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 e Matter of e Arbitration between: Primary Diagnostic Imaging, PC (Applicant) - a - CitiWide Auto Leasing DBA All Car Rent A Car (Respoent) AAA Case No Applicant's File No Insurer's Claim File No. NF NAIC No. Self-Insured 1. ARBITRATION AWARD I, Mitchell Lustig, 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: Assignor Hearing(s) held on 05/08/2017 Declared closed by e arbitrator on 05/08/2017 Naomi Cohn, Esq. from Ursulova Law Offices P.C. participated in person for e Applicant Citwide Auto Leasing from CitiWide Auto Leasing DBA All Car Rent A Car participated in person for e Respoent The amount claimed in e Arbitration Request, $ 1,790.67, was NOT AMENDED at e oral hearing. Stipulations WERE NOT made by e parties regarding e issues to be determined. Summary of Issues in Dispute Wheer e services provided to e Assignor after e IME cutoff were medically necessary? 4. Fiings, Conclusions, a Basis Therefor In dispute is Applicant Primary Diagnostic Imaging, PC's claim as e assignee of a 29-year-old female injured in a motor vehicle accident on June 23, 2015, for Page 1/6

2 reimbursement in e revised sum of $1, for an MRI of e lumbar spine a left ankle performed by its radiologist, Dr. Alan Greenfield, on October 21, The Respoent timely denied e claim based upon an oropedic iepeent medical examination performed by Dr. Doroy Scarpinato on August 27, 2015 at terminated all furer oropedic treatment effective September 8, 2015, which is five days after e Respoent issued its blanket denial on September 3, Thus, e issue presented for my decision is wheer e Respoent has proved at e post-ime cutoff services provided to e Assignor were not medically necessary. I have reviewed e documents contained in e ADR Center. This decision is based upon e submissions of e parties a e arguments made by e parties at e hearing. A hea care provider establishes its prima facie entitlement to No-Fault benefits as a matter of law by submitting evidentiary proof at e prescribed statutory billing forms had been mailed a received a at payment of No-Fault benefits were overdue. Westchester Medical Center v. Lincoln General Insurance Company, 60 A.D.3d 1045, 877 N.Y.S.2d 340 (2 Dept. 2009); Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.3d 742, 774 N.Y.S.2d 564 (2 Dept. 2004). I fi at e Applicant has established a prima facie case. Upon proof of a prima facie case by e applicant, e burden shifts to e insurer to prove at e services were not medically necessary. A.B. Medical Services, PLLC v. Lumbermens Mutual Casualty Company, 4 Misc.3d 86, 2004 N.Y. Slip Op (App. Term 2d a 11 Jud. Dists. 2004); Kings Medical Supply, Inc. v. Country-Wide Insurance Company, 5 Misc.3d 767, 2004 N.Y. Slip Op (Civ. Ct. Kings Co. 2004); Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc.3d 128(A), 2003 N.Y. Slip Op (U) (App. Term 2 a 11 Jud. Dists. 2003). In e event at an insurer relies on a peer review report or iepeent medical examination to demonstrate at a particular service was medically unnecessary, e medical expert's opinion must be supported by sufficient factual evidence or proof a cannot simply be conclusory. In addition, e expert's opinion must be supported by evidence of generally accepted medical/professional practice or staards. Nir v. Allstate Insurance Company, 7 Misc3d 544, 2005 N.Y. Slip Op (N.Y. Civ. Ct. Kings Co. 2005). Generally accepted practice is at range of practice at e profession will follow in e diagnosis a treatment of patients in light of e staards a values at define its calling. The opinion of e insurer's expert, staing alone, is insufficient to carry e insurer's burden to prove at e services were not medically necessary. CityWide Social Work & Psychological Services, PLLC v. Travelers Iemnity Co., 3 Misc.3d 608, 777 N.Y.S.2d 241 (N.Y. Civ. Ct. Kings Co. 2004).; Ying Eastern Acupuncture, P.C. v. Global Liberty Insurance Company, 20 Misc.3d 144(A), 2008 N.Y. Slip Op (U) (App. Term 2 a 11 Jud. Dists The Assignor presented to Dr. Scarpinato on August 27, Alough Dr. Scarpinato noted e Assignor's complaints of "neck, back, left shoulder, left knee a left ankle Page 2/6

3 pain," upon examination she observed full range of motion in e Assignor's cervical spine, oracolumbar spine, left shoulder a left knee. The Spurling's test in e cervical spine, e Straight Leg Raising test in e lumbar spine, e Neer a Hawkins tests in e left shoulder a e Lachman's a McMurray's tests in e left knee were normal. Dr. Scarpinato furer fou at deep teon reflexes, muscle streng a sensation in e upper a lower extremities were normal. She diagnosed all e Assignor's injuries as fully resolved a concluded at no furer oropedic treatment was medically necessary. I fi at Dr. Scarpinato's IME report sets for an adequate factual basis a medical rationale for e rejection of e post-ime cutoff bills, a is sufficient to rebut e presumption of medical necessity attached to em. East Coast Acupuncture Services, P.C. v. American Transit Insurance Company, 14 Misc.3d 135(A), 2007 N.Y. Slip Op (U) (App. Term 1 st Dept. 2007). Hence e burden shifts to e applicant for no-fault benefits to refute e IME report a prove e medical necessity of e disputed services. AJS Chiropractic, P.C. v. Mercury Insurance Company, 22 Misc.3d 133(A), 2009 N.Y. Slip Op (U) (App. Term 2, 11 a 13 Jud. Dists. 2009); NYC East-West Acupuncture, P.C. v. Maryla Casualty Insurance Company, 20 Misc.3d 143(A) 2008 N.Y. Slip Op (U) (App. Term a 13 Jud. Dists. 2008); West Tremont Medical Diagnostic, P.C. v. Geico, 13 Misc.3d 131(A), 2006 N.Y. Slip Op (U) (App. Term 2 a 11 Jud. Dists. 2006). To refute e IME, e Applicant has submitted a rebuttal from Dr. Alan Greenfield dated April 22, In his rebuttal, Dr. Greenfield noted at on November 5, 2015 e Assignor presented to Dr. Kamal Tadros a at on February 8, 2016 e Assignor presented to Dr. Salein Sayeedus, Nor Shore Family Chiropractic PC a Unicorn Acupuncture PC. While Dr. Greenfield documents e positive fiings contained in e examination reports from e above referenced providers, I note at ese reports post-date e MRIs of e lumbar spine a left ankle which were performed herein on October 21, There is noing in Dr. Greenfield's rebuttal at supports e medical necessity for e MRIs of e lumbar spine a left ankle performed on October 21, Nor, has e Applicant submitted any oer medical evidence contemporaneous wi Dr. Scarpinato's IME at justifies or demonstrates e necessity for e performance of e aforesaid MRIs. Upon consideration of e evidence, I fi at e Applicant has submitted insufficient medical documentation to refute e IME examiner's determination at e Assignor's coition had resolved as of August 27, 2015 a at no furer additional treatment was required. Since e applicant failed to rebut e insurer's prima facie showing of lack of medical necessity, Respoent's denials must be upheld a e Applicant's claim is denied in its entirety. See Synergy Medical v. Praetorian Insurance Company, 40 Misc.3d 127(A), 2013 N.Y. Slip Op (U) (App. Term 1 st Dept. 2013); Hong Tao Acupuncture, P.C. Page 3/6

4 v. Praetorian Insurance Company, 35 Misc.3d 131(A), 2012 N.Y. Slip Op (U) (App. Term 2, 11 a 13 Jud.Dists. 2012). 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 claim is DENIED in its entirety This award is in full settlement of all no-fault benefit claims submitted to is arbitrator. State of New York SS : County of Nassau I, Mitchell Lustig, do hereby affirm upon my oa as arbitrator at I am e iividual described in a who executed is instrument, which is my award. 05/08/2017 (Dated) Mitchell Lustig 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 Page 4/6

5 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 5/6

6 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 75a8fffa4ce378e7b376a2b0628d6385 Electronically Signed Your name: Mitchell Lustig Signed on: 05/08/2017 Page 6/6