ARBITRATION AWARD. Rachel Drachman, Esq. from Revaz Chachanashvili and Associates PC participated in person for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Island Ambulatory Surgery Center (Applicant) - and - Allstate Fire & Casualty Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No AD NAIC No ARBITRATION AWARD I, Anthony Kobets, 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 08/30/2017 Declared closed by the arbitrator on 08/30/2017 Rachel Drachman, Esq. from Revaz Chachanashvili and Associates PC participated in person for the Applicant Peter Graziosi, Esq. from Allstate Fire & Casualty Insurance Company participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 1,839.17, was NOT AMENDED at the oral hearing. Stipulations WERE made by the parties regarding the issues to be determined. At the hearing, the parties' representatives stipulated to the timely service of the bill and denial, to Applicant's prima facie burden and to the amount in dispute herein being in accordance with the applicable provisions of the NewYork State Workers' Compensation Fee Schedule. 3. Summary of Issues in Dispute Page 1/7

2 In dispute is the Applicant's bill totaling $ for facility fees associated with a lumbar epidural steroid injection with fluoroscopic guidance performed on the patient (EF) on 3/2/16, as a result of injuries alleged to have been sustained in a motor vehicle accident on September 22, Respondent denied the claims on the grounds that the Assignor (EF) failed to comply with a condition precedent by not appearing for two scheduled Independent Medical Examinations (IMEs). Is the Applicant entitled to no-fault benefits? 4. Findings, Conclusions, and Basis Therefor I have reviewed all documents as available in the ADR Center as of the date of this hearing pertaining to this case. This case was decided based on the submissions of the Parties as contained in the electronic case folder maintained by the American Arbitration Association and the oral arguments of the parties' representatives at the hearing. There was no witness testimony at the hearing. This case is linked with AAA case no and AAA case no At the hearing, the parties' representatives stipulated to the timely service of the bill and denial, to Applicant's prima facie burden and to the amount in dispute herein being in accordance with the applicable provisions of the NewYork State Workers' Compensation Fee Schedule. The parties' representatives agreed that the IME no show was the sole issue in dispute herein. The EIP (EF) was a 64-year old female who was allegedly involved in a motor vehicle accident on September 22, Thereafter on 3/2/16, the patient underwent a lumbar epidural steroid injection with fluoroscopic guidance at Applicant's facility. Applicant seeks no-fault reimbursement for these services. A health care provider establishes its prima facie entitlement to payment as a matter of law by 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, 774N.Y.S. 2d 564 [2004]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc. 3d 128A, 784 N.Y.S. 2d918, 2003 NY Slip Op 51701U [App Term, 2d & 11th Jud Dists]). A No-Fault claim must be paid or denied within 30 calendar days after proof of claim is received. See, New York Insurance Law Sec. 5106(a); 11 NYCRR ; Presbyterian Hospital v. Maryland Cas. Co., 90 NY2d 274, 660 NYS2d 536 (1997). The insurer may extend that time frame by requesting additional verification within fifteen (15) business days to following receipt of proof of claim. See, 11 NYCRR (b). "When an insurance company fails to comply with its duty to act expeditiously in processing No-Fault claims, it will be precluded from raising most defenses." See, Page 2/7

3 Presbyterian Hospital v. Aetna Cas. & Sur. Co., 233 AD2d 431, 432 (2d Dept. 1996) leave to appeal denied, 90 NY2d 802 (1997). "Under New York's no-fault automobile insurance scheme, an insurer can deny aninsured's claim for medical treatment if the treatment is not medically necessary.... To verify a treatment's medical necessity, an insurer may require the claimant to submit to medical examination by physicians selected by, or acceptable to, the [insurer], when, and as often as, the [insurer] may reasonably require.... These examinations are referred to as independent medical examinations (IMEs)." Sky Medical Supply Inc. v. SCS Support Claims Services, Inc., 17 F.Supp.3d 207, (E.D.N.Y. 2014) (internal quotation marks omitted). Bill for date of service 3/2/16 in the amount of $ The evidence herein demonstrated that Respondent timely denied the above referenced bill based on the Assignor's alleged failure to appear for two IMEs on 1/14/16 and 1/28/ NYCRR sec provides: "no action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage." 11 NYCRR sec (d) mandates that the medical examination be scheduled within 30 calendar days form the insured's receipt of the verification forms. Section (e ) provides: "All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and the medical examinations shall be conducted in a facility properly equipped for the performance of the medical examination. The insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request. When an insurer requires an examination under oath of an applicant as additional verification to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination. Insurer standards shall be available for review by Department examiners." The Appellate Division has held that "[t]he appearance of the insured at IMEs at any time is a condition precedent to the insurer's liability on the policy." Stephen Fogel Psychological PC v. Progressive insurance Company, 35 A.D.3d 720; 827 N.Y.S.2d 217 (App. Div. 2nd.Dept. 2006). The Court further held that: "Consequently, an insurer may deny a claim retroactively to the date-of loss for a claimant's failure to attend IMEs when and as often as the [insurer] may reasonably require." The Court gave two criteria that must be met for an insurer to prove a violation of a condition precedent of coverage: (1) that it provided sufficient notice of the IME to the applicant, and (2) that it submitted sufficient evidence to show that the applicant failed to attend the IME. Since an IME and EUO are part of the same subsection, it is reasonable to presume that a failure to attend the EUO is akin to a failure to attend an IME and the penalties for the failure to attend are identical. See, Hertz Corporation v. Active Care Medical Supply Corporation, Page 3/7

4 ----N.Y.S.2d---, 124 A.D.3d 411 (App. Div. 1dt. Dept., January 6, 2015) and W & Z Acupuncture, P.C. v. Amex, 2009 NY. Slip Op (U), 24 Misc.3d 142 (App. Term 2d' 11th & 13th Dist. July ). Respondent herein has submitted the IME scheduling letters into evidence, an Affidavit regarding mailing from Jean Rony Pressoir, an Administrator at D&D Associates, and the proof of the Assignor's no-show in the form of signed sworn letters from Dr. Dorothy Scarpinato, M.D. Specifically, the first letter dated 1/4/16 attempted to schedule the IME for 1/14/16. The subsequent letter dated 1/18/16 attempted to schedule the IME for 1/28/16. The scheduling letters contained the requisite language regarding the Claimant's entitlement to reimbursement for lost wages and reasonable transportation expenses associated with attending these examinations. At the hearing, Respondent's representative argued that the proof of mailing and proof of no show were sufficient to meet Respondent's burden and sustain the denial. An insurer makes its prima facie showing of the defense by demonstrating that two seperate requests for the IME were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. Apollo Chiropractic Care, P.C. v. Praetorian Ins. Co., 27 Misc.3d 139(A), 2010 NY Slip Op 50911(U) (App Term 1st Dept.). It is incumbent upon the insurer to establish that the scheduling letters were properly addressed and mailed, see SK Prime Med. Supply, Inc. v. Hertz Claim Mgt. Corp., 2012 NY Slip Op 52192(U) (App Term 1st Dept. Nov. 28, 2012); A.B. Med. Servs. PLLC v. Allstate Ins. Co., 2006 NY Slip Op 50474(U) (App Term 2d Dept., March 27, 2006). It is also incumbent upon the insurer to establish that the scheduling letters contained the required notice regarding reimbursement of travel expenses and lost wages. See Matter of Venditti (General Acc. Ins.), 236 A.D.2d 759 (3d Dept 1997) (IME requests were "null and void" in that they failed to advise petitioner that he would be reimbursed for loss of earnings and transportation expenses in complying therewith); Jersey Rehab PA, P.C. v. IDS Property Casualty Ins. Co., 39 Misc.3d 1218(A), 2013 N.Y. Slip Op (U) (Dist. Ct. Nassau Co., Michael A. Ciaffa, J., Apr. 26, 2013). A presumption of receipt of an IME scheduling letter arises only where there is proof of a proper mailing. Great Health Care Chiropractic, P.C. v. Citiwide Auto Leasing, 43 Misc.3d 127(A), 990 N.Y.S.2d 437 (Table), 43 Misc.3d 127(A), 2014 WL (App. Term 2d, 11th & 13th Dists. Mar. 17, 2014). Based upon a review of the evidence herein and the arguments of counsel, I find that the mailing of the IME scheduling letters and the Assignor's no shows were sufficiently established by Respondent's proofs herein. "Even when a claimant believes it need not comply with a verification request, the claimant still has a duty to communicate with the insurer regarding the request... The [insurer] should not be put in a position to second guess the reason or reasons why the [claimant] has failed to respond to the request." Canarsie Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 27 Misc. 3d 1228(A), 911 N.Y.S.2d 691 (Civ. Ct. Kings Co. 2010). In addition, I am persuaded by the information in Dr. Scarpinato's letters that the Assignor failed to appear for the IME's scheduled for 1/14/16 and 1/28/16. An affidavit submitted by the chiropractor who was to perform an IME of the assignor can establish that the assignor failed to Page 4/7

5 appear for an IME in her office which was located at the address set forth in the IME scheduling letters. E.g., H.E. Tuncel, M.D. v. Progressive Casualty Ins. Co., 21 Misc.3d 143(A), 880 N.Y.S.2d 227 (Table), 2008 N.Y. Slip Op (U), 2008 WL (App. Term 2d & 11th Dists. Dec. 3, 2008).A doctor is qualified to state whether a patient was scheduled to appear at a scheduled date and/or time in his office. Five Boro Psychological Services, P.C. v. Autoone Ins. Co., 22 Misc.3d 978, 870 N.Y.S.2d 213 (Civ. Ct. Kings Co. 2008). The affirmations and affidavits of the medical professionals who were to perform the IMEs can establish that a health care provider's assignor failed to appear for said IMEs. E.g., Tri-Mount Acupuncture, P.C. v. NY Central Mutual Fire Ins. Co., 30 Misc.3d 144(A), 924 N.Y.S.2d 312 (Table), 2011 N.Y. Slip Op (U), 2011 WL (App. Term 2d, 11th & 13th Dists. Mar. 2, 2011); Radiology Today, P.C. v. GEICO Ins. Co., 25 Misc.3d 133(A), 901 N.Y.S.2d 910 (Table), 2009 N.Y. Slip Op (U), 2009 WL (App. Term 2d, 11th & 13th Dists. Oct. 23, 2009). Furthermore, there was no evidence in the record to refute the Respondent's assertion that the Assignor failed to attend these IMEs. Thus, Respondent has proven by a preponderance of the credible evidence that Assignor failed to attend the IMEs scheduled for 1/14/16 and 1/28/16. Accordingly, insofar as the Applicant neither offered a valid excuse for its assignor's nonappearance nor otherwise demonstrated that the IMEs were unreasonable under the circumstances, see Sunrise Acupuncture, P.C. v. Encompass Auto & Home Ins. Co., 2014 NY Slip Op 51082(U) (App Term 1st Dept., July 16, 2014); Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 2008 NY Slip Op (App Term 2d Dept., Sept. 10, 2008), I find that Respondent met its burden of proving that the patient failed to attend IMEs and violated a condition precedent to coverage. The failure by an assignor to attend IMEs constitutes a failure to comply with a condition precedent to coverage, mandating dismissal of a claim for No-Fault compensation by an assignee-medical provider. Inwood Hill Medical, P.C. v. General Assurance Co., 10 Misc.3d 18, 805 N.Y.S.2d 772 (App. Term 1st Dept. 2005). Where a health care provider's assignor failed to attend IMEs, dismissal of the provider's claim is appropriate. Vega Chiropractic, P.C. v. Clarendon National Ins. Co., 25 Misc.3d 144(A), 906 N.Y.S.2d 776 (Table), 2009 N.Y. Slip Op (U), 2009 WL (App. Term 2d, 11th & 13th Dists. Aug. 31, 2009). Accordingly, Applicant's $ claim for date of service 3/2/16 is denied. This decision is in full disposition of all claims for No-Fault benefits presently before this Arbitrator. Any further issues raised in the hearing record are held to be moot and/or waived insofar as not raised at the time of the hearing. 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 Page 5/7

6 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 claim is DENIED in its entirety 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, Anthony Kobets, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 09/05/2017 (Dated) Anthony Kobets 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 6/7

7 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: dd048dfdb2d93e827d14b10f15d309df Electronically Signed Your name: Anthony Kobets Signed on: 09/05/2017 Page 7/7