ARBITRATION AWARD. Ryan Berry, Esq. from Israel, Israel & Purdy, LLP participated in person for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Phoenix Medical Services P.C. (Applicant) - and - State Farm Fire and Casualty Company (Respondent) AAA Case No Applicant's File No Insurer's Claim File No. 326M64007 NAIC No ARBITRATION AWARD I, Philip Wolf, 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 04/28/2017 Declared closed by the arbitrator on 04/28/2017 Ryan Berry, Esq. from Israel, Israel & Purdy, LLP participated in person for the Applicant Mark Zemzik, Esq. from Picciano & Scahill, P.C. participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 10,609.20, was AMENDED and permitted by the arbitrator at the oral hearing. Counsel for Applicant reduced the amount in dispute to $8, in accordance with Respondent's fee audit. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute Assignor, a 22 year-old male, was the driver of a motor vehicle which was involved in an accident on May 26, As a result of the accident Assignor sustained injuries to his neck and back. On January 11, 2016, Applicant performed a lumbar percutaneous discectomy on Assignor. Respondent issued a timely denial predicated upon a peer Page 1/6

2 review. The issue in dispute is whether Respondent has established its lack of medical necessity defense. 4. Findings, Conclusions, and Basis Therefor Applicant is seeking a total of $8, for a lumbar percutaneous discectomy performed on January 11, This award is rendered upon the oral arguments of both parties and upon the documentary evidence submitted by both parties. The documentary evidence submitted by the parties consists of the documents contained within the ADR Center for this matter as of May 20, Applicant's Prima Facie Case Assignor was the driver of a motor vehicle which was involved in an accident on May 26, As a result of the accident Assignor sustained injuries to his neck and lower back. Assignor underwent a conservative course of treatment which included chiropractic treatment, acupuncture and physical therapy. On June 28, 2015, Assignor underwent an MRI of the lumbar spine which revealed disc bulges at L4-5 and L5-S1. Assignor presented to Applicant on December 10, 2015 with complaints of neck pain and radiating low back pain. Physical exam yielded positive findings with respect to Assignor's cervical spine and lumbar spine. After examination, Dr. Jones's assessment was lumbar intervertebral disc displacement, cervical disc displacement and cervical and lumbar radiculopathy. Doctor Jones recommended continued physical therapy and medication. On January 11, 2016, Dr. Jones performed a follow-up exam. At the time of the follow-up exam, Assignor complained of radiating lower back pain and neck pain. Doctor Jones performed a lumbar percutaneous discectomy pre-op exam. After performing his exam, Dr. Jones recommended that Assignor undergo a lumbar percutaneous discectomy because conservative treatment only provided short term, partial relief and "the low back pain and radicular symptoms returned to its baseline." On January 11, 2016, Applicant performed a lumbar percutaneous discectomy at the L4-5 and L5-S1 levels. Applicant has submitted a copy of the operative report. After reviewing the evidence submitted by Applicant, I find that Applicant has submitted sufficient credible evidence to establish a prima facie case with respect to the lumbar percutaneous discectomy performed on January 11, See, Viviane Etienne Med. Care v. Country-Wide Ins. Co., 25 N.Y.3d. 498, 2015 NY Slip Op 04787, (2015). Respondent's Peer Review Defense Page 2/6

3 Respondent issued a timely denial predicated upon a peer review conducted by Joseph C. Cole, M.D. Doctor Cole opined that the lumbar percutaneous discectomy and related services were not medically necessary. In reaching his opinion, Dr. Cole does cite/reference to medical authority in compliance with the requirements set forth in Jacob Nir, M.D. a/a/o Josapphat Etienne v. Allstate Ins. Co., 7 Misc. 3d 544, 796 N.Y.S.2d 857 (Civ. Ct. Kings Co. 2005) and CityWide Social Work & Pychological Services, P.L.L.C. a/a/o Tremayne Brow v. Travelers Indemnity Company, 3 Misc. 3d 608, 777 N.Y.S.2d 241 (Civ. Ct. Kings Co. 2004). Doctor Cole noted that a chiropractic reexamination dated September 25, 2015 "indicates normal lumbar motion, the claimant can toe and heel walk, provocative testing with the exception of bilateral Kemp's is negative and the neuromuscular exam is intact." Doctor Cole noted that an October 29, 2015 exam report stated that "claimant's lower back pain is improving. The claimant still has some discomfort. The lumbar exam is grossly normal." "Based on the present evidence, percutaneous adhesiolysis is recommended in patients with post lumbar surgery syndrome and lumbar central spinal stenosis after failure of conservative management of physical therapy, chiropractic, drug therapy, structured exercise program and fluroscopically directed epidural injections. Based on the review of records the criteria have not been met." "The claimant's subjective complaints outweigh the MRI abnormalities and objective findings. The claimant's continued care with chiropractic and pain management and ultimately the percutaneous discectomy was not causally related or medically necessary..." In addition, Dr. Cole states that "percutaneous discectomy, laser discectomy and disc colblation therapy are not recommended as treatment for any back or radicular pain syndrome. Percutaneous intradiscal electrothermal therapy is considered investigational and not medically necessary." Doctor Cole states that literature does not support the clinical efficacy of the procedure. Applicant Rebuttal On April 27, 2017, less than a day prior to the hearing in this matter, Applicant made a supplemental submission and uploaded a peer review rebuttal. Pursuant to 11 NYCRR (b)(3)(iii), Respondent's submissions were marked "late." In accordance with 11 NYCRR (b)(3)(iv), any additional written submission may be made only at the request or with the approval of the arbitrator. Page 3/6

4 Respondent made its submission on June 15, 2016 and Respondent's submission contained the subject peer review. Applicant waited more than ten (10) months to submit a rebuttal to the peer review and did so less than 24 hours prior to the hearing in this matter. I find that it was highly prejudicial to Respondent and extremely inappropriate for Applicant to make a supplemental submission on April 27, 2017, less than 24 hours prior to the hearing in this matter. Accordingly, Applicant's April 27, 2017 supplemental submission, containing the peer review rebuttal, is not approved and is precluded pursuant to 11 NYCRR (b)(3)(iv). Determination of Medical Necessity Where Respondent has presented sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to the Applicant, which must present its own evidence of medical necessity and/or rebuttal to Respondent's peer review. See, A. Khodadadi Radiology, P.C. v. Central Mutual Fire Ins. Co., 2007 NY Slip Op 51342U, 16 Misc. 3d 131A (2nd Dept. 2007). Applicant has failed to submit any evidence to refute Dr. Cole's statement questioning the efficacy of the lumbar percutaneous discectomy procedure. Applicant has failed to submit any evidence to refute Dr. Cole's opinion that Assignor did not meet the criteria for performing the subject lumbar percutaneous discectomy. The September 25, 2015 follow-up chiropractic exam referenced by Dr. Cole documents non-radiating low back pain, documents completely normal range of motion in Assignor's lumbar spine and documents a normal neurological exam. As noted by Dr. Cole, the October 29, 2015 follow-up exam performed by Maria Ciechorska, M.D. noted that Assignor's lower back pain was improving. Doctor Ciechorska's diagnosis with respect to the lumbar spine was limited to "low back pain." Based upon the foregoing, and after reviewing the evidence, I find that Applicant has failed to submit sufficient credible evidence to rebut Dr. Cole's peer review. I am persuaded by the opinion of Dr. Cole, and his rationale for said opinion, and find that Applicant has failed to establish the medical necessity for the lumbar percutaneous discectomy performed on January 11, Applicant's claim is denied in its entirety. DECISION: Based upon the foregoing, Applicant's claim is denied its entirety. 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, Page 4/6

5 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 Suffolk I, Philip Wolf, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/20/2017 (Dated) Philip Wolf 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: 4ef2a725c1ac7d3f39a86997b3cc4100 Electronically Signed Your name: Philip Wolf Signed on: 05/20/2017 Page 6/6