Preview
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
American Arbitration Association
New York No-Fault Arbitration Tribunal
In the Matter of the Arbitration between:
Rockaways ASC Development LLC d/b/a AAA Case No. 17-22-1255-1246
ASC of Rockaway Beach / Dalton Pinnock Applicant's File No. n/a
(Applicant)
Insurer's Claim File No. 21123728328
- and - NAIC No. 10914
Unitrin Safeguard Insurance Company
(Respondent)
ARBITRATION AWARD
I, Glen Wiener, 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: Assignor
1. Hearing(s) held on 03/28/2023
Declared closed by the arbitrator on 03/28/2023
KIm Gitlin, Esq. from Dino R. DiRienzo Esq. participated virtually for the Applicant
Tara Gutman, Esq. from Goldberg, Miller and Rubin, P.C. participated virtually for the
Respondent
2. The amount claimed in the Arbitration Request, $5,085.40, 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
Assignor D.P. a 43-year-old male was the driver of a vehicle involved in an
automobile accident on August 4, 2021. He did not seek any immediate
emergency medical attention. On September 9, 2021, complaining of neck,
radiating back, and left shoulder pains, Assignor consulted John J. McGee, D.O.
and commenced treatments.
On January 31, 2022, Assignor was examined by Jospeh J. Margulies, M.D. an
orthopedic surgeon selected by Respondent Unitrin Safeguard Insurance
Company to examine Assignor. ["IME"] Based on the IME report, Respondent
terminated Assignor's medical benefits effective April 5, 2022.
Page 1/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
On February 1, 2022, complaining in part of radiating low back pain rated 9/10
Assignor consulted Alexander Fontenot, M.D. Diagnosed with facet arthropathy
and displacement of lumbar discs, medial branch blocks were recommended.
On February 17, 2022, lumbar medial branch blocks were administered to
Assignor at a facility owned by Applicant Rockaways ASC Development LLC
d/b/a ASC of Rockaway Beach. Respondent denied Applicant's request for
reimbursement claiming the injuries and treatment were not related to the
underlying collision and the services were not medically necessary based on a
peer review of Ajendra S. Sohal, M.D. dated April 6, 2022.
On April 28, 2022, a lumbar radiofrequency ablation was performed on Assignor
at Applicant's facility. Respondent denied Applicant's request for reimbursement
averring the injuries and treatment were not related to the underlying collision
and the services were not medically necessary based on IME. Respondent did
not submit any evidence establishing that Assignor or Applicant were advised
via a General Denial about the termination of benefits effective on April 5, 2022.
The first and only notice to either party was the specific denial.
The questions presented herein are:
Whether Respondent should be able to re-litigate a prior determination of the
undersigned concluding Respondent failed to establish the injuries were not
casually related; and
Whether Respondent established the lumbar medial branch blocks were not
medically necessary; and
What is the earliest possible date an insurer can terminate an insured's no-fault
benefits based on an IME.
4. Findings, Conclusions, and Basis Therefor
The decision below is based on the documents on file in the Electronic Case
Folder maintained by the American Arbitration Association as of the date of this
hearing and on oral arguments of the parties. No witness testimony was
produced at the hearing.
Applicant Rockaways ASC Development LLC d/b/a ASC of Rockaway Beach as
assignee of D.P. seeks $5,085.40 reimbursement, with interest and counsel
fees, under the No-Fault Regulations, for facility services provided to Assignor.
Respondent Unitrin Safeguard Insurance Company insured the motor vehicle
involved in the automobile accident. Under New York's Comprehensive Motor
Page 2/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
Vehicle Insurance Reparation Act (the "No-Fault Law"), New York Ins. Law §§
5101 et seq., Respondent was obligated to reimburse the injured individual (or
their assignee) for all reasonable and necessary medical expenses arising from
the use or operation of the insured vehicle.
Assignor D.P. a 43-year-old male was the driver of a vehicle involved in an
automobile accident on August 4, 2021. He did not seek any immediate
emergency medical attention.
On August 10, 2021, Atlas Rehabilitation Medicine P.C. [Atlas] provided medical
services to Assignor. Respondent denied Atlas' request for reimbursement
alleging [1] Atlas failed to appear for scheduled and rescheduled examinations
under oath, [2] lack of causation, [3] fraud, [4] failure of the assignor to return a
signed transcript; and [5] lack of medical necessity. In a decision dated June 1,
2022, the undersigned determined:
Respondent failed to submit sufficient evidence establishing Assignor's
injuries did not arise out of the accident and the defense claiming
Assignor's injuries were not caused by the accident is vacated.
Respondent did not submit any evidence establishing the accident was
staged or a product of fraud and these defenses are vacated.
Atlas Rehab. Med. P.C. v. Kemper Ind. Ins. Co., 17-21-1225-0191 (Arb.
G. Wiener June 1, 2022)
On September 9, 2021, complaining of neck, radiating back, and left shoulder
pains, Assignor consulted John J. McGee, D.O. and commenced treatments.
On January 31, 2022, Assignor was examined by Jospeh J. Margulies, M.D. an
orthopedic surgeon selected by Respondent to examine Assignor. ["IME"]
Based on the IME report, Respondent terminated Assignor's medical benefits
effective April 5, 2022.
On February 1, 2022, complaining in part of radiating low back pain rated 9/10
Assignor consulted Alexander Fontenot, M.D. Diagnosed with facet arthropathy
and displacement of lumbar discs, medial branch blocks were recommended.
On February 17, 2022, lumbar medial branch blocks were administered to
Assignor at a facility owned by Applicant. Respondent denied Applicant's
request for reimbursement claiming the injuries and treatment were not related
to the underlying collision and the services were not medically necessary based
on a peer review of Ajendra S. Sohal, M.D. dated April 6, 2022.
On April 28, 2022, a lumbar radiofrequency ablation was performed on Assignor
at Applicant's facility. Respondent denied Applicant's request for reimbursement
averring the injuries and treatment were not related to the underlying collision
Page 3/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
and the services were not medically necessary based on IME. Respondent did
not submit any evidence establishing that Assignor or Applicant were advised
via a General Denial about the termination of benefits effective on April 5, 2022.
The first and only notice to either party was the specific denial.
The questions presented herein are:
Whether Respondent should be able to re-litigate a prior determination of the
undersigned concluding Respondent failed to establish the injuries were not
casually related; and
Whether Respondent established the services were not medically necessary;
and
What is the earliest possible date an insurer can terminate an insured's no-fault
benefits based on an IME.
Applicant established a prima facie entitlement to benefits by submitting
evidence that payments of no-fault benefits were overdue, and proofs of its
claims, using the statutory billing forms, were mailed to and received by
Respondent. Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 25
N.Y.3d 498, 501, 14 N.Y.S.3d 283 (2015). The proof Applicant mailed claim
forms to Respondent is embodied in the latter's denial, which reference receipt
of the proofs of claim. See, Ultra Diagnostic Imaging v. Liberty Mutual Insurance
Co., 9 Misc.3d 97, 804 N.Y.S. 2d 532 (App. Term 9th and 10th Jud. Dist. 2005).
"The presumption that an addressee received an item by mail may be created
by either proof of actual mailing or a standard office practice or procedure
designated to ensure that items are properly addresses and mailed." Amaze
Medical Supply Inc. v. Allstate Ins. Co., 3 Misc.3d 133A, 787 N.Y.S.2d 675 (App
Term 2d Dept. 2004). Great Health Care Chiropractic, P.C. v. Citiwide Auto
Leasing, 43 Misc. 3d 127(A), 990 N.Y.S.2d 437 (App. Term 2d, 11th & 13th
Dists. 2014).
The defense alleging the injuries were not caused by the accident.
First, logic and fairness dictate my prior decision in Atlas Rehab. Med. P.C. v.
Kemper Ind. Ins. Co. should be followed. Respondent's defense the alleged
injuries did not arise out of an insured event and were not causally related to the
covered event are vacated based on the adopted findings and conclusions sent
forth in my prior decision as if fully reiterated herein.
Secondly, collateral estoppel mandates that a party may not reassert an issue
that has been determined in a prior arbitration, whether or not the tribunals or
causes of action are the same. See Ryan v. New York Telephone, 42 N.Y.2d
494, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984). In order to invoke this doctrine,
the following criteria must be met: the issue must be identical to that which was
Page 4/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
previously litigated; it must be decisive of the instant action; and it requires that
the parties had a full and fair opportunity to contest the decision. See Gilberg v.
Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49 (1981). Issues previously resolved in
arbitration are also subject to the doctrine of collateral estoppel. Rembrandt
Industries, Inc. v. Hodges International, Inc., 38 N.Y.2d 502, 381 N.Y.S.2d 451
(1976). I find that the criteria for application of this doctrine have been met as
the issue is identical to that which was previously litigated; it involves the same
parties who had full and fair opportunities to arbitrate previously; and it is
decisive of the instant action.
Even though additional evidence may have been submitted herein "the policies
of promoting fairness for all parties and of promoting judicial efficiency are
hardly furthered by encouraging litigants to keep some evidence from the fact
finder in the first case so that, if there is an adverse verdict, this "new" evidence
can magically appear to prevent collateral estoppel. Shaid v. Con Ed. Co., 95
A.D.2d 610, 467 N.Y.S.2d 843 (2d Dept. 1983) (Gibbons, J. concurring)
Respondent's defense claiming the injuries were not caused by the accident is
vacated based on the doctrine of collateral estoppel.
The defense the services were not medically necessary.
Once Applicant established a prima facie case the burden shifted to Respondent
to prove the services provided were not medically necessary. See Citywide
Social Work & Psychological Services, PLLC v. Allstate Ins. Co., 8 Misc.3d
1025A, 806 N.Y.S.2d 444 (App. Term 1st Dept. 2005); A.B. Medical Services,
PLLC v. Geico Ins. Co., 2 Misc.3d 26, 773 N.Y.S.2d 773 (App. Term 2d & 11th
Jud. Dist. 2003); Fifth Ave. Pain Control Center v. Allstate Ins. Co, 196 Misc.2d
801, 766 N.Y.S.2d 748 (Civ. Ct. Queens Co. 2003). "A denial premised on lack
of medical necessity must be supported by competent evidence such as an
independent medical examination, peer review or other proof which sets forth a
factual basis and medical rational for denying the claim." Healing Hands
Chiropractic, P.C v. Nationwide Assurance Company, 5 Misc.3d 975, 787 N.Y.S.
645, (Civ. Ct. N.Y. Co. 2004).
[1] The Medial Branch Blocks on February 17, 2022.
Applicant seeks $3,213.98 reimbursement for the facility services provided
during the medial branch block injection administered to Assignor by Alexander
Fontenot M.D., on February 17, 2022.
In opining branch blocks were not medically necessary, Dr. Sohal stated, "There
is no report from Alexander Fontenot, M.D., available in the submitted medical
records for review."
Page 5/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
In the instant case, the conclusion of the peer reviewer upon which the denial
was based was not supported by a sufficient factual foundation to warrant
rejection of Applicant's claims and accordingly, was insufficient to support the
defense of medical necessity.
Dr. Sohal did not have the February 1, 2022, medical record of Dr. Fontenot and
therefore as unable to conclusively confirm the injections were not medically
necessary.
If Respondent did not possess all the records necessary to properly evaluate the
claim at the time the proof of claim was received, it should have requested them
from Applicant or the prescribing healthcare provider. The regulations provide
that, "within 15 business days of receipt" of a no-fault claim, an insurer may
seek additional verification of a claim. 11 NYCRR § 65-3.5 (b).
As noted above, Applicant's proofs of claim established a prima face case of
medical necessity. It is then Respondent's burden to present a prima face case
of lack of medical necessity premised on a peer review that contains a sufficient
factual basis and medical rationale for denying the claim.
Respondent's peer review is flawed and does not actually dispute the necessity
of the services provided based upon all the facts of the case. See, Park
Neurological Services PC v. Geico Insurance, 4 Misc.3d 95, 782 N.Y.S.2d 507
(App. Term 2d Dept. 2004).
Dr. Sohal's assertion the documentation submitted for his review lacked
sufficient information, fails to make out a prima facie showing of lack of medical
necessity. Lotus Acup. P.C. v. Unitrin Advantage Ins. Co., 51 Misc.3d 139(A),
2016 Slip Op. 50603(U) App. Term First Dept. 2016)
Hence, Applicant is awarded $3,213.98 and Respondent's denial is vacated.
[2] The RFA on April 28, 2022.
Applicant also seeks $1,871.42 reimbursement for the facility services provided
during the RFA on April 28, 2022. In a denial dated June 3, 2022, Respondent
denied Applicant's request for reimbursement based on the IME.
Respondent did not submit any evidence establishing that Assignor or Applicant
were advised via a General Denial about the termination of benefits effective on
April 5, 2022. The first and only notice to either party was the specific denial in
dispute herein.
In an opinion letter dated February 14, 2005, from the Office of General Counsel
of the State of New York Insurance Department, Supervising Attorney Lawrence
M. Fuchsburg stated that "...the earliest date that benefits may be cutoff
Page 6/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
prospectively based on the findings of the IME is the date that the denial is
sent to the applicant for benefits..." [Emphasis added]
Fairness and logic dictate that healthcare providers have prior notice of the
termination so they may knowingly elect whether or not to continue treating an
injured party and whether they are willing assume the risk they may not receive
any reimbursement for their services.
Based upon the evidence submitted, the first notification to either Applicant or
Assignor was contained in the specific denial dated June 3, 2022. Hence, the
earliest possible effective date for the termination of Applicant's acupuncture
services would be about June 8, 2022, if five days were added for the mailing.
Hence, Applicant's request for $1,871.42 reimbursement for the facility services
provided to Assignor during the RFA on April 28, 2022, is granted and
Respondent's denials are vacated.
Accordingly, Applicant is awarded $5,085.40 reimbursement. This award is in
full disposition of all No-Fault benefit claims submitted to this arbitrator.
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.
Claim
Medical From/To Status
Amount
Page 7/10
FILED: NEWA. YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
Rockaways
ASC
Development 02/17/22 - Awarded:
Dalton Pinnock $3,213.98
LLC d/b/a ASC 02/17/22 $3,213.98
of Rockaway
Beach
Rockaways
ASC
Development 04/28/22 - Awarded:
Dalton Pinnock $1,871.42
LLC d/b/a ASC 04/28/22 $1,871.42
of Rockaway
Beach
Awarded:
Total $5,085.40
$5,085.40
B. The insurer shall also compute and pay the applicant interest set forth below. 06/20/2022
is the date that interest shall accrue from. This is a relevant date only to the extent set
forth below.
Since the motor vehicle accident occurred after Apr. 5, 2002, interest shall be
calculated at the rate of two percent per month, simple, calculated on a pro rata
basis using a 30-day month. 11 NYCRR §65-3.9(a). If an applicant does not
request arbitration or institute a lawsuit within 30 days after receipt of a denial of
claim form or from the payment of benefits, interest shall not accumulate on the
disputed claim or element of claim until such action is taken. 11 NYCRR §65-3.9
(c).
In accordance with 11 NYCRR §65-3.9(c), interest shall be paid on the claim
from above noted date, which according to the timeline in the ECF is the date
the arbitration was filed with the American Arbitration Association.
C. Attorney's Fees
The insurer shall also pay the applicant for attorney's fees as set forth below
In accordance with 11 NYCRR §65-4.6(d), the insurer shall pay Applicant an
attorney's fee equal to 20% of the total amount awarded in this proceeding plus
interest, with NO MINIMUM FEE and the maximum fee capped at $1,360.
Page 8/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
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 NY
SS :
County of New York
I, Glen Wiener, do hereby affirm upon my oath as arbitrator that I am the individual described
in and who executed this instrument, which is my award.
04/02/2023
(Dated)
Glen Wiener
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 9/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
ELECTRONIC SIGNATURE
Document Name: Final Award Form
Unique Modria Document ID:
27dafb0fb549bdd7a78705bd31b8357b
Electronically Signed
Your name: Glen Wiener
Signed on: 04/02/2023 10:47:44 AM
Page 10/10
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
American Arbitration Association
NOFAULT ARBITRATION TRIBUNAL
In the Matter of the Arbitration between
Rockaways ASC Development LLC d/b/a ASC of Rockaway Beach /
Dalton Pinnock
-and-
Respond
Unitrin Safeguard Insurance Company
e
n
AAA ASSESSMENT INSURER’S FILE 21123728328
NO.: NUMBER:
AAA CASE NUMBER: 99-22-1255-1246
MASTER ARBITRATION AWARD
I, Richard B. Ancowitz, the undersigned MASTER ARBITRATOR,
appointed by the Superintendent of Insurance and designated by the
American Arbitration Association pursuant to regulations promulgated by the
Superintendent of Insurance at 11 NYCRR 65-4.10, having been duly sworn,
and having heard the proofs and allegations of the parties on N/A
, make the following AWARD.
Part I. Summary of Issues in Dispute
Does the arbitrator’s failure to credit respondent’s lack of medical
necessity defense warrant vacating the award as arbitrary and
capricious, irrational, or incorrect as a matter of law? Did the arbitrator
err in determining that respondent’s physical examination-based denial
should not be given effect here?
Part II. Findings, Conclusions, and Basis Therefor
Per the award, at issue before the arbitrator was a claim of $5,085.40 in billing for nerve
block and neurological ablation services rendered by applicant to the Eligible Injured Person
(EIP).
1
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
The arbitrator rejected respondent’s peer reviewbased defense of lack of medical necessity.
The arbitrator also rejected respondent’s attempt to use a physical examinationbased denial
as a cutoff for the services at issue herein. As a result, the arbitrator issued an award for
applicant in the above amount.
Specifically, the arbitrator held, as germane to the instant request for master arbitrator
review:
“Applicant seeks $3,213.98 reimbursement for the facility services provided
during the medial branch block injection administered to Assignor by Alexander
Fontenot M.D., on February 17, 2022.
In opining branch blocks were not medically necessary, Dr. Sohal stated, "There
is no report from Alexander Fontenot, M.D., available in the submitted medical
records for review."
In the instant case, the conclusion of the peer reviewer upon which the denial
was based was not supported by a sufficient factual foundation to warrant
rejection of Applicant's claims and accordingly, was insufficient to support the
defense of medical necessity.
Dr. Sohal did not have the February 1, 2022, medical record of Dr. Fontenot and
therefore as unable to conclusively confirm the injections were not medically
necessary.
If Respondent did not possess all the records necessary to properly evaluate the
claim at the time the proof of claim was received, it should have requested them
from Applicant or the prescribing healthcare provider. The regulations provide
that, "within 15 business days of receipt" of a nofault claim, an insurer may
seek additional verification of a claim. 11 NYCRR § 653.5 (b).
As noted above, Applicant's proofs of claim established a prima face case of
medical necessity. It is then Respondent's burden to present a prima face case
of lack of medical necessity premised on a peer review that contains a sufficient
factual basis and medical rationale for denying the claim.
Respondent's peer review is flawed and does not actually dispute the necessity
of the services provided based upon all the facts of the case. See, Park
Neurological Services PC v. Geico Insurance, 4 Misc.3d 95, 782 N.Y.S.2d 507
(App. Term 2d Dept. 2004).
Dr. Sohal's assertion the documentation submitted for his review lacked
sufficient information, fails to make out a prima facie showing of lack of medical
necessity. Lotus Acup. P.C. v. Unitrin Advantage Ins. Co., 51 Misc.3d 139(A),
2016 Slip Op. 50603(U) App. Term First Dept. 2016)
2
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
Hence, Applicant is awarded $3,213.98 and Respondent's denial is vacated.
[2] The RFA on April 28, 2022.
Applicant also seeks $1,871.42 reimbursement for the facility services provided
during the RFA on April 28, 2022. In a denial dated June 3, 2022, Respondent
denied Applicant's request for reimbursement based on the IME.
Respondent did not submit any evidence establishing that Assignor or Applicant
were advised via a General Denial about the termination of benefits effective on
April 5, 2022. The first and only notice to either party was the specific denial in
dispute herein.
In an opinion letter dated February 14, 2005, from the Office of General Counsel
of the State of New York Insurance Department, Supervising Attorney Lawrence
M. Fuchsburg stated that "...the earliest date that benefits may be cutoff
prospectively based on the findings of the IME is the date that the denial is
sent to the applicant for benefits..." [Emphasis added]
Fairness and logic dictate that healthcare providers have prior notice of the
termination so they may knowingly elect whether or not to continue treating an
injured party and whether they are willing assume the risk they may not receive
any reimbursement for their services.
Based upon the evidence submitted, the first notification to either Applicant or
Assignor was contained in the specific denial dated June 3, 2022. Hence, the
earliest possible effective date for the termination of Applicant's acupuncture
services would be about June 8, 2022, if five days were added for the mailing.
Hence, Applicant's request for $1,871.42 reimbursement for the facility services
provided to Assignor during the RFA on April 28, 2022, is granted and
Respondent's denials are vacated.
Accordingly, Applicant is awarded $5,085.40 reimbursement. This award is in
full disposition of all NoFault benefit claims submitted to this arbitrator.”
Respondent’s brief contends that the award was arbitrary and capricious, irrational and
incorrect as a matter of law, and further contends that the evidence before the arbitrator was
sufficient to sustain their defenses. More specifically, respondent contends that applicant did
not sufficiently rebut the issues raised by their peer reviewer. Respondent also contends that
their physical examinationbased denial should have been operative here to deny
reimbursement.
Applicant has not submitted a brief, and although they requested and were granted an
extension of time to so submit, have failed to do so.
3
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
Upon review, I see no reason to vacate or modify the award. As it was within the
arbitrator’s province to consider, weigh, and judge the evidence presented (11 NYCRR 65
4.5 (o)(1)), I see no reason to disturb the arbitrator’s determination that found respondent’s
evidence to be insufficient to properly support their defenses. See, Matter of Bay Needle
Acupuncture v. CountryWide Ins. Co., 176 A.D.3d 806 (2nd Dept 2019); Matter of Jasser v.
Allstate Ins. Co., 77 AD 3d 751 (2nd Dept 2010); Allstate Ins. Co. v. Keegan, 201 A.D.2d
724 (2nd Dept 1994). This is especially apt given the arbitrator’s description of respondent’s
peer review report, in support of their defense, as “flawed”. Nor do I find any error in the
arbitrator’s citation to learned Counsel Fuchsberg of the Department, as concerns when such
a denial becomes operative, in this case their physical examinationbased denial.
In sum, having reviewed respondent’s contentions of error, and having carefully reviewed
the award itself, I find no reason to grant the relief sought herein.
Accordingly,
1. the request for review is hereby denied pursuant to 11 NYCRR 65-4.10
(c) (4)
2. the award reviewed is affirmed in its entirety
3. the award or part thereof in favor of applicant
hereby reviewed is
vacated and
respondent
remanded for a new hearing before the lower arbitrator
before a new arbitrator
4. the award in favor of the applicant
hereby reviewed is vacated in
its entirety
respondent
—or—
5. the award reviewed is modified to read as follows:
A. The respondent shall pay the applicant no-fault benefits in the sum of
Dollars ($ ), as
follows:
Work/Wage Loss $
4
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
Health Service Benefits $
Other Reasonable and Necessary Expenses $
Death Benefit $
Total $
B1. Since the claim(s) in question arose from an accident that occurred
prior to April 5, 2002, the insurer shall compute and pay the applicant the
amount of interest computed from
at the rate of 2% per month,
compounded, and ending with the date of payment of the award, subject
to the provisions of 11 NYCRR 65-3.9(c) (stay of interest).
B2. Since the claim(s) in question arose from an accident that occurred
on or after April 5, 2002, the insurer shall compute and pay the applicant
the amount of interest computed from
at the rate of 2% per month and ending
with the date of payment of the award, subject to the provisions of 11
NYCRR 65-3.9(c) (stay of interest).
C1. x The respondent shall also pay the applicant dollars
($ ) for attorney’s fees computed in accordance with
11 NYCRR 65-4.6(d). The computation is shown below (attach additional
sheets if necessary).
-or-
C2. The respondent shall also pay the applicant an attorney’s
fee in accordance with 11 NYCRR 65-4.6(e). However, for all
arbitration requests filed on or after April 5, 2002, if the benefits
and interest awarded thereon is equal to or less than the
respondent’s written offer during the conciliation process, then the
5
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
attorney’s fee shall be based upon the provisions of 11 NYCRR 65-
4.6(b).
C3. Since the charges by the applicant for benefits are for billings
on or after April 5, 2002, and exceed the limitations contained in
the schedules established pursuant to section 5108 of the
Insurance Law, no attorney’s fee shall be payable by the insurer.
See 11 NYCRR 65-4.6(i).
D. The respondent shall also pay the applicant forty dollars ($40) to
reimburse the applicant for the fee paid to the Designated
Organization for the arbitration below, unless the fee was
previously returned pursuant to an earlier award
PART III. (Complete if applicable.) The applicant in the arbitration reviewed,
having prevailed in this review,
A. The respondent shall pay the applicant $N/A representing
attorney’s fees upon master arbitrator review. The computation is
shown below (attach additional sheets if necessary).
B. If the applicant requested review, the respondent shall also pay the
applicant SEVENTY-FIVE DOLLARS ($75) to reimburse the
applicant for the Master Arbitration filing fee.
This award determines all of the no-fault policy issues submitted to this master
arbitrator pursuant to 11 NYCRR 65- 4.10.
State of New York
County of Albany
ss: .
I, Richard B. Ancowitz, do hereby affirm upon my oath as master arbitrator that I
am the individual described in and who executed this instrument, which is my
award.
July 10, 2023
Date Master Arbitrator’s Signature
6
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024
IMPORTANT NOTICE
This award is payable within 21 calendar days of the date of mailing. A
copy of this award has been sent to the Superintendent of Insurance.
This master arbitration award is final and binding except for CPLR
Article 75 review or where the award, exclusive of interest and
attorney’s fees, exceeds $5,000, in which case there may be court
review de novo (11 NYCRR 65- 4.10(h)). A denial of review pursuant to
11 NYCRR 65- 4.10 (c) (4) (Part II (1) above) shall not form the basis of
an action de novo within the meaning of section 5106(c) of the
Insurance Law. A party who intends to commence an Article 75
proceeding or an action to adjudicate a dispute de novo shall follow
the applicable procedures as set forth in CPLR Article 75. If the party
initiating such action is an insurer, payment of all amounts set forth in
the master arbitration award which will not be subject of judicial
action or review shall be made prior of the commencement of such
action.
Date of mailing: July 11, 2023
7
Preview
FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Rockaways ASC Development LLC d/b/a AAA Case No. 17-22-1255-1246 ASC of Rockaway Beach / Dalton Pinnock Applicant's File No. n/a (Applicant) Insurer's Claim File No. 21123728328 - and - NAIC No. 10914 Unitrin Safeguard Insurance Company (Respondent) ARBITRATION AWARD I, Glen Wiener, 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: Assignor 1. Hearing(s) held on 03/28/2023 Declared closed by the arbitrator on 03/28/2023 KIm Gitlin, Esq. from Dino R. DiRienzo Esq. participated virtually for the Applicant Tara Gutman, Esq. from Goldberg, Miller and Rubin, P.C. participated virtually for the Respondent 2. The amount claimed in the Arbitration Request, $5,085.40, 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 Assignor D.P. a 43-year-old male was the driver of a vehicle involved in an automobile accident on August 4, 2021. He did not seek any immediate emergency medical attention. On September 9, 2021, complaining of neck, radiating back, and left shoulder pains, Assignor consulted John J. McGee, D.O. and commenced treatments. On January 31, 2022, Assignor was examined by Jospeh J. Margulies, M.D. an orthopedic surgeon selected by Respondent Unitrin Safeguard Insurance Company to examine Assignor. ["IME"] Based on the IME report, Respondent terminated Assignor's medical benefits effective April 5, 2022. Page 1/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 On February 1, 2022, complaining in part of radiating low back pain rated 9/10 Assignor consulted Alexander Fontenot, M.D. Diagnosed with facet arthropathy and displacement of lumbar discs, medial branch blocks were recommended. On February 17, 2022, lumbar medial branch blocks were administered to Assignor at a facility owned by Applicant Rockaways ASC Development LLC d/b/a ASC of Rockaway Beach. Respondent denied Applicant's request for reimbursement claiming the injuries and treatment were not related to the underlying collision and the services were not medically necessary based on a peer review of Ajendra S. Sohal, M.D. dated April 6, 2022. On April 28, 2022, a lumbar radiofrequency ablation was performed on Assignor at Applicant's facility. Respondent denied Applicant's request for reimbursement averring the injuries and treatment were not related to the underlying collision and the services were not medically necessary based on IME. Respondent did not submit any evidence establishing that Assignor or Applicant were advised via a General Denial about the termination of benefits effective on April 5, 2022. The first and only notice to either party was the specific denial. The questions presented herein are: Whether Respondent should be able to re-litigate a prior determination of the undersigned concluding Respondent failed to establish the injuries were not casually related; and Whether Respondent established the lumbar medial branch blocks were not medically necessary; and What is the earliest possible date an insurer can terminate an insured's no-fault benefits based on an IME. 4. Findings, Conclusions, and Basis Therefor The decision below is based on the documents on file in the Electronic Case Folder maintained by the American Arbitration Association as of the date of this hearing and on oral arguments of the parties. No witness testimony was produced at the hearing. Applicant Rockaways ASC Development LLC d/b/a ASC of Rockaway Beach as assignee of D.P. seeks $5,085.40 reimbursement, with interest and counsel fees, under the No-Fault Regulations, for facility services provided to Assignor. Respondent Unitrin Safeguard Insurance Company insured the motor vehicle involved in the automobile accident. Under New York's Comprehensive Motor Page 2/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 Vehicle Insurance Reparation Act (the "No-Fault Law"), New York Ins. Law §§ 5101 et seq., Respondent was obligated to reimburse the injured individual (or their assignee) for all reasonable and necessary medical expenses arising from the use or operation of the insured vehicle. Assignor D.P. a 43-year-old male was the driver of a vehicle involved in an automobile accident on August 4, 2021. He did not seek any immediate emergency medical attention. On August 10, 2021, Atlas Rehabilitation Medicine P.C. [Atlas] provided medical services to Assignor. Respondent denied Atlas' request for reimbursement alleging [1] Atlas failed to appear for scheduled and rescheduled examinations under oath, [2] lack of causation, [3] fraud, [4] failure of the assignor to return a signed transcript; and [5] lack of medical necessity. In a decision dated June 1, 2022, the undersigned determined: Respondent failed to submit sufficient evidence establishing Assignor's injuries did not arise out of the accident and the defense claiming Assignor's injuries were not caused by the accident is vacated. Respondent did not submit any evidence establishing the accident was staged or a product of fraud and these defenses are vacated. Atlas Rehab. Med. P.C. v. Kemper Ind. Ins. Co., 17-21-1225-0191 (Arb. G. Wiener June 1, 2022) On September 9, 2021, complaining of neck, radiating back, and left shoulder pains, Assignor consulted John J. McGee, D.O. and commenced treatments. On January 31, 2022, Assignor was examined by Jospeh J. Margulies, M.D. an orthopedic surgeon selected by Respondent to examine Assignor. ["IME"] Based on the IME report, Respondent terminated Assignor's medical benefits effective April 5, 2022. On February 1, 2022, complaining in part of radiating low back pain rated 9/10 Assignor consulted Alexander Fontenot, M.D. Diagnosed with facet arthropathy and displacement of lumbar discs, medial branch blocks were recommended. On February 17, 2022, lumbar medial branch blocks were administered to Assignor at a facility owned by Applicant. Respondent denied Applicant's request for reimbursement claiming the injuries and treatment were not related to the underlying collision and the services were not medically necessary based on a peer review of Ajendra S. Sohal, M.D. dated April 6, 2022. On April 28, 2022, a lumbar radiofrequency ablation was performed on Assignor at Applicant's facility. Respondent denied Applicant's request for reimbursement averring the injuries and treatment were not related to the underlying collision Page 3/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 and the services were not medically necessary based on IME. Respondent did not submit any evidence establishing that Assignor or Applicant were advised via a General Denial about the termination of benefits effective on April 5, 2022. The first and only notice to either party was the specific denial. The questions presented herein are: Whether Respondent should be able to re-litigate a prior determination of the undersigned concluding Respondent failed to establish the injuries were not casually related; and Whether Respondent established the services were not medically necessary; and What is the earliest possible date an insurer can terminate an insured's no-fault benefits based on an IME. Applicant established a prima facie entitlement to benefits by submitting evidence that payments of no-fault benefits were overdue, and proofs of its claims, using the statutory billing forms, were mailed to and received by Respondent. Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 498, 501, 14 N.Y.S.3d 283 (2015). The proof Applicant mailed claim forms to Respondent is embodied in the latter's denial, which reference receipt of the proofs of claim. See, Ultra Diagnostic Imaging v. Liberty Mutual Insurance Co., 9 Misc.3d 97, 804 N.Y.S. 2d 532 (App. Term 9th and 10th Jud. Dist. 2005). "The presumption that an addressee received an item by mail may be created by either proof of actual mailing or a standard office practice or procedure designated to ensure that items are properly addresses and mailed." Amaze Medical Supply Inc. v. Allstate Ins. Co., 3 Misc.3d 133A, 787 N.Y.S.2d 675 (App Term 2d Dept. 2004). Great Health Care Chiropractic, P.C. v. Citiwide Auto Leasing, 43 Misc. 3d 127(A), 990 N.Y.S.2d 437 (App. Term 2d, 11th & 13th Dists. 2014). The defense alleging the injuries were not caused by the accident. First, logic and fairness dictate my prior decision in Atlas Rehab. Med. P.C. v. Kemper Ind. Ins. Co. should be followed. Respondent's defense the alleged injuries did not arise out of an insured event and were not causally related to the covered event are vacated based on the adopted findings and conclusions sent forth in my prior decision as if fully reiterated herein. Secondly, collateral estoppel mandates that a party may not reassert an issue that has been determined in a prior arbitration, whether or not the tribunals or causes of action are the same. See Ryan v. New York Telephone, 42 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984). In order to invoke this doctrine, the following criteria must be met: the issue must be identical to that which was Page 4/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 previously litigated; it must be decisive of the instant action; and it requires that the parties had a full and fair opportunity to contest the decision. See Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49 (1981). Issues previously resolved in arbitration are also subject to the doctrine of collateral estoppel. Rembrandt Industries, Inc. v. Hodges International, Inc., 38 N.Y.2d 502, 381 N.Y.S.2d 451 (1976). I find that the criteria for application of this doctrine have been met as the issue is identical to that which was previously litigated; it involves the same parties who had full and fair opportunities to arbitrate previously; and it is decisive of the instant action. Even though additional evidence may have been submitted herein "the policies of promoting fairness for all parties and of promoting judicial efficiency are hardly furthered by encouraging litigants to keep some evidence from the fact finder in the first case so that, if there is an adverse verdict, this "new" evidence can magically appear to prevent collateral estoppel. Shaid v. Con Ed. Co., 95 A.D.2d 610, 467 N.Y.S.2d 843 (2d Dept. 1983) (Gibbons, J. concurring) Respondent's defense claiming the injuries were not caused by the accident is vacated based on the doctrine of collateral estoppel. The defense the services were not medically necessary. Once Applicant established a prima facie case the burden shifted to Respondent to prove the services provided were not medically necessary. See Citywide Social Work & Psychological Services, PLLC v. Allstate Ins. Co., 8 Misc.3d 1025A, 806 N.Y.S.2d 444 (App. Term 1st Dept. 2005); A.B. Medical Services, PLLC v. Geico Ins. Co., 2 Misc.3d 26, 773 N.Y.S.2d 773 (App. Term 2d & 11th Jud. Dist. 2003); Fifth Ave. Pain Control Center v. Allstate Ins. Co, 196 Misc.2d 801, 766 N.Y.S.2d 748 (Civ. Ct. Queens Co. 2003). "A denial premised on lack of medical necessity must be supported by competent evidence such as an independent medical examination, peer review or other proof which sets forth a factual basis and medical rational for denying the claim." Healing Hands Chiropractic, P.C v. Nationwide Assurance Company, 5 Misc.3d 975, 787 N.Y.S. 645, (Civ. Ct. N.Y. Co. 2004). [1] The Medial Branch Blocks on February 17, 2022. Applicant seeks $3,213.98 reimbursement for the facility services provided during the medial branch block injection administered to Assignor by Alexander Fontenot M.D., on February 17, 2022. In opining branch blocks were not medically necessary, Dr. Sohal stated, "There is no report from Alexander Fontenot, M.D., available in the submitted medical records for review." Page 5/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 In the instant case, the conclusion of the peer reviewer upon which the denial was based was not supported by a sufficient factual foundation to warrant rejection of Applicant's claims and accordingly, was insufficient to support the defense of medical necessity. Dr. Sohal did not have the February 1, 2022, medical record of Dr. Fontenot and therefore as unable to conclusively confirm the injections were not medically necessary. If Respondent did not possess all the records necessary to properly evaluate the claim at the time the proof of claim was received, it should have requested them from Applicant or the prescribing healthcare provider. The regulations provide that, "within 15 business days of receipt" of a no-fault claim, an insurer may seek additional verification of a claim. 11 NYCRR § 65-3.5 (b). As noted above, Applicant's proofs of claim established a prima face case of medical necessity. It is then Respondent's burden to present a prima face case of lack of medical necessity premised on a peer review that contains a sufficient factual basis and medical rationale for denying the claim. Respondent's peer review is flawed and does not actually dispute the necessity of the services provided based upon all the facts of the case. See, Park Neurological Services PC v. Geico Insurance, 4 Misc.3d 95, 782 N.Y.S.2d 507 (App. Term 2d Dept. 2004). Dr. Sohal's assertion the documentation submitted for his review lacked sufficient information, fails to make out a prima facie showing of lack of medical necessity. Lotus Acup. P.C. v. Unitrin Advantage Ins. Co., 51 Misc.3d 139(A), 2016 Slip Op. 50603(U) App. Term First Dept. 2016) Hence, Applicant is awarded $3,213.98 and Respondent's denial is vacated. [2] The RFA on April 28, 2022. Applicant also seeks $1,871.42 reimbursement for the facility services provided during the RFA on April 28, 2022. In a denial dated June 3, 2022, Respondent denied Applicant's request for reimbursement based on the IME. Respondent did not submit any evidence establishing that Assignor or Applicant were advised via a General Denial about the termination of benefits effective on April 5, 2022. The first and only notice to either party was the specific denial in dispute herein. In an opinion letter dated February 14, 2005, from the Office of General Counsel of the State of New York Insurance Department, Supervising Attorney Lawrence M. Fuchsburg stated that "...the earliest date that benefits may be cutoff Page 6/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 prospectively based on the findings of the IME is the date that the denial is sent to the applicant for benefits..." [Emphasis added] Fairness and logic dictate that healthcare providers have prior notice of the termination so they may knowingly elect whether or not to continue treating an injured party and whether they are willing assume the risk they may not receive any reimbursement for their services. Based upon the evidence submitted, the first notification to either Applicant or Assignor was contained in the specific denial dated June 3, 2022. Hence, the earliest possible effective date for the termination of Applicant's acupuncture services would be about June 8, 2022, if five days were added for the mailing. Hence, Applicant's request for $1,871.42 reimbursement for the facility services provided to Assignor during the RFA on April 28, 2022, is granted and Respondent's denials are vacated. Accordingly, Applicant is awarded $5,085.40 reimbursement. This award is in full disposition of all No-Fault benefit claims submitted to this arbitrator. 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. Claim Medical From/To Status Amount Page 7/10 FILED: NEWA. YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 Rockaways ASC Development 02/17/22 - Awarded: Dalton Pinnock $3,213.98 LLC d/b/a ASC 02/17/22 $3,213.98 of Rockaway Beach Rockaways ASC Development 04/28/22 - Awarded: Dalton Pinnock $1,871.42 LLC d/b/a ASC 04/28/22 $1,871.42 of Rockaway Beach Awarded: Total $5,085.40 $5,085.40 B. The insurer shall also compute and pay the applicant interest set forth below. 06/20/2022 is the date that interest shall accrue from. This is a relevant date only to the extent set forth below. Since the motor vehicle accident occurred after Apr. 5, 2002, interest shall be calculated at the rate of two percent per month, simple, calculated on a pro rata basis using a 30-day month. 11 NYCRR §65-3.9(a). If an applicant does not request arbitration or institute a lawsuit within 30 days after receipt of a denial of claim form or from the payment of benefits, interest shall not accumulate on the disputed claim or element of claim until such action is taken. 11 NYCRR §65-3.9 (c). In accordance with 11 NYCRR §65-3.9(c), interest shall be paid on the claim from above noted date, which according to the timeline in the ECF is the date the arbitration was filed with the American Arbitration Association. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below In accordance with 11 NYCRR §65-4.6(d), the insurer shall pay Applicant an attorney's fee equal to 20% of the total amount awarded in this proceeding plus interest, with NO MINIMUM FEE and the maximum fee capped at $1,360. Page 8/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 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 NY SS : County of New York I, Glen Wiener, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 04/02/2023 (Dated) Glen Wiener 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 9/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 27dafb0fb549bdd7a78705bd31b8357b Electronically Signed Your name: Glen Wiener Signed on: 04/02/2023 10:47:44 AM Page 10/10 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 American Arbitration Association NOFAULT ARBITRATION TRIBUNAL In the Matter of the Arbitration between Rockaways ASC Development LLC d/b/a ASC of Rockaway Beach / Dalton Pinnock -and- Respond Unitrin Safeguard Insurance Company e n AAA ASSESSMENT INSURER’S FILE 21123728328 NO.: NUMBER: AAA CASE NUMBER: 99-22-1255-1246 MASTER ARBITRATION AWARD I, Richard B. Ancowitz, the undersigned MASTER ARBITRATOR, appointed by the Superintendent of Insurance and designated by the American Arbitration Association pursuant to regulations promulgated by the Superintendent of Insurance at 11 NYCRR 65-4.10, having been duly sworn, and having heard the proofs and allegations of the parties on N/A , make the following AWARD. Part I. Summary of Issues in Dispute Does the arbitrator’s failure to credit respondent’s lack of medical necessity defense warrant vacating the award as arbitrary and capricious, irrational, or incorrect as a matter of law? Did the arbitrator err in determining that respondent’s physical examination-based denial should not be given effect here? Part II. Findings, Conclusions, and Basis Therefor Per the award, at issue before the arbitrator was a claim of $5,085.40 in billing for nerve block and neurological ablation services rendered by applicant to the Eligible Injured Person (EIP). 1 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 The arbitrator rejected respondent’s peer reviewbased defense of lack of medical necessity. The arbitrator also rejected respondent’s attempt to use a physical examinationbased denial as a cutoff for the services at issue herein. As a result, the arbitrator issued an award for applicant in the above amount. Specifically, the arbitrator held, as germane to the instant request for master arbitrator review: “Applicant seeks $3,213.98 reimbursement for the facility services provided during the medial branch block injection administered to Assignor by Alexander Fontenot M.D., on February 17, 2022. In opining branch blocks were not medically necessary, Dr. Sohal stated, "There is no report from Alexander Fontenot, M.D., available in the submitted medical records for review." In the instant case, the conclusion of the peer reviewer upon which the denial was based was not supported by a sufficient factual foundation to warrant rejection of Applicant's claims and accordingly, was insufficient to support the defense of medical necessity. Dr. Sohal did not have the February 1, 2022, medical record of Dr. Fontenot and therefore as unable to conclusively confirm the injections were not medically necessary. If Respondent did not possess all the records necessary to properly evaluate the claim at the time the proof of claim was received, it should have requested them from Applicant or the prescribing healthcare provider. The regulations provide that, "within 15 business days of receipt" of a nofault claim, an insurer may seek additional verification of a claim. 11 NYCRR § 653.5 (b). As noted above, Applicant's proofs of claim established a prima face case of medical necessity. It is then Respondent's burden to present a prima face case of lack of medical necessity premised on a peer review that contains a sufficient factual basis and medical rationale for denying the claim. Respondent's peer review is flawed and does not actually dispute the necessity of the services provided based upon all the facts of the case. See, Park Neurological Services PC v. Geico Insurance, 4 Misc.3d 95, 782 N.Y.S.2d 507 (App. Term 2d Dept. 2004). Dr. Sohal's assertion the documentation submitted for his review lacked sufficient information, fails to make out a prima facie showing of lack of medical necessity. Lotus Acup. P.C. v. Unitrin Advantage Ins. Co., 51 Misc.3d 139(A), 2016 Slip Op. 50603(U) App. Term First Dept. 2016) 2 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 Hence, Applicant is awarded $3,213.98 and Respondent's denial is vacated. [2] The RFA on April 28, 2022. Applicant also seeks $1,871.42 reimbursement for the facility services provided during the RFA on April 28, 2022. In a denial dated June 3, 2022, Respondent denied Applicant's request for reimbursement based on the IME. Respondent did not submit any evidence establishing that Assignor or Applicant were advised via a General Denial about the termination of benefits effective on April 5, 2022. The first and only notice to either party was the specific denial in dispute herein. In an opinion letter dated February 14, 2005, from the Office of General Counsel of the State of New York Insurance Department, Supervising Attorney Lawrence M. Fuchsburg stated that "...the earliest date that benefits may be cutoff prospectively based on the findings of the IME is the date that the denial is sent to the applicant for benefits..." [Emphasis added] Fairness and logic dictate that healthcare providers have prior notice of the termination so they may knowingly elect whether or not to continue treating an injured party and whether they are willing assume the risk they may not receive any reimbursement for their services. Based upon the evidence submitted, the first notification to either Applicant or Assignor was contained in the specific denial dated June 3, 2022. Hence, the earliest possible effective date for the termination of Applicant's acupuncture services would be about June 8, 2022, if five days were added for the mailing. Hence, Applicant's request for $1,871.42 reimbursement for the facility services provided to Assignor during the RFA on April 28, 2022, is granted and Respondent's denials are vacated. Accordingly, Applicant is awarded $5,085.40 reimbursement. This award is in full disposition of all NoFault benefit claims submitted to this arbitrator.” Respondent’s brief contends that the award was arbitrary and capricious, irrational and incorrect as a matter of law, and further contends that the evidence before the arbitrator was sufficient to sustain their defenses. More specifically, respondent contends that applicant did not sufficiently rebut the issues raised by their peer reviewer. Respondent also contends that their physical examinationbased denial should have been operative here to deny reimbursement. Applicant has not submitted a brief, and although they requested and were granted an extension of time to so submit, have failed to do so. 3 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 Upon review, I see no reason to vacate or modify the award. As it was within the arbitrator’s province to consider, weigh, and judge the evidence presented (11 NYCRR 65 4.5 (o)(1)), I see no reason to disturb the arbitrator’s determination that found respondent’s evidence to be insufficient to properly support their defenses. See, Matter of Bay Needle Acupuncture v. CountryWide Ins. Co., 176 A.D.3d 806 (2nd Dept 2019); Matter of Jasser v. Allstate Ins. Co., 77 AD 3d 751 (2nd Dept 2010); Allstate Ins. Co. v. Keegan, 201 A.D.2d 724 (2nd Dept 1994). This is especially apt given the arbitrator’s description of respondent’s peer review report, in support of their defense, as “flawed”. Nor do I find any error in the arbitrator’s citation to learned Counsel Fuchsberg of the Department, as concerns when such a denial becomes operative, in this case their physical examinationbased denial. In sum, having reviewed respondent’s contentions of error, and having carefully reviewed the award itself, I find no reason to grant the relief sought herein. Accordingly, 1. the request for review is hereby denied pursuant to 11 NYCRR 65-4.10 (c) (4) 2. the award reviewed is affirmed in its entirety 3. the award or part thereof in favor of applicant hereby reviewed is vacated and respondent remanded for a new hearing before the lower arbitrator before a new arbitrator 4. the award in favor of the applicant hereby reviewed is vacated in its entirety respondent —or— 5. the award reviewed is modified to read as follows: A. The respondent shall pay the applicant no-fault benefits in the sum of Dollars ($ ), as follows: Work/Wage Loss $ 4 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 Health Service Benefits $ Other Reasonable and Necessary Expenses $ Death Benefit $ Total $ B1. Since the claim(s) in question arose from an accident that occurred prior to April 5, 2002, the insurer shall compute and pay the applicant the amount of interest computed from at the rate of 2% per month, compounded, and ending with the date of payment of the award, subject to the provisions of 11 NYCRR 65-3.9(c) (stay of interest). B2. Since the claim(s) in question arose from an accident that occurred on or after April 5, 2002, the insurer shall compute and pay the applicant the amount of interest computed from at the rate of 2% per month and ending with the date of payment of the award, subject to the provisions of 11 NYCRR 65-3.9(c) (stay of interest). C1. x The respondent shall also pay the applicant dollars ($ ) for attorney’s fees computed in accordance with 11 NYCRR 65-4.6(d). The computation is shown below (attach additional sheets if necessary). -or- C2. The respondent shall also pay the applicant an attorney’s fee in accordance with 11 NYCRR 65-4.6(e). However, for all arbitration requests filed on or after April 5, 2002, if the benefits and interest awarded thereon is equal to or less than the respondent’s written offer during the conciliation process, then the 5 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 attorney’s fee shall be based upon the provisions of 11 NYCRR 65- 4.6(b). C3. Since the charges by the applicant for benefits are for billings on or after April 5, 2002, and exceed the limitations contained in the schedules established pursuant to section 5108 of the Insurance Law, no attorney’s fee shall be payable by the insurer. See 11 NYCRR 65-4.6(i). D. The respondent shall also pay the applicant forty dollars ($40) to reimburse the applicant for the fee paid to the Designated Organization for the arbitration below, unless the fee was previously returned pursuant to an earlier award PART III. (Complete if applicable.) The applicant in the arbitration reviewed, having prevailed in this review, A. The respondent shall pay the applicant $N/A representing attorney’s fees upon master arbitrator review. The computation is shown below (attach additional sheets if necessary). B. If the applicant requested review, the respondent shall also pay the applicant SEVENTY-FIVE DOLLARS ($75) to reimburse the applicant for the Master Arbitration filing fee. This award determines all of the no-fault policy issues submitted to this master arbitrator pursuant to 11 NYCRR 65- 4.10. State of New York County of Albany ss: . I, Richard B. Ancowitz, do hereby affirm upon my oath as master arbitrator that I am the individual described in and who executed this instrument, which is my award. July 10, 2023 Date Master Arbitrator’s Signature 6 FILED: NEW YORK COUNTY CLERK 01/30/2024 05:08 PM INDEX NO. 157020/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/30/2024 IMPORTANT NOTICE This award is payable within 21 calendar days of the date of mailing. A copy of this award has been sent to the Superintendent of Insurance. This master arbitration award is final and binding except for CPLR Article 75 review or where the award, exclusive of interest and attorney’s fees, exceeds $5,000, in which case there may be court review de novo (11 NYCRR 65- 4.10(h)). A denial of review pursuant to 11 NYCRR 65- 4.10 (c) (4) (Part II (1) above) shall not form the basis of an action de novo within the meaning of section 5106(c) of the Insurance Law. A party who intends to commence an Article 75 proceeding or an action to adjudicate a dispute de novo shall follow the applicable procedures as set forth in CPLR Article 75. If the party initiating such action is an insurer, payment of all amounts set forth in the master arbitration award which will not be subject of judicial action or review shall be made prior of the commencement of such action. Date of mailing: July 11, 2023 7