Am. Transit Ins. Co. v. Right Choice Supply Inc.

The following numbered papers were read on this petition: Petition (NYSCEF Doc No. 1) Notice of Petition (NYSCEF Doc No. 2) Exhibit A — Arbitration Award (NYSCEF Doc No. 3) Exhibit B — Master Arbitration Award (NYSCEF Doc No. 4) Exhibit C — Respondent Right Choice Supply, Inc.’s Arbitration Request Form and Arbitration Submission (NYSCEF Doc No. 5) Exhibit D — Petitioner American Transit Insurance Company’s Arbitration Submission and Master Arbitration Brief (NYSCEF Doc No. 6) Statement of Authorization for Electronic Filing Affidavit of Service (NYSCEF Doc No. 7) Request for Judicial Intervention (NYSCEF Doc No. 8) Affidavit of Service (NYSCEF Doc No. 9) Statement of Authorization for Electronic Filing Affidavit of Service (NYSCEF Doc No. 10) Affidavit of Service (NYSCEF Doc No. 11) Statement of Authorization for Electronic Filing Affidavit of Service (NYSCEF Doc No. 12) DECISION, ORDER and JUDGMENT Issue Presented The No-Fault Insurance regulations provide that a master arbitrator may vacate a hearing arbitrator’s¹ award where it is “incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65-4.10 [a] [4]). Considering this, does it constitute an error of law where the hearing arbitrator makes a finding of medical necessity without adhering to Pan Chiropractic, P.C. v. Mercury Ins. Co. (24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]) and its progeny case law which hold that in the context of a summary judgment motion by an insurer asserting lack of medical necessity for a health service, the health service provider must submit expert medical opinion evidence which specifically refers to and either discusses or rebuts the insurer’s expert medical opinion evidence? Background This is a special proceeding — pursuant to CPLR Article 75 — commenced by American Transit Insurance Company (ATIC) seeking an order and judgment vacating a No-Fault Insurance master arbitration award of Victor D’Ammora, Esq. (dated August 24, 2022), which affirmed the arbitration award of Lester Hill, Esq. (dated May 14, 2022) granting Respondent Right Choice Supply, Inc.’s (Right Choice) claim for No-Fault insurance compensation for health service expenses.² Arbitrator Hill awarded the $4,737.90 sought by Respondent Right Choice for providing supplies to its assignor³ (Assignor), who claimed to have been injured in a motor vehicle accident on January 30, 2020. The arbitration was organized by the American Arbitration Association (AAA), which has been designated by the New York State Department of Financial Services to coordinate the mandatory arbitration provisions of Insurance Law §5106 [b], which provides: Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party ["No-Fault insurance"] benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. The arbitration was assigned Case No. 17-21-1226-7577⁴ by the AAA. At oral argument before this Court on January 25, 2022, Petitioner ATIC appeared and argued that the above-referenced arbitration awards should be vacated. Respondent Right Choice has neither submitted opposition nor appeared in this special proceeding. The record evidence submitted in this Article 75 proceeding reveals that Arbitrator Hill conducted a hearing on May 13, 2022, at which Walter Pisary, Esq., appeared for Right Choice and Helen Cohen, Esq., appeared for ATIC. At issue were four bills from Right Choice submitted to ATIC for payment pursuant to the No-Fault insurance system set forth in Insurance Law Article 51 and the Department of Financial Services’ No-Fault Regulations set forth at 11 NYCRR part 65. Pertinent details of the four bills are as follows: date of service May 21, 2020, $548.08, provision of cane and hinged knee brace; dates of service May 25, 2020-June 21, 2020, $1,839.78, rental of knee CPM (continuous passive motion device) and provision of synthetic sheepskin pad; dates of service May 25, 2020-June 14, 2020, $1,365.00, rental of Game Ready compression unit; and dates of service May 25, 2020-June 7, 2020, $985.04, rental of DVT device (deep vein thrombosis prevention device). Only one Form NF-10 denial of claim was included in the record — denying payment of the $548.08 bill for the cane and hinged knee brace on the grounds of lack of causation and fees not being in accordance with fees schedule. Apparently, with respect to the other three bills, ATIC relied on a defense that additional verification it had sought was never provided. Arbitrator Lester Hill’s Award In that part of Arbitrator Hill’s award containing his findings, conclusions, and basis, he wrote: “The basis of the respondent’s timely denial based upon a lack of medical necessity is the peer report by Dr. Matthew Skolnick.”⁵ This was followed by citations to case law concerning a prima facie showing of entitlement to No-Fault benefits: the prescribed statutory billing forms had been mailed and received and the payment of No-Fault benefits were overdue. He found that Respondent’s submission of its “NF-10 denial of claim form established that the insurer received the claim referenced therein as having been submitted by the provider and that the insure[r] did not pay the claim.” (NYSCEF Doc No. 3, arbitration award, at numbered p 2) There then ensued a discussion of law concerning denials of claim and a defense of lack of medical necessity. Arbitrator Hill discussed the medical evidence before him. Noteworthy was the fact that Assignor underwent left knee surgery on May 21, 2020. As a result, the latter was provided with supplies, as noted above. “The claim for the knee brace was denied based upon the peer report by Dr. Slotnick.⁶ With respect to the claim for the continuous passive motion device [and synthetic sheepskin pad], [Game Ready] compression unit, and DVT device, the respondent asserts that the claims are not verified.” (Id.) Arbitrator Hill noted that in a prior arbitration award of his — in AAA Case No. 17-21-1190-2706 — ATIC had relied on the same peer review from Dr. Skolnick which was submitted in the arbitration at issue. In this other case, Arbitrator Hill found the left knee surgery to be medically necessary. Continuing with his analysis, Arbitrator Hill mentioned that Dr. Skolnick had relied in part on a review of intraoperative photos by Dr. Howard Levin. Arbitrator Hill discussed competing medical evidence, including a report by Dr. Anjani Sinha, which was submitted in support of medical necessity. (Id. at numbered pp 3-4) Arbitrator Hill found as follows regarding the bill for the cane⁷ and hinged knee brace: I find that the respondent has not demonstrated by sufficient factual basis and medical rationale that the knee brace prescribed to the EIP post surgery was medically unnecessary. With respect to the surgery itself I find that the best source of information is the surgeon, who noted in his postsurgical diagnosis of tears of the medial and lateral menisci. This is particularly the case with this EIP where the EIP presented a positive McMurray’s sign, the test for meniscal injury and an MRI that noted a tear of the medial meniscus. Putting these facts together it would appear that the most reasonable conclusion is that the EIP did suffer from a meniscal injury from the motor vehicle accident as there was no history nor any medical records to indicate that the EIP had a prior history of injury to the left knee. The peer report provides no factual basis to conclude that the surgery was not causally related to the motor vehicle accident other than the conclusion in the report of Dr. Levin that there were no meniscal tears. Therefore, based upon the evidence submitted, I find that the applicant has demonstrated that the surgery was medically necessary and causally related to the motor vehicle accident. I find that the respondent has not demonstrated that the knee brace following the surgery was medically unnecessary. (Id. at numbered p 4) As for the other three bills, Arbitrator Hill found as follows: With respect to the claims for the continuous passive motion device, compression unit, and DVT device, the respondent, upon receipt of the claims requested verification, specifically, a letter of medical necessity and the pertinent medical records and stated that the claim was delayed pending the examination under oath of the EIP. On October 21, 2020, the applicant provided the documentary verification, specifically, a letter of medical necessity and the pertinent medical reports. The applicant further inquired [as to] the status of the examination under oath of the EIP. There is no evidence submitted by either party that an examination under oath of the EIP was scheduled or attempted to be scheduled. Without evidence that there was an examination under oath [which] was timely scheduled, the respondent’s position that the claims are not verified is without merit. (Id.) Right Choice’s arbitration claim was granted in its entirety by Arbitrator Hill, who awarded $4,737.90 in medical expenses plus interest and an attorney’s fee (id. at numbered pp 5-6). Master Arbitrator Victor D’Ammora’s Award Master Arbitrator D’Ammora set forth the issues in dispute as follows: The issues before the lower arbitrator were whether the Respondent properly denied the claim for various devices and durable medical equipment based upon (1) the lack of medical necessity and/or causation; and (2) unverified claims. The lower arbitrator allowed the claim. The Respondent seeks to overturn the award of the lower arbitrator. The issue before me is whether Arbitrator Hill’s decision to allow the claim was arbitrary, capricious or incorrect as a matter of law. (NYSCEF Doc No. 4, master arbitration award, at numbered p 1) Master Arbitrator D’Ammora set forth case law to the effect that the standard of his review was limited to whether the hearing (“lower”) arbitrator’s review was supported by evidence or another reasonable basis or was arbitrary or capricious, irrational, and without a plausible basis. He noted that a master arbitrator’s review did include whether the hearing arbitrator’s award was incorrect as a matter of law, but he was constrained in reviewing the facts adduced by the evidence. (Id. at numbered p 2) As for the cane and hinged knee brace ($548.08 bill), “Arbitrator Hill conducted a hearing and reviewed all of the evidence including the medical documentation. Arbitrator [Hill] considered the peer review of Dr. Skolnick, the intraoperative photo review of Dr. Levin and the rebuttal of Dr. Sinha. Based upon the medical evidence Arbitrator Hill determined that the devices and equipment were medically necessity and causally related. And as such [he] allowed the claim” (id.). As for the unprovided verification defense (regarding the other three bills), “Arbitrator Hill further determined that the Respondent had failed to show that an EUO of the EIP was scheduled or attempted to be scheduled. And as such there is no merit to [ ] the position that the claims were not verified.” (Id.) Master Arbitrator D’Ammora stated that Arbitrator Hill’s conclusions and findings were within his discretion and based on his interpretation of the evidence. It did not constitute reversible error. “This Master Arbitrator cannot conduct a de novo review and substitute my interpretation and view of the evidence for that of Arbitrator Hill. In particular, as here, Arbitrator Hill’s determination is rational and supported by the record.” He concluded, “I cannot conclude on the basis of the record before me that Arbitrator Hill’s decision was incorrect as a matter of law or arbitrary and capricious. Therefore, I must affirm the award.” (Id.) ATIC’s Petition to Vacate ATIC’s petition to vacate asserted that “The arbitration decision was arbitrary and capricious, irrational and without a plausible basis” (NYSCEF Doc No. 1, petition, 35), in that “Arbitrator Hill failed to follow well settled law” (id., 37). The petition went on to argue that Dr. Howard Levin’s review of the intraoperative photos concluded that there was no tear resulting from the subject motor vehicle accident; any change was degenerative and not traumatically induced (id., 39).⁸ ATIC’s evidence submitted to the hearing arbitrator “clearly satisfied its burden” (id., 41). Ultimately the medical provider — Right Choice in this instance — had to prove by a preponderance of the evidence that its services were medically necessary, claimed ATIC; the petition to vacate cited to Dayan v. Allstate Ins. Co. (49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Dists 2015], and Park Slope Medical and Surgical Supply, Inc. v. Travelers Ins. Co. (37 Misc 3d 19, 22 n. [App Term, 2d Dept, 2d, 11th & 13th Dists 2012]) (id., 42). “In order for an applicant to prove that the services were medically necessary, it must meaningfully refer to, or rebut, the conclusions set forth in the peer review,” maintained the petition, which cited to Pan Chiropractic, P.C. v. Mercury Ins. Co. (24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Dists 2009]) (id., 43). Right Choice failed to offer any rebuttal at all, and certainly did not meaningfully refer to Dr. Skolnick’s peer review, as was required by Pan Chiropractic, P.C. and the more than 100 published decisions citing to it, insisted ATIC (id., 45). ATIC reiterated in several paragraphs of its petition that a health service provider seeking No-Fault medical expense compensation must meaningfully refer to and rebut an insurer’s peer reviewer’s conclusions (id.,