ARBITRATION AWARD. Christa Varone from Geico Insurance Company participated in person for the Respondent

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Village Chiropractic (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. VC Insurer's Claim File No NAIC No ARBITRATION AWARD I, Steven Celauro, 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: JN Hearing(s) held on 04/10/2017 Declared closed by the arbitrator on 04/10/2017 Naomie Jean-Philippe from Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf LLP participated in person for the Applicant Christa Varone from Geico Insurance Company participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 4,446.34, was AMENDED and permitted by the arbitrator at the oral hearing. Applicant reduced the amount claimed to $4, in accordance with the fee schedule. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute This arbitration arises out of medical treatment for the EIP (JN), a 43 year old female, related to injuries sustained in a motor vehicle accident that occurred on 9/12/13. Applicant seeks reimbursement for office consultation, chiropractic treatment, physical therapy, a lumbosacral orthotic (LSO) and upper and lower EMG/NCV testing. Respondent timely denied payment of the services based upon IMEs of Drs. Sesto, Page 1/11

2 Iozzio and Golden as well as Peer Review Reports of Dr. Weiland and a Peer Review Report of Dr. Sohn. In addition, the Respondent has denied a portion of the claim based on the "8 Unit Rule". 4. Findings, Conclusions, and Basis Therefor Applicant has established its prima facie case with 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, 774 N.Y.S. 2d 564 [2004]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc. 3d 128A, 784 N.Y.S. 2d 918, 2003 NY Slip Op 51701U [App Term, 2d & 11th Jud Dists]). The burden shifts to the insurer to prove that the services were not medically necessary. 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 11 th Jud Dists 2003]). When an insurer relies upon a peer review report to demonstrate that a particular service was not medically necessary, the peer reviewer's opinion must be supported by sufficient factual evidence or proof and cannot simply be conclusory. As per the holding in Jacob Nir, M.D. v.allstate Insurance Co., 7 Misc.3d 544 (2005), the peer reviewer must establish a factual basis and medical rationale to support a finding that the services were not medically necessary, including setting forth generally accepted standards in the medical community. The opinion of the insurer's expert, standing alone, is insufficient to carry the insurer's burden to prove that the services were not medically necessary. CityWide Social Work & Psychological Services, PLLC v. Travelers Indemnity Co., 3 Misc.3d 608, 777 N.Y.S.2d 241 (N.Y.Civ. Ct. Kings Co. 2004). EMG/NCV TESTING PERFORMED ON RESPONDENT'S POSITION -PEER REVIEW FOR EMG/NCV TESTING DONE ON ($1,079.35) In the peer review report of the Respondent, Dr. Weiland stated that based on the medical documentation the EIP was a restrained driver in a stationary position who Page 2/11

3 sustained multiple injuries due to a rear-end impact. In support of his position, Dr. Weiland states that no differential diagnosis or clear treatment plan as to why this diagnostic study was being performed was identified in the record submitted by the treating physician, Dr. Amato. He opines that the absence of these documents is a deviation of care as recommended by the American Association of Neuromuscular and Electrodiagnostic Medicine. In addition, Dr. Weiland states that the medical chart did not reveal any diagnostic dilemma rendering a neurologic diagnosis. In addition, there was no indication that the EIP's medical condition was deteriorating to warrant the performance of the EMG/NCV. He also lists the EIP's medical records which he reviewed and detailed her medical history. -PEER REVIEW FOR EMG/NCV TESTING DONE ON ($1,225.01) In the Peer Review Report of the Respondent, Dr. Weiland stated that Dr. Amato did not indicate any neuromuscular examination findings, specific differential diagnosis or clear rationale as to why the electrodiagnostic testing was being done approximately 5 weeks after the accident. He questioned whether it would facilitate any care or management decisions as it relates to the trauma suffered by the EIP. Dr. Weiland points out that the initial emergency department evaluation failed to identify any objective evidence of any focal neurologic abnormality but for the presence of some paravertebral muscle spasm noted in the region of the neck several hours after the accident. Once again, he states that there was no indication of deterioration in the EIP's clinical condition to warrant the performance of the EMG/NCV. Where the Respondent presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden then shifts to the Applicant which must then orpresent its own evidence of medical necessity. [see Prince, Richardson on Evidence 3-104, [Farrell 11th ed]), Andrew Carothers, M.D., P.C. v. GEICO Indemnity Company, 2008 NY Slip Op 50456U, 18 Misc. 3d 1147A, 2008 N.Y. Misc. LEXIS 1121, West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co. 13 Misc.3d 131, 824 N.Y.S.2d 759, 2006 NY Slip Op51871(U) (Sup. Ct. App. T. 2d Dep't 2006)]. APPLICANT'S POSITION Applicant relies on the EIP's medical records. Following the accident the EIP was treated at the hospital emergency room. She came under the care of Dr. Amato at Village Chiropractic on , 4 days after the accident. At that time Dr. Amato's Clinical Impressions were: Post traumatic cephalgia/headaches; Post traumatic Cervical Segmental Dysfunction/Subluxation; Rule out cervical disc injury; Post traumatic Thoracic Segmental Dysfunction/Subluxation; Post traumatic Lumbar Segmental Page 3/11

4 Dysfunction/Subluxation; Rule out lumbar disc injury. All ranges of motion of the cervical and lumbar spine were limited and numerous orthopedic tests were positive. A treatment plan was created involving spinal adjustments, physical modalities and exercise. EMG/NCV studies "should be considered if no improvement with 4-6 weeks" of conservative care. In a report by Dr. Amato submitted by the Applicant, the doctor states that based upon the persistent objective findings and nominal response to current modes of care, clinical questions regarding the etiologies of the patient's disorder continue to exist and require further diagnostic evaluation through EMG/NCV procedures. In this particular case, the patient's syndrome needs clarification and these studies will lead to problem focused attention. Dr. Amato also goes on to list differential diagnoses and states that the EMG/NCV testing will focus the differential. Comparing the evidence submitted by both parties, I find I am persuaded by Applicant's evidence. I find that Applicant's medical records refute the contentions raised in the peer reviews. In addition, I find that the peer reviews failed to correlate the EIP's positive medical findings to the determination that the subject electrodiagnostic testing was not medically necessary. SERVICES DENIED BASED ON IMES Applicant seeks reimbursement for services performed between 3/21/14 and 6/14/14. Respondent denied payment of the services based upon Independent Medical Exams (IME) by Dr. Cirino Sesto, D.C., Dr. John Iozzio, D.C., L.Ac. and Dr. Marianna Golden, M.D. all performed on 3/12/14, with an effective cut-off date of 3/21/14. An IME report asserting that no further treatment is medically necessary must be supported by a sufficiently detailed factual basis and medical rationale, which includes mention of the applicable generally accepted medical/professional standards. Carle Place Chiropractic v. New York Central Mut. Fire Ins Co., 19 Misc.3d 1139(A), 866 N.Y.S.2d 90 (Table), 2008 N.Y. Slip Op (U), 2008 WL (Dist. Ct., Nassau Co., May 29, 2008, Andrew M. Engle, J.). An IME report must set forth a factual basis and medical rationale for the conclusion that further services are not medically necessary. E.g.,Ying Eastern Acupuncture, P.C. v. Global Liberty Insurance, 20 Misc.3d 144(A), 873 N.Y.S.2d 238 (Table), 2008 N.Y. Slip Op (U), 2008 WL (App. Term 2d & 11th Dists. Sept. 3, 2008). Page 4/11

5 The IMEs were all conducted on 3/12/14 by Drs. Sesto, Iozzio and Golden and essentially made the same findings. All of the doctors determined that the EIP had resolved cervical and lumbosacral sprains/strains. They all found the EIP to exhibit normal ranges of motion in the aforementioned body parts. They found no deficits in range of motion and orthopedic and neurological testing yielded negative results. From an acupuncture perspective, Dr. Iozio found the EIP to have no Qi or blood stagnation in the channels of the cervical spine and lumber spine. The doctors determined that the EIP was no longer in need of any further treatment. According to Applicant's reports, the EIP still was experiencing discomfort associated with injuries initially sustained in the motor vehicle accident. Applicant has submitted a medical record that is contemporaneous to the IME. In particular, on 3/24/14, the EIP presented with complaints of neck pain radiating into the shoulders, middle back pain, lumbar pain raditating to the buttocks as well as headaches. Various orthopedic testing produced positive results including an Axial Compression Test, Foraminal Compression Test, Valsalva's Maneuver, Shoulder Depressor Test and Kemp's Test. In addition, there were palpable muscle spasms and tenderness of the cervical and lumbar regions. Applicant was apparently confronted with certain subjective complaints as well as objective clinical findings and opined that further evaluation and treatment were medically necessary. A treating physician cannot merely discount and disregard his/her patient's subjective complaints as unfounded and irrational. Since there is such a divergence of medical opinions as to the necessity of the disputed therapy, I feel bound to defer to the opinions of Assignor's treating physicians rather than to the opinions of Respondent's IME consultant who was not personally responsible for the claimant's care and treatment. I find Applicant's assessment to be credible and convincing. DURABLE MEDICAL EQUIPMENT (LSO) Applicant seeks reimbursement for durable medical equipment, namely an LSO. Respondent timely denied payment of the services based upon a peer review by Dr. Robert A. Sohn dated Dr. Sohn asserts that the subject durable medical equipment was not medically necessary. He describes the equipment as a custom-fitted lumbosacral support belt, lumbosacral orthosis, sagittal control, with rigid anterior and posterior panels, posteriorly extends to the sacrococcygeal junction to the T9 vertebra which produces intracavitary pressure to reduce load on the intervertebral disc. He cites studies and guidelines in support of his position stating that lumbar supports are not recommended for the treatment of lower back pain. They may be useful for specific treatment of spondylolysis, documented instability, or postoperative treatment in the absence of significant leg length discrepancy. Dr. Sohn opines the particular LSO in question is specifically designed to be custom fitted from the area of the T9 vertebra to the Page 5/11

6 sacrococcygeal junction, in order to promote healing of the spine and soft tissue musculature through restriction and immobilization. Furthermore, he states that this particular type of custom-fitted lumbosacral support belt would not be complementary towards the treatment goals of chiropractic. As there appears to be no evidence of instability as it relates to the area of the thoracic T9 vertebra to the sacrococcygeal junction, Dr. Sohn opines that the primary goal was to restore aberrant joint mobility through chiropractic manipulative therapy. As such, the support belt has not been established as a chiropractic necessity. Based on the peer review of Dr. Sohn, I find that the Respondent has satisfied its burden. Applicant relies upon the EIP's medical records and the Letter of Medical Necessity. The Applicant has not submitted a Rebuttal to Respondent's Peer Review. The Letter of Medical Necessity is undated and contains an illegible signature on the letterhead of Village Chiropractic. It appears to be a form letter without any specific clinical details of the EIP. The letter contains one paragraph stating that supplies were given to the patient to assist in pain reduction during the acute phase of Chiropractic care as it can be very helpful for acute lumbar spine injuries including when an intervertebral disc is suspected to be injured. Notably, it offers absolutely no specifics relative to the EIP. In addition, it states that the LSO was given to the patient during the "acute phase", yet it was dispensed on , nearly 4 months after the accident. Overall, Applicant's medical records while discussing her injuries in detail, do not mention the LSO in a detailed or meaningful way or sufficiently support its medical necessity. Comparing the relevant evidence presented by both parties and the above referenced medical necessity standard, I find that the Applicant is not entitled to reimbursement for the durable medical goods. I find that the Applicant's submissions in response to the peer review insufficient to meet the Applicant's burden on the issue of medical necessity. The Applicant's submissions did not address the specific durable medical goods provided to the EIP and did not meaningfully rebut or address the conclusions set forth in the peer review reports. High Quality Medical, P.C. v. Mercury Ins. Co., 26 Misc.3d 145(A), 2010 N.Y. Slip.Op (U) (Sup. Ct. App. Term 2d Dept. 2010). Therefore Applicant;s claim for reimbursement for the Durable Medical Equipment (LSO) is denied. CLAIM FOR UNPAID PHYSICAL THERAPY TREATMENT (FEE SCHEDULE "8 UNIT" DEFENSE The Applicant is seeking $ for unpaid physical therapy treatment from to Respondent issued timely partial denials predicated upon a fee schedule Page 6/11

7 defense. Respondent's denials state that "reimbursements for modalities and procedures may not exceed 8 relative units per day. Previously reviewed bill amount has been applied." Respondent has submitted competent evidence (EOB's) that it had already issued payment for physical therapy procedures/modalities for the same dates of service for a total of 8 relative value units a day to American Neurology. After reviewing the evidence submitted by both parties, and taking judicial notice of the fee schedule, I find that Respondent has sufficiently established its 8 unit fee schedule defense. Therefore Applicant's claims for dates of service to are denied. CLAIM FOR RANGE OF MOTION TESTING The Applicant is seeking $ which it claims represents the balance owed for Range of Motion testing performed on The Applicant timely billed the services in the amount of $ The Respondent issued a partial denial and payment in the amount of $ The denial states that the provider's fee exceeds the maximum allowance under the applicable fee schedule and was reduced accordingly. However, respondent has the burden of coming forward with competent evidentiary proof to support its fee schedule defense. The Respondent has failed to provide any evidence to support this defense, including the affidavit of a certified professional coder, and has not met its burden. Accordingly, I find in favor of the Applicant in the amount of $ Accordingly, I find in favor of the applicant as follows: For the EMG/NCV in the amount of $1,079.35; For the 10/18/13 EMG/NCV in the amount of $ ; For services performed from to in the amount of $601.36; For services performed on in the amount of $ Total: $3, I find in favor of the respondent as follows: For the Durable Medical Equipment (LSO); For the services performed to Page 7/11

8 This decision is in full disposition of all claims for No-Fault benefits presently before this Arbitrator. This case was decided based upon the submissions of the parties as contained in the electronic file maintained by the American Arbitration Association, and the oral arguments of the parties' representatives. There were no witnesses. I reviewed the documents contained in MODRIA for both parties and make my decision in reliance thereon. 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 Page 8/11

9 A. The respondent is not subject to the jurisdiction of the New York No-Fault arbitration forum Accordingly, the applicant is AWARDED the following: Medical From/To Claim Amount Status Village Chiropractic 09/16/13-06/04/14 $4, Awarded: $3, Total $4, Awarded: $3, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 08/10/2016, which is a relevant date only to the extent set forth below.) Interest runs from the filing date for this case until the date that payment is made at two percent per month, simple interest, on a pro rata basis using a thirty day month. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below After calculating the sum total of the first-party benefits awarded in this arbitration plus the interest thereon, Respondent shall pay Applicant an attorney's fee equal to 20% of that sum total, subject to a minimum of $60 and a maximum of $850. See, 11 NYCRR (c) and (e). However, if the benefits and interest awarded thereon is equal to or less than the Respondent's written offer during the conciliation process, the attorney's fee shall be based upon the provisions of 11 NYCRR (b). For cases filed after February 4, 2015, there is no minimum fee and a maximum fee of $ 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 Page 9/11

10 I, Steven Celauro, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 04/23/2017 (Dated) Steven Celauro 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 10/11

11 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: b71023d791ec3dfe7388c6cdfffd0a66 Electronically Signed Your name: Steven Celauro Signed on: 04/23/2017 Page 11/11