ARBITRATION AWARD. Joseph D'Agostino, Esq., of counsel from Hanford, Cooke & Associates, P.C. participated in person for the Applicant

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1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: MK DME INC (Applicant) - and - Global Liberty Insurance Company of New York (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No. NF NAIC No ARBITRATION AWARD I, Burt Feilich, 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: Claimant. Hearing(s) held on 08/08/2017 Declared closed by the arbitrator on 08/08/2017 Joseph D'Agostino, Esq., of counsel from Hanford, Cooke & Associates, P.C. participated in person for the Applicant Jonathan DePasquale, Esq. from Law Office of Jason Tenenbaum, PC participated in person for the Respondent The amount claimed in the Arbitration Request, $ 3,825.08, was NOT AMENDED at the oral hearing. Stipulations WERE NOT made by the parties regarding the issues to be determined. Summary of Issues in Dispute a. Whether the medical supplies and/or equipment furnished by applicant for the eligible injured person/assignor were medically necessary for the care and treatment of injuries sustained in the accident, and, if so, whether applicant billed in accordance with the fee schedule and regulations. 4. Findings, Conclusions, and Basis Therefor Page 1/9

2 I have reviewed all documents included in the ADR system consisting of the submissions made by the parties. On August 7 th, 2017, the day before the hearing in this case, counsel for respondent caused to have uploaded to the ADR a fee schedule evaluation report by Jeffrey Futoran, CPC, also dated August 7 th, Counsel for applicant objected to the introduction into evidence of this report as being belatedly submitted, in violation of the rocket docket rules and clearly prejudicial to applicant. Respondent was required to submit all of its evidence in this case no later than September 12 th, Counsel for respondent could not provide a reasonable explanation why such a document or fee schedule analysis could not have been submitted in a timely manner. Consequently, I uphold applicant's objection to this evidence as being violative of the rules and I am precluding it from the record of evidence in this case. No other additional documentation was submitted by either party at the time of or after the date of the hearing. This claim is in the original amount of $3, and involves the subject of medical supplies and/or equipment furnished by applicant for the care and treatment of injuries allegedly sustained by the eligible injured person/assignor on April 6 th, Respondent contends that the services were not medically necessary on the basis of a peer review report and an IME examination. It also contends that applicant did not bill in accordance with the fee schedule and the regulations. Initially, according to First Amendment to Regulation 68-D, 11 NYCRR , the arbitrator shall be the judge of the relevance and materiality of the evidence offered. The arbitrator may independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance Law and Insurance Department regulations. Second, respondent has submitted two specific denials of claim, dated March 17 th, 2016 that were based on a peer review report by Dr. Julio Westerband, dated March 14 th, 2016 as well as an orthopedic IME examination by Dr. Lisa Nason from June 16 th, 2014, with a purported effective date for the termination of all orthopedic benefits being July 22 nd, Yet respondent has not submitted into evidence a general orthopedic IME denial of claim based on Dr. Nason's IME examination and issued within 30 days of that examination and providing Page 2/9

3 notice to claimant as well as his medical providers that respondent would no longer pay for orthopedic benefits and medical equipment as of July 22 nd, Without such a general orthopedic IME denial of claim in evidence respondent can not rely on a general orthopedic IME denial as a basis for the denial of the claim in this case. Respondent did upload a letter it issued on July 17 th, 2014 to claimant and his attorney mentioning that all benefits for treatment were being denied on the basis of Dr. Nason's IME examination yet that letter does not include all necessary details required to be contained on an official NF-10 denial of claim form. Consequently, respondent can not allege as an independent basis for the denial of the instant claim a cut off of benefits due to the IME examination by Dr. Nason. However, since Dr. Nason's IME examination report was submitted into evidence it can serve as an evidentiary basis to support its peer review defense of the claim. I have carefully reviewed the medical documentation submitted by the parties concerning claimant, a 48-year old male who was a driver of a vehicle at the time of the accident, including the following: the initial orthopedic evaluation by Dr. Emmanuel Hostin of Hostin Orthopedic & Sports Medicine, PC, dated August 14 th, 2014, and his followup progress report dated September 25 th, 2014; the Operative report by Dr. Hostin for right shoulder arthroscopic surgery performed on October 31 st, 2014 at Surgicare ASC of New York; the initial medical evaluation report of Dr. Erie Agustin, of Bruckner Medical, PC, dated April 17 th, 2014, and his followup progress reports from May 27 th and September 16 th, 2014; the initial chiropractic evaluation of Yuan Yuan Cheng, L.Ac. of Hunan Acupuncture, PC, dated April 15 th, 2014, and his followup progress reports from May 27 th and July 17 th, 2014; the initial chiropractic evaluation report of Donald Halverson, DC of Choice Health Chiropractic, PC, dated April 14 th, 2014 and his followup progress report from August 1 st, 2014; the initial evaluation by Dr. Amr El Sanduby of New York Medical Arts, dated May 22 nd, 2014; the initial pain management evaluation report of Dr. Brian Haftel of Multispecialty Pain Management, PC, dated July 30 th, 2014, and his followup progress report from August 13 th, 2014; an initial physical therapy evaluation from April 23 rd, 2014; the results of cervical and lumbar MRIs taken on April 30 th, 2014 showing herniated discs at C4-7 and L4-5 and bulging discs at C3-4, L2-4 and L5-S1; the results of a right shoulder MRI taken on April 30 th, 2014 showing Grade I shoulder impingement syndrome, moderate tendinopathy and tendinitis and minimal joint effusion; the results of a right knee MRI taken on April 30 th, 2014 showing an ACL sprain, myxoid changes of the medial and lateral menisci and small joint effusion; results of upper and lower extremity EMG/NCS testing performed on May 22 nd, 2014 showing a right L4 radiculopathy; results of Outcome Assessment testing from May 5 th, 2014; results of Physical Capacity testing from May 14 th, 2014; results of range of Page 3/9

4 motion/muscle strength testing from June 10 and July 22, 2014; results of pain fiber sensory nerve testing from June 10 th and July 1 st, 2014; and daily physical therapy, chiropractic and acupuncture treatment records. th nd The Operative report by Dr. Hostin, dated October 31 st, 2014 for right shoulder arthroscopic surgery at Surgicare ASC of New York, had a pre-operative diagnosis of right shoulder subacromial impingement. The post-operative diagnosis was right shoulder subacromial impingement; an anterior labral tear; intra-articular adhesion; and a partial thickness articular-sided tear of the supraspinatus tendon. The procedures performed included an arthroscopy of the right shoulder; subacromial decompression; acromioplasty; debridement of the anterior labral tear; debridement of the partial thickness rotator cuff tear; a lysis of adhesions; and a brachial plexus nerve block injection. In defense of the claim, respondent submits the orthopedic IME examination report of Dr. Lisa Nason, dated June 16 th, She was told that claimant was receiving physical therapy 3 times per week. Claimant's present complaints were pain in his neck, lower back and shoulders. He told her he had a prior car accident on February 19 th, 2014 where he injured his neck and lower back with radiating symptoms into all extremities. Claimant had not yet returned to work following the instant accident. He had been a taxi driver. From the list of medical reports reviewed by Dr. Nason in connection with her examination it is clear that she looked at some reports prepared prior to the date of the instant accident and most likely dealing with services claimant received after his February 19 th, 2014 accident. Dr. Nason's physical examination was entirely within normal limits, including no positive clinical orthopedic findings regarding claimant's right shoulder. Her diagnosis was resolved cervical, lumbar and bilateral shoulder sprains and strains; and pre-existing cervical and lumbar radiating injuries and degenerative changes. She found no present orthopedic disability due to injuries sustained in the accident of April 6 th, 2014 She recommended that claimant had no further need for any orthopedic and physical therapy services or diagnostic testing for the injuries he sustained in the accident. Allegedly, on the basis of this examination, respondent purportedly denied all such services effective on July 22 nd, In further defense of this claim, and in connection with the claims for all ancillary services rendered during and after the right shoulder surgery of October 31 st, 2014, respondent submits the peer review report of Dr. Julio Westerband, an orthopedist, dated March 14 th, He had all of the necessary reports and records listed above to prepare his report. Dr. Westerband emphasized in his report the entirely negative IME examination by Dr. Nason on June 16 th, 2014, Page 4/9

5 which occurred more than 2 months after the accident. He also contends that the MRI taken of the right shoulder found no condition requiring surgery. There was no shoulder instability. There were no focal peripheral neurological deficits of the right upper extremity. There was no full thickness tear of the rotator cuff, either noted on the MRI or found at surgery. In his view claimant had sustained a right shoulder sprain and strain that had resolved by the time of the orthopedic IME examination. In addition to his comments regarding the lack of medical necessity for the underlying surgery, Dr. Westerband, stated that in the absence of any complications or unusual considerations, there is no need for a CPM and/or CTU following routine shoulder arthroscopy and there were no such circumstances in this case. He stated that claimant did not have a full thickness tear of the rotator cuff or labrum and that standard physical therapy techniques and ice packs were all that was necessary to properly treat claimant. Dr. Westerband cited to medical literature to support his opinion that there was no need for the surgery as well as a shoulder CPM and CTU following this surgery. After having evaluated all of the medical evidence submitted and hearing the arguments of the parties, I conclude that respondent has not met its burden of proving that there was no need for a shoulder CPM and CTU following the arthroscopic surgery on the right shoulder performed by Dr. Hostin on October 31 st, In my opinion, the peer review report by Dr. Westerband was insufficient to deal with the claim in this case. Dr. Westerband completely accepted the clinical findings by Dr. Nason over the contrary physical examination findings by all of claimant's treating providers, including Dr. Hostin, Dr. Agustin and Dr. Haftel, all of whom noted continuing pain and restriction of motion and functional impairment of the right shoulder. Also, Dr. Westerband made no comments in his peer review regarding the fact that claimant had received nearly 4 months of therapy before he ever saw Dr. Hostin and that Dr. Hostin also administered a steroid injection into the shoulder that failed to resolve claimant's symptoms. Additionally, Dr. Westerband also did not comment on the fact that the Operative findings included a torn labrum. I also disagree with Dr. Westerband that there is a clear standard of care in such cases as to the proper method of dealing with post-arthroscopic shoulder surgery patients. Thus, I find that there was medical necessity for a shoulder CPM and CTU in the period from November 3 rd, 2014 through November 30 th, 2014 following the right shoulder arthroscopic surgery performed by Dr. Hostin on October 31 st, I will limit my further review to the fee schedule issue in this case. Applicant has submitted an affidavit from Elsa Rodriguez, CPC, dated December 6 th, 2014 indicating that the Medicaid DME fee schedule does not specifically list the CPM and CTU devices rented by applicant to claimant (i.e. DME CPT # E0936 and # E0236). As those devices were not specifically listed in the Medicaid DME fee schedule, Ms. Rodriguez contends that applicant was Page 5/9

6 entitled under the regulations to bill for those items using the rate it generally charged members of the general public for those devices. She cited to the Optum Customized HCPCS fee schedule analyzer to note that applicant charged rates for those devices comparable to what those items were billed at the 85% percentile rate nationally for such services, which is consistent with the cost of such supplies in the NYC Metropolitan area. As indicated above, I have precluded respondent from offering into evidence its fee schedule calculation prepared by Jeffrey Futoran, CPC, dated August 7 th, 2017, due to an unexcused violation of the rocket docket rule. My only disagreement with applicant's billing rates in this case is that in addition to billing for 14 days rental of a CTU device (DME CPT # E0236) at a daily rate of $63.00, it also billed for a 14 day rental for another CTU unit and/or pad used in connection with the CTU device, at a daily rental rate of $34.22 (DME CPT # E0218). In every other case I have reviewed involving rentals of CPM and CTU devices following arthroscopic joint surgery, the medical supply company charged a rental rate for just one CTU rather than 2 such devices. Consequently, I am awarding applicant a total of $3, consisting of the following: $ for 14 days rental of a CTU at $63.00 per day under DME CPT # E0236; and $2, for a 28 day rental of a CPM at $88.00 per day under DME CPT # E0936). Therefore, my award is in favor of applicant in the total amount of $3, (as calculated above); and the remainder of the claim is denied. 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 6/9

7 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 MK DME INC 11/03/14-11/30/14 Awarded: $3, $3, Total $3, Awarded: $3, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 08/11/2016, which is a relevant date only to the extent set forth below.) In accordance with 11 NYCRR (c), since applicant did not request arbitration within 30 days after the 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 the date arbitration was demanded by applicant, which was August 11th, See LMK Psychological Services v. State Farm Insurance, 2009 NY Slip Opinion (Court of Appeals, April 2 nd, 2009); East Acupuncture, PC, 2009 NY Slip Opinion 01191, AD3d, 873 NYS2d 335 (2d Dept., Appellate Division, February 17 th, 2009). The following awarded claims were timely denied, and are not subject to overdue late interest: 1. For the awarded claim of $3, for services rendered from November 3 rd, 2014 through November 30 th, 2014, interest is to accrue from August 11th, C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below Page 7/9

8 Pursuant to the decision in LMK Psychological Services v. State Farm Insurance, 2009 NY Slip Opinion (Court of Appeals, April 2 nd, 2009), and the Opinion Letter of the NYS Insurance Department, Office of General Counsel, dated October 8 th, 2003, the insurer shall pay the applicant an attorney's fee, in accordance with 11 NYCRR (d), upon each of the following awarded claims: 1. For the awarded claim of $3, for services rendered from November 3 rd, 2014 through November 30 th, 2014, an attorney's fee of 20% of that amount, plus the interest awarded herein, is awarded. 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 I, Burt Feilich, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 08/11/2017 (Dated) Burt Feilich 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 8/9

9 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: aea3ccbd79e5968da71e514ccb1b157e Electronically Signed Your name: Burt Feilich Signed on: 08/11/2017 Page 9/9