Harbor Chiropractic, P.C

American Arbitration Association New York No-Fault Arbitration Tribunal

In the Matter of the Arbitration between: Harbor Chiropractic, P.C. AAA Case No. 17-18-1084-8145 (Applicant) Applicant's File No. 113141 - and - Insurer's Claim File No. 0397235870 NAIC No. 19232 Allstate 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 04/18/2019, 06/19/2019 Declared closed by the arbitrator on 04/18/2019

Michael Spector from The Odierno Law Firm P.C. participated in person for the Applicant

Allison Lindsey from Law Offices Of Karen L Lawrence participated in person for the Respondent

2. The amount claimed in the Arbitration Request, $ 4,241.52, was AMENDED and permitted by the arbitrator at the oral hearing.

At the hearing, the Applicant amended the amount in controversy to $2,778.45 to be in accordance with the Chiropractic Fee Schedule for both the CMT and physical medicine services provided on the 18 DOS, but also to be in accordance with the fee schedule for the range of motion testing and manual muscle testing.

Stipulations WERE NOT made by the parties regarding the issues to be determined.

3. Summary of Issues in Dispute

The EIP, a 27 year old female, was injured in a collision on 12/30/15. This claim is for services provided to the EIP as follows:

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CMT, hot/cold packs and electrostimulation, billed at $63.74 for DOS 9/13, 9/21, 9/26, 9/29, 10/5, 10/11, 10/12, 10/19, 10/24, 10/31, 11/2, 11/8, 11/9, 11/16, 11/30, 12/7, 12/9 and 12/14/16.

(18 DOS)

Range of motion testing billed under CPT code 95851 at $457.10 for DOS 9/29, 11/2, and 11/16/16.

Manual muscle testing billed under CPT code 95831 at $523.20 for DOS 11/9/16 and12/14/16.

Manual muscle testing billed under CPT code 95831 at $261.60 for DOS 11/30/16.

Manual muscle testing billed under CPT code 95831 at $436.00 for DOS 12/7/16.

On 4/4/16, Respondent issued a global NF-10 denying all future chiropractic and massage therapy benefits based upon an IME done on 3/19/16 by Michael Berke, DC. The effective date of the denial was 4/11/16.

On 1/6/17, Respondent issued an NF-10 re DOS 12/14/16 and billing in amount of $523.20. Respondent paid $86.01 leaving in amount in dispute of $437.19. As per the EOB, the Applicant billed a total of 12 units for manual muscle testing under CPT code 95831. Respondent paid $86.01 same the payment was adjusted to reflect allowance for total body evaluation including the hands under CPT code 95834. (14.88 RVUs x $5.78 = $86.01)

The remainder of the Applicant's billing was denied 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:

The EIP, a 27 year old female, was injured in a collision on 12/30/15. This claim is for services provided to the EIP as follows:

CMT, hot/cold packs and electrostimulation, billed at $63.74 for DOS 9/13, 9/21, 9/26, 9/29, 10/5, 10/11, 10/12, 10/19, 10/24, 10/31, 11/2, 11/8, 11/9, 11/16, 11/30, 12/7, 12/9 and 12/14/16.

(18 DOS)

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Range of motion testing billed under CPT code 95851 at $457.10 for DOS 9/29, 11/2, and 11/16/16.

Manual muscle testing billed under CPT code 95831 at $523.20 for DOS 11/9/16 and12/14/16.

Manual muscle testing billed under CPT code 95831 at $261.60 for DOS 11/30/16.

Manual muscle testing billed under CPT code 95831 at $436.00 for DOS 12/7/16.

The remainder of the Applicant's billing was denied based upon the negative IME.

Applicant's submission:

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

The EIP had an initial evaluation at the Applicant on 1/11/16. She reported being involved in an MVA on 12/30/15. She developed pain in the head, neck, right shoulder, left shoulder, mid back and low back. She had an evaluation to Southside Hospital. X-rays were taken of the lower back.

She presented to the Applicant with complaints of headache, pain in the neck, and mid back pain. She was also experiencing pain in the lumbar spine area. She rated her headache pain at 7/10; neck pain and 9/10; mid back pain at 5/10; low back pain is 5/10.

After comprehensive examination, which included provocative orthopedic testing, the Diagnosis was: 1) subluxation of unspecified cervical vertebra; 2) subluxation of unspecified thoracic vertebra: 3) subluxation of unspecified lumbar vertebra; 4) muscle

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spasm; 5) myalgias; 6) tension-type headaches; 7) subluxation complex (vertebral) of sacral region; 8) subluxation complex (vertebral) of pelvic region.

The Plan call for the initiation of therapy at the rate of 4 times per week for 4 weeks followed by a re-valuation.

On 2/15/16, the EIP had a re-evaluation at the Applicant. She still complained of headache, pain in the area of the cervical spine, mid back pain and lumbar spine pain.

The palpation examination found spasm in the neck, mid back and low back.

The EIP had a normal gait.

Evaluation for joint mobility found a moderate loss of joint function at occiput-C7, T1-T 12, L1-L5 and the left ilium-sacrum was elicited. The palpation examination revealed moderate pain at occiput-C7, T1-T 12, L1-L5 and the ilium-sacrum, bilaterally. Spasticity was noted in the sub occipital muscles, cervical paraspinal muscles, upper thoracic muscles, mid thoracic muscles, lower thoracic muscles, lumbar paraspinal muscles and gluteal muscles, bilaterally.

DTRs in the triceps, biceps, brachioradialis, Achilles and patellar were each 2+/5, bilaterally.

A number of provocative orthopedic tests were either positive, or positive, bilaterally.

The dermatome evaluation utilizing a pinwheel revealed all dermatomes tested were normal with the exception of C5 hypoesthesia and bilateral L5 hypoesthesia.

Muscle testing in the bilateral upper extremities was graded at 5/5.

The range of motion for the cervical spine was indicated as decreased in flexion, extension, bilateral lateral flexion and bilateral rotation, but not quantified.

The range of motion for the lumbar spine was indicated as decreased in the pelvic sacral angle, flexion, extension, and bilateral lateral flexion, but not quantified.

After the examination the Diagnosis was:

1) subluxation of unspecified cervical vertebra;

2) subluxation of unspecified thoracic vertebra:

3) subluxation of unspecified lumbar vertebra;

4) muscle spasm;

5) myalgias;

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6) tension-type headaches;

7) subluxation complex (vertebral) of sacral region;

8) subluxation complex (vertebral) of pelvic region.

9) postural kyphosis, cervicothoracic region;

10) acquired deformity of neck.

11) Disorder of ligament, vertebrae.

The Assessment indicates that the patient's condition has reached an intermediate stage. Adjustment of vertebra revealed an indication of a modest degree of movement and joint dysfunction reduction at occiput-C7, T1-T 12, L1-L5 and the left ilium-sacrum.

This report reflects the findings of x-rays taken on 1/25/16.

It is noted that the patient was referred to massage therapy.

On 3/21/16, the EIP had a re-examination at the Applicant. She presented to the office stating that she was feeling a headache. In addition, she had pain in the neck which was described as constant, moderate and restricts the movement as well as radiating to the bilateral shoulders. She has been having mid back pain which was described as constant and moderate spasm as well as deep and achy pain. She also had pain in the lower back described this constant moderate which restricted her movements; it was a stabbing pain that radiated to the buttocks, left posterior thigh and right posterior thigh.

The examination of the neck found spasm and tenderness; the mid back examination also found spasm and tenderness as the same in the lower back in the quadratus lumborum and the erector spinae.

The EIP had a normal gait.

There was moderate loss of joint function at occiput-C7, T1-T 12, L1-L5 in the left ilium-sacrum noted on examination. In addition, the spine and paraspinal tissues were examined and show a moderate amount of pain at occiput-C7, T1-T 12, L1-L5 and the ilium-sacrum, bilaterally. An evaluation of the musculature revealed spasm of the suboccipital muscles, cervical paraspinal muscles, upper thoracic muscles, mid thoracic muscles, lower thoracic muscles, lumbar paraspinal muscles and gluteal muscles, bilaterally.

DTRs were measured at 2+/5 in the bilateral triceps, biceps, brachioradialis, patella and Achilles.

Jackson's Compression, and Maximum Cervical Compression tests were positive, bilaterally.

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Soto Hall was positive.

O'Donoghue's maneuver was positive.

Valsalva test was negative.

Distraction test was positive.

SLR was positive, bilaterally.

Braggard's sign was absent, bilaterally.

Ely's heel to buttock test was positive, bilaterally.

Kemp's test was positive, bilaterally.

Milgram's test was positive, bilaterally.

Heel-Walk test was negative, bilaterally.

Toe walk test was negative.

Iliac compression test was positive, bilaterally.

Yeoman's test was negative.

Patrick's test was positive, bilaterally.

Hip abduction stress test was positive, bilaterally.

Thomas's test was positive, bilaterally.

Apley's test was positive, bilaterally.

Shoulder compression test was positive.

Wright's test was positive on the right.

The dermatome evaluation utilizing a pinwheel revealed all dermatomes tested were normal with the exception of C5 hypoesthesia and bilateral L5 hypoesthesia.

Muscle testing in the bilateral upper extremities was graded at 5/5.

The range of motion for the cervical spine was measured and flexion was 25/50; extension was 22/60; right lateral flexion was 29/45; left lateral flexion was 28/45; right rotation was 30/80; left rotation was 48/80.

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The range of motion for the lumbar spine was Measured and flexion was 12/60; extension was 9/25; right lateral flexion was 14/25; left lateral flexion was 12/25.

After the examination the Diagnosis was:

1) subluxation of unspecified cervical vertebra;

2) subluxation of unspecified thoracic vertebra:

3) subluxation of unspecified lumbar vertebra;

4) muscle spasm;

5) myalgias;

6) tension-type headaches;

7) subluxation complex (vertebral) of sacral region;

8) subluxation complex (vertebral) of pelvic region.

9) postural kyphosis, cervicothoracic region;

10) acquired deformity of neck.

11) disorder of ligament, vertebrae.

12) other cervical disc displacement, mid cervical region.

13) other intervertebral disc displacement, thoracic region.

14) Other intervertebral disc displacement, lumbar region.

The Assessment indicates that the patient's condition has progressed to the subacute phase. An adjustment given according to findings produce a slight amount of motion and improvement in the misalignment at occiput-C7, T1-T12, L1-L5 and the left ilium-sacrum.

The results of the MRI of the cervical spine done on 2/27/16 are recorded. At C3/4 there is a posterior broad-based sub ligamentous disc bulge increasing on the left. Foramina remain patent.

At C4/5 and C5/6 posterior broad-based central disc bulge is seen impressing on the ventral CSF.

At C6-7 a posterior sub ligamentous disc bulges identified.

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The MRI of the thoracic spine done on 2/27/16 found scoliotic thoracic curvature present. Lower thoracic anterior bulges are identified.

The MRI of the lumbar spine also done on 2/27/16 showed bulging this that T12/L1 and L1/L2. At L4/5 there is a posterior broad-based disc herniation seen centrally impressing the thecal sac with lesser peripheral extension. At L5/S1 a posterior central broad-based disc herniation is seen.

The findings of the x-rays taken on 1/25/16 are again reported in this evaluation.

This report indicates that the EIP was going to be referred for massage therapy and EMG/NCV testing.

EMG/NCV/NCVS studies of the upper and lower extremities done on 3/21 and 4/11/16 were both normal.

On 4/11/16, the EIP had another re-examination at the Applicant. She continued to complain of headache as well as pain in the neck which radiated to the bilateral shoulders; mid back pain and low back pain.

The report shows spasm and tenderness in the cervical spine, mid back, and low back.

This report also lists DTRs as 2+/5 in the bilateral biceps, triceps, brachioradialis, Achilles and patellar.

There is list of provocative orthopedic testing that was positive.

The range of motion for the cervical spine and lumbar spine is simply indicated as "Increased" but not quantified.

The Diagnosis remains unchanged from the prior report.

The EIP had follow-up examinations on 5/12/16.

The records indicate that the EIP had MUA's done on 5/16, 5/17 and 5/18/16.

On her evaluation done on 5/19/16, she reported a marked degree of improvement with her headache pain. She also felt an improvement in the pain in her neck; her mid back pain is less intense; there is less overall pain in the lumbar spine region. She estimates that her improvement in her headaches has been 85%; her improvement in neck pain has been 85%; her mid back pain has improved 90% and a low back pain has improved 90%.

She has very mild pain in her neck She has slight headaches which come on infrequently.

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The palpation examination found mild tenderness in the neck, mid back, low back and the upper back.

DTRs were 2+/5 in a bilateral biceps, triceps, brachioradialis, patella and Achilles.

Jackson's compression test was negative, bilaterally.

Maximum Cervical Compression test was positive, bilaterally.

Soto Hall test was positive.

O'Donoghue's test was positive.

Valsalva's test was negative.

Distraction test was positive.

SLR was negative, bilaterally.

Braggard's sign was absent, bilaterally.

Ely's heel to buttock test was negative, bilaterally.

Kemp's test was positive, bilaterally.

Milgram's test was positive, bilaterally.

Heel walk test was negative, bilaterally.

Toe walk test was negative.

Iliac Compression Test was positive, bilaterally.

Yeoman's test was negative.

Patrick's test was negative, bilaterally.

Hip abduction stress test was negative.

Thomas's test was negative, bilaterally.

Apley's test was positive, bilaterally.

Shoulder Compression test was negative.

Wright's test was positive on the right.

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The sensory evaluation found that all dermatomes tested were normal.

Manual muscle testing was rated at 5/5 in a bilateral upper and lower extremities.

The range of motion for the cervical spine and lumbar spine were both indicated as "increased" but not quantified.

The Diagnosis was the same as in the prior report but also had the addition of "Other specific joint derangements of shoulder."

The EIP had follow-up examinations with the Applicant on 6/22, 8/22, 9/26/16 and 1/11/17.

The Applicant's submission contains chiropractic S.O.A.P. Notes from 1/12/16 through 3/29/17. At that point, the patient was discharged.

The Applicant's submission contains copies of x-ray reports for the EIP's cervical spine, lumbar spine, and thoracic spine, as well as a CT's scan of the head.

Also provided are copies of MRI reports for the cervical spine, the lumbar spine and the thoracic spine.

The Applicant has provided copies of range of motion testing for the EIP done 3/12/16.

This report reflects testing of the cervical spine in flexion, extension, left lateral flexion, right lateral flexion, left rotation, and right rotation. In addition, there are measurements of the lumbar spine in flexion, extension, as well as left and right lateral flexion.

In addition, ROM testing was done on 7/20, 9/29, 11/16, 12/22/16 and 2/17/17.

The Applicant's submission contains reports for EMG/NCV testing of the upper extremities done on 3/21/16 including the raw data.

The Applicant's submission contains reports for EMG/NCV of the lower extremities done on 4/11/16.

The Applicant's submission contains copies of manual muscle testing reports dated 7/20/16, 8/24/16, 9/29/16, 11/2/16, 11/9/16, 12/7/16, 1/11/17, and 1/18/17.

The Applicant's submission contains copies of massage therapy treatment notes from 1/27/16 through 3/29/16.

Respondent's submission:

The Respondent's position is that the Applicant's claim was properly denied based upon an IME done on 3/19/16 by Michael Berke, DC, which resulted in the denial of all future chiropractic and massage therapy benefits effective 4/11/16.

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The Respondent's submission contains copies of its global NF-10 and the NF-10s issued to the Applicant for its DOS.

As noted above, on 1/6/17 Respondent issued an NF-10 re DOS 12/14/16 and billing in the amount of $523.20. Applicant billed for manual muscle testing under CPT code 95831 at a total of $523.20. Respondent paid $86.01. The reason provided was that the Applicant's charges were in excess of the fee schedule and payment had been adjusted to reflect an allowance for a total body evaluation including the hands under CPT code 95834. As per the Respondent, the Applicant improperly unbundled the services in question.

IME:

Michael Berke, DC, administered a chiropractic IME to the EIP on 3/19/16. He recounts the accident history as provided by the claimant. He summarizes the treatment there after with Dr. Cullen a chiropractor in Lindenhurst. She was presently being treated 3 times per week.

Present Complaints were headaches, neck pain, upper back pain and lower back pain. As per Dr. Berke, the EIP stated that her condition had not improved since starting chiropractic care as the treatment only provides a temporary relief.

As to her employment situation, the EIP is employed as a legal secretary and missed 2 days from work due to the accident. She is working full-time in the same position and states that she is able to perform her work duties.

The physical examination indicates that the EIP presented with normal ambulation, no antalgia and fair muscle tone.

The postural analysis in the upright position revealed the head centered with shoulders and hips level.

The range of motion for the cervical spine was quantified as normal in all planes.

The range of motion for the thoraco-lumbar spine was quantified as normal in all planes.

Spinal palpation did not reveal any evidence of muscle spasm or tenderness over the cervical, thoracic or lumbar spinal regions.

Upon palpation of the sciatic notch, hamstrings and Achilles tendons, no spasms or tenderness was noted. There was no atrophy or deformity noted. There was no leg length discrepancy. There were no signs of inflammation, i.e., redness, heat or swelling.

Toe walking, heel walking, Kemp's, Cervical Foraminal Compression, SLR, Ely's, Soto-Hall, leg lowering, SI joint compression and Bechterew's testing was all negative.

The claimant reported no increased symptoms with coughing or sneezing.

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Valsalva maneuver was performed within normal limits.

The EIP was able to perform a full squat without difficulty and set up from the examination table without difficulty.

The neurological examination was normal with DTRs being recorded at 2+ and brisk. The claimant reported no areas of altered sensation during dermatomal sensory testing of the upper or lower extremities.

There is a list of medical records that were reviewed. I note that there are no MRI reports among them.

Dr. Berke relates the EIP's injuries to the accident of record.

The Diagnosis was: cervical sprain/strain - resolved; thoraco- lumbar sprain/strain - resolved.

The Prognosis was good.

Dr. Berke opined that the EIP does not demonstrate any objective disability and she may continue with the work duties and normal ADLs without restriction.

He also said that the EIP, a 26-year-old female, over 2 ½ months status post motor vehicle accident whose examination fails to reveal any objective findings to substantiate the necessity for further chiropractic treatment. All subjective complaints are important to ascertain what an individual is purporting to be experiencing, recommendations for treatment, need to be predicated upon presence of relevant objective examination findings. Therefore, based on my examination findings and the relevant history provided, the claimant's spinal condition requires no further treatment from a chiropractic point of view.

He also says that there is no need for household help, DME or related services.

Based upon that evaluation, on 4/4/16 the Respondent issued its global NF-10 denying all future chiropractic and massage therapy effective 4/11/16.

The Respondent's submission contains copies of the medical records reviewed by Dr. Berke.

At the hearing:

Applicant relied upon the medical records which are claimed to support the medical necessity for the treatment after the IME.

Respondent relied upon the IME.

FINDINGS:

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The Applicant has established its prima facie case.

This claim is for services provided to the EIP as follows:

CMT, hot/cold packs and electrostimulation, billed at $63.74 for DOS 9/13, 9/21, 9/26, 9/29, 10/5, 10/11, 10/12, 10/19, 10/24, 10/31, 11/2, 11/8, 11/9, 11/16, 11/30, 12/7, 12/9 and 12/14/16.

(18 DOS)

Range of motion study billed under CPT code 95851 at $457.10 for DOS 9/29, 11/2, and 11/16/16.

Manual muscle testing billed under CPT code 95831 at $523.20 for DOS 11/9/16 and12/14/16.

Manual muscle testing billed under CPT code 95831 at $261.60 for DOS 11/30/16.

Manual muscle testing billed under CPT code 95831 at $436.00 for DOS 12/7/16.

On 1/6/17, Respondent issued an NF-10 re DOS 12/14/16 and billing in amount of $523.20. Respondent paid $86.01 living in amount in dispute of $437.19. As per the EOB, the Applicant billed a total of 12 units for manual muscle testing under CPT code 95831. Respondent paid $86.01 same the payment was adjusted to reflect allowance for total body evaluation including the hands under CPT code 95834. (14.88 RVUs x $5.78 = $86.01)

The remainder of the Applicant billing was denied based upon the negative IME.

At the hearing, the Applicant amended the amount in controversy to $2,778.45 to be in accordance with the chiropractic fee schedule for both the CMT and physical medicine services provided on the 18 DOS, but also to be in accordance with the fee schedule for the range of motion testing and manual muscle testing.

The Applicant has submitted documentation both before and after the IME which indicate that the EIP needed treatment.

The claim is awarded.

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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:

Claim Amount Medical From/To Status Amount Amended

Harbor 09/13/16 - Awarded: Chiroprac $4,241.52 $2,778.45 12/14/16 $2,778.45 tic, P.C.

Awarded: Total $4,241.52 $2,778.45

B. The insurer shall also compute and pay the applicant interest set forth below. 01/23/2018 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, 1/23/18 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

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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

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.

04/20/2019 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: 75441c21e727a0e4fcd81cb8c69e8bd4

Electronically Signed

Your name: James Hogan Signed on: 04/20/2019

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