There were 61 arbitration awards issued yesterday, March 4, 2010. One can search through these awards on the AAA website by selecting from a number of categories listed alphabetically in a box labeled “no fault case issues.”
Evidently, each arbitration award is “tagged” with at least one issue. Yesterday for example, there were 198 issues “tagged” for 61 cases, meaning that on average, each arbitration is tagged with three issues.
The issues roughly break down into two categories, “Types of Claims” and “Reasons for Denial.” Clearly many cases will involve more than one type of claim (an MRI and surgery for example) or more than one reason for denial (fee schedule and IME for example), thus accounting for how each case generally carries around three issues.
Unfortunately, the search results page does not lend itself very well to easy viewing of awards by issue and outcome. So here is a breakdown of the most arbitrated types of claims and most arbitrated reasons for denial. Following each reason is a breakdown of the outcome of the arbitration that include that denial reason.
Type of Claim
Office visit/Consultation – 21
Nerve Testing – 15
Physical Medicine – 10
Chiro treatment – 9
MRI – 8
Medical Supplies – 7
Acupuncture – 6
PT – 3
Range of motion/muscle testing – 3
Surgery – 3
X-rays/radiological procedures – 3
Pharmaceuticals – 2
Biofeedback – 1
Lost earnings – 1
Massage Therapy – 1
Psychiatry/Psychology – 1
Reason for Denial
Fees not in accordance with fee schedules – 34 (Full Award – 11, Partial Award – 13, Denied/Dismissed – 10)
Negative IME – 21 (7/8/6)
Bill not denied, carrier delayed for lack of verification – 13 (9/0/4)
Denied based on peer review – 13 (6/5/2)
No Show for IME/EUO – 6 (1/2/3)
Policy violation – 5 (1/1/3)
Excessive treatment – 4 (0/3/1)
Carrier alleges fraud – 2 (1/0/1)
Claimed loss allegedly not proven – 2 (1/0/1)
No response from carrier – 2 (2/0/0)
Failure to provide requested documentation – 1 (1/0/0)
No coverage on policy – 1 (0/0/1)
Applicant_1 and Allstate Insurance Company
AAA Case No. 412009001188, Arbitrator Veronica K. O’Connor
Amount in Dispute: $30,000, amended to $260,000
Award Date: 03/01/10
Award: $8,000
Here, the eligible injured party was set to begin a contracting job on October 2, 2007 for $2,500 a week. The EIP was then injured in a motor vehicle accident on October 2, 2007… after completing 2 and 1/2 hours of work on the job. He did not return to work and submitted a claim for lost wages to the insurer.
The insurer conducted an Examination Under Oath of the EIP and subsequently denied his claim for lost wages for “Failure to make a prima facie entitlement to lost wages” and “material misstatement of facts.”
Arbitrator O’Connor held that this denial was inappropriate as the insurer had not provided sufficient proof that the EIP materially misstated the facts or that he failed to establish his lost earnings claim.
The EIP’s claim was for 10/02/07 to 10/02/09. However, the EIP had only submitted one NF-7 (Verification of Self Employment form) to the insurer. This form, dated 12/03/07, stated only that he would be unable to work from 10/02/07 to 01/14/08. The EIP did not submit another NF-7 beyond that date, presumably because the insurer had denied the claim after the EUO.
The arbitrator first cited to the Regulation, which states:
The eligible injured person or that person’s legal representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the Company as soon as reasonably practicable but, in no event, later than 90 days after the work loss is incurred or the other necessary services are rendered. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.
Here, the EIP did not submit any NF-7s after 01/14/08, within 90 days of having incurred that alleged work loss, nor did he submit any written proof providing justification for failure to do so.
Next the arbitrator quoted the Opinion Letter of the Office of General Counsel dated September 2, 2004:
Neither does the statute or regulation relieve an applicant for benefits of their responsibility to submit claims in order to be eligible for the payment of benefits, even after receiving a denial of all future benefits.
Arbitrator O’Connor held that the EIP was not relieved of his responsibility to continue submitting proof of his claim, even after the insurer issued a denial in January of 2008. The arbitrator was thus, only able to award the EIP lost wages for the period of time listed in the only NF-7 he submitted, resulting in an award of only $8,000 on his $260,000 claim.
Note: there is no real explanation as to how the EIP calculated his lost wages at $260,000. His original claim, for $30,000 is closer to the mark, though he still would have only qualified for $48,000 (with a $2,000 a month policy limit) had the arbitrator been able to give an award for the entire time claimed.
To distinguish from our previous post on Pilates, here are two arbitrations from this week that explain why acupuncturists are allowed to bill as physical therapists.
AA Acupuncture PC, et al and Allstate Insurance Company
AAA Case No. 412009047225, Arbitrator Sandra Adelson
Amount in Dispute: $1,542.16
Award Date: 02/23/10
The arbitrator here first relied on the 04-01-01 Opinion Letter from the General Counsel of the Insurance Department to establish that acupuncture services rendered by a “licnesed” acupuncturist are covered expenses under Insurance Law § 5102 (a) (1).
As far as the correct fee schedule for a licensed acupuncturist, the arbitrator referenced the fact that the Superintendent has promulgated fee schedules for acupuncture services provided by chiropractors licensed to administer acupuncture and by doctors certified to administer acupuncture. There is still however, no prescribed fee schedule for a licensed acupuncturist that does not fall into either of those categories.
As such, the arbitrator relied on the decision in Forrest Chen Acupuncture Servs., P.C. v. Geico Ins. Co., 2007 NY Slip Op 50874 (U), 15 Misc 3d 137(a), where the Appellate Term Second Department held that that “the Workers Compensation determination of physical therapy rates was an appropriate interpretation of the applicable charges for acupuncture services.”
Dongsheng Kang Acupuncture, P.C. and Allstate Insurance Company
AAA Case No. 412009042468, Arbitrator Melissa H. Melis
Amount in Dispute: $631.05
Award Date: 02/24/10
Here too, the arbitrator found that the appropriate amount to be paid to a licensed acupuncturist is what was permitted for a physical therapist.
This was based on the following rule, again from Forrest Chen Acupuncture Servs., P.C. v. Geico Ins. Co., 2007 NY Slip Op 50874 (U), 15 Misc 3d 137(a):
…if the Superintendent of Insurance has not adopted or established a fee schedule applicable to the particular type of provider, “then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent…
Applicant_1 and New York Central Mutual Fire Ins. Co.
AAA Case No. 412009033424, Arbitrator Thomas J. McCorry
Amount in Dispute: $1,071.00
In this arbitration, the Buffalo Neurosurgery Group wrote a “prescription” to the injured party for “Pilates.” To be clear, we are talking about the “physical fitness system” developed in the early 20th century by German gymnast Joseph Pilates.
The provider, an employee of The Fitness Institute, billed for his services with a physical therapy CPT code, though conceded that he was not a licensed physical therapist. The provider claimed to have done this on account of there being no specific billing code for “Pilates” in the no fault schedule.
The arbitrator found that it was inappropriate for the provider to bill under a physical therapy code when it was not a licensed physical therapist. The arbitrator upheld the insurer’s denial that the provider was not eligible for reimbursement per Section 5102(a)(1) of the insurance law.
It remains to be seen however, whether a licensed physical therapist would have a reimbursable claim for “Pilates” treatment, as this denial was upheld only on the ground that the provider was not a recognized “provider of health care services.”
Skal Surgical Medical Supplies and St. Paul Travelers Insurance
AAA Case No. 412009044640 (Charles Sloane, awarded February 17, 2010)
Provider may Charge Separately for Evaluation and Treatment on Same Day
Li Chen LAC and Geico Insurance Company
AAA Case No. 412009044658 (Marilyn Felenstein, awarded February 18, 2010)
At dispute in this case? A mere $32.36.
The applicant, an acupuncturist, submitted a claim for both an initial acupuncture evaluation and an acupuncture session on the same day. The respondent paid a reduced amount, presumably on the grounds that only one of the two charges was warranted.
The arbitrator addressed the question of what fee should be paid to licensed acupuncturists, citing Great Wall Acupuncture a/a/o Miguel Zayas v. Geico, 842 NYS2d 131 (App Term, 2d & 11th Jud Dists 2007) where the court held that in the absence of a separate fee schedule for health services rendered by license acupuncturist, the proper fee schedule to be applied is that which is applicable to services provided for chiropractors, not doctors, who perform acupuncture, as chiropractors and acupuncturists must obtain similar licensing requirements to perform acupuncture.
Applicant_1 and Liberty Mutual Insurance Company
AAA Case No. 412009044891, Arbitrator Laura A. Yantsos
Amount in Dispute: $12,195.00
The named Applicant in this arbitration was the Eligible Injured Party. The EIP had originally assigned his right to collect benefits for his knee surgery to the provider. The provider then, for a reason not altogether clear, signed a release of assignment. The Applicant EIP however, did not sign the is release.
The release stated that the provider had released the assignment of benefits and authorized the law firm now before it to file arbitration on behalf of the Applicant EIP.
The arbitrator stated that the EIP’s failure to sign the release suggested that he did not even know that the claim had been brought to arbitration. The arbitrator stated that “Once the medical provider releases his assignment of benefits, he has no authority to hire or retain law firms on behalf of the Applicant/eligible injured person or authorize that this claim be brought to arbitration.”
The claim was thus, denied.
Interestingly, the issue once again came up as to whether the provider had an obligation to continue submitting bills to the insurer after benefits had been terminated. (See, Better Smile of Western New York, PLLC and Unitrin Auto & Home Ins. Co.)
The insurer argued that given the language of the NF-10, not “all” benefits had been terminated, and that even if they had, the provider had a continuing obligation if it hoped to preserve any rights under the insurance contract. (Citing to Opinion Letter, General Counsel to N.Y.S. Insurance Department, dated 9/2/04)
The standing issue however, prevented the arbitrator from elaborating on this issue and adding anything to Arbitrator McCorry’s recent decision.
Jean D. Miller MD and American Transit Insurance Company
AAA Case no. 412009044982 (Victor Moritz, awarded Feb 17, 2010)
At issue was an entire claim for various medical bills following an accident in which the insurer had denied benefits due to a lack of causality, mainly, that the person’s injuries were not “caused by accident” under 11 NYCRR 65-1.1.
In its defense of the denials, respondent presented an SIU investigator who stated that, based on his investigation, he believed the injured person had continued back and leg pain pre-existing the accident, and only claimed that the injuries were caused or exacerbated by said accident to receive medical payments for her continued care.
The Arbitrator rejected the investigator’s opinion, stating:
With all due respect to the special investigator, he’s in no position to make these conclusions. Had respondent wished to pursue such a defense then they should have obtained the services of a medical provider and perhaps an accident reconstruction expert to provide professional opinions as to what could or couldn’t have occurred as a result of this accident and its impact upon the patient. As mentioned above, I note that even if the EIP had a prior condition, an exacerbation of said condition would be a covered expense under the New York No-Fault regulations. Respondent’s evidence simply fails to establish any lack of proximate causation other than the opinion of one lay witness which falls far short of the necessary criteria to establish such a defense. Though the EIP received an epidural injection two weeks before the accident, she further testified she was not in any pain just prior to the impact and immediately after the accident she experienced pain in her leg and back.
Furthermore, the insurer had issued denials based upon “the verification of eligibility of the EIP.” Arbitrator Moritz therefore reminded us that an insurance company may not delay payment of a claim for the sole reason that the claim is under investigation. See, Queens Pain Medicine v. Clarendon Insurance Company, N.Y.L.J. April 30, 2001 (Judge Kerrigan). See also Opinion Letter, State of New York Insurance Department (April 12, 2000). Although the outstanding verification was simply a pending EUO of the injured person, the insurer did not properly advise the applicant under 11 NYCRR 65-3.6 of the reason for the delay.
William Capicotto MD PC and State Farm Mut. Auto. Ins. Co.
AAA Case No. 412009030888, Arbitrator Kent L. Benziger
Amount in Dispute: $315.13
In this arbitration, an orthopedic surgeon conducting an independent medical examination on behalf of the Respondent insurer, contended the Assignor’s prognosis was poor but that his condition had “stabilized.” Arbitrator Benziger stated that in sum, the examining doctor meant that the Assignor had reached “maximum medical improvement.”
The arbitrator stated that more recent decisions have tried to side-step the use of the term “maximum medical improvement” and hold that treatment is no longer necessary where it is “not improving or otherwise benefiting a claimant.” Treatment that is not providing any “curative” or palliative” benefits may no longer be necessary.
Roy Mura
Bethany Mazur
Scott Mancuso
