ARBITRATION AWARD. Nicole Jones, Esq. from The Morris Law Firm, P.C. participated by telephone for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Munroe Chiropractic PC (Applicant) - and - Allstate Property and Casualty Insurance Company (Respondent) AAA Case No Applicant's File No Insurer's Claim File No AJ NAIC No ARBITRATION AWARD I, Kent Benziger, 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: V.L. Hearing(s) held on 08/11/2017 Declared closed by the arbitrator on 08/11/2017 Nicole Jones, Esq. from The Morris Law Firm, P.C. participated by telephone for the Applicant Brian Kratenstein, Esq. from Peter C. Merani Esq. participated by telephone for the Respondent The amount claimed in the Arbitration Request, $ 2,905.53, 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 1) Whether the Applicant/Provider, Munroe Chiropractic PC, has made a prima facie showing of necessity for a physical therapy modality and spinal decompression procedures administered from January 4, 2016 to February 3, 2016; 2) Whether the Respondent has established lack of chiropractic necessity for the treatment based on the health service examination of Dr. Michael Cardamone, D.C. and Dr. Steven Hausmann. This hearing was conducted using the electronic case folder maintained by the American Arbitration Association. All documents contained in that folder are made part of the Page 1/11

2 records of this hearing. I have reviewed the documents contained in the electronic case folder as of the date of this award as well as any documents submitted upon continuance of the case. Any documents submitted after the hearing that have not been entered in the electronic case folder as of the date of this award will be listed immediately below and forwarded to the American Arbitration Association at the time this award is issued for inclusion in said case folder. 4. Findings, Conclusions, and Basis Therefor On October 8, 2014, the Assignor/Eligible Injured Party, 42-year-old female, was, by history, involved in a motor vehicle accident. Following the accident, the Assignor waited two hours and was evaluated at a MASH urgent care where she was given a muscle relaxer and anti-inflammatory with a referral to Buffalo Sport and Spine. The Assignor did have a previous back injury eight to nine years earlier slipping on ice. She commenced chiropractic care. Through a November 3, 2014 office note from the Applicant/Provider, Dr. Aaron Mierzwa found the Assignor rated her pain an eight primarily bilaterally in the lower back. On examination, range of motion was significantly restricted in the lumbar spine with positive findings on the following tests: Minor's sign, Kemp's, Straight leg test, Nachla's test, Ely's and Yeoman's. The diagnosis included cervicocranial syndrome, somatic dysfunction and sprain/strains in the lumbar region and thoracic or lumbar neuritis or radiculitis. The Assignor commenced chiropractic treatment. On October 23, 2014, a lumbar MRI was performed which was interpreted as revealing degenerative changes predominantly at L5-S1 with mild right neural foraminal narrowing. On April 30, 2015, the Assignor was evaluated with Dr. Anthony M. Leone, M.D. She had been treating with Munroe chiropractic and stated she was improving over the last three months. She reported pain as 6/10. On examination, range of motion was limited with forward flexion 75 degrees with pain in the midline in the low back and extension - 15 degrees. The assessment was of lumbar spondylosis without myelopathy, intervertebral disc degeneration and lumbago. Through a July 8, 2015 treatment note, the Assignor still complained of pain rated seven and that she feels better with chiropractic adjustment. The Assignor reported lumbar pain and numbness and tingling in the bilateral lower extremity. On examination, the Assignor's range of motion was as follows: flexion -30/60, extension -10/25, latera flexion -10/25, restricted right rotation -13/25 and left rotation -10/25. Numerous chiropractic and orthopedic signs were still present. The diagnosis was for lumbar disc Page 2/11

3 displacement without myelopathy and somatic dysfunction The treatment plan included decompression at Level 5, three times a week for eight weeks. Through an August 12, 2015 treatment note, the Assignor rated his pain as six on a scale of ten. The Assignor reported lumbar pain and numbness and tingling in the bilateral lower extremity On examination, the Assignor's range of motion was as follows: flexion -42/60, extension -19/25, right lateral flexion -19/25, left lateral flexion - 18/25, right rotation -20/25 and left rotation -22/25. On examination, the Minor's rising AND Kemp's signs sign were no longer present or positive. The diagnosis was for lumbar disc displacement without myelopathy and somatic dysfunction The treatment plan included decompression at Level 5, three times a week for eight weeks. Through an October 12, 2015 treatment note, the Assignor rated his pain as five on a scale of ten. The Assignor reported lumbar pain and numbness and tingling in the bilateral lower extremity. On examination, the Assignor's range of motion was as follows: flexion -50/60, extension -23/25, right lateral flexion -24/25, left lateral flexion - 22/25, right rotation -25/25 and left rotation -25/25. On examination, the Minor's rising sign was no longer present. Through a December 21, 2015 treatment note, the Assignor rated his pain as five on a scale of ten. The Assignor reported lumbar pain and numbness and tingling in the bilateral lower extremity. On examination, the Assignor's range of motion was as follows: flexion -36/60, extension -14/25, right lateral flexion -15/25, left lateral flexion - 13/25, right rotation -15/25 and left rotation -8/25. On examination, the Minor's rising and Kemps signs were no longer present. Straight leg raising was also negative bilaterally. Through a February 15, 2016 treatment note, the Assignor rated his pain as three on a scale of ten. The Assignor reported lumbar pain and numbness and tingling in the bilateral lower extremity. On examination, the Assignor's range of motion was as follows: flexion -55/60, extension -25/25, right lateral flexion -24/25, left lateral flexion - 24/25, right rotation -25/25 and left rotation -25/25. On examination, the Minor's rising and Kemps signs were no longer present. Straight leg raising was also negative bilaterally as was the Slump and Yeoman's test. Again, the treatment in dispute was from January 4, 2016 to February 3, The Respondent issued denials for the treatment based on the independent medical examination of Dr. Michael Cardamone, D.C. and Dr. Steven Hausmann. In this proceeding, the treatment for the month of January 2016 was denied based on the IME of Dr. Hausmann; while the February treatment was denied based on the IME of Dr. Michael Cardamone. Page 3/11

4 IME. On June 23, 2015, the Assignor was examined at the Respondent's request by Dr. Michael Cardamone, D.C. At the time of the exam, the Assignor complained of pain across the lumbosacral junction and pain radiating to the left thigh. On examination, the Assignor's had a normal neurological exam as to sensory evaluation, muscle testing and reflexes. Straight leg raising was unremarkable; while the Kemp's test provoked pain across the left side of the lower back. The Spina percussion test provoke lumbar pain. Range of motion in the lumbar spine was as follows: Flexion -61/60-90, extension -25/15 and left and right lateral bending 22/25. The diagnosis was of a lumbar sprain/strain with associated discopathy, resolving. Dr. Cardamone found a causal relationship between the accident and the injuries. He found the Assignor could work with a restriction of no lifting over 25 pounds and to avoid bending and twisting at the waist. He noted there has been no change or improvement with additional treatment and Dr. Cardamone found her condition had reached an end result of chiropractic care. He found no necessity for further chiropractic care and related benefits. Based on the exam, the Respondent terminated those benefits as of July 8, On July 13, 2015, the Assignor was examined at the Respondent's request by Dr. Steven Hausmann, an orthopedic. At the time of this exam, the Assignor stated that the Carrier had terminated her chiropractic treatment and she was upset because it was the only thing that seemed to help her pain and got her by. At the time of the exam, the Assignor complained of pain in her back and burning in her left leg. On examination, the Assignor had tenderness in the lumbar area. Range of motion was as follows: right and left rotation - 70 degrees, flexion - 40 degrees, extension - 70 degrees. In the lumbar spine, range of motion showed flexion - 45 degrees, extension - 20 degrees, side bending - 30 degrees and rotation - 40 degrees along with tenderness and spasm in the lower back. The neurological exam was normal except for what may have been some diminished findings in the left Achilles reflex. The diagnoses was of lumbar strain - resolved and persistent low back pain, unresolved. Dr. Hausmann found the Assignor continued to have symptoms in the lower extremities, but he opined that testing did not show any evidence of radiculopathy or compressive disc lesions He found the Assignor was not a surgical candidate. From his review of an MRI he opined that it suggested she had spondylosis which could be an arthritic or degenerative condition, which may have been asymptomatic prior to the accident. He questioned the Assignor's prescription of hydrocodone and suggested that a primary care practitioner should supervise her withdrawal. He found no necessity for surgery, further orthopedic evaluation, physical therapy or related benefits. Based on the exam, the Carrier terminated all orthopedic, physical therapy, physical medicine, massage therapy, pain management and prescription medication as of August 3, Page 4/11

5 Analysis. A presumption of medical necessity attaches to a Respondent's admission of the Applicant's timely submission of proper claim forms, and the burden then switches to the Respondent to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 N.Y. Slip Op U; 2007 N.Y. Misc. LEXIS 7860 (Dist. Ct. Nassau Co. 12/3/2007); A.B. Medical Services, PLLC v. N.Y. Central Mutual Fire Ins. Co., 7 Misc. 3d 1018(a), 801 N.Y.S.2d 229 (Civil Ct. Kings Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc.3d 608, 609 (Civil Ct. Kings Co. 2004). Respondent thus bears "both the burden of production and burden of persuasion with respect to the medical necessity of the treatment or testing for which payment is sought". See: Bajaj v. Progressive Ins. Co. 14 Misc.3d 1202(A) (N.Y.C. Civ. Ct 2006). The quantum of proof necessary to meet Respondent's burden, at the bare minimum, is to "establish a factual basis and medical rationale for the lack of medical necessity of Applicant's services. Id. See also: A.B. Medical Services, supra. As to treatment including chiropractic care, the Respondent must document that the treatment was no longer benefiting the claimant and was not providing curative or significant and quantifiable palliative benefits. Hobby v. CNA Ins. Co., 267 A.D.2d 1084, (4 Dept., 1999). As a finding of fact, Dr. Cardamone's examination is not persuasive to terminate benefits. He found positive findings and concluded that the Assignor's had a resolving lumbar sprain. He concluded that the Assignor had reached an "end result". The reports of the treating providers also noted positive clinical findings as to reduced range of motion and positive orthopedic and chiropractic findings. In addition, the reports document both the curative and palliative benefits of the treatment. From July to August of 2015, the reports from Munroe chiropractic document increases in range of motion and a decrease in positive clinical findings. The reports also establish the palliative benefits as to decrease in pain and permitting the Assignor to enjoy her activities of daily living. Again, the reports of the treating provider are more credible. There is no authority for denying No-Fault benefits in the basis of an injured party's having reached maximum medical improvement where she has met her burden of establishing that treatment continues to be necessary. Hobby v. CNA Ins. Co., 267 A.D.2d 1084 (4th Dept. 1999). Similarly, Dr. Hausmann's report is somewhat candid but not persuasive to terminate benefits. He noted the Assignor spoke about the specific palliative benefits of the chiropractic treatment. Dr. Hausmann measured range of motion of the cervical and lumbar spine, but failed to state the normal ranges of motion. He also noted possible diminished reflexes in the left Achilles reflex and that the MRI suggested degenerative changes which may have been asymptomatic prior to the accident. He opined that the Assignor had persistent unresolved low back pain, but failed to clarify why, in light of these findings, no further physical therapy or pain management treatment was warranted. Again as noted, neither examinations of Drs. Cardamone or Hausmann are persuasive. Page 5/11

6 Fee Schedule Analysis. Pursuant to the Fourth Amendment effective April 1, 2013 to 11 NYCRR (g)(1), the Applicant fees cannot exceed the charges permission be pursuant to the Insurance Law 5108 which would incorporate the Workers Compensation Fee Schedule. The Applicant was providing spinal decompression using equipment the Integrity Care System. This was billed using CPT which is a "by report" code, and billed at $ per treatment. This arbitrator shall discuss the two methods for billing for this treatment. In numerous cases, Respondent's argued to recode the procedure to CPT According to the November 2004 CPT Assistant article "Vertebral Axial Decompression Therapy," the proper code for spina decompression should be (Application of a modality; traction, mechanical). The article states, "code would be the most appropriate code to report for the various types of mechanical traction devices (e.g., computerized/ motorized) including vertebral axial depression." This arbitrator is also guided by the sound judgment and reasoning of my fellow arbitrator in the following decisions: Munroe Chiropractic PC v. Geico, AAA Case No (Michelle Murphy-Louden, November 16, 2016); Munroe Chiropractic PC v. Geico AAA Case No (Arb Gillian Brown, November 16, 2016); Munroe Chiropractic PC. v. Geico, AAA Case No (Arb. Mona Bargnesi). The analysis of Arbitrator Michelle Murphy-Louden in Munroe Chiropractic, P.C. v. Geico, (May 16, 2016) is persuasive in finding that the Integrity Spinal Care System utilized Vertebral Axial Depression and should be coded as traction under CPT Arbitrator Murphy-Louden quoted the following definition and recommendations from the November 2004 CPT Assistant: Vertebral axial depression therapy is an alternative, noninvasive, nonsurgical procedure of applying traction to the spine. It can be used in the treatment of several conditions, including low back pain associated with lumbar disc herniation on, degenerative disc disease, posterior facet syndrome, and radiculopathy. The objectives of vertebral axial depression therapy are the relief of disabling low back pain and return to normal functioning in patients with lumbar disc disease. The vertebral axial depression and therapeutic table is a fully automated, computerized system with a split-table design and a tensionometer mounted on the caudal, moveable section. The patient wears a pelvic harness that is fastened around the pelvic girdle and is connected to a tensionometer by straps attached to the harness. The patient lies in a prone position and grasps handgrips to restrain movement of the upper body, which is supported on the fixed section of the table. The caudal end of the table, which supports the lower body, slowly extends, applying a distraction force via the pelvic harness connected to the tensionometer. The health care Page 6/11

7 professional at the control console determines the level of applied tension. The movement of the table is stopped and held when the desired tension is reached. A cycle of one minute of distraction is alternated with 30 seconds of rest. Opinions differ on the average number of sessions required to reach the desired outcome. With any intervention, the length of the episode of care is partially dependent on the patient's response to treatment. CPT code 97012, Application of a modality to one or more areas; traction, mechanical, is intended to identify a procedure that creates a force to allow for separation between joint surfaces. The degree of traction is controlled through the amount of force (pounds or Newtons) allowed, duration (time), and angle of pull (degree) using mechanical means. Therefore, code would be the most appropriate code to report for various types of mechanical traction devices (eg, computerized/motorized) including vertebral axial depression. However, in this instance, the Respondent did not argue to re-code the treatment from CPT to CPT The Applicant has submitted an affidavit from Imecca Welsh, CPC which states that the Applicant has failed to substantiate its "By Report" code. In the numerous linked cases, the Respondent has submitted different fee audits in the different cases. As to this audit, this arbitrator is not persuaded that the Coder proof that the Applicant failed to comply with the Ground Rules for "By Report" or assigning comparable relative value units to CPT In sum as to these contentions, the Respondent has the burden to come forward with competent evidentiary proof to support its defenses. Robert Physical Therapy PC v. State Farm Mutual Auto Ins. Co, 13 Misc.3d 172 (Civil Ct, Kings Co. 2006). The Coder correctly contends that CPT (as well as 97012) and the additional modality of CPT are all subject to the Chiropractic Ground Rule Three which limits reimbursement to eight relative value units which in this region would be $ This determination does not involve any interpretation, but instead a straight plain reading of the fee schedule. Therefore, even a "By Report" code for the decompression therapy is subject to the eight-unit rule indicating that the maximum permitted to be charged is $ Further, Respondent, through this Coder, also correctly contends that the for the two evaluations performed on the same day as the spinal decompression, the Applicant is limited to billing 11 RVUs or a total of $51.15 per day. Therefore, the Applicant is awarded reimbursement of $483,60 for 13 sessions of spinal decompression and one dates of office evaluations and spinal decompression ($51.15) or a total of $ Pursuant to 11 NYCRR (o)(1)(i)(ii), an arbitrator is the judge of the relevance and materiality of the evidence offered. Interest. The insurer shall compute and pay to the Applicant the amount of interest from the filing date of the Request for Arbitration, at a rate of 2% per month, simple interest Page 7/11

8 (i.e. not compounded) using a 30-day month and ending with the date of payment of the award, subject to the provisions of 11 NYCRR (c). Attorney's Fees. As said case was filed on or after February 4, 2015, Applicant is awarded attorney's fees for the total amount of first party benefits awarded. Pursuant to 11 NYCRR (c)(e), the Applicant is awarded 20 percent of the amount of the first party-benefits, with no minimum fee and a maximum $1, which is the total amount awarded one Applicant in one action from one provider. See: LMK Psychological Services, P.C. v. State Farm Mut. Auto Ins. Co., 46 A.D.3d 1290; 849 N.Y.S.2d 310 (3 Dept. 2007). APPLICANT IS AWARDED REIMBURSEMENT OF $534.75, TOGETHER WITH INTEREST AND ATTORNEY'S FEES. 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 Munroe Chiropractic 01/04/16-02/03/16 Awarded: $2, $ Total $2, Awarded: $ Page 8/11

9 B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 06/02/2016, which is a relevant date only to the extent set forth below.) Interest. The insurer shall compute and pay to the Applicant the amount of interest from the filing date of the Request for Arbitration, at a rate of 2% per month, simple interest (i.e. not compounded) using a 30-day month and ending with the date of payment of the award, subject to the provisions of 11 NYCRR (c). C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below Attorney's Fees. As said case was filed on or after February 4, 2015, Applicant is awarded attorney's fees for the total amount of first party benefits awarded. Pursuant to 11 NYCRR (c)(e), the Applicant is awarded 20 percent of the amount of the first party-benefits, with no minimum fee and a maximum $1, which is the total amount awarded one Applicant in one action from one provider. See: LMK Psychological Services, P.C. v. State Farm Mut. Auto Ins. Co., 46 A.D.3d 1290; 849 N.Y.S.2d 310 (3 Dept. 2007). 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. State of New York SS : County of Erie I, Kent Benziger, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 09/04/2017 (Dated) Kent Benziger IMPORTANT NOTICE This award is payable within 30 calendar days of the date of transmittal of award to parties. Page 9/11

10 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 10/11

11 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 4caca4d5f7c e037f431c974 Electronically Signed Your name: Kent Benziger Signed on: 09/04/2017 Page 11/11