American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Accelerated Surgical Center of North Jersey (Applicant) - and - Allstate Indemnity Company (Respondent) AAA Case No. 17-15-1019-4938 Applicant's File No. 208212 Insurer's Claim File No. 0363958513 2MA NAIC No. 19240 1. ARBITRATION AWARD I, Jeffrey Held, 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: Eligible Injured Person "EIP" Hearing(s) held on 03/09/2017 Declared closed by the arbitrator on 05/16/2017 Kevin D'Arcy, Esq. from Thwaites, Lundgren & D'Arcy Esqs participated by telephone for the Applicant Jonathan Hack, Esq. from Peter C. Merani Esq. participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 20,100.00, was AMENDED and permitted by the arbitrator at the oral hearing. The amended amount in dispute is $12,447.36, to conform to see the fee schedule rate Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute Whether Applicant, as assignee of the EIP, a 56-year old female with a history of a March 22, 2015 motor vehicle accident as a driver with reported causally related injuries that include, inter alia, cervical Page 1/10
radiculopathy has established entitlement to reimbursement of a claim for a facility fee manipulation under anesthesia (MUA) of the cervical, thoracic, lumbar spine, pelvis (sacro-iliac joints) arthralgia and bilateral hips with fibrotic release, for dates of service May 11, 2015 through May 18, 2015, nine and a concededly timely manner based, in substance, on a peer review from Dr. Claps. 4. Findings, Conclusions, and Basis Therefor Pursuant to 11 NYCRR 65-4.5 (o)(1), an arbitrator shall be the judge of the relevance and materiality of the evidence offered. The arbitrator may question any witness or party and independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance Law and Department Regulations. This award is rendered based upon the documents that appear in the ADR center, as well as the arguments and concessions made at the time of the hearing. There were no witnesses at the hearing. Insofar as claims for health service benefits must be medically necessary (see, N.Y. Insurance Law 5102[a] (McKinney Supp. 2002), a fortiori, Respondent's ability to establish that the services were not medically necessary, is a valid defense. The defense may properly be established with a peer review. See, Jacob Nir, as assignee of John Doe and Allstate, 7 Misc.3d 544, 547, 796 N.Y.S.2d 857, 860 (Civ. Ct. Kings Co. 2005). However, the peer review is required to "set forth a sufficiently detailed factual basis and medical rationale Page 2/10
for the claims rejection" and is "insufficient if it is unsupported by or controverted by evidence of medical standards." See, Jacob Nir, as assignee of John Doe and Allstate, supra. Further, "(a) no-fault insurer defending a denial of first-party benefits on the ground that the billed-for services were not 'medically necessary' must at least show that the services were inconsistent with generally accepted medical/professional practice. The opinion of the insurer's expert, standing alone, is insufficient to carry the insurer's burden of proving that the services were not 'medically necessary'." CityWide Social Work & Psy. Serv., P.L.L.C. v. Travelers Indemnity Co., 3 Misc.3d 608, 609, 777 N.Y.S.2d 241, 242 (Civ. Ct. Kings Co. 2004). "Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling." Id. at 616, 777 N.Y.S.2d at 248. Succinctly stated Applicant, as assignee of the EIP, commenced this proceeding for reimbursement of three bills, each in the amount of $6700, for dates of service May 11, 2015, May 14, 2015 and May 2, 2015 with a total disputed balance of $20,100. (See, Part 3 of the AR-1.) The claim was reduced at the time of the hearing to the conceded fee schedule rate of $12,447.36. The services were part of the treatment plan provided to the EIP, a 56-year-old female with a history of a March 22, 2015 motor vehicle accident. The EIP, a driver at the time of the accident, underwent an extensive diagnostic Page 3/10
treatment plan that included, inter alia, MRI testing, chiropractic treatment, acupuncture, physical therapy, trigger point injections and medial branch block injections, as well as the MUA at issue. The claim was denied and concededly timely manner based upon a June 30, 2015 peer review from Albert P. Claps, DC. The peer review includes, inter alia, the delineation of records reviewed a summary of the case history, including complaints and examination findings, and a discussion of medical necessity, supported by medical authority and submitted under penalties of perjury. The peer reviewer summarized his findings in the following manner: "In summary, the claimant (name omitted), a 56-year-old female who according to the initial chiropractic evaluation had sustained injuries to her neck, lower back and right knee underwent MUA to her cervical, thoracic, lumbar spine, shoulders hip joints and SI joints by Avi Weinberger and Alex Khait, D.C. on 5/11/15, 5/14/15 and 5/18/15. The documentation from the primary treating doctors and MUA providers failed to establish that this claimant was a candidate for MUA. The documentation contained no evidence that there had been a Page 4/10
review of the radiological status of the hip and SI joints by the MUA providers. The chiropractic treatment notes failed to establish that manipulative attempts had resulted in incomplete cavitation suggestive of development of adhesions. MUA care had been provided to the claimant while in the acute stage of care. The associated documentation failed to reveal that this claimant had been developing adhesions or was exhibiting signs of muscle contracture. The assumption that MUA was the next logical step in the care as a result of the claimant failing to respond to conservative care was incorrect as there was no evidence the traditional manipulation had been the treatment of choice." Applicant relies, in part, on operative reports, MRI report, chiropractic evaluation reports surgical checklist, pre-procedure nursing assessment, anesthesia reports and a letter of medical necessity, as well as a rebuttal from Alex Khait, DC. In addition, Applicant relies on a linked claim award from Arbitrator, Felix Papadakis, to wit: Accelerated Chiropractic Care/AA and Allstate Insurance Company, 17-15-1023-2577. Therein, the Arbitrator held, in substance, that the peer reviewer did not state of standard of care "...from either Page 5/10
governing body vis a vis MUA treatment." Further, while the arbitrator questioned the guidelines relied upon by the Applicant, he wrote: "However, in this forum, I cannot shift the burden to the Applicant (to look at those standards) given that I do not find that the peer review has stated, with any credible support, that the MUA procedure was outside any respected standard of care. There is insufficient analysis in the peer review to do so." After due consideration, I find that the aforesaid link claim is, if not controlling at bar, persuasive authority that is consonant with my own findings. In such posture, I find that the peer review is unsustainable. Finally, I overrule Respondent's argument predicated, in substance, on the ground that Applicant is not a licensed Article 28 Facility entitled to reimbursement for a facility fee under Government Employees Insurance Company v. Avenguard Medical Group, PLLC, 2015 NY Slip Op 01413, App. Div. 2d (2015). Consistent with the position that I've taken other holdings, I find that Avenguard is not controlling vis-à-vis ambulatory surgical practices in New Jersey. (See, Hackensack Surgery Center v. Allstate, AAA Case no. 17-14-1002-8282, Arbitrator Maslow (February 2, Page 6/10
2016.) To the extent that arbitrators have ruled otherwise, i.e. Arbitrator Cathryn Ann Cohen, in Journal Surgical Center and Allstate insurance company, LLC AAA case no 17-14-9050-0773, I must respectfully disagree. Award for Applicant in the amount of $12,447.36, plus interest and attorney's fees, in accord with LMK Psychological Services PC v. State Farm Mutual Auto Insurance Company, 12 N.Y. 3d 217, 879 N.Y.S. 2d 14 (2009), and as computed as per opinion letter of the Office of General Counsel of the NY Insurance Department No. 3-10-04 [Oct. 2003]. Applicant is further awarded return of filing fee. 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 applicant is AWARDED the following: Page 7/10
A. Medical From/To Claim Amount Amount Amended Status Accelerate d Surgical Center 05/11/15-05/18/15 Awarded: $20,100.00 $12,447.37 $12,447.36 Total $20,100.00 Awarded: $12,447.36 B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 10/09/2015, which is a relevant date only to the extent set forth below.) The interest rate shall be 2% per month, simple, on a pro rata basis using a 30 day month. The insurer shall compute and pay Applicant from October 9, 2015 to March 9, 2017 and from May 16, 2017 to to 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 As this matter was filed after February 4, 2015, this case is subject to the provisions promulgated by the Department of Financial Services in the Sixth Amendment to 11 NYCRR 65-4 (Insurance Regulation 68-D). Accordingly, the insurer shall pay the applicant an attorney's fee, in accordance with newly promulgated 11 NYCRR 65-4.6(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. Page 8/10
State of New York SS : County of New York I, Jeffrey Held, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 06/14/2017 (Dated) Jeffrey Held 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 9/10
ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 7349495b00816fe2f68d2a3581f22f7f Electronically Signed Your name: Jeffrey Held Signed on: 06/14/2017 Page 10/10