ARBITRATION AWARD. Scott Lupiani, Esq. from Scott M. Lupiani, Esq. participated by telephone for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Elite Medical Supply of New York, LLC (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Michelle Murphy-Louden, 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 05/25/2017 Declared closed by the arbitrator on 05/25/2017 Scott Lupiani, Esq. from Scott M. Lupiani, Esq. participated by telephone for the Applicant Jason Ciani, Esq. from Law Office of Daniel Archilla participated by telephone for the Respondent The amount claimed in the Arbitration Request, $ 1,346.76, 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 Whether Applicant is entitled to reimbursement for the following as a result of injuries allegedly sustained in a July 30, 2013, motor vehicle accident: Lumbosacral orthosis ("LSO") dispensed on August 1, 2013; and Cervical traction unit dispensed on September 17, Respondent denied reimbursement based upon peer reviews. Page 1/13

2 The hearing in this matter was conducted using all of the documents contained within the ADR Center electronic case file maintained by the American Arbitration Association, thereby rendering said documents a part of the record of this hearing. This Award is based upon a review of all of the documents contained within the ADR Center electronic case file as of the date of the Award, as well as upon any oral arguments of the parties and any testimony given during the hearing. 4. Findings, Conclusions, and Basis Therefor Pursuant to 11 NYCRR (o)(1), the arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary. 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. RESPONDENT'S SUPPLEMENTAL SUBMISSION Pursuant to AAA's arbitration initiation letter dated December 18, 2015, Respondent's evidence submission in this matter was due by January 18, On January 13, 2016, Respondent's evidence submission was uploaded. On October 11, 2016, Justin Calabrese, Esq., of Rivkin Radler, uploaded a supplemental submission to the ADR Center electronic case file purportedly on behalf of Respondent. It is noted that in his cover letter, Mr. Calabrese did not state that Rivkin Radler was representing Respondent in this matter. Respondent's supplemental submission is being precluded from consideration in this matter for the following two reasons: First, Rivkin Radler was not the attorney of record for Respondent in this case. Second, Respondent's supplemental submission is grossly untimely. The "Rocket Docket" rules set forth in 11 N.Y.C.R.R (3) provide in relevant part: "(iii) The written record shall be closed upon receipt of the respondent's submission or the expiration of the period for receipt of the respondent's Page 2/13

3 submission. Documents submitted by either party after the record is closed shall be marked "Late". (iv) Any additional written submissions may be made only at the request or with the approval of the arbitrator." Respondent's arbitration submission was due January 18, 2016, and its original submission was received by AAA on January 13, 2016, thereby closing the written record at that time. Pursuant to the "Rocket Docket" rules, subsequent to the closing of the written record in this case Respondent was only entitled to make an additional written submission at my request or with my approval. I did not request Respondent's additional written submission of October 11, 2016, and Respondent did not seek my approval to submit same. Therefore, based upon all the foregoing, Respondent's supplemental submission of October 11, 2016, is precluded from consideration in this matter and as such my determination regarding Respondent's lack of medical necessity defense will be based only upon the evidence submitted by Respondent in its original arbitration submission of January 13, MEDICAL NECESSITY The 33 year old EIP was reportedly involved in a motor vehicle accident on July 30, 2013, when the vehicle in which she was the restrained driver was rear-ended while moving slowly. According to the records, immediately following the accident the EIP was transported by ambulance to Sisters of Charity Hospital where she presented reportedly complaining of 8/10 posterior neck and back pain. A past medical history significant for neck and back pain was reported. A cervical CT scan was performed with unknown results. Diagnosis is also unknown. On August 1, 2013, the EIP presented for initial chiropractic evaluation with Nicholas Abramo, D.C., reportedly complaining 9/10 neck and back pain with radiation of symptoms into the bilateral arms and bilateral legs. The EIP reported difficulty with normal ADL's. Examination reportedly revealed cervical and lumbar ranges of motion of 5 degrees in all planes, cervical and lumbar subluxations, positive Cervical Compression, Cervical Distraction, Shoulder Depression, bilateral Straight Leg Raise and bilateral Kemp's tests, 4/5 muscle strength throughout, and normal reflexes and Page 3/13

4 sensation. Dr. Abramo diagnosed the EIP in part with cervical and lumbar subluxations, cervical and lumbosacral disc displacement/herniation, and cervical and lumbosacral radiculopathy/radiculitis and recommended treatment 5 times per week for 4-8 weeks. By Prescription and Letter of Medical Necessity of this date Dr. Abramo also prescribed an LSO. On August 3, 2013, the EIP was treated and released from Sisters of Charity Hospital for a reported complaint of back pain radiating into the chest. On August 19, 2013, the EIP underwent a chiropractic re-evaluation performed by Heather Monin, D.C. Examination reportedly revealed significantly decreased cervical and lumbar ranges of motion in all planes, 5/5 muscle strength, intact sensation and symmetrical reflexes in the upper and lower extremities, and positive Cervical Compression, Cervical Distraction, Shoulder Depression, bilateral Straight Leg Raise and bilateral Kemp's tests. Dr. Monin recommended treatment 3 times per week. On September 5, 2013, the EIP presented for follow-up physiatric evaluation with Michael Calabrese, M.D., reportedly complaining of neck and low back pain 8/10 at present and 10/10 at worst the past week. The EIP reported that she continued to experience significant loss of range of motion and mobility, continued to experience loss of enjoyment, and performed her duties under duress. On September 12, 2013, the EIP underwent cervical and lumbar MRI's. The cervical MRI, compared to a prior study of 2010, reportedly showed slight increase of C6-C7 disc herniation, small paracentral to right disc protrusions at C4-C5 and C5-C6, and mild diffuse bulge at C3-C4. The lumbar MRI reportedly showed degenerative changes from L4 to S1 with associated disc hydration at L5-S1. On September 17, 2013, Dr. Monin prescribed a cervical traction unit. On September 18, 2013, the EIP was re-evaluated by Dr. Monin. Examination findings reported on this date were identical in all respects to those reported on August 19, RESPONDENT'S PEER REVIEWS On October 11, 2013, at the request of Respondent, Robert Sohn D.C., performed a peer review of the LSO. Dr. Sohn concluded that medical necessity had not been established for the device. Dr. Sohn opined: Page 4/13

5 " [T]his particular type of a custom-fitted lumbosacral support belt is described with a CPT code of This particular type of a custom-fitted lumbosacral support belt is described as a device, which is custom fitted from the area of the T9 vertebra down to the sacrococcygeal junction. This particular type of device is designed to immobilize and to restrict the area of that particular region. The description of this particular custom-fitted lumbosacral support belt is described as a lumbosacral orthosis, sagittal coronal control, with rigid anterior and posterior frames/panels, posteriorly extends from the sacrococcygeal junction to the T9 vertebra, lateral strength provided by rigid lateral frames/panels and produces intracavitary pressure to reduce load on the intervertebral discs, includes straps, closures, may include padding, shoulder straps, pendulous abdomen design, prefabricated, includes fitting and adjustments. Clearly, the chiropractor had indicated in the initial examination report that this claimant was to begin a course of acute chiropractic treatment consisting of manipulation. The primary goal of the chiropractic is the restoration of aberrant joint mobility through chiropractic manipulative therapy. It is the opinion of this examiner that the use of this particular type of custom-fitted lurnbosacral support belt was designed to restrict and to immobilize. Therefore, this would not be complimentary towards the treatment goals of chiropractic. Typically, according to several medical insurance companies including CIGNA Medical Coverage, a prefabricated LSO should be utilized prior to the consideration of a custom fitted spinal orthosis. This was noted ineffective on July 15, Similarly, the custom-fitted lumbosacral support belt is primarily designed for an individual when mobility restriction is necessary to alleviate pain of the spinal origin. It is designed primarily for individuals that are postoperative or post-injury to facilitate healing of the spine or related soft tissues as support for weak spinal musculature or a spinal deformity that significantly impacts the ability to perform activities of daily living activity. The spinal orthosis provides an external force to control spinal positions, applies corrective forces to abnormal curvatures, provides stabilization of spine structures when soft tissues cannot, and restricts spine movement after trauma. According to the Annals of Internal Medicine, entitled, Nonpharmacologic Therapies for Acute and Chronic Lower Back Pain: A Review of the Evidence for an American Pain Society/American College of Physicians Clinical Practice Guideline. 2007; Volume 147: pages In regards to the use of a lumbosacral support belt, apparently, 6 trials of lumbar supports for treatment of lower back pain were included in a High Quality Cochrane Review. The lower back pain of unspecified duration, the Cochrane Review found insufficient evidence from 1 small 30 patients, lower quality trial of 170 to assess efficacy of lumbar support compared with no lumbar support. It was also noted that apparently, there were no significant differences between the use of a lumbar support and spinal manipulation or transcutaneous muscle stimulation. Evidence from 3 lower quality trials was insufficient to determine efficacy of lumbar supports compared with other interventions. Page 5/13

6 According to the Guidelines based upon Chapter 12 of Lower Back Disorders Revised, 2007, of the Occupational Medicine Practice Guidelines, Second Edition, published and copyrighted by the American College of Occupational and Environmental Medicine. For lower back injuries, lumbar supports are not recommended for the prevention of lower back pain. In the treatment of lower back pain, lumbar supports are not recommended for treatment of lower back pain. They may be useful for specific treatment of spondylolysis, documented instability, or postoperative treatment in the absence of significant leg length discrepancy. The strength of evidence according to these guidelines is not recommended. According to the Center For Medicare and Medicaid Services, the definition of a custom-fitted lumbosacral support belt typically is used to immobilize the specified areas of a spine. It is to reduce pain by restricting mobility of the trunk. It is designed to facilitate healing following an injury to the spine or related soft tissue, to facilitate healing following a surgical procedure on the spine or related soft tissue, and to otherwise support weak spinal muscles and/or deformed spine. According to CIGNA Medical Coverage Policy, in regard to spinal orthotic devices, an unmodified prefabricated spinal orthosis should be utilized unless there is failure, contraindication, or intolerance to the device prior to consideration of a custom-fitted spinal orthosis. Similarly, a custom-fitted spinal orthosis should be utilized unless there is failure, contraindication or intolerance to the device prior to the consideration of a custom fabricated spinal orthosis. Custom-fitted orthosis may be required initially for conditions including but not limited to scoliosis management, a ter surgical stabilization of the spine following the traumatic injury and for unstable spinal fractures that are treated non operatively. Custom-fitted lurnbosacral support belts are designed when mobility restriction is necessary to alleviate pain of the spinal origin, postoperatively or post injury to facilitate healing of the spine or related soft tissue as support for weakened musculature or a spinal deformity that significantly impacts the ability to perform activities of daily living." On October 23, 2013, at the request of Respondent, Dr. Sohn performed a peer review of the cervical traction unit. Dr. Sohn concluded that medical necessity had also not been established for this device. Dr. Sohn opined: It was clear in the initial examination together with the consistent chiropractic treatment notes and the consistent physical therapy treatment notes that this claimant was already receiving an active course of both chiropractic manipulation and physical therapy that consisted of both strengthening and stretching exercises. Although the chiropractic evaluation did indicate flexion distraction technique was being administered, flexion distraction can be administered to both the areas of the lumbar spine and cervical spine. The Page 6/13

7 chiropractor was not clear in where the exact area of the flexion and distraction existed. However, it was also noted in the physical therapy treatment notes in a consistent basis in the cervical spine that the claimant was receiving both stretching and strengthening exercises. Therefore, it is the opinion of this examiner that the claimant was already receiving a supervised course of stretching as it relates to the cervical spinal region. From my chiropractic standpoint, however, cervical traction is considered a chiropractic manipulative technique. Typically, chiropractors detect and isolate specific areas ofsubluxation throughout the area of the cervical, thoracic and lumbar spine. Once this area of subluxation has been detected, the chiropractor's obligation is to attempt to correct the underlying subluxation through manipulation. The chiropractor had set forth in the initial examination as well as within the ongoing chiropractic treatment notes multiple modalities that were used in office as it relates to the correction of this underlying subluxation. Periodic follow-up evaluations did show that the claimant had been improving with the present course of treatment. Therefore, I could find no justification of why it would be necessary to prescribe a home unit cervical traction device. According to the New England Journal of Medicine, Volume 353, pages 392 through 399, July 28, 2005, No. 4, entitled, Cervical Radiculopathy. By definition, cervical radiculopathy is a neurologic condition characterized by dysfunction of the spinal nerves, the roots of the nerves or both. It presents with pain in the cervical spine with radiation of pain into 1 arm. There is a combination of sensory loss, loss of motor function and deep tendon reflex changes noted in the affected nerve root distribution. In this article, cervical traction consist of administering distractive force to the neck in order to separate the cervical segments and relieve compression on the nerve roots of the intervertebral discs. Various techniques are utilized to include supine versus sitting, intermittent versus sustained, motorized versus over the door pulley as well as durations in minutes versus up to hours had been recommended. A systematic review had stated that no conclusions could be drawn about the efficacy of cervical traction based on the poor methodologic quality of the available data. Exercise therapy to include range of motion exercises and aerobic conditioning followed by isometric and progressive resistive exercises typically are recommended once pain has subsided in order to reduce the risk of recurrence. Therefore, the use of the cervical traction unit has not been established as a chiropractic necessity and should not be allowed for payment. According to Aetna's Clinical Policy Bulletin regarding cervical traction devices updated 08/30/2011. Aetna considers pneumatic cervical traction devices for home use medically necessary durable medical equipment (DME) to alleviate pain caused by paravertebral muscle spasm when all of the following criteria are met: A) The member has completed a six-week course of physical therapy in the outpatient setting and still has pain; B) The member has failed medical therapy to Page 7/13

8 include oral anti-inflammatory medications, muscle relaxants; C) The doctor prescribes 20 pounds or more of home cervical traction; and D) Either the member has failed a trial of over-the-door cervical traction or the member has TMJ disease, which may become worse with over-the-door cervical traction; or the member has distortion of the neck or chin; or the member has had a series of trials of this device in the outpatient setting before being sent home with one; and the home therapy is being supervised by a physical therapist. Furthermore, according to the multicenter randomized clinical study, Young, et al., 2009, examined the effects of manual therapy and exercise, with or without the addition of cervical traction, on pain, function, and disability in claimants with cervical radiculopathy. The authors concluded that these findings suggested that the addition of mechanical cervical traction to a multimodality treatment program of manual therapy and exercises yield no significant additional benefit to pain, function, or disability in claimants with cervical radiculopathy. It was also noted that Van Zundert, et al., 2010, remarked that Cochrane reviews (citing Graham, et al., 2008, and Haines, et al., 2009) did not find sufficient proof of efficacy for either education or cervical traction." Based upon Dr. Sohn's opinions, Respondent denied Applicant's claims. ANALYSIS Once an applicant has established a prima facie case of entitlement to No-Fault benefits, the burden then shifts to the insurer to prove that the disputed services were not medically necessary. To meet this burden, the insurer's denial(s) of the applicant's claim(s) must be based on a peer review, IME report, or other competent medical evidence that sets forth a clear factual basis and a medical rationale for the denial(s). Amaze Medical Supply, Inc. v. Eagle Ins. Co., 2 Misc. 3d 128A (App. Term, 2 nd Dept., 2003); Tahir v. Progressive Cas. Ins. Co., 12 Misc. 3d 657 (N.Y.C. Civ. Ct., N.Y. Co., 2006); Healing Hands Chiropractic, P.C. v. Nationwide Assurance Co., 5 Misc. 3d 975 (N.Y.C. Civ. Ct., N.Y. Co., 2004); Millennium Radiology, P.C. v. New York Cent. Mut., 23 Misc. 3d 1121(A) (N.Y.C. Civ. Ct., Richmond Co., 2009); Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co., 27 Misc. 3d 1218(A) (N.Y.C. Civ. Ct., Kings Co., 2010); All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 34 Misc. 3d 1219(A) (N.Y.C. Civ. Ct., Kings Co., 2012). LSO: I find that Dr. Sohn's October 11, 2013, peer review sets forth a clear factual basis and a medical rationale for Respondent's denial of Applicant's claim for the LSO in dispute herein and as such I find that Respondent has established a lack of medical necessity for same. Page 8/13

9 When an insurer, through a peer review, presents sufficient evidence establishing a lack of medical necessity, the burden then shifts back to the applicant to present its own evidence of medical necessity. West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co., 13 Misc. 3d 131(A) (App. Term, 2 nd Dept., 2006); Alfa Medical Supplies v. Geico General Ins. Co., 38 Misc. 3d 134(A) (App. Term, 2 nd Dept., 2013). In rebuttal to Dr. Sohn's peer review, Applicant submitted a January 19, 2015, letter from Dr. Abramo in which he stated that the LSO relieved the EIP's pain thereby promoting activity "which begat further improvements in strength and function. This sped recovery and helped ensure my patient would return to normal functioning." Dr. Abramo's statement is not supported by the records. On August 1, 2013, Dr. Abramo found that the EIP had only 5 degrees in all planes of lumbar range of motion. On re-evaluation by Dr. Monin on August 19, 2013, and September 18, 2013, only lumbar flexion had increased but only to 15/90 degrees. The remaining planes of motion were unchanged at 5 degrees. In addition, there was no change in the EIP's positive lumbar orthopedic test findings from initial examination through September 18, Further, on September 5, 2013, the EIP reported to Dr. Calabrese a pain level of 8/10 with 10/10 at worst. The EIP also reported to Dr. Calabrese that she continued to experience significant loss of range of motion and mobility, continued to experience loss of enjoyment, and performed her duties under duress. As noted by Dr. Sohn, Dr. Abramo's initial treatment plan was to restore mobility of the EIP's spine through manipulation therapy. It is clear that Dr. Abramo sought to do so aggressively, as he recommended treatment 5 times per week. It would appear then that Dr. Abramo's primary goal was to encourage movement of the EIP's spine. The use of such a restrictive LSO as the one prescribed herein is not complimentary to that goal as opined by Dr. Sohn. Therefore, based upon the foregoing, Respondent's denial of Applicant's claim for the LSO is upheld. Cervical Traction Unit: I find that Dr. Sohn's October 23, 2013, peer review fails to set forth a clear factual basis and a medical rationale for Respondent's denial of Applicant's claim for the cervical traction unit in dispute herein and as such I find that Respondent has failed to establish a lack of medical necessity for same. Dr. Sohn's allegation that the EIP was improving with her present course of treatment which included chiropractic and physical therapy is not supported by the submitted records. Page 9/13

10 Although Dr. Monin's re-evaluation report of August 19, 2013, showed some improvement in all planes of cervical range of motion, these findings were unchanged as of September 18, In addition, there was no change in the EIP's positive cervical orthopedic test findings from initial examination through September 18, Further, on September 5, 2013, the EIP reported to Dr. Calabrese a pain level of 8/10 with 10/10 at worst Contrary to Dr. Sohn's allegation, the records indicate that despite the cervical stretching the EIP was undergoing in-office as administered by her treating chiropractors and physical therapist her cervical injury was not improving. As such, I find Dr. Sohn's opinion regarding the cervical traction unit unpersuasive. Therefore, based upon the foregoing, Respondent's denial of Applicant's claim for the cervical traction unit cannot be upheld. ACCORDINGLY, APPLICANT IS AWARDED THE AMOUNT OF $ TOGETHER WITH INTEREST, ATTORNEY'S FEE, AND FILING FEE AS SET FORTH BELOW. THE REMAINDER OF APPLICANT'S CLAIM IS DENIED IN ITS ENTIRETY. 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 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. Medical From/To Claim Amount Status Page 10/13

11 Elite Medical Supply of New York, LLC 08/01/13-09/17/13 Awarded: $1, $ Total $1, Awarded: $ B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 12/18/2015, which is a relevant date only to the extent set forth below.) Pursuant to 11 N.Y.C.R.R (a), the insurer shall calculate interest at the rate of two percent per month, simple, calculated on a pro rata basis using a 30-day month. Pursuant to 11 N.Y.C.R.R (c), if an applicant does not request arbitration or institute a lawsuit within 30 days after receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken. Since Applicant herein did not request arbitration within 30 days of receipt of the denial of claim form, Respondent shall pay interest from the date the arbitration was commenced as set forth above to the date of payment of the Award in accordance with 11 N.Y.C.R.R (c). C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below The insurer shall pay the Applicant an attorney's fee in accordance with 11 N.Y.C.R.R (d) as Amended by the Sixth Amendment to Regulation 68 effective February 4, 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 11/13

12 State of New York SS : County of Erie I, Michelle Murphy-Louden, 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) Michelle Murphy-Louden 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 12/13

13 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 454f4e6bccb938d3f5044d99bc1579fe Electronically Signed Your name: Michelle Murphy-Louden Signed on: 05/26/2017 Page 13/13