1. 2. 3. American Arbitration Association New York No-Fault

American Arbitration Association New York No-Fault Arbitration Tribunal

In the Matter of the Arbitration between: UTR Chiropractic Services PC AAA Case No. 17-19-1119-3216 (Applicant) Applicant's File No. S A # 797774 - and - Insurer's Claim File No. 0510655715 2NJ NAIC No. 29688 Allstate Fire & Casualty Insurance Company (Respondent)

ARBITRATION AWARD

I, Neal S. Dobshinsky, 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: J Doe and R Roe

1. Hearing(s) held on 12/11/2019 Declared closed by the arbitrator on 12/11/2019

Steven Slotnick from Slotnick & Ashkenazy, LLP participated in person for the Applicant

Linda Smith from Law Offices of John Trop participated by telephone for the Respondent

2. The amount claimed in the Arbitration Request, $ 615.97, 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

This matter involves claims for services rendered to two injured persons, J Doe and her 10 year-old son R Roe. Both Doe and Roe were treated by Applicant with chiropractic care. (The claim as to Doe is $546.61 and as to Roe is $69.36).

Insurer had both Doe and Roe examined by a chiropractor it designated. Insurer denied Applicant's claims based on the results of those chiropractic exams. Applicant seeks payment of the fees that were denied.

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Was the chiropractic care and treatment medically necessary? Is Applicant entitled to payment? If how much?

4. Findings, Conclusions, and Basis Therefor

I have read and considered the materials in the American Arbitration Association's ADR Center case file and heard and considered the parties' oral arguments. I find as follows:

Background

On 7/20/18, J Doe, a female, then 37 years old, was driver of a motor vehicle that was in an accident. R Roe, Doe's 10 year old son, was a rear seat passenger in the vehicle. Both Doe and Roe claim to have been injured. They then sought medical care and treatment from a number of providers, among them applicant UTR Chiropractic Services.

J Doe, Chiropractic Examination at the Request of Insurer

During the time period that Doe was being treated by Applicant, on 10/16/18, at the request of Insurer, Thomas J. McLaughlin, a chiropractor and licensed acupuncturist, performed a chiropractic and acupuncture examination ("IME") of Doe. Dr. McLaughlin submitted a sworn report of his IME findings, opinions, and recommendations.

In his report, the doctor lists the records and reports that he reviewed. These included: acupuncture exam, 7/23/18, and notes 7/23/18; acupuncture exam 8/1/18, and notes 8/1/18-8/30/18; chiropractic exam, 7/23/18, and notes 7/23/18; chiropractic exam 8/1/18, and 8/1/18-8/3/18; physical therapy evaluation 7/23/18, and therapy notes, 7/23/18; physical therapy evaluation, 8/1/18, physical therapy notes 8/1/18-8/16/18; exam, Paramount Medical Services, 8/7/18, and progress note, 8/7/18; and other records and reports.

The doctor notes the history of the accident (restrained driver, vehicle hit in rear); injuries to Doe's neck, upper back, mid back, low back, left shoulder, right shoulder, left arm, right arm, left elbow, right leg, and right knee. Doe was removed from the accident scene to the hospital emergency department where she was examined, treated and released. Doe is being treated with chiropractic adjustments, acupuncture, massage therapy and physical therapy. Doe was unemployed.

At the exam, Doe complained of "nondescript" pain in her pain in her neck, back, buttock, bilateral arms and bilateral legs. Dr. McLaughlin examined Doe's cervical spine, upper extremities, thoracic spine, lower extremities, and lumbar spine. He also performed a Traditional Chinese Medicine Exam. All of the exam findings were normal.

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The doctor diagnosed Doe with '[r]esolved cervical, thoracic, lumbosacral, left shoulder, right shoulder, left arm, right arm, left elbow, right leg and right knee sprain/strain injuries from the chiropractic and acupuncture perspectives as there is no evidence of components of the vertebral subluxation complex or Qi and/or blood stagnation of the channels."

Dr. McLaughlin stated that Doe had no need for further chiropractic, massage therapy and acupuncture care; there is an absence of objective findings or dysfunction or discomfort; no disability or restriction regarding employment or normal activities of daily living.

J Doe, Further Benefit Cut-Off

Based upon the results of Dr. McLaughlin's 10/16/18 IME, Insurer issued a denial of claim dated 10/23/18. Insurer notified Doe that all further chiropractic medicine and acupuncture benefits are not medically necessary. All further benefits for such treatment/services/ supplies were denied effective 10/30/18. It appears that Doe, Applicant, and other providers were copied on the denial.

Doe Continues With Treatment

Despite the denial and benefit cut-off, Doe continued with chiropractic care and treatment with Applicant through 3/14/19.

R Roe, Chiropractic Examination at the Request of Insurer

During the time period that Roe was being treated by Applicant, on 11/13/18, at the request of Insurer, Thomas J. McLaughlin, a chiropractor and licensed acupuncturist, performed a chiropractic and acupuncture examination ("IME") of Roe. Dr. McLaughlin submitted a sworn report of his IME findings, opinions, and recommendations.

In his report, the doctor lists the records and reports that he reviewed. These included: hospital emergency room records, 7/20/18; initial chiropractic evaluation, 8/7/18, and SOAP notes, 8/7/18-9/27/18; initial physical therapy evaluation, 8/7/18, and physical therapy treatment log, 8/7/18-9/13/18; initial acupuncture report, 8/7/18, and SOAP notes, 8/7/18-9/21/18; report of MRI of Roe's cervical and lumbar spines, 8/22/18; and other records and reports.

The doctor notes the history of the accident (restrained rear seat passenger, vehicle hit in rear); injuries to Roe's upper back and back. Doe was removed from the accident scene to the hospital emergency department where he was examined, treated and released. Doe is being treated with chiropractic adjustments, acupuncture, massage therapy and physical therapy. Doe is a student and participates in gym class and plays sports.

At the exam, Roe complained of pain in his low back. Dr. McLaughlin examined Doe's cervical spine, upper extremities, thoracic spine, lower extremities, and lumbar

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spine. He also performed a Traditional Chinese Medicine Exam. All of the exam findings were normal.

The doctor diagnosed Doe with "[r]esolved thoracic and lumbosacral sprain/strain injuries from the chiropractic and acupuncture perspectives as there is no evidence of components of the vertebral subluxation complex or Qi and/or blood stagnation of the channels."

R Roe, Further Benefit Cut-Off

Based upon the results of Dr. McLaughlin's 11/13/18 IME, Insurer issued a denial of claim dated 11/27/18. Insurer notified Roe that all further chiropractic medicine and acupuncture benefits are not medically necessary. All further benefits for such treatment/services/ supplies were denied effective 12/4/18. It appears that Doe, Applicant, and other providers were copied on the denial.

Roe Continues With Treatment

Despite the denial and benefit cut-off, Roe saw Applicant for chiropractic care and treatment two times in December 2018.

Applicant's Claims and Insurer's Denials

Applicant, as assignee of Doe and Roe, timely submitted its claims to Insurer for no-fault benefits for payment for the chiropractic services rendered to Doe and Roe.

Insurer timely denied all of the claims for lack of medical necessity based on Dr. McLaughlin's IME reports and its denials/further benefit-cut offs.

The only issue argued and submitted at the oral hearing was the medical necessity for the continued chiropractic care and treatment for Doe and Roe. All other issues were deemed waived.

Medical Necessity and the Burden of Proof Under No-Fault

Medical necessity for services or supplies is established by proof of an applicant's properly submitted claim form. All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co., 11 Misc3d 131(A), 2006 N.Y. Slip Op. 50318[U] [App Term, 2d Dept 9th & 10th Jud Dists 2006]. Here, Applicant's undisputed submission of the claims established medical necessity.

The insurer "bears both the burden of production and persuasion" as to its defense of lack of medical necessity. Nir v Allstate Ins. Co., 7 Misc 3d 544, 546 [Civ Ct,

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Kings County 2005]. The defense must be supported by a peer review report or other evidence, such as an independent medical examination report. The report must set forth a sufficiently detailed factual basis and medical rationale for the denial. Amaze Med. Supply v Eagle Ins. Co., 2 Misc3d 128(A), 2003 NY Slip Op 51701[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2003].

"[H]owever, it is the [applicant] who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (citations omitted)." Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132(A) n, 2017 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017].

The IMEs and Insurer's Lack of Medical Necessity Defense

Here, as to both Doe and Roe, Dr. McLaughlin's opinion that no further chiropractic treatment was necessary is credible and persuasive because it is consistent with the accident history, the records the doctor considered, and the doctor's own exam findings. The IME reports are sufficient bases for Insurer's denials of further benefits for chiropractic treatment. Insurer met its initial burden of production and persuasion to establish that Applicant's services were not medically necessary.

Applicant's Rebuttal as to Medical Necessity

Applicant has not submitted a formal rebuttal on the issue of medical necessity for continuing chiropractic treatment beyond the cutoff date.

Applicant points to the records in the parties' submissions as a whole to demonstrate medical necessity for the on-going chiropractic treatment. All of the records in the parties' submissions have been considered. There is nothing persuasive to demonstrate the need for the treatments at issue.

Conclusion

Based on the parties' submissions, their arguments, the relevant law, the regulations, and the weight of the evidence, I conclude that Insurer established its lack of medical necessity defense(s). Applicant is not entitled to payment on its claims.

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

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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 claim is DENIED in its entirety

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

01/10/2020 Neal S. Dobshinsky (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 6/7 ELECTRONIC SIGNATURE

Document Name: Final Award Form Unique Modria Document ID: 984aebcd2ccd7a9ee96eac3a446bfb06

Electronically Signed

Your name: Neal S. Dobshinsky Signed on: 01/10/2020

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