American Arbitration Association New York No-Fault Arbitration Tribunal

In the Matter of the Arbitration between: Aurora Medical Services LLC AAA Case No. 17-19-1138-6755 (Applicant) Applicant's File No. GM19-73014 - and - Insurer's Claim File No. 103504802 NAIC No. 16616 American Transit Insurance Company (Respondent)

ARBITRATION AWARD

I, Charles Blattberg, 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: Eligible injured person

1. Hearing(s) held on 04/14/2021 Declared closed by the arbitrator on 04/20/2021

Koenig Pierre, Esq. from Law Offices of Gabriel & Moroff, P.C. participated by telephone for the Applicant

Erisa Ahmedi, Esq. from of counsel to Daniel J. Tucker, P.C. participated by telephone for the Respondent

2. The amount claimed in the Arbitration Request, $ 816.44, 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 claimant was a 71 year-old female restrained rear seat passenger of a motor vehicle that was involved in an accident on 7/30/18. Following the accident the claimant suffered injuries which resulted in the claimant seeking treatment. At issue is the physician assistant fee associated with a 12/2/18 left surgery that was denied based on a peer review by Matthew D. Skolnick, M.D.

4. Findings, Conclusions, and Basis Therefor

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Based on a review of the documentary evidence, this claim is decided as follows:

An applicant establishes a prima facie case of entitlement to reimbursement of its claim by the submission of a completed NF-3 form or similar document documenting the facts and amounts of the losses sustained and by submitting evidentiary proof that the prescribed statutory billing forms [setting forth the fact and the amount of the loss sustained] had been mailed and received and that payment of no-fault benefits were overdue. See, Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.3d 742, 774 N.Y.S.2d 564 (2nd Dept. 2004). I find that Applicant established a prima facie case for reimbursement.

The claimant was a 71 year-old female restrained rear seat passenger of a motor vehicle that was involved in an accident on 7/30/18. The claimant reportedly injured her neck, bilateral , mid back, low back, and right knee. There was no reported loss of consciousness. There were no reported lacerations or fractures. Following the accident the claimant was transported to Brooklyn Center Hospital where she was evaluated, treated, and released. On 7/31/18 the claimant presented to Bernard Osei-Tutu, M.D. with complaints of headaches rated 6/10, non-radiating neck pain rated 7/10, non-radiating back pain rated 8/10, right shoulder pain rated 8/10, left shoulder pain rated 5/10, and right knee pain rated 8/10. Cervical examination revealed tenderness, muscle spasm and decreased (unquantified). Muscle strength and sensation were normal. Shoulder Depression, Spurling's maneuver, and Foramina Compression were negative. Thoracic examination revealed tenderness, muscle spasm and decreased range of motion (unquantified). Lumbosacral examination revealed tenderness, muscle spasm and decreased range of motion (unquantified). Muscle strength was normal. Positive orthopedic tests were Kemp's, SLR (bilaterally at 60°) and Bragard's sign. Bilateral shoulder examination revealed no effusion, swelling, or crepitus and normal muscle strength. There were trigger points and restricted ranges of motion (unquantified). Positive orthopedic tests were Impingement, Drop Arm, and Apley Scratch. Right revealed tenderness in the anterior, posterior and lateral lines; and crepitus. McMurray and Squat test were positive. Upper and lower extremities deep tendon reflexes were normal. The claimant was recommended for ROM/MMT, OAT, and physical capacity testing. The claimant was initiated on physical therapy. The 8/22/18 right shoulder MRI interpreted by Guenadi Amoachi, M.D. produced an impression of bursal surface tear of the distal aspect of the supraspinatus and infraspinatus tendons, fluid in the subacromial-subdeltoid and sub coracoid bursa, subchondral changes in the acromioclavicular joint and thinning of the in the glenohumeral joint, deformity of the glenoid labrum, and atrophic changes in the . The 9/6/18 right knee MRI interpreted by Guenadi Amoachi, M.D. produced an impression of complex tear of the body and anterior horn of the medial , small joint effusion, thinning of the cartilage involving all three compartments more prominent in the medial compartment, sub centimeter subchondral cyst in the tibial plateau, and soft tissue edema along the anterior aspect of the knee. On 10/11/18 the claimant presented to Danilo Sotelo-Garza, M.D. Bilateral shoulder examination revealed restricted ranges of motion (quantified) and positive Impingement sign. Apprehension test was negative. Cervical examination revealed restricted range of motion (quantified) with mild tenderness and spasticity of the paraspinal muscles bilaterally. Lumbar examination revealed restricted range of motion (quantified) with

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point tenderness L5-S1. SLR was negative. Right knee examination revealed range of motion from 0-120° (normal 135) with medial joint line tenderness, positive McMurray test, negative medial lateral instability, negative AP instability, positive swelling, and negative crepitus. Upper and lower extremities motor strength and sensation were normal. The claimant was recommended for right knee operative meniscectomy and bilateral shoulder operative arthroscopy possible mini open repair. On 10/21/18 Danilo Sotelo-Garza, M.D. performed right knee operative arthroscopy, , debridement of anterior cruciate ligament, medial and lateral meniscus shaving, release of medial and lateral plica and chondroplasty of patella, trochlea, medial femoral condyle and medial and lateral tibial plateau. The operative report documented "synovitis was noted throughout the joint which required synovectomy using radiofrequency ablation and coagulation. Medial and lateral plica were noted which required release using radiofrequency ablation and coagulation. Chondromalacia of patella, trochlea, medial femoral condyle and medial and lateral tibial plateau was also noted which required chondroplasty using radiofrequency ablation and coagulation. Medial and lateral meniscus fraying was noted which required shaving using radiofrequency ablation and coagulation. Also the anterior cruciate ligament was noted to be splayed which required shaving using radiofrequency coagulation." On 11/4/18 Danilo Sotelo-Garza, M.D. performed right shoulder operative arthroscopy, synovectomy, debridement of labrum, debridement of rotator cuff, and removal of bursa and repair of rotator cuff with one anchor. The operative report states "synovitis was noted throughout the joint which required synovectomy using radiofrequency ablation and coagulation. A partial labral tear was also noted which required debridement using radiofrequency ablation and coagulation. A partial was noted which required debridement and mini-open repair through a lateral incision." On 11/21/18 the claimant presented to Herschel Kotkes, M.D. for a pain management consultation with complaints of radiating neck pain rated 6/10 and radiating back pain rated 7/10. Cervical examination revealed restricted range of motion (quantified) with muscle spasms and trigger points. Spurling test was positive. Lumbar examination revealed restricted range of motion (quantified) with muscle spasms and trigger points. SLR was positive bilaterally (unspecified). Upper extremities muscle strength was diminished in the upper and lower extremities bilaterally (-4/5). Sensation and DTRs were diminished. The treatment plan included trigger point injections under ultrasonic guidance, diagnostic medial branch blocks (and if positive radiofrequency ablation), cervical epidural injections, and percutaneous lumbar . The same day (11/21/18) Dr. Kotkes performed lumbar percutaneous discectomy, nucleolus pulposus ablation, annuloplasty, transforaminal epidural injection, and disc injection with radiographic interpretation. On 12/2/18 Danilo Sotelo-Garza, M.D. performed left shoulder operative arthroscopy, synovectomy, debridement of labrum, debridement of rotator cuff, mini-open acromioplasty, and removal of bursa and repair of rotator cuff with one anchor. The operative report states "synovitis was noted throughout the joint as well as a labral tear and a rotator cuff tear which required debridement using radiofrequency ablation and coagulation. Due to the size of the tear it was decided to do a mini­-open rotator cuff repair through a lateral incision approximately an inch-and-a-half long. The incision was extended on to subcutaneous tissue. The deltoid was elevated off the anterolateral portion of the acromion. The anterolateral portion of the acromion was resected using a rongeur. The bursa was partially removed anterolateraly." At issue is the associated physician

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assistant fee for the 12/2/18 left .

Respondent's denial asserts "Surgery and surgically related services to the left shoulder are denied as not causally related to the accident of record based on attached peer review by Matthew D. Skolnick, M.D. In addition, services are denied based upon no medical necessity and no causal relationship between the accident and the shoulder surgery of 12/02/2018. No evidence of traumatic injury was noted on the MRI performed on 09/06/2018."

It is noted that the MRI review by Darren Fitzpatrick, M.D., the review of the intraoperative photographs by Howard Levine, M.D., and the peer review by Mathew D. Skolnick, M.D. that were uploaded are all for the right shoulder which is not at issue here.

Accordingly, Applicant is awarded $816.44.

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

Accordingly, the applicant is AWARDED the following:

A.

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Claim Medical From/To Status Amount

Aurora 12/02/18 - Awarded: Medical $816.44 12/02/18 $816.44 Services LLC

Awarded: Total $816.44 $816.44

B. The insurer shall also compute and pay the applicant interest set forth below. 08/16/2019 is the date that interest shall accrue from. This is a relevant date only to the extent set forth below.

Interest runs from 8/16/19 (the date that arbitration was requested) until the date that payment is made at two percent per month, simple interest, on a pro rata basis using a thirty day month.

C. Attorney's Fees

The insurer shall also pay the applicant for attorney's fees as set forth below

Pursuant to 11 NYCRR §65-4.6 (d), ". . . the attorney's fee shall be limited as follows: 20 percent of the total amount of first-party benefits and any additional first-party benefits, plus interest thereon for each applicant for arbitration or court proceeding, subject to a maximum fee of $1,360."

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 Nassau

I, Charles Blattberg, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award.

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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 6/7 ELECTRONIC SIGNATURE

Document Name: Final Award Form Unique Modria Document ID: 636235b21470ce4a746daae75c35dd0d

Electronically Signed

Your name: Charles Blattberg Signed on: 05/14/2021

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