American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: OBB Acupuncture P.C. (Applicant) - and - Liberty Mutual Fire Insurance Company (Respondent) AAA Case No. 17-16-1038-0201 Applicant's File No. Insurer's Claim File No. LA000-032514729-01 NAIC No. 23035 1. ARBITRATION AWARD I, Glen Wiener, 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 05/22/2017, 05/26/2017 Declared closed by the arbitrator on 05/22/2017 Cheryl Scher, Esq. from Fuld & Karp PC participated in person for the Applicant Herman Buchanan, C.R. from Liberty Mutual Fire Insurance Company participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 8,048.95, was AMENDED and permitted by the arbitrator at the oral hearing. Amended to $2,296.20 Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute Assignor I.D. a 45-year-old female was involved in an automobile accident on August 23, 2015. She was initially evaluated and treated at Jamaica Hospital. A few days later, she presented to a multidisciplinary medical facility and began treating with an acupuncturist, chiropractor and physical therapist. Treatments with the acupuncturist included infrared heat. Treatments with the physical therapist on the same days included hot/cold packs, electrical stimulation and massage. Respondent denied and partially Page 1/9
denied Applicant OBB Acupuncture's request for reimbursements the infrared heat based on the 8 Unite Rule. On November 9, 2015 Assignor was examined by Janice Salayka, D.C., L.Ac, a chiropractor/acupuncturist selected by Respondent [the "IME"]. Based on this expert's report and opinion Respondent terminated Assignor's acupuncture benefits effective November 24, 2015. From December 2, 2015 through January 21, 2016 Applicant continued to treat Assignor. The three questions presented herein are: Whether Applicant is entitled to reimbursement if Respondent failed to pay or deny Applicant's claim within thirty days; and What are the maximum amounts Respondent is obligated to pay for physical medicine and rehabilitation services; and Whether the post-ime acupuncture treatments were medically necessary. 4. Findings, Conclusions, and Basis Therefor The decision below is based on the documents on file in the Electronic Case Folder maintained by the American Arbitration Association as of the date of this hearing and on oral arguments of the parties. No witness testimony was produced at the hearing. Applicant OBB Acupuncture, P.C. as assignee of I.D. seeks $2,296.20 reimbursement, with interest and counsel fees, under the No-Fault Regulations, for acupuncture services provided to Assignor. Respondent Geico Insurance Company insured the motor vehicle involved in the automobile accident. Under New York's Comprehensive Motor Vehicle Insurance Reparation Act (the "No-Fault Law"), New York Ins. Law 5101 et seq., Respondent was obligated to reimburse the injured party (or her assignee) for all "reasonable and necessary" medical expenses arising from the use or operation of the insured vehicle. [1] First Applicant seeks $375.24 reimbursement for acupuncture services provided to Assignor from November 20 through November 30, 2015. Respondent neither paid nor denied Applicant's claim. Applicant submitted sufficient evidence establishing its proof of claim was mailed to Respondent on December 22, 2015. Applicant's evidence creates a presumption that Respondent received the document. "The presumption that an addressee received an item by mail may be created by either proof of actual mailing or a standard office practice or procedure designated to ensure that items are properly addresses and mailed." Amaze Medical Supply Inc., a/a/ Igor Tsigelman v. Allstate Ins. Co., 3 Misc3d 133A, 787 N.Y.S.2d 675 (App Term 2d Dept. 2004). Page 2/9
Thus Applicant established a prima facie entitlement to [benefits] by submitting evidence that payment of no-fault benefits is "overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the... insurer." Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 498, 501, 14 N.Y.S.3d 283 (2015). A No-Fault claim must be paid or denied within thirty days or it is "overdue." commencing the accrual of interest and attorney fees. See, N.Y. Ins. Law 5106[a] (McKinney 2000); 11 NYCRR 65[g][3]; Presbyterian Hospital v. Maryland Cas. Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536 (1997). Herein, Respondent failed to establish it paid or denied Applicant's claim within the prescribed thirty-day period. Hence, Applicant's request for $375.25 reimbursement is granted. [2] Applicant also seeks $176.72 reimbursement for infra-red heat treatments provided to Assignor from August 27 through November 16, 2015. Respondent denied or partially denied Applicant's claims stating "when multiple physical medicine procedures/modalities are performed on same day reimbursement may not exceed 8.0 units pursuant to NYS fee schedule." Trying to contain the costs of No-Fault automobile insurance, the Legislature established a schedule of maximum permissible charges for health care providers seeking payment under the No-Fault Regulations. Goldberg v. Corcoran, 549 N.Y.S.2d 503 (2d Dept. 1989); See, N.Y. INS. LAW 5108 (McKinney 2001); 11 NYCRR 68.01. In furtherance of New York State's cost control policy, the Superintendent of Insurance adopted the Official New York Workers' Compensation Fee Schedules prepared and used by the Worker's Compensation Board. 11 NYCRR 68.1[b]. The use of the chiropractic rate to reimburse acupuncturists has been repeatedly upheld by the Appellate Term. Great Wall Acupuncture P.C., v. Geico Ins. Co., 25 Misc. 3d 138A, 906 N.Y.S.2d 772 (App Term 2d Dept 2009); Great Wall Acupuncture P.C. v. Geico, 16 Misc. 3d 23, 842 N.Y.S.2d 131 (App. Term 2d and 11th Jud Dist 2007). Ground Rule 3 of the Physical Medicine Section of the Workers' Compensation Chiropractic Fee Schedule [aka "8 Unit Rule"] states: When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less. The following codes represent the physical medicine procedures and modalities subject to this rule: 97010 97012 97014 97024 97026 97028 97032 97033 97034 97035 97036 97039 97110 97112 97113 97116 97124 97139 97530 98940 98941 98942 Page 3/9
Respondent established it reimbursed First Class Medical for hot/cold pack (CPT 97010), electrical stimulation (CPT 97014) and massage (CPT 97124) performed on the same days as Applicant's chiropractic manipulation. The question presented herein is whether payments to one healthcare practitioner for 8 units of physical medicine treatments automatically precludes reimbursement to another treating healthcare provider for different treatments provided. The answer to this question turns on whether the initial treating practitioner was licensed to provide the physical medicine modalities in dispute but elected not to perform these services and then a second healthcare practitioner provided those services. Physical modalities may include the use of heat, cold, water, light, electricity, exercises, mechanical devices, massage and other manual therapy techniques. Licensed healthcare practitioners such as physicians, physical therapists, occupational therapists, massage therapists, and podiatrists, are trained and licensed to perform many if not all of these physical medicine services. Chiropractic medicine and acupuncture are not like traditional medicine as they are based upon different theories and therapies. Despite these differences acupuncturists may still perform some traditional physical medical services such as heat therapy. Clearly, the 8 Unit Rule should apply under the circumstance herein when a treating practitioner like First Class Medical is licensed to provide the physical medicine modality, heat therapy, but elects not to perform the service and another healthcare practitioner then provides these services. Only in the no-fault setting do you see a patient go to a physical therapist for electrical stimulation, ice packs, and exercises and the same day also see a massage therapist for massage, a chiropractor for manipulation along with neuromuscular education and acupuncturist for heat. In an effort to minimize their workload and increase their profits practitioners working together and out of the same facility inconvenience patients and reduce the limited funds available for other medically necessary services by having patients unreasonably treat with three to four different practitioners on the same day when the exact same treatments could have been provided by the initial healthcare provider. That said there is a scenario involving specialized skills and treatments in which the 8 Unit Rule should not be applied to limit reimbursement for certain treatments provided by a subsequent healthcare practitioner. Since its inception injured motorists have been granted extensive leeway in the type of practitioners and treatments they may utilize to treat their injuries. Clearly, the no-fault regulations were designed to allow injured individuals to utilize the services of acupuncturists, chiropractors and other non-traditional healthcare professionals. This intent should not be thwarted or limited by the 8 Unit Rule. So when a treating practitioner, like First Class Medical, is not licensed to provide a specific physical medicine modality such as chiropractic manipulation or acupuncture and licensed practitioner subsequently provides this service the 8 Unit Rule should not be imposed to bar recovery. An injured individual should never be precluded from Page 4/9
receiving subsequent non-traditional treatment such as chiropractic manipulation or acupuncture when the initial provider was neither licensed nor skilled in this service. However, this was not the case herein. Hence, Applicant's request for $176.72 additional reimbursement for the heat treatments provided to Assignor is denied. [2] Applicant finally seeks $1,744.24 reimbursement for the services provided to Assignor from December 2, 2015 through January 21, 2016. Respondent denied Applicant's requests for reimbursement based upon the opinion of chiropractor/acupuncturist Janice Salayka, D.C., L.Ac who examined Assignor on November 9, 2015 and opined Assignor's Qi stagnation and blood stasis had resolved and no further acupuncture treatment was necessary. Based upon this expert's report and conclusions Respondent terminated Assignor's acupuncture benefits effective November 24, 2015. Once Applicant established a prima facie case the burden shifted to Respondent to prove the treatments were not medically necessary. See Citywide Social Work & Psychological Services, PLLC a/a/o Gloria Zhune v. Allstate Ins. Co., 8 Misc. 3d 1025A, 806 N.Y.S.2d 444 (App. Term 1st Dept 2005); A.B. Medical Services, PLLC v. Geico Ins. Co., 2 Misc. 3d 26, 773 N.Y.S.2d 773 (App Term 2d & 11th Jud Dist 2003); Fifth Ave. Pain Control Center a/a/o Gladys Quintero v. Allstate Ins. Co, 196 Misc. 2d 801, 766 N.Y.S.2d 748 (Civ. Ct. Queens Co. 2003). "A denial premised on lack of medical necessity must be supported by competent evidence such as an independent medical examination, peer review or other proof which sets forth a factual basis and medical rationale for denying the claim." Healing Hands Chiropractic, P.C. a/a/o Cleeford Franklin v. Nationwide Assurance Company, 5 Misc. 3d 975, 787 N.Y.S. 645, (Civ. Ct NY Co. 2004). Dr. Salayka's report provides a sufficient factual basis and rationale for the opinion that the acupuncture services billed for after November 24, 2015 were not necessary and therefore established prima facie the acupuncture services billed for were not medically necessary. See Delta Diagnostic Radiology, PC v. Progressive Casualty Ins. Co., 21 Misc. 3d 142A (App Term 2d & 11th Jud Dist 2008); Crossbridge Diagnostic Radiology, PC v. Progressive Casualty Ins. Co., 20 Misc. 3d 143A (App Term 2d & 11th Jud Dist. 2008). Applicant did not submit any follow-up acupuncture reports detailing a comprehensive follow-up evaluation at or about the time of the IME on November 9, 2016. Applicant only submitted the initial evaluation dated August 27, 2015, a follow-up report dated January 8, 2016 and its treatment notes. Applicant's treatment notes make it difficult to ascertain why the additional acupuncture treatments were necessary. They do not adequately provide a record of the patient's health status in or about the IME examination including objective measurable observations, sufficient history, and prognosis. They do not provide sufficient evidence of the quality of patient care through a detailed description of the services provided to the patient and the patient's response, if any, to the care. Applicant should have presented comprehensive acupuncture follow-up reports describing Assignor's condition in detail and showing the acupuncture treatments provided were beneficial to Assignor and continuing the services was necessary. Page 5/9
Applicant's evidence did not meaningfully refer to, or discuss the determination of Respondent's expert. Pan Chiropractic P.C. v. Mercury Ins. Co., 24 Misc. 3d 136A (App Term, 2d, 11th & 13th Jud Dists 2009). See also Flushing Traditional Acupuncture, P.C. a/a/o AK v. GEICO Ins. Co, 36 Misc. 3d 156A, (App Term 2d Dept 2012); Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 907 N.Y.S.2d 436, (App Term, 2d, 11th & 13th Jud Dists 2010) It is ultimately Applicant who must prove, by a preponderance of the evidence, that the services in question were medically necessary. Dayan v. Allstate Ins. Co, 39 Misc.3d 151(A) (App. Term 2d, 11th & 13th Dists. 2015); Park Slope Medical and Surgical Supply, Inc. v. Travelers Ins. Co., 37 Misc.3d 19, 952 N.Y.S.2d 372. (App. Term 2d, 11th & 13th Dists. 2012) This was not done herein. Hence, it is determined the acupuncture treatments provided to Assignor after November 24, 2015 by Applicant were not medically necessary. Applicant's request for $1,744.24 reimbursement for the acupuncture services provided from December 2, 2015 through January 21, 2016 is denied and Respondent's denials are sustained. Accordingly, Applicant is only awarded $375.24 This award is in full disposition of all No-Fault benefit claims submitted to this arbitrator. 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: A. Page 6/9
Medical From/To Claim Amount Amount Amended Status Liberty Mutual Fire Insurance Company 08/27/15-01/21/16 Awarded: $8,048.95 $2,296.20 $375.24 Total $8,048.95 Awarded: $375.24 B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 06/30/2016, which is a relevant date only to the extent set forth below.) Since the motor vehicle accident occurred after Apr. 5, 2002, interest shall be calculated at the rate of two percent per month, simple, calculated on a pro rata basis using a 30-day month. 11 NYCRR 65-3.9(a). In accordance with 11 NYCRR 65-3.9(a), since no denial was issued, interest shall accrue on the claims totaling $375.24 as of the 30th day after the claim was presented by the claimant, [which is the date the claim should have been paid or denied by Respondent] and ends on the date the claim is paid. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below In accordance with 11 NYCRR 65-4.6(d), the insurer shall pay Applicant an attorney's fee equal to 20% of the total amount awarded in this proceeding plus interest, with NO MINIMUM FEE and the maximum fee capped at $1,360. 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 7/9
State of New York SS : County of New York I, Glen Wiener, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/26/2017 (Dated) Glen Wiener 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 8/9
ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 6230023c1bc97e988e8bc434c4c5817c Electronically Signed Your name: Glen Wiener Signed on: 05/26/2017 Page 9/9