ARBITRATION AWARD. Jonathan Seplowe, Esq. from Law Offices of Jonathan B. Seplowe, 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: Advanced Orthopaedics (Applicant) - and - State Farm Mutual Automobile Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No. 32-6Z NAIC No ARBITRATION AWARD I, Jennifer Zeidner, 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 05/24/2017 Declared closed by the arbitrator on 05/24/2017 Jonathan Seplowe, Esq. from Law Offices of Jonathan B. Seplowe, P.C. participated in person for the Applicant Mohammed Rubbani, Esq., from Richard T. Lau & Associates participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 6,088.92, was AMENDED and permitted by the arbitrator at the oral hearing. The amount claimed was amended to a total of $ , comprised of $ for the surgeon's fee and $ for the assistant surgeon's fee. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute Page 1/7

2 Applicant seeks reimbursement of charges for the surgeon's fee and assistant surgeon's fee associated with a right shoulder surgery performed on 1/27/16, following an 8/12/15 motor vehicle accident. Respondent made a partial payment, timely denying the rest of the claim on fee schedule grounds. 4. Findings, Conclusions, and Basis Therefor I have reviewed all of the documents in the Electronic Case Folder which is maintained by the American Arbitration Association. This decision is based upon the documents reviewed as well as the arguments made by the parties' representatives at the arbitration hearing. The claimant in this matter, a then 49 year-old female, was allegedly injured in a motor vehicle accident on 8/12/15. Thereafter on 1/27/16, the claimant reportedly underwent the right knee arthroscopy performed by the Applicant. The primary surgeon's and assistants' bills are in dispute here. In support of its claim for reimbursement of these services, Applicant has submitted an assignment of benefits form, bills in the amounts of $ and $991.80, medical reports and a fee audit rebuttal from Dr. Berkowitz, the treating surgeon. Respondent has submitted NF-10 denials of claim (hereafter referred to as "denials") acknowledging its timely receipt of the subject bills. Accordingly, Applicant has made out a prima facie case for reimbursement as a matter of law. (See, Insurance Law 5106(a); Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004].) Additionally, Respondent has submitted excerpts from the fee schedule, a Signet Claim Solutions, LLC fee audit by Mercy Acuna, RN, BSN, CPC, and the supporting resources utilized by Ms. Acuna. The disputed services in this case were various procedures associated with a right shoulder arthroscopy performed on 1/27/16. A review of the EOBs enclosed with the NF-10 denials indicate that the Respondent reimbursed the codes as follows: 1) $2, ) ) $ ) $ ) $2, $ ) $1, With regard to the second bill for physician's assistant services, Applicant billed the same codes with a modifier 83. Respondent issued payment as follows (10/7% of the rate allowed to the surgeon): 1) ,83 $ $ ) ,79,83 $ $0.00 3) ,79,83 $95.21 $0.00 4) ,79,83 $ ) ,83 $ ) ,83 $ $0.00 Respondent maintains the charges in dispute are in excess of, or not billed in accordance with the New York State Workers' Compensation Medical Fee Schedule. If an insurer fails to demonstrate by competent evidentiary proof that a medical provider billed in excess of the appropriate fee schedule, its fee schedule defense cannot be sustained. (See Continental Medical PC v. Travelers Indemnity Co., 11 Misc3d 145A [App Term, 1st Dept 2006]; Robert Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 13 Misc 3d 172 [Civ Ct Kings Co 2006].) In Page 2/7

3 that regard, an insurer's unilateral decision to re-code, or change an medical provider's billed CPT codes, to reimburse disputed medical services at a reduced rate, or to deny a claim in its entirety, is ineffectual when unsupported by a peer review report or by other proof setting forth a sufficiently detailed factual basis and medical rationale for the code changes, fee reductions and denials. (See Amaze Medical Supply v. Eagle Insurance Company, 2 Misc 3d 128[A][App Term 2d and 11th Jud Dist 2003].) However, an arbitrator may take judicial notice of the fee schedule. (See, Kingsbrook Jewish Med. Ctr v. Allstate Ins. Co., 61 AD3d 13 [2d Dept 2009].) In support of its position in the instant matter, Respondent has submitted a fee audit prepared by Mercy Acuna, RN, BSN, CPC, of Signet Claim Solutions, Inc. With regard to CPT codes 29821, and 29825, Ms. Acuna states that these codes are included in code and are not separately reimbursable. Ms. Acuna cites to the National Correct Coding Initiative Edits for Medicare and Medicaid. With regard to the disputed codes, Applicant has submitted in rebuttal, a letter from Dr. Berkowitz which states that Mercy Acuna did not take into account that code 29825, extensive synovectomy, was performed in a separate compartment (subacromial) of the shoulder than code which was performed in the glenohumeral joint. Dr. Berkowitz cites to AAOS coding questions and answers April 2006, which states that the "Coverage and Reimbursement Committee recognizes three "areas" or "regions" of the shoulder: the glenohumeral joint, the acromioclavicular joint and the subacromial bursal space. The "areas" are clearly separate; procedures done in one area should not influence coding in a different area." I am persuaded by Applicant's position on this particular code given the clarification provided in the AAOS Bulletin, a publication also cited by Respondent as an authority. Accordingly, Applicant is awarded $ for the surgeon's fee and $ for the assistant surgeon's fee. However, with regard to codes and 29822, the parties disagree as to whether they are included in the main surgical procedure code Applicant relies on the AAOS Guidelines and states that they are not included in the main code. Respondent relies on the NCCI Edits and claims that they are included in the main code. Given that neither party has submitted documentation from the AAOS or NCCI on this point with these particular codes, I must weigh only the evidence that is actually before me. I therefore, find that Respondent has failed to substantiate its bundling defense. Applicant is therefore awarded codes and for the surgeon and assistant surgeon. Finally, with regard to the remaining two codes in dispute, which were both billed under the same by report code, in the amounts of $ and $ I note that Applicant submitted a January 4, 2016 letter providing "comparison" codes for the two unlisted procedures: a bursectomy performed in the subacromial bursal space (29828) and the lysis of a thickened coracoacromial ligament attachment (29825). The explanation references page two of the operative report for a description of the procedures. According to Ms. Acuna, a by-report code (29999) can only be billed one time. Thus she recommended that one of the two codes be reimbursed at zero, specifically the bursectomy. With regard to the remaining procedure, the lysis of the coracoacromial ligament, despite the description provided by the Applicant, Ms. Acuna determined that the correct comparison code would be code which she claims is inclusive of both the bursectomy of the subacromial space and lysis of the coracoacromial ligament. This code, which is after 2012, considered an add-on code, is reimbursable at $ Dr. Berkowitz, in his rebuttal affirmation disputes Ms. Acuna's claim that CPT may only be billed one time and also explains why Ms. Acuna's recoding to is inappropriate based upon the actual components of the surgical procedure. After carefully reviewing the evidence, I find that if Respondent was Page 3/7

4 not satisfied with the comparison codes provided by Dr. Berkowitz with his billing of the by-report codes, then Respondent should have requested additional verification of the bill. Moreover, when considering the most appropriate code to assign to an unlisted procedure, I would defer to the opinion of the surgeon in this case, rather than the opinion of the professional coder. While I find the fee audit to be credible, I find give more weight to the opinion of Dr. Berkowitz who is most familiar with the nuances of different surgical procedures which a lay person is not necessarily an expert in. Based upon the foregoing, I find that Respondent's fee schedule denials cannot be sustained. As I am the finder of fact, and not a trained fee schedule expert, it is not appropriate for me to attempt to make my own interpretation of the codes billed. Accordingly, Applicant is awarded the unpaid balance of the surgeon's and assistant surgeon's fees, as amended. 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 Advanced Orthopedi cs PLLC 01/27/16-01/27/16 Awarded: $6, $4, $4, Total $6, Awarded: $4, Page 4/7

5 B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 06/01/2016, which is a relevant date only to the extent set forth below.) Respondent shall pay Applicant interest computed from 06/01/16 at the rate of 2% per month, simple, and ending with the date of payment of the award subject to the provisions of 11 NYCRR (e). C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below As the demand for arbitration was filed after February 4, 2015, this case is subject to the provisions as to attorney fee promulgated in the Sixth Amendment to 11 NYCRR 65-4 (Insurance Regulation 68-D). Applicant is awarded statutory attorney fees pursuant to the no-fault regulations. See, 11 NYCRR The award of attorney fees shall be paid by the insurer. 11 NYCRR (d). Accordingly, "the attorney's fee shall be limited as follows: 20 percent of the total amount of first-party benefits and any additional first party benefits, plus interest thereon, for each applicant per arbitration or court proceeding, subject to a maximum fee of $1,360." Id. 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, Jennifer Zeidner, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 07/12/2017 (Dated) Jennifer Zeidner IMPORTANT NOTICE Page 5/7

6 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 6/7

7 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: c8ab1bf6508f67a9f7113b363ccfda88 Electronically Signed Your name: Jennifer Zeidner Signed on: 07/12/2017 Page 7/7