ARBITRATION AWARD. Hearing(s) held on 08/24/2016, 02/14/2017 Declared closed by the arbitrator on 02/14/2017

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Sports Medicine & Spine Rehabilitation PC (Applicant) - and - Allstate Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Robyn McAllister, 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: Assignor Hearing(s) held on 08/24/2016, 02/14/2017 Declared closed by the arbitrator on 02/14/2017 DAYVA ZACCARIA, ESQ. from Law Office of Gewurz & Zaccaria, PC participated in person for the Applicant EDWARD LANNAN, ESQ. from Allstate Insurance Company participated in person for the Respondent The amount claimed in the Arbitration Request, $ 1,630.72, 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 Whether Respondent properly denied Applicant's claim for performing physical therapy and office visits for Assignor, a 28 year-old female driver, based on an Independent Medical Examination by Dr. Jonathan Glassman. 4. Findings, Conclusions, and Basis Therefor Page 1/6

2 Applicant sought reimbursement in the amount of $ for performing physical therapy treatments and office visits from May 12, 2015 through July 28, 2015 for Assignor, a 28 year-old female driver, in connection with treatment of injuries allegedly sustained in a motor vehicle accident on November 6, Respondent timely denied Applicant's claim predicated on an Independent Medical Examination ("IME"). This decision is based on the oral arguments of counsel at the hearing and the documents submitted. I have reviewed the documents contained in the ADR Center as of the date of this award. At the hearing, Respondent argued that it properly denied Applicant's claim since the services rendered were not medically necessary. I disagree. I was not persuaded by the IME report by Dr. Jonathan Glassman, submitted by Respondent in support of its denials. Dr. Glassman examined Assignor on March 30, Dr. Glassman noted that he had previously examined Assignor on February 2, According to Dr. Glassman, Assignor was a data entry clerk who missed three days of work as a result of the accident. Dr. Glassman noted that Assignor made subjective complaints of pain in the lower back and radiating pain into the left forearm, left hand and left leg. Dr. Glassman stated that Assignor had no objective signs of injury but noted reduced range of motion in the lumbar spine along with left knee tenderness and "slight patella tilting." Dr. Glassman concluded that Assignor had sustained "sprain" of the cervical and thoracic spine, which had "resolved," "resolved sprain of the lumbar spine by objective clinical criteria," and "status post sprain/contusion left knee, resolved by objective clinical criteria, with posttraumatic patella pain syndrome superimposed on pre-existing patellofemoral chrondomalacia with patellofemoral joint narrowing of the lateral compartment, degenerative changes." Dr. Glassman opined that Assignor had no disability and that no further treatment including physical therapy was necessary. Based on the IME findings, Respondent, by general denial dated April 10, 2015, terminated Assignor's benefits effective April 17, In support of its claim, Applicant submitted the documents contained in the ADR Center including initial and follow-up reports by Dr. Joseph Gregorace, consultation report by Dr. Demetrios Mikelis, MRI reports, testing report and physical therapy treatment notes. I was persuaded by the medical evidence that the physical therapy and office visits were warranted beyond the IME cut-off date of April 17, According to Dr. Gregorace's report of March 23, 2015, which was contemporaneous with the IME, Assignor continued to present with both subjective and objective signs of injury to the neck, back and left knee. Specifically, Dr. Gregorace noted decreased ranges of motion with spasm and tenderness in the cervical and lumbar spine, decreased motor strength at the left ankle evertor, decreased deep tendon reflex at the left bicep, positive straight leg raises on the left, decreased range of motion in the left knee and positive patellofemoral grind test. Assignor was referred for an orthopedic consultation to Dr. Mikelis who examined Assignor on March 31, 2015, one day after the IME. Dr. Mikelis noted that Page 2/6

3 Assignor had subjective complaints of neck and back pain and presented with decreased ranges of motion, decreased motor strength in the lower extremities, decreased sensation on the left at C5 and C6 and L5 and S1 along with decreased Achilles deep tendon reflex on the left. Assignor was recommended epidural steroid injections for her lower back by multiple physicians, but refused and wanted to continue conservative therapy. Dr. Gregorace's follow-up reports of May 12, 2105, June 18 and July 28, 2015 showed continued improvement in ranges of motion and motor strength. On July 28, 2015, Dr. Gregorace concluded that Assignor had "plateaued" with physical therapy and Assignor was placed on a home exercise program. Thus, even if Dr. Glassman's IME report was sufficient to support Respondent's defense of lack of medical necessity, I find that Applicant satisfied its burden of rebutting Dr. Glassman's assertion that Assignor needed no further treatment for her resolved injuries. See.A. Khodadadi Radiology, P.C. v. NY Central Mutual Fire Ins. Co., 16 Misc.3d 131 (A), 2007 N.Y. Slip Op (U) (App. Term 2d & 11 th Dist. 2007). Moreover, the treating physician's opinion should be afforded greater weight. See Oceanside Medical Healthcare, P.C. v. Progressive Ins., 2002 N.Y. Slip Op (U) (Civ. Ct. Kings Co. 2002). Therefore, I find that Respondent improperly denied Applicant's claim and Applicant is entitled to reimbursement for the physical therapy and office visits performed from May 12, 2015 through July 28, 2015 in the amount of $ Accordingly, Applicant is awarded $ , the entirety of its claim. 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. Page 3/6

4 Medical From/To Amount Status Sports Medicine & Spine Rehab P.C. 05/12/15-07/28/15 Awarded: $1, $1, Total $1, Awarded: $1, B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 10/06/2015, which is a relevant date only to the extent set forth below.) Interest shall be computed and paid from October 6, 2015 for the Claim awarded above ($ ) at a rate of 2% per month, simple, ending with the date of payment of the award. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below The insurer shall pay an attorney's fee of 20% of the claim awarded above ($ ) plus interest in accordance with 11 NYCRR (d). 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, Robyn McAllister, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 03/18/2017 (Dated) Robyn McAllister Page 4/6

5 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 5/6

6 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 95884ca41d477240c996954cee00f03f Electronically Signed Your name: Robyn McAllister Signed on: 03/18/2017 Page 6/6