Prompt Medical Spine Care, PLLC AAA Case No

American Arbitration Association New York No-Fault Arbitration Tribunal

In the Matter of the Arbitration between: Prompt Medical Spine Care, PLLC AAA Case No. 17-18-1095-4247 (Applicant) Applicant's File No. 2104409 - and - Insurer's Claim File No. 32-8B39-697 NAIC No. 25178 State Farm Mutual Automobile Insurance Company (Respondent)

ARBITRATION AWARD

I, James Hogan, 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

1. Hearing(s) held on 10/17/2019 Declared closed by the arbitrator on 10/17/2019

Ryan Berry from Israel, Israel & Purdy, LLP (Great Neck) participated in person for the Applicant

Michele Chavez from De Martini & Yi, LLP participated in person for the Respondent

2. The amount claimed in the Arbitration Request, $ 748.92, 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

The EIP, a 51 year old female, was injured in a collision on 2/4/16. This claim is for a left thoracic radiofrequency ablation and neurolysis of the T10, T11 and T12 medial branches under fluoroscopic guidance administered to the EIP on 2/26/18 by Sylvia Geraci, DO, of the Applicant, billed at $748.92.

On 11/8/17, Respondent issued a global NF-10 denying all claims based upon an IME done on 9/13/17 by Magda Fahmy, MD. As a result, all PMR and related services were denied effective 11/8/17.

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On 5/3/18, Respondent issued an NF-10 re DOS 2/26/18 and billing in the amount of $748.92. Respondent denied the Applicant's claim in total based upon the negative IME.

4. Findings, Conclusions, and Basis Therefor

This decision is based upon my review of the electronic file maintained by the American Arbitration Association, and the arguments of the parties set forth in the hearing.

SUMMARY OF THE CASE:

On 11/8/17, Respondent issued a global NF-10 denying all claims based upon an IME done on 9/13/17 by Magda Fahmy, MD. As a result, all PMR and related services were denied effective 11/8/17.

On 5/3/18, Respondent issued an NF-10 re DOS 2/26/18 and billing in the amount of $748.92. Respondent denied the Applicant's claim in total based upon the negative IME.

As per 11 NYCRR 65-4.2(b)(3)(iv) "Any additional submissions may be made only at the request or with approval of the arbitrator." As per the Initiation Letter, the parties were to have their respective positions uploaded on or before 7/2/18. "Documents received after this date will be marked 'late submission' and may not be considered by the arbitrator." Then, on 8/21/18, notice was sent to the parties that this matter had been escalated to arbitration. This letter says "We encourage you to review your case on the online platform at your earliest convenience to ensure that all the information you wish the arbitrator to consider has been properly uploaded." The Respondent's submission to the Applicant's filing of the arbitration was uploaded on 7/2/18. It contained the IME report. On 10/8/19, Applicant uploaded a rebuttal to the IME. This was uploaded 13 months after the escalation letter. Due to the late filing of rebuttal, it was not considered.

Linked Case: 17-18-1094-1834, NYEEQASC, a/a/o this EIP and Respondent, heard by me on 9/27/19. The issue was the medical necessity for a left thoracic radiofrequency ablation and neurolysis of the T10, T11 and T12 medial branches performed on 2/26/18 by Sylvia Geraci, DO. The Respondent denied the Applicant's claim based upon the IME by Dr. Fahmy. After a review of the documentation contained in the file, including a rebuttal to the IME and an addendum to the IME, I found that Dr. Fahmy did not indicate whether the EIP had taken any medication prior to the IME, notwithstanding the

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fact that the IME report indicates that the patient was taking medication. Further, Dr. Fahmy the not address the issues raised by Dr. Geraci in her rebuttal. The claim was awarded.

Applicant's submission:

The Applicant has provided a copy of its billing. (see above)

The Applicant submission contains an abstract for the EIP's 2/4/16 encounter at Elmhurst Hospital. Also included is a summary of the accident run sheet.

On 2/9/16, the EIP had an initial evaluation at NY Ortho, Sports Medicine & Trauma, PC, with Matthew Grimm, MD. She reported being involved in an MVA on 2/4/16 as a pedestrian crossing the street when she was hit by a car. She presented with neck pain that was rated at 4-5/10.

After a comprehensive examination, the Assessment was 1) cervical radiculopathy/cervicalgia; 2) lumbar radiculopathy/lumbago; 3) thoracic radiculopathy/thoracic myofascial pain.

The patient was started on a course of physical therapy and MRIs were recommended for the cervical, thoracic and lumbar spines.

On 2/10/16, the EIP had a Physical Therapy Evaluation. Copies of physical therapy progress notes have been provided.

On 2/17/16, the EIP had an MRI of the thoracic spine. The Impression was:1) mild left convex thoracic scoliosis; 2) posterior disc bulges at the T-1-T2, T2-3, T3-4, T5-6 and T 10-11 levels as described; 3) ) central disc herniation at the C7-8 level; 4) left paracentral to posterolateral disc herniation at the T 11-12 level migrating a few millimeters inferiorly.

On 2/11/17, the EIP had an MRI of the lumbar spine. The Impression was: 1) mild right convex lumbar scoliosis with some loss of normal lordosis; 2) posterior disc bulge at the L5-S1 level; 3) posterior annular tear and disc herniation at the L4-5 level most prominent sensually and slightly favoring the right side, superimposed on a posterior disc bulge; 4) posterior disc bulge at the L1-2 level.

On 2/17/16, the EIP had an MRI of the cervical spine. The Impression was: 1) some straightening of the curvature of the cervical spine was some loss of the normal lordosis; 2) posterior disc bulge at the C2-3 level; 3) central posterior annular tear and disc herniation at the C3-4 level; 4) Central posterior disc herniation at the C4-5 level; 5) posterior disc herniation at the C5-6 level favoring the left side superimposed upon a posterior disc bulge and impinging upon the left ventral aspect of the cord as described; 6) central posterior disc herniation at the C6-7 level; 7) solitary left lower lobe thyroid nodule as described for which a neoplasm cannot be excluded. Further evaluation is recommended.

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The EIP was re-evaluated at NY Ortho, Sports Medicine & Trauma, PC. On 3/1/16. This report indicates that prednisone assisted her with her radicular pain. She continued to have back pain as well as lower extremity numbness on the right.

After the examination, the assessment continued to be cervical radiculopathy/cervicalgia, thoracic radiculopathy/thoracic myofascial pain, lumbar radiculopathy/lumbago.

The Plan indicates electrodiagnostic testing was recommended to the upper and lower extremities to determine neuromuscular damage extent as well as assisting with possible injection therapy direction. Furthermore, a thoracic ESI was recommended.

On 3/22/16, Dr. Grimm administered EMG/NCV testing to the EIP's upper and lower extremities. The Impression for the upper extremity testing was evidence of bilateral C5-6 radiculopathy. As to the Impression for the lower extremity testing, it revealed evidence of left L5-S1 radiculopathy.

There is also a report dated 4/1/16 for a thoracic interlaminar epidural steroid injection, T11-T12 with epidurography.

A copy of the report of the epidurogram has been provided.

On 4/18/16, the EIP was again seen by Dr. Grimm. The thoracic ESI noted improvement from a 9-10/10 in the thoracic region to a 4/10 for 4 week and presently it is at 5-7/10. Still with residual symptoms, the patient would like to proceed with an additional injection.

The examination of the neck pain so that the pain was rated a 3-4/10.

The Assessment and Plan indicates thoracic radiculopathy/thoracic myofascial pain, lumbar radiculopathy/lumbago and cervical radiculopathy/cervicalgia. In addition, there is a notation that Celebrex would be started at the rate of one tablet 2 times per day for 30 days. This report also indicates that the patient will continue with physical therapy. A custom fitted LSO was also ordered.

On 5/13/16, Dr. Grimm administered a 2nd thoracic interlaminar epidural steroid injection to the EIP. The location was T7-T8. In addition, an epidurography was done. There is a report of the epidurogram.

On 5/31/16, the EIP had another evaluation with Dr. Grimm. Following her most recent thoracic ESI, she reported her pain level at 3/10. The residual symptoms that she is currently feeling is on the left side of the thoracic region. She would like to proceed with an additional ESI.

After the examination, the Assessment and Plan remained unchanged other than the notation that cervical trigger point injections with bilateral greater occipital nerve blocks were performed in the office today for cervical paraspinal musculature and greater

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occipital region in the usual fashion using lidocaine and Marcaine and a 27gauge, 1.5 inch needle. Ultrasound was utilized.

On 6/10/16, Dr. Grimm administered a thoracic interlaminar epidural steroid injection to the T3/T4, T5/T6 with epidurography. A report of an epidurogram has also been provided.

On 8/10/16, the EIP was seen by Dr. Grimm again. Her neck pain was most bothersome and rated at 8-9/10 with radiation into the hands. Her thoracic pain has improved greater than 60-70% following epidural injections. She is requesting epidurals due to the improvement in the thoracic spine. She was also experiencing muscular pain and headaches and requested a repeat trigger point injections and occipital blocks.

The range of motion for the cervical spine was quantified in extension at 20/60; flexion was 40/50-80; both left and right lateral flexion with 25/45; left rotation was 35/80; right rotation was 40/80. There was tenderness to palpation over the spinal processes. Upper extremity strength was rated at 4+/5, throughout. DTRs in the upper extremities was normal. Hoffman sign was positive, bilaterally; Spurling's sign was positive, bilaterally. Muscle spasm and tenderness was noted at the bilateral cervical musculature in the C2-C4 and T1-T12 distribution; muscular trigger points were palpated over the left trapezius region. It is noted that these have improved.

The examination of the lumbar spine found that the EIP had an antalgic gait. Tenderness was noted over the lower lumbar processes, and the SI joints. The range of motion in extension was 15/25; flexion was 50/85/90; left and right lateral flexion were each 15/25. DTRs in the knees were 2/4. DTRs in the Achilles was also 2/4. Sensation was depressed in the right anterior thigh. SLR was positive on the right. Muscle strength testing was 5/5, bilaterally in the lower extremities. Spasm and tenderness were noted involving the bilateral paraspinal musculature from L1 through L4.

The Assessment & Plan was: 1) cervical radiculopathy/cervicalgia; 2) lumbar radiculopathy/lumbago; 3) thoracic radiculopathy/thoracic myofascial pain.

The Plans reflects that the MRI for the cervical spine found multiple disc herniation; the MRI for the lumbar spine found a bulging disc at L5-S1 and a herniation with an annular tear at L4/5. The MRI of the thoracic spine found bulging discs and a herniation at T7-8 and T11-12.

Cervical trigger point injections of the bilateral greater occipital nerves were performed in the office today. The patient was to continue with physical therapy. It is noted that the patient was post thoracic ESI and had improved neuropathic thoracic pain from 10/10 prior to starting injections down to a 3/10 following the most recent injection. She will be monitored for possible additional thoracic ESI's for discogenic thoracic pain.

On 8/26/16, Dr. Grimm administered a cervical into laminar epidural steroid injection to the C6-C7 region. In addition, an epidurogram was done.

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On 9/6/16, the EIP had a consultation at New York Spine Specialist with Demetrios Mikelis, MD. The EIP was referred to this entity by Dr. Grimm. She presented with complaints of low back pain and neck pain. The history of her present illness is recited. Her back pain was rated as 7/10 as was her neck pain. The pain was described as numbness/tingling and constant. It was worsened with mechanical activity.

The PX of the cervical spine found tenderness and spasm; flexion was measured at 35/70; extension was 25/45; left and right turning was 45/80.

The neurologic examination of the upper extremities found that the motor exam was 4/5 in the left deltoid and the left wrist flexors/extensors. Sensation was altered in the bilateral C5, C6 and C7 dermatomes. DTRs in the upper extremities were normal.

As to the lumbar spine, inspection to percussion and palpation show tenderness and spasm. Flexion was measured at 55/90; extension was 20/40; left and right turning was 35/60.

The neurologic examination of the lower extremities found that motor strength was 4/5 in the tibialis anterior on the left and the EHL on the left. Sensation was altered in a bilateral L4, L5 and S1 dermatomes. DTRs were abnormal in the lower extremities, but not quantified.

The results of the MRIs of the cervical spine, thoracic spine and lumbar spine are reported.

The Diagnosis was: 1) herniated cervical intervertebral disc; 2) cervical nerve root impingement; 3) herniated nucleus pulposis, thoracic; 4) herniated lumbar intervertebral disc; 5) bilateral lumbosacral nerve root lesions.

The Plan indicates that various treatment options were discussed with the patient including both surgical and nonsurgical intervention. The patient has elected to proceed with chiropractic, physical therapy and cervical and lumbar spine epidural injections.

On 9/14/16, the EIP was re-evaluated by Dr. Grimm. He notes that she consulted with New York Spine Specialist. In addition, the thoracic ESI's helped transiently but her pain has returned. Her neck pain was presently 8-9/10 although it did improve to 1/10 after the injection but is now gradually returned to 5/10. She would like to have an additional injection.

The report notes that the patient was currently taking meloxicam and gabapentin as prescribed to her PCP.

The PX of the cervical spine found tenderness over the cervical spinous processes. The range of motion in cervical extension was 40/60; flexion was 55/50-80; left lateral flexion was 35/45; right lateral flexion was 30/45; left rotation was 40/80; right rotation was 45/80. Upper extremity strength was measured 5-/5, bilaterally. DTRs in the upper

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extremities was normal. Hoffman sign was positive, bilaterally; Spurling's sign was positive, bilaterally. Spasm and tenderness were noted involving the bilateral cervical paraspinal musculature.

The examination of the lumbar spine notes that the EIP had an antalgic gait. Tenderness was noted over the lower lumbar processes. Lumbar extension was measured 15/25; flexion was measured at 50/85-90; right and left lateral flexion were each measured at 15/25. DTRs appear to be 2/4 in the bilateral patella and Achilles. Sensation was depressed on the right anterior thigh. SLR was positive on the right. Muscle strength testing in the bilateral lower extremities was 5/5, throughout. Spasm and tenderness were noted involving the bilateral paraspinal musculature from L1 through L4.

The Assessment & Plan was: 1) cervical radiculopathy/cervicalgia; 2) lumbar radiculopathy/lumbago; 3) thoracic radiculopathy/thoracic myofascial pain.

Cervical trigger point injections of the bilateral greater occipital nerves were performed in the office today. The patient is to continue with physical therapy.

On 10/17/16, the EIP had a follow-up visit with Dr. Mikelis at New York Spine Specialist. She presented with complaints of neck pain and low back pain. She had had ESI's with only temporary improvement in pain. She is getting therapy twice a week and performs a home exercise program.

The physical examination indicates that the cervical spine range of motion and flexion was 40/70; extension was 30/45; left and right turning was 45/80.

As the lumbar spine, flexion was 65/90; extension was 20/40; left and right turning was 35/60.

The cervical motor exam found that strength in the left deltoid, as well as the left wrist extensors/flexors was 4/5. Sensation was altered in the bilateral C5, bilateral C6 and bilateral C7. DTRs were abnormal in the upper extremities, but not quantified.

The lumbar neurological examination found that motor was not normal; motor strength was 4/5 in the tibialis anterior on the left and the EHL on the left. Sensation was altered in the bilateral L4, bilateral L5 and bilateral S1 dermatomes. DTRs were abnormal in the lower extremities, but not quantified.

The Diagnosis was: 1) herniated cervical intervertebral disc; 2) cervical nerve root impingement; 3) herniated nucleus pulposus; 4) herniated lumbar intervertebral disc; 5) bilateral lumbosacral nerve root lesions.

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The Plan indicates that various treatment options were discussed with the patient. She has elected to proceed with chiropractic and physical therapy as well as cervical lumbar spine epidural injections.

On 11/9/16, the EIP had a re-evaluation that New York Spine Specialist. She was seen by Dr. Lattuga. She was complaining of pain in neck and lower back and has had epidurals with only temporary improvement in pain.

The physical examination notes that the range of motion in the cervical spine and lumbar spine was quantified as reduced in all planes. The motor exam was unchanged from the prior visit.

The Diagnosis was unchanged from the prior visit.

The Plan indicates that based upon the fact that the patient was not improving, surgery in the form of an anterior cervical discectomy and fusion at level 3/4/5 was discussed and was being considered by the patient. This report lists 8 indications for surgery for the EIP.

On 1/4/17, the EIP was again seen by Dr. Lattuga. This report continues to document reduced ranges of motion cervical lumbar spine in all planes.

The Plan again indicates that the patient is considering anterior cervical discectomy and fusion at levels 3/4/5.

On 2/21/17, the EIP underwent an anterior cervical discectomy and fusion at level C4/5/6. She has had some improvement to our neck pain however continues their residual pain and symptoms consistent with her pre-operative conditions.

On 6/14/17, PIP had a post-operative evaluation at New York Spine Specialist. His report indicates that the patient is improving postoperatively but continues to have pain and some symptoms consistent with pre-operative conditions. She is receiving therapy twice a week and performed a home exercise program.

On 7/11/17, the EIP was seen at Prompt Medical Spine Care by Silvia Geraci, DO. She presented with complaints of mid and lower back pain as well as neck pain.

The EIP's accident history is recorded. It is noted that she had a cervical discectomy and fusion on 2/21/17.

The physical examination indicates that the patient was complaining of numbness and tingling as well as pain in the neck and back.

The PX of the lumbar spine found tenderness and spasm; flexion was measured at 80/90; extension was 15/40; left and right turning was 25/60. There was pain with palpation of the lower thoracic and lumbar facet joints, bilaterally.

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DTRs in the bilateral lower extremities were 1+. SLR was negative, bilaterally. There was tenderness to palpation, bilaterally at the SI joint. Faber's test was negative. There was positive facet loading at the bilateral lumbar facet joints. The motor examination was within normal limits; no atrophy was noted; sensation was normal in all dermatomes; DTRs and lower extremities were indicated as normal, notwithstanding the fact that previously in this report there were indicated at 1+, bilaterally.

The results of the MRIs of the cervical spine, thoracic spine, lumbar spine and an x-ray of the cervical spine are reported.

The Diagnosis was: 1) herniated lumbar intervertebral disc; 2) facet arthropathy, lumbar; 3) arthropathy of thoracic facet joint; 4) postlaminectomy syndrome of cervical region.

Various treatment options were discussed with the patient and Dr. Geraci recommended bilateral lower thoracic medial branch blocks. The patient was referred for this procedure to the T10/11 and T11/12 region.

On 7/24/17, the EIP at a follow-up visit at New York Spine Specialist. She continued to have pain postoperatively. She uses a bone stimulator and a soft cervical collar.

The physical examination indicates that the range of motion cervical spine was quantified as reduced in all planes. The range of motion lumbar spine was also quantified as reduced in all planes.

The neurological examination indicates that motor strength was reduced to 4/5 in the left deltoid, left wrist extensor/flexors, tibialis anterior/EHL on the left. Sensation was altered in the bilateral C5-7 and the bilateral L4-S1 dermatomes. DTRs were abnormal in the bilateral upper and lower extremities.

The Diagnosis was: 1) status post anterior cervical discectomy and fusion, C4/5/6. 2) herniated nucleus pulposus, thoracic; 3) herniated lumbar intervertebral disc; 4) bilateral lumbosacral nerve root lesions.

The patient was given a prescription for physical therapy.

On 8/15/17, Dr. Geraci administered a Thoracic Zygapophyseal Joint Nerve Block, LEFT

T10/11 and T11/12, under Fluoroscopic Guidance

On 9/11/17, the EIP had a follow-up at Prompt Spine Specialist. The patient continued to have pain symptoms consistent with a pre-operative condition and she has had a lumbar ESI with some improvement in the pain. She stopped going therapy but continues our home exercise program. She uses a bone stimulator and the soft cervical collar.

The examination reflects that the range of motion in the cervical spine and the lumbar spine was quantified as reduced in all planes in each.

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The neurological examination shows reduced motor strength and reduced sensation as previously reported.

The Plan indicates that the patient will continue with therapy and to avoid Ibuprofen as it may delay bone healing.

On 9/19/17, the EIP had a post-injection evaluation by Dr. Geraci. The patient reported pain relief in excess of 80% on her left side. She has pain on the right although she does not feel that any further intervention is needed at this time.

On 10/23/17, the EIP was seen at Dr. Geraci's office again. She presented with complaints of mid and low back pain as well as neck pain. Although she had an 80% pain relief to her left side as a result of the thoracic median branch blocked on 8/15, about 3 weeks ago her pain returned. There is no significant pain or stiffness of the mid thoracic region with increased standing and sitting. She would like another injection at this time as it was helpful in the past.

The physical examination indicates that the EIP's range of motion in the lumbar spine was quantified as reduced; DTRs were 1+ in the bilateral Achilles and patella; SLR was negative, bilaterally.

The Plan indicates that the patient was referred for a left thoracic MBB to the T10/11 - T 11/12 region.

On 11/14/17, Dr. Geraci administered a Thoracic Zygapophyseal Joint Nerve Block, LEFT

T10/11 and T11/12, under Fluoroscopic Guidance

On 2/26/18, Dr. Geraci performed a left thoracic radiofrequency ablation and neurolysis of the T10, T11 and T12 media branches, under fluoroscopic guidance. A copy of the Operative Report has been provided. Also provided is an invoice for supplies utilized during the procedure.

Respondent's submission:

The Respondent's position is that the Applicant's claim was properly denied based upon an IME done on 9/13/17 by Dr. Fahmy.

IME:

Magda Fahmy, MD, PMR, administered a PMR IME to the EIP on 9/13/17. She recounts the EIP's accident history as provided by the claimant. After the accident, the EIP complained of pain in the neck, mid back, low back as well as headaches. She was referred for physical therapy at the rate of 3 times per week. She has had diagnostic testing. She has also had cervical spine surgery on 2/21/17.

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Present Complaints were continued complaints of pain in the neck, mid back and low back (pain radiates to legs/feet), left elbow and headaches.

In the section of the report entitled "Past Medical History" it indicates that the claimant has no history of any prior surgery unrelated to this accident. Yet, 2 paragraphs above Dr. Fahmy notes that the EIP had cervical spine surgery on 2/21/17.

I do not see a section in the report entitled Current Medication, or anything similar. It doesn't appear that Dr. Fahmy inquired as to whether the EIP was taking any medication for the injuries suffered in the accident or if any medication was taken prior to the IME.

The claimant reports that her ADLs include walking, sitting and standing each day. She was able to perform household chores, heavy lifting, childcare, shopping and a personal hygiene routine. She does not perform any climbing or kneeling.

The EIP is 5'1" tall weighing 174 pounds. She has normal appearance and posture. She moved freely during unguarded conversation.

Ranges of motion were checked using a goniometer.

The examination of the cervical spine notes a surgical scar over the anterior aspect of the cervical spine. There were no complaints of tenderness on palpation over the paraspinal musculature. There was minimal muscle spasm noted. The range of motion was quantified as normal in all planes.

Motor strength of the upper extremities was 5/5. The sensory examination of the upper extremities was normal. DTRs were 2+. There was no atrophy of the intrinsic muscles. There was no evidence of deformity, swelling, ecchymosis or edema.

The examination of thoracic spine did not find any complaints of tenderness on palpation and no paraspinal spasm was present.

The PX of the lumbosacral spine did not result in a complaint of tenderness to palpation; no paraspinal spasms were present. The range of motion was quantified as normal in all planes.

Motor strength in the lower extremities was 5/5. The sensory examination was normal. DTRs were 2+. SLR was negative, bilaterally. The claimant was able to walk on toes/heels. There was no evidence of deformity, swelling, ecchymosis or edema.

The examination of the left elbow/wrist indicates that there were no complaints of tenderness to palpation. The range of motion was quantified as normal in all planes.

There is a list of medical records that were reviewed. These include a copy of the MRI report for the thoracic spine which showed multiple disc bulges and a right paracentral disc herniation at the T7-T8 level, as well as at the T11-T12 level. The EMG report for the upper and lower extremities showed evidence of left L5-S1 radiculopathy and

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bilateral C5-6 radiculopathy. The MRI report for the lumbar spine notes a disc bulge at L1-L2 and L5-S1 and a disc herniation with an annular tear at L4-L5. The MRI report for the cervical spine showed disc bulges at C2-3 and C5-6. There was a herniation with annular tear at C3-4 and herniations at C4-5 and C6-7.

The Diagnosis was: 1) status post cervical spine surgery, resolved; 2) status post thoracic and lumbar contusion - resolved; 3) status post laminectomy syndrome - deferred to neurosurgeon; 4) status post left elbow contusion - resolved.

Dr. Fahmy says that there is no evidence of a disability and the EIP may perform her ADLs and full-time employment without any restrictions or limitations.

As to Treatment Recommendations there is no need for any further PM & R treatment including physical therapy. There is no need for physical therapy treatment to the cervical, thoracic or lumbar spine or left elbow as there were no objective findings to these areas which would warrant the need for further treatment. There is no need for massage therapy, aqua therapy, injections, physical performance testing, computerized muscle testing, biofeedback training or prescription medication.

She notes that the EIP presented with complaints of pain in the neck, mid back, low back and left elbow and there were no objective findings on today's examination to correlate with those subjective complaints.

At the end of this report there are questions which were asked by the insurer and Dr. Fahmy has responded to each.

Based upon this examination, on 11/8/17 the Respondent issued its global NF-10 in which it denied all future PMR and related benefits effective 11/8/17.

The Respondent has provided copies of the medical records/reports/test results which were referenced in the IME report.

I note that these records also include copies of reports from Dr. Geraci dated 7/11/17, 9/19/17, 10/23/17 and the Operation Summary for the MBB administered to the EIP on 8/15/17 and 11/14/17 to the left T10/11 and T11/12 under fluoroscopic guidance.

At the hearing:

Each of the parties relied upon their respective submissions.

The Applicant did refer to the linked case wherein I found in favor of the Applicant after its claim was denied based upon the IME by Dr. Fahmy.

FINDINGS:

The Applicant has established its prima facie case.

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This claim is for a left thoracic radiofrequency ablation and neurolysis of the T10, T11 and T12 medial branches under fluoroscopic guidance administered to the EIP on 2/26/18 by Sylvia Geraci, DO, of the Applicant, billed at $748.92.

On 11/8/17, Respondent issued a global NF-10 denying all claims based upon an IME done on 9/13/17 by Magda Fahmy, MD. As a result, all PMR and related services were denied effective 11/8/17.

On 5.3.18, Respondent issued an NF-10 re DOS 2/26/18 and billing in the amount of $748.92. Respondent denied the Applicant's claim in total based upon the negative IME.

The purpose of no-fault is to return the claimant to his/her pre-accident condition or as close thereto as possible. As per the Respondent, from a PMR perspective, the EIP was at that point on 9/13/17, the date of the IME by Dr. Fahmy.

The Applicant has submitted medical reports including surgical reports for treatment rendered to the EIP after the IME. The reports include quantified ranges of motion in the cervical spine and the lumbar spine which were less than normal in all planes.

After reviewing the documentation submitted by the Applicant, I am not convinced that the services provided after the IME were not medically necessary.

In addition, in the aforementioned Linked Case, I found that the services provided after the IME were medically necessary.

The claim is awarded.

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

Page 13/16 Accordingly, the applicant is AWARDED the following:

Claim Medical From/To Total Status Amount

Prompt Medical 02/26/18 - Awarded: $748.92 $ 748.92 Spine Care, 02/26/18 $748.92 PLLC

Awarded: Total $748.92 $748.92

B. The insurer shall also compute and pay the applicant interest set forth below. 05/16/2018 is the date that interest shall accrue from. This is a relevant date only to the extent set forth below.

I find that the date for interest to accrue is the date of the filing of the arbitration, 1/15/18 as this is the date when the Applicant's filing was processed and notice of the arbitration sent to the Respondent. As per Insurance Regulation 65-3.9, interest is due until such amount is paid, and without demand therefor.

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's attorney as per 11 NYCRR 65-4.6 (e). However, if the award and interest is equal to, or less than, Respondent's written offer during the conciliation process, then the attorney's fee shall be based upon 11 NYCRR 65-4.6 (b).

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 Suffolk

Page 14/16 I, James Hogan, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award.

10/22/2019 James Hogan (Dated)

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 15/16 ELECTRONIC SIGNATURE

Document Name: Final Award Form Unique Modria Document ID: 4e67a49a7a46589d59d7e23086bc9622

Electronically Signed

Your name: James Hogan Signed on: 10/22/2019

Page 16/16