American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Medical Diagnostic Services, PC (Applicant) - and - American Transit Insurance Company (Respondent) AAA Case No. 17-16-1039-4604 Applicant's File No. Insurer's Claim File No. 661133-03 NAIC No. 16616 1. ARBITRATION AWARD I, Keith Tola, 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: EIP Hearing(s) held on 10/30/2017 Declared closed by the arbitrator on 10/30/2017 Todd Fass, Esq. from Hanford, Cooke & Associates, P.C. participated in person for the Applicant Robert Horn, Esq. from American Transit Insurance Company participated in person for the Respondent 2. 3. The amount claimed in the Arbitration Request, $ 1,744.71, 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 This case stems from a motor vehicle accident which occurred on June 1, 2015 wherein the EIP, a 23 year old male, allegedly sustained injuries. Applicant commenced this New York No-Fault insurance arbitration, seeking compensation for Range of Motion Testing (95951-7 units) and Manual Muscle Testing (95931-6 units), performed on July 28, 2015, and also on July 29, 2015 and July 30, 2015. Respondent denied the claims for lack of medical necessity, based on the Peer Review of Stuart Stauber, M.D. Page 1/6
Respondent also issued a blanket denial indicating claims for services rendered subsequent to 7/10/15 are denied because those services were the result of another accident which occurred on 7/10/15, as per the EIP's testimony at an Examination Under Oath. Finally, upon a finding of medical necessity Respondent defends on fee schedule grounds. 4. Findings, Conclusions, and Basis Therefor This Award was issued upon consideration of the parties' arguments and upon review of the relevant evidence contained within the ADR Center files. Issue #1: STACKING OF COVERAGE By way of a blanket denial, dated February 23, 2016, respondent indicated: "Claims for services rendered after 7/10/15 are denied as Examination Under Oath done 1/27/16 found that claimant was involved in another accident on 7/10/15 and there can be no stacking of coverage." I have reviewed the EIP's testimony at his January 27, 2016 EUO. While he confirmed that he was involved in another accident five (5) weeks after the accident at issue, his testimony does not confirm the treatment at issue was a result of his subsequent accident. To the contrary, the EIP testified he only injured his left knee in the July 2016 accident - and the services at issue had nothing to do with the knee. Additionally, the EIP testified his treatment regarding injuries sustained as a result of the instant accident did not change as a result of the July 2015 accident. In fact, he testified that as a result of the July 2015 accident he treated at an entirely different facility, and when testifying about his treatment for injuries stemming from the June 2015 accident he confirmed he underwent Range of Motion testing. More significant, the record before me is bereft of any evidence in the form of medical records/reports stemming from injuries received in the subsequent accident of July 2016, from which the EIP's treatment and relation to the services at issue can be ascertained. In short, respondent's "stacking of coverage" defense is not substantiated by the record. Range of Motion Test Issue #2: MEDICAL NECESSITY Peer Review - Dr. Stauber Page 2/6
Dr. Stauber indicated the tests were not necessary because the results thereof would not alter the diagnosis or treatment plan in any way. He noted, further, "[I]f the treating physician was concerned about the accuracy of the range of motion measurements, a conventional goniometer/inclinometer could have been utilized during the clinical examination. There was no need for an additional referral for computerized ROM testing. Also, there is no conclusive medical evidence that using computerized ROM testing will alter the diagnosis, prognosis or treatment " Manual Muscle Testing Dr. Stauber indicated: " manual muscle testing is a basic procedure incorporated in a routine clinical examination, as was in this case by Dr. Shaikh Ahmed on June 12, 2015. There is no need to unbundle this service and bill out for it separately the use of formalized manual muscle testing would not change the diagnosis or treatment plan. That is, there is no conclusive medical evidence that using computerized or formal MMT will alter the diagnosis, prognosis or treatment for a patient. Respondent's Burden Based on the opinions set forth by Dr. Stauber, respondent satisfied its burden. The presumption of medical necessity is removed and the burden shift to applicant to prove medical necessity for the Range of Motion & Manual Muscle Testing at issue, by a preponderance of the evidence. Applicant's Evidence & Determination Applicant has not submitted a formal rebuttal to the Peer Review, opting instead to rely on the medical reports/records submitted for my review. Applicant submitted a Letter of Medical Necessity from the EIP's treating provider, Dr. Villano. Therein, Dr. Villano asserted the procedures in question, part of an "Evidence Based Functional Evaluation" were medically necessary. He indicated: "[M]y comprehensive initial exam does not give me the specific details needed to measure specific daily life functional loss. This type of test is functionally different and distinct in its application, therefore it is not part of my routine physical exam. The resulting data of this functional testing will either validate and/or modify my current treatment plan of the patient. This will cause me to be very effective and efficient in selecting my treatment plan for this patient." At the hearing, counsel for the applicant argued the testing was part of an "MUA profile." In other words, counsel argued the services at issue were used to determine whether manipulation under anesthesia procedures were indicated. In support of that position, counsel relied on the fact each test report contained the following indication: "MUA Series." However, there is no indication in the record suggesting MUA was ever recommended, and there is no evidence MUA procedures were ever performed on the EIP at any time subsequent to the dates of service at issue. Page 3/6
Moreover, Dr. Villano authored three (3) separate letters of medical necessity, one for each date of service. Manipulation Under Anesthesia is not mentioned once in the letters. Dr. Villano indicated in each letter that the tests at issue "will either validate and/or modify my current treatment plan of the patient," however there is no explanation why Dr. Villano required three dates of the same service to either validate and/or modify his current treatment plan. Nor is there any evidence Dr. Villano's treatment plan was altered or modified in any way. Finally, the peer reviewer discusses Range of Motion and Manual Muscle Testing in the abstract. Dr. Stauber set forth opinions regarding the efficacy of the testing, which opinions have gone uncontested. For all of the foregoing reasons, I find applicant has failed to prove medical necessity by a preponderance of the evidence, as required. This claim is denied in its entirety. 5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, 2002. 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 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, Keith Tola, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. Page 4/6
11/15/2017 (Dated) Keith Tola 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 65-4.10) 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
ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: e941752667a000fe8f2302a06c85bb8c Electronically Signed Your name: Keith Tola Signed on: 11/15/2017 Page 6/6