AAA Decisions – July 2010
I know I said it last month, but I am still surprised the numbers rose once again! Spring must be a popular filing time for Applicants, based on AAA’s 90-days-to-completion goal.
1789 decisions for July 2010. The steady rise in decisions is reflected in the local arbitrator’s numbers – 66 decisions between Benziger (19), McCorry (25), and O’Connor (22).
United Diagnostic Imaging, PC and Geico Insurance Company
AAA Case No. 412010021293, Arbitrator Howard D. Jacob (08/02/10)
Amount in Dispute: $874.44
Award: Denied
Immediately after an an MVA, the EIP had a CT scan of her head. The results were unremarkable. A month after the MVA, the EIP had a neurological consultation. The neurological doctor ordered and MRI of the EIP’s knees in addition to an MRI that was to be done on her back and neck related to chiropractic treatment. The referring doctor made no reference to the EIP needing an MRI of her head.
The Applicant provider took the recommended MRIs of the EIP, including one of her head. The same day the MRIs were done, the MRI doctor wrote a letter of medical necessity stating that the EIP complained of frequent episodes of throbbing headaches, dizziness, and vertiginous symptoms. The letter stated that an MRI of the brain was necessary to evaluate the EIP for post-traumatic confusion, hematoma, and infraction.
The Respondent insurer denied the billing for the MRI based on a peer review. The peer reviewing doctor stated that the CT scan taken on the date of the EIP’s accident ruled out any traumatic structure injury of the brain casually related to the accident. Thus, the MRI was a duplication of unnecessary services.
The arbitrator called this a “conflict of expert opinion.” However, the arbitrator was ultimately persuaded by the fact that the doctor who referred the MRI, never made mention of the EIP’s head related symptoms, nor did he see the need for an MRI of the head. In light of this, the arbitrator stated that the Applicant’s letter of medical necessity had “no credibility” and sided with the opinion of the peer reviewing doctor. Thus, the insurer’s denial was upheld as proper.
Here, where there was a “conflict of expert opinion” between the Applicant doctor and peer reviewing doctor, the arbitrator thought it most fair to defer to what was seemingly the opinion of the doctor who originally referred the treatment at issue.
Buffalo Neurosurgery Group and Liberty Mutual Fire Insurance Company
AAA Case No. 412010013958, Arbitrator Veronica K. O’Connor (07/28/10)
Amount in Dispute: $738.20
Award: Denied
The EIP sought treatment with the Applicant provider for a neurological consultation. The provider allegedly submitted bills to the insurer for treatment rendered on October 1 and October 29, 2008. After non-payment the provider evidently re-submitted the bills in August 2009.
The insurer denied payment of the bills on August 24, 2009, stating that the bills were not submitted within 45 days of the dates of service.
The provider wrote a “memo” to the insurer on September 21, 2009, which stated the following:
The attached medical bills were printed and mailed to your office on 10/3/08 & 11/3/08 please note that due to high number of No-Fault claims our office handles, bills are mailed in one bulk envelope. Also, please note that these claim were submitted within the 45 day filing limit and should be processed to pay without prejudice.
The provider submitted this memo in support of its proof that it timely submitted the subject billings. It also submitted various notes from its file on the EIP, including one from October 10, 2008, listing the name of the EIP’s attorney. The next note was dated August 9, 2009, and concerned the resubmission of the billings. There was nothing in the file relating to the original submission of the billings other than the provider’s assurance that this had happened.
The arbitrator held that, based on this proof alone, the provider failed to adequately prove that the billings were submitted in a timely manner.
MRI More Likely to be Necessary with Prior Injury
Applicant_1 and Geico Insurance Company
AAA Case No. 412010014432, Arbitrator Mary Anne Theiss (07/23/10)
Amount in Dispute: $706.26
Award: $706.26
Prior to the accident, the Applicant had a left shoulder injury. She claimed to have aggravated this injury during the accident and followed up with her treating physician for shoulder and back pain. Her physician referred her for an MRI because he wanted to rule a rotator cuff tear.
The insurer ordered a peer review for a claim on the MRI and the peer reviewing doctor stated that the MRI of the left shoulder showed a full thickness tear, but it was a small tear. He stated that a number of people have such tears that go undiagnosed. The insurer, therefore, denied the claim for the MRI, indicating that there was no justification for the MRI where the peer reviewing doctor stated that six weeks of conservative care should have been done prior to the ordering of advance studies.
The arbitrator stated that she agreed with this. However, given the fact that there were preexisting problems with the shoulder, she stated that it would be prudent to find out “if there was something going on with the shoulder” that was aggravated by the accident.
Thus, it appears as though, had the claimant not had a prior injury to her left shoulder, the arbitrator would have held that the MRI was not necessary. This is an interesting and rare case, where medical necessity actually seems to have been premised on whether the insured had a prior injury, and there may have been a different outcome where the injury was “new.”
Lost Earnings Claims and Unemployment
Applicant_1 and Geico Insurance Company
AAA Case No. 412009044534, Arbitrator Kent L. Benziger (07/19/10)
Amount in Dispute: $23,680.00
Award: $8,320.00
The Applicant was involved in a motor vehicle accident and made a claim for disability due to his injuries. At the time of the accident the Applicant was employed by a corporation, which was undergoing reorganization and restructuring. Two weeks after the accident, the Applicant’s position with the corporation was eliminated for reasons unrelated to his injuries. As the Applicant had already made a claim for disability, he was unable to make make a claim for unemployment benefits after his termination.
The Applicant, thus, sought reimbursement from the Respondent no-fault insurer for an amount equivalent to what his unemployment benefits would have been if not for the motor vehicle accident.
The insurer denied this claim stating that their investigation revealed that the Applicant had been terminated by his employer for reasons unrelated to the accident (corporate restructuring, etc.).
The arbitrator stated that the insurer was correct that the Applicant had lost his job due to down-sizing, which was unrelated to the accident. However, he held that the insurer was still responsible for an amount equivalent to the Applicant’s expected unemployment benefits had he not been injured. The arbitrator based this decision on the holding in State Farm v. James Brooks, 78 A.D.2d 456 (4th Dept. 1981), which states that an unemployed claimant is entitled to unemployment benefits that he would have received had he not become disabled.
The Applicant’s award was calculated based on a document he submitted, which stated that he would have been entitled to 26 weeks of unemployment had he not been injured.
Applicant and MTA Bus Company
AAA Case. No. 412010017125, (Carolynn Terrell-Nieves, awarded July 12, 2010)
Mixing it Up
There are so many fact-specific decisions in arbitration that they can be pretty tedious to read through sometimes… and I can’t imagine it’s very exciting to read my interpretation of them sometimes, either.
In an attempt to mix it up – here’s 3 decisions – same month, same arbitrator, same outcome, three different sets of facts.
Wright Chiropractic Health Care and Allstate Insurance Company
AAA Case. No. 412009048801 Veronica K. O’Connor, July 8, 2010)
Here, Arbitrator O’Connor had to determine whether the Applicant was entitled to reimbursement for chiropractic treatment denied based upon the results of an independent chiropractic examination.
The report stated that “the claimant has reached the logical endpoint in relationship to the chiropractic care he has received.” The claimant apparently had an extensive amount of chiropractic care over 16 months and subjectively stated he was not improving. The Doctor therefore found that the likelihood of any further change or improvement with the continuation of chiropractic care had not been established and recommended implementation of home rehabilitation of spine stabilization techniques, which had not been used yet.
The arbitrator found that the Applicant failed to establish that further chiropractic treatment after the denial was medically necessary. Even though the Assignor had apparently displayed positive objective findings during the IME, the Assignor indicated that his complaints have remained the same and the chiropractic records submitted fail to document that the treatment rendered provided any form of relief or benefit, even for a brief period of time and actually document periods of a worsening of the Assignor’s complaints.
Accordingly, Applicant’s claim was denied in its entirety.
Timothy Delmedico, DC and Travelers Home & Marine Insurance Company
AAA Case. No. 412010008039, (Veronica K. O’Connor, July 6, 2010)
Here the issue was whether the Applicant was entitled to reimbursement for a TENS unit, custom fitted lumbar support, and cervical traction unit dispensed to the Assignor; and my personal favorite – a lower EMG/NCV study performed on the assignor.
Not surprisingly, the peer review report found that the EMG/NCV of the lower extremities was not medically necessary based upon the fact that there were no medical records from Dr. DelMedico, the referring doctor, to indicate how the performance of the test would aid in devising, alter, or reduce the number of visits to his office or enhance in the clinical prognosis of the claimant. Decisions regarding the claimant’s chiropractic care could have been made in the absence of the tests.
Proscan Radiology Buffalo and Geico Insurance Company
AAA Case. No. 412009050449, (Veronica K. O’Connor, July 2, 2010)
Lastly, this case dealt with a third kind of medical service – cervical and lumbar spine MRIs denied based upon the conclusions set forth in two separate peer reviews.
The cervical spine MRI was denied based on the lack of any significant neurological subjective or objective findings noted in the initial examination or in the ongoing continuous chiropractic treatment notes to suggest that a potential disc pathology was causing a radiculopathy. The peer reviewer found that from a chiropractic standpoint, the MRI to the cervical spine had not met the acceptable standards of chiropractic policies, protocols and procedures and should not be allowed for payment.
The lumbar spine MRI was denied for similar reasons. Although the claimant did show improvement from his conservative care, he did not have any neurological deficits, objective findings nor was he a surgical candidate for lumbar spine procedure.
The arbitrator found that the treatment records submitted failed to document findings that adequately refute the conclusions set forth in the peer review reports prepared by Drs. Sohn and Amidror. Dr. Croce’s letter of medical necessity, which stated that the MRI studies were performed to rule out discogenic sources of the patient’s complaints, was not supported by the examination reports or progress notes submitted. Furthermore, although Dr. Croce’s letter also indicated that the Assignor was referred for an orthopedic consultation as a result of the MRI findings; no such reports were submitted for review. Lastly, the neurological consultation reports submitted by the Respondent appeared to contradict portions of Dr. Croce’s letter of medical necessity.
Therefore, the arbitrator found there was no documentation to establish medical necessity for the studies.
And Back Again
Lawrence Hospital Center and Encompass Ins. Co. of America
AAA Case No. 412010017768, Arbitrator Burt Feilich (07/08/10)
Amount in Dispute: $5,237.47
Award: $3,881.85
Arbitrator Felich can be added to the ranks of those that side with the Second Department’s decision in the Domotor case over the Insurance Department with regard to continuing obligation to submit. (See, State Farm Insurance Company v. Domotor, 697 NYS2d 348, 266 AD2d 219 (2d Dept. 1999) and Office of General Counsel, Opinion Letter dated September 2, 2004).
In this arbitration the insurer argued that the applicant’s bills for services were not submitted within the 45-day time period set by the regulation. Citing Domotor, the arbitrator stated that once the insurer issued a general denial of claim based on a negative IME, the applicant thereafter was absolved of the duty to submit future billings to the insurer in the face of such a blanket prospective denial of claim.
The arbitrator further stated that the Domotor decision would also seemingly absolve the insurer of the duty to issue denials of claim for all subsequent post-IME denied services on the basis that such bills need not be submitted to respondent in the first instance. He then specifically acknowledged, and dismissed, the Insurance Department’s 09/02/04 letter directly stating that claimants and insurers do have a continuing obligation to submit after blanket denials.
After holding the insurer’s denial for late submission to be invalid, the arbitrator then addressed the insurer’s denial based on a negative IME. The IME doctor stated that the EIP had plateaued with regard to PT treatments and the Applicant stated that all services rendered were necessary. Interestingly, the arbitrator decided to split the baby down the middle, granting an award for PT treatment up to a certain date and thereafter, honoring the insurer’s denial. The arbitrator stated that by this time, ”I believe that she should have reached a plateau from the effects of the treatment or that such services rendered after that time were no longer providing a therapeutic benefit.”
This is atypical of IME/medical necessity arbitrations in which arbitrators generally side with either the IME doctor of the treating physician rather than making their own determination as to medical necessity.
Applicant Verification Requests (yes, Applicant)
Alexandre DeMoura M.D. and State Farm Mut. Auto. Ins. Co.
AAA Case. No. 412009012847 (Bonnie S. Kurtz, August 4, 2009)
I came across this decision in doing some research last week, I thought it was worth mentioning.
Respondent received a the bill for a lumbar MRI and issued a timely verification request seeking a letter of medical necessity from the Applicant. Respondent issued a denial after receiving the verification based upon a peer review by Dr. Marvin Winell. Dr. Winell concluded that medical necessity had not been established for the MRI in dispute.
This is where it gets interesting: counsel for Applicant objected to the production of the peer review at the hearing based on Respondent’s alleged failure to comply with a verification request from the applicant, which stated:
“Additionally, if any portion of this claim has been denied on the basis IME or peer review, we are making a demand for the production of any and all materials and/or documents relied on in the medical examiners report included but not limited to: Medical journals, medical publications, medical reports, physical/medical provider notes, initial follow-up reports, diagnostic test results, letters of medical necessity, etc.”
The Appellate Division set forth the general rule regarding an expert witness’s reliance on out-of-court material in Wagman v. Bradshaw, 292 A.D.2d 84, 739 N.Y.S. 2d 421 (2d Dept. 2002 and stated in relevant part:
“The Court of Appeals has held that an expert witness may testify that he or she relied upon specific, inadmissible out-of-court materials to formulate an opinion, provided (1) it is of a kind accepted in the profession as reliable as a basis in forming a professional opinion, and (2) there is evidence presented establishing the reliability of the out-of-court material referred to by the witness (see, Hambsch v. New York City Tr. Auth., 63 NY2d 723). *** Therefore, we reiterate that, while the expert witness’s testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability, testimony as to the express contents of the out-of-court material is inadmissible. Id. @ 85-86.”
The arbitrator explained that the Wagman Court was addressing whether a witness could testify as to the contents of an MRI report, “which is fundamentally different than an expert witness (i.e. a peer) identifying those sources of medical authority upon which the peer relied to form his/her expert opinion.”
Citing to Arbitrator Michael Resko’s opinion in SP Orthotic Surgical & Medical & GEICO, AAA # 412008008739; Arbitrator Kurtz held that the law only requires a peer reviewer to identify the sources upon which his/her opinion is based (according to the ever popular Nir v. Allstate, 7 Misc.3d 544, 546-47 (2005) and is consistent with the rule “reiterated” in Wagman.
1, Even if Applicants are entitled to request verification, because a respondent has only 10 days after receipt of the bill to make such a request, an Applicant must follow the same rules, including those with regard to required follow-up requests. Therefore, although Applicant’s “request” was timely – it should have been followed up with a second request. And,
Counsel for Applicant also argued that the peer review was “inadequate as a matter of law.” Citing again to Nir, the arbitrator rejected that argument, stating that at a minimum, the defendant-insurer must only establish a factual basis and medical rationale for the lack of medical necessity. A peer review report is only insufficient if it is unsupported by or controverted by evidence of medical standards.
In the end, the arbitrator found the treating physician’s opinion to be more persuasive than the Peer Reviewer’s, however the decision gives us some good insight into what an Applicant may request from the company and the effects of that request.
AAA Decisions – June 2010
I expected a drop off last month, but I was wrong – still rising in June 2010. 1703 total decisions, 51 from the local arbitrators (Benziger, McCorry, & O’Connor).
Roy Mura
Bethany Mazur
Scott Mancuso
