1. 2. 3. 4. American Arbitration Association New York No-Fault
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American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Sky Of NY 1, Inc AAA Case No. 17-17-1082-6938 (Applicant) Applicant's File No. GS-589098 - and - Insurer's Claim File No. 0593142340101024 NAIC No. 22055 Geico Insurance Company (Respondent) ARBITRATION AWARD I, Steven Greif, 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: IP. 1. Hearing(s) held on 07/03/2019 Declared closed by the arbitrator on 07/03/2019 Joseph Padrucco from Law Offices Of Gabriel & Shapiro, LLC. participated in person for the Applicant Justin Addison from Geico Insurance Company participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 1,881.37, was NOT AMENDED at the oral hearing. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute Did the respondent prove the lack of medical necessity of the various items of durable medical equipment ("DME") provided to the IP on June 28, 2017? 4. Findings, Conclusions, and Basis Therefor The IP was a 23 year-old man when he was injured in a car accident on June 13, 2017. On June 21, 2017 the IP saw Dr. Radha Gara, MD, who prescribed nine items of DME for the IP. The items included a bed board, a mattress, a cervical collar, a cervical Page 1/7 4. orthopedic pillow, a water circulating heat and cold pad with pump, one cane, a knee support, a massager, and an EMS unit. Applicant filled the prescription on June 28, 2017. The total amount billed to respondent for these items was $1881.37. Respondent denied payment based upon a peer review by Dr. Mitchell Ehrlich, M.D. dated August 14, 2017. Dr. Ehrlich generally argues that these items could not enhance the IP's recovery, and were not medically necessary. First, he discusses a cervical collar. He claims it is not effective in the acute phase of rehabilitation for the injuries presented by the IP. The objective of rehabilitation is to promote mobility rather than to discourage it. The IP did not need restrictive devices. He was not bedridden, he was not in a wheelchair, and he did not need positioning devices such as a pillow, mattress and bed board. A massager is not even medical equipment. The water circulating unit is a superficial heating device, which should not be used in the early acute phase following the IP's injuries. The IP only needed the basic RICE protocol. Dr. Ehrlich cites medical literature for the proposition that early exercise therapy is superior to the cervical collar in reducing pain and disability following a whiplash injury. According to the New York State Worker's Compensation Board Neck Injury Medical Treatment Guidelines, there is no evidence that the use of cervical collars promotes recovery from cervical sprain. The cold and hot heating pad should not be used in the acute phase of injury because diffusion across membranes is increased. Cold treatment is useful in reducing inflammation in the first 48 to 72 hours after injury, but this device was prescribed later than that, and he calls it "adjunctive to the treatment program." The cervical pillow, bed board and egg crate mattress are positioning devices that were not necessary for this IP. The IP's injuries did not warrant these type of positioning devices. Dr. Ehrlich considers mechanical massagers not therapeutically effective, although manual massage is a useful rehabilitation technique. The EMS/TENS unit is allegedly not recommended for acute pain, subacute pain, or acute radicular pain syndromes, citing the Medical Treatment Guidelines. He states that there is no clinical evidence that battery powered electrical stimulation to provide pain control at home is effective. Dr. Ehrlich concedes that the use of a cane and a knee support would have been helpful to the IP. A presumption of medical necessity attaches to an insurer's admission of the applicant's timely submission of proper claim forms, and the burden then switches to the respondent Page 2/7 4. to demonstrate the lack of medical necessity. Acupuncture Prima Care, P.C. v. State Farm Mutual Auto Ins., 17 Misc 3d 1135[A], 851 N.Y.S.2d 67 (Dist. Ct., Nassau Co. 12/3/2007); A.B. Medical Services, PLLC v. NY 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, 777 N.Y.S.2d 241 (Civil Ct., Kings Co. 2004). The insurer thus bears "both the burden of production and the 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], 831 N.Y.S.2d 358 (N.Y.C. Civ. Ct. 2006). It is difficult to determine what the respondent's exact burden of proof is to establish that the services were medically unnecessary, Nir. v. Allstate Insurance Co., 7 Misc 3d 544, 546, 796 N.Y.S.2d 857 (Civil Ct, Kings Co. 2005). At the minimum an insurer must "establish a factual basis and medical rationale for the lack of medical necessity of plaintiff's services." Id. See also, CityWide Social Work, supra, A.B. Medical Services, supra. The New York courts "explicitly or implicitly look to generally accepted practice in determining medical necessity. Citywide Social Work, supra at 613; Prime Psychological Services, P.C. v. Progressive Casualty Ins. Co., 24 Misc. 3d 1244A; 901 N.Y.S.2d 902 (Civ. Ct. Richmond 2009). If the insurer has met its burden of persuasion, the burden of going forward with evidence of medical necessity shifts to the applicant to show the medical necessity for the treatments or tests at issue. Andrew Carothers, M.D., P.C. v. Geico Indemnity Co., 20 Misc. 3d 1137A (Civ. Ct. Kings Co. 2008); Kings Highway Diagnostic Imaging, P.C. v. Autoone Ins. Co., 17 Misc. 3d 1134A, 851 N.Y.S. 2d 70 (Civ. Ct. Kings Co. 2007). I find that the report of the peer review doctor was sufficient to carry the burden of persuasion on the issue of lack of medical necessity of the medical equipment for the IP. That shifts the burden to the applicant to show that the medical equipment was medically necessary. A rebuttal was submitted by Dr. Ella Leers, MD, board certified in family practice, who was not the prescribing physician. She claims the bed board and egg crate mattress complement each other. She argued the bed board and mattress provide proper spinal support, and distribute body weight evenly. She considers these standard items for patients with acute soft tissue injuries, and provide palliative care to patients. She cites medical literature for the proposition that patients achieve significant improvement in shoulder and back pain after 28 days of use of a prescribed bedding system. According to Dr. Leers, the cervical collar limits the painful ranges of motion, and aids in the healing process. She also argues that the cervical pillow provides better ergonomic support than any traditional pillow. The medical findings in respect to the IP indicate involvement of the cervical discs and muscles, and the IP needed proper cervical positioning to avoid further injury to the cervical spine. She alleges the cervical pillow is appropriate for that purpose. She also cites medical literature for the proposition that a neck pillow provides Page 3/7 4. firm support for cervical lordosis and may be recommended as part of the treatment for neck pain. With regard to the water circulating cold/heat pad, it provides therapeutic benefit by delivering a specific temperature and contour to the treatment site, which is not achieved by using an ice pack or a standard heating pad. Dr. Leers also argues that the electric massager helps to speed up recovery, citing the American Massage Therapy Association. Turning to the EMS unit, Dr. Leers argues that there are substantial benefits from using high intensity muscle stimulation in addition to other rehabilitation methods. She also cites medical literature for the support of the use of electric stimulation of muscles. Dr. Ehrlich submitted an addendum dated February 19, 2018. He claims Dr. Leers exaggerated the benefits of the bed board and egg crate mattress. He also calls cervical pillows appropriate for bedridden people or those in a wheelchair to position the head and neck. According to Dr. Ehrlich, no pillows promote healing following the injury suffered by this IP. In respect to the cold/heat pad, Dr. Ehrlich advises there is no need to stimulate the IP with heat. He said the cold setting is useful after joint surgery, but this IP did not have surgery. He also states that while massage is a medical modality in the hands of a trained professional, a self-held electrical massager is not a medical device. Dr. Ehrlich also advises that the electrical stimulation was not necessary for this IP because he was not paralyzed, and the device does not promote or change range of motion, despite Dr. Leers' allegations. I note that there is no submission by the prescribing physician to explain why these devices were prescribed one week after the car accident. The IP was a 23 year old man.