Dr. Vincent Popa, who felt e need to administer e injections, a Dr. Shapiro who cites to medical auority in support of e services, raer an to e opinions of Respoent's consultant who was not personally responsible for e Claimant's care a Page 4/9

5 treatment.i fi e Applicant's medical reports a Rebuttal to Dr. Dean's peer reviews persuasive on e issue of medical necessity a at e injections were not outside e staard of care. Accordingly, wi respect to e issue of e necessity of e services, I fi in favor of Applicant. Respoent also has not submitted any persuasive evidence demonstrating at e fees as ameed by Applicant are not in accordance wi e appropriate fee schedule. Respoent has submitted a document purporting to be a fee audit entitled NADENT-HDS Claim Detail dated May 4, 2016, reducing e provider's fee to $ However, e audit does not provide any explanation for e reduction, a/or how e amount due was calculated. Therefore, I fi e NADENT-HDS Claim Detail insufficient to sustain Respoent's fee schedule defense. Accordingly, Applicant is awarded $1, for e cervical facet injections performed July 30, Date of Service 8/25/15: Lumbar Epidural Injection Applicant originally billed $1, for e lumbar epidural steroid injection performed August 25, Respoent paid $964.38, a denied e remaining $ as follows: The providers fee exceeds e maximum allowance uer e applicable fee schedule a is reduced accordingly. Please see e attached explanation. It is well-settled at a denial of claim must contain all of e information required by e prescribed denial form, a must "promptly apprise e claimant wi a high degree of specificity of e grou or grous on which e disclaimer is predicated." See, Nyack Hospital v. State Farm Mutual Automobile Insurance Co., 11 A.D.3d 664, 784 N.Y.S.2d 136 (2 Dept. 2004), citing General Acc. Ins. Group v. Cirucci, 46 N.Y.2d , 414 N.Y.S.2d 512 (1979). Furermore, Respoent has e burden of coming forward wi competent evidentiary proof to support its fee schedule defenses. See, Robert Physical Therapy PC v. State Farm Mutual Auto Ins. Co., 2006 NY Slip 26240, 13 Misc.3d 172, 822 N.Y.S.2d 378, 2006 N.Y. Misc. LEXIS 1519 (Civil Ct, Kings Co. 2006). See also, Power Acupuncture PC v. State Farm Mutual Automobile Ins. Co., 11 Misc.3d 1065A, 816 N.Y.S.2d 700, 2006 NY Slip Op 50393U, (Civil Ct, Kings Co. 2006). If Respoent fails to demonstrate by competent evidentiary proof at a plaintiff's claims were more an e appropriate fee schedules, defeant's defense of noncompliance wi e appropriate fee schedules cannot be sustained. See, Continental Medical PC v. Travelers Iemnity Co., 11 Misc.3d 145A, 819 N.Y.S.2d 847, 2006 NY Slip Op 50841(U) (App. Term 1st Dept. per curiam, 2006). Page 5/9

6 Oer an e NF-10, Respoent has not submitted any proof in evidentiary form to support its "downcoding" of Applicant's service. It is well-settled at an insurer's unilateral decision to eier change an Applicant's CPT codes, pay reduced fees for disputed medical services or deny e claim in its entirety, is ineffectual when unsupported by a peer review report or by oer proof setting for a sufficiently detailed factual basis a medical rationale for e code changes, denials or reductions. Amaze Medical Supply v. Eagle Insurance Company, 2 Misc.3d 128(A) (App. Term 2 a 11 Jud. Dists. 2003). A lay person is not qualified to evaluate billing codes or to change e codes utilized by a heal provider in its bills. Abraham v. Country-Wide Ins. Co., 3 Misc.3d 130(A) (App. Term 2 Dept. 2004). If an insurer fails to demonstrate by competent evidentiary proof at a medical provider billed in excess of e appropriate fee schedule, its fee schedule defense cannot be sustained. Continental Medical P.C. v. Travelers, 11 Misc.3d 145(A) (App Term 1 st Dept. 2006). Based upon my review of e evidence, I fi at e Respoent has failed to meet its burden sufficient to sustain its unilateral reduction of Applicant's claim as set for in its October 13, 2015 Denial of Claim Form. Accordingly, e balance of Applicant's claim for e lumbar epidural injection administered August 25, 2015 in e amount of $ is granted. 5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on a after March 1, I do NOT impose e administrative costs of arbitration to e applicant, in e amount established for e current calear year by e Designated Organization. 6. I fi as follows wi regard to e policy issues before me: The policy was not in force on e date of e accident The applicant was excluded uer policy coitions or exclusions The applicant violated policy coitions, resulting in exclusion from coverage The applicant was not an "eligible injured person" The coitions for MVAIC eligibility were not met The injured person was not a "qualified person" (uer e MVAIC) The applicant's injuries didn't arise out of e "use or operation" of a motor vehicle The respoent is not subject to e jurisdiction of e New York No-Fault arbitration forum Accordingly, e applicant is AWARDED e following: A. Page 6/9

7 Medical From/To Claim Amount Amount Ameed Status Metro Pain Specialists PC 07/30/15-08/25/15 Awarded: $1, $1, $1, Total $1, Awarded: $1, B. The insurer shall also compute a pay e applicant interest as set for below. (The filing date for is case was 04/08/2016, which is a relevant date only to e extent set for below.) Applicant is awarded $1,213.04, plus applicable interest computed from e date of e filing of e AR-1 until e date of payment. C. Attorney's Fees The insurer shall also pay e applicant for attorney's fees as set for below As is matter was filed after February 4, 2015, is case is subject to e provisions promulgated by e Department of Financial Services in e Six Amement to 11 NYCRR 65-4 (Insurance Regulation 68-D). Accordingly, e insurer shall pay e applicant an attorney's fee in accordance wi e newly promulgated 11 NYCRR (d). D. The respoent shall also pay e applicant forty dollars ($40) to reimburse e applicant for e fee paid to e Designated Organization, unless e fee was previously returned pursuant to an earlier award. This award is in full settlement of all no-fault benefit claims submitted to is arbitrator. State of New York SS : County of Suffolk I, Alison Berdnik, do hereby affirm upon my oa as arbitrator at I am e iividual described in a who executed is instrument, which is my award. Page 7/9

8 05/09/2017 (Dated) Alison Berdnik IMPORTANT NOTICE This award is payable wiin 30 calear days of e date of transmittal of award to parties. This award is final a biing unless modified or vacated by a master arbitrator. Insurance Department Regulation No. 68 (11 NYCRR ) contains time limits a grous upon which is award may be appealed to a master arbitrator. An appeal to a master arbitrator must be made wiin 21 days after e mailing of is award. All insurers have copies of e regulation. Applicants may obtain a copy from e Insurance Department. Page 8/9

9 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: e88cdd1847e24e9d056d520d16 Electronically Signed Your name: Alison Berdnik Signed on: 05/09/2017 Page 9/9