Opinion
090252/09
03-19-2012
Flatbush Chiropractic, P.C. AAO IRLYNE THELAMY, Plaintiff, v. Metlife Auto & Home, Defendant. FLATBUSH CHIROPRACTIC, P.C. AAO IRLYNE THELAMY, Plaintiff, METLIFE AUTO & HOME Defendant. FLATBUSH CHIROPRACTIC, P.C. AAO IRLYNE THELAMY, Plaintiff, v. METLIFE AUTO & HOME Defendant. FLATBUSH CHIROPRACTIC, P.C. AAO IRLYNE THELAMY, Plaintiff, v. METLIFE AUTO & HOME Defendant. FLATBUSH CHIROPRACTIC, P.C. AAO IRLYNE THELAMY, Plaintiff, v. METLIFE AUTO & HOME Defendant.
Plaintiff: Damin Toell, Esq. The Rybak Firm, PLLC Defendant: Allan Hollander, Esq. Bruno, Gerbino & Soriano LLP
Plaintiff:
Damin Toell, Esq.
The Rybak Firm, PLLC
Defendant:
Allan Hollander, Esq.
Bruno, Gerbino & Soriano LLP
, J.
The above listed matters were consolidated for trial. Plaintiff, Flatbush Chiropractic, P.C., instituted these actions to recover first party no-fault benefits from Defendant Metlife Auto & Home. Pursuant to order of the Hon. Katherine Levine, Plaintiff established its prima facie case, Defendant established timely denials, and the bills, denials, peer review reports, and the underlying medical records were admitted into evidence. After trial where the court had an opportunity to evaluate the evidence and weigh and assess the credibility of the witnesses, the Court finds the chiropractic services provided were medically necessary and were not properly paid pursuant to the New York Workers' Compensation Fee Schedule (hereafter "Fee Schedule")
The instant matter involved Manipulation under Anesthesia ("MUA") performed on assignor Irlyne Thelamy on her shoulders, hips, and cervical, thoracic and lumbar spine on May 12, 2009, May 13, 2009, and May 14, 2009. Defendant contends that these services were not medically necessary and that the services were not properly billed pursuant to the Fee Schedule. Defendant called Dr. Daniel Sposta and Eileen Bogner, Director of bill review and fee auditing at Support Claim Services, as witnesses. Plaintiff through the testimony of Dr. Robert Super, the treating chiropractor who in conjunction with Dr. Klass, performed the MUAs, maintained that the services were medically necessary and properly billed.Claimant was a 30 year old female involved in a motor vehicle accident on March 10, 2009. She was diagnosed with cervical and lumbar sprain/strain, whiplash, lumbar disc dysfunction, and lumbosacral injury. At the initial evaluation it was recommended that claimant undergo chiropractic manipulation three times per week for four weeks. MRIs of claimant's cervical and lumbar spine revealed cervical disc bulges at multiple levels and lumbar herniations with impingement upon the thecal sac. EMG/NVC testing performed on Claimant revealed lumbar radiculopathy. Dr. Super examined the claimant to determine how she responded to the treatments. Dr. Super testified that after two months of chiropractic manipulation the Claimant reached a plateau and it was medically necessary to perform the MUAs in order to increase Claimant's range of motion and decrease her level of pain.
MUA is a procedure designed to break up fibrotic adhesions and scar tissue that has formed around the spine and surrounding tissue which cause chronic pain and restrictions in mobility. See Aramak, 2009 NY Wrk. Comp. 535411. Courts as well as New York State Workers' Compensation Board Law Judges and Panels, have held that chiropractors are authorized to perform MUAs and have awarded compensation for these services. See Kraft v. State Farm Mut. Auto. Ins. Co., 2011 NY Misc. LEXIS 5537 (NY Civ. Ct. Oct. 6, 2011); John Giugliano, DC, P.C. v. Merchants Mut. Ins. Co., 29 Misc 3d 367, 368 (NY Civ. Ct. 2010); Aramak, 2009 NY Wrk. Comp. 535411. In order to establish that the services were not medically necessary, Defendant must establish a factual basis and medical rationale for the asserted lack of medical necessity, which is supported by evidence of the generally accepted medical practices. See Nir v. Allstate Ins. Co., 2005 NY Slip Op 25090 (NY Civ. Ct. 2005). While Defendant called Dr. Sposta who stated that the MUAs were not medically necessary, Plaintiff through the medical testimony of Dr. Super effectively rebutted Defendant's testimony. Plaintiff explained that the MUAs were medically necessary because Claimant did not respond to conservative treatment, her pain levels remained high, and she had trouble with activities of daily living such as sleeping and walking. He also stated that Claimant showed a marked improvement after each MUA was performed, a standard to measure whether multiple procedures are warranted. The Court credits Dr. Super's testimony and concludes that the MUAs were medically necessary.
Next, Defendant claimed that treatment of hips and shoulders is beyond the scope of chiropractic treatment. The court disagrees. As stated in Kraft v. State Farm Mut. Auto. Ins. Co., 2011 NY Misc. LEXIS 5537, 5-6 (NY Civ. Ct. Oct. 6, 2011), chiropractors may treat any part of the human body, including the hip and shoulders, provided the purpose of treatment is the removal of nerve interference and its effects resulting from or related to distortion, misalignment or subluxation of or in the vertebral column." See also NY CLS Educ § 6551. In fact, a State Workers' Compensation BoardLaw Judgehas specifically authorized chiropractors to perform manipulation of the bilateral hip areas under anesthesia, when the stated purpose was to break-up fibrous adhesions and scar tissue that had formed on and around the claimant's spinal column. See Aramak, 2009 NY Wrk. Comp. 535411. Dr. Super testified that the Claimant's pain and injuries radiated from the shoulders to the cervical spine and from the lumbar spine down to the hips and legs and as a result it was appropriate for the MUAs to be used to treat the shoulders and hips, in addition to the spine.Defendant also contends that it was not medically necessary for the MUA procedures to be performed for three consecutive days. The Court finds this contention without merit. Dr. Super testified that in accordance with the National Academy of MUA Physicians protocols, MUAs are typically performed over a period of three consecutive days. See also Gerbino and Lustig, No-Fault Rate for Chiropractors For Manipulation Under Anesthesia, NYLJ, May 31, 2011. After each MUA, Dr. Super evaluated the Claimant to determine her level of improvement. Per standard guidelines in this field, after noting Claimant's level of improvement was between 50 to 80 percent, Dr. Super determined that it was medically necessary for Claimant to undergo additional MUAs.
Defendant argued that the MUAs were billed in excess of the Fee Schedule. It is well settled that a medical provider must limit its charges to those permitted by the approved Fee Schedule. See MIA Acupuncture, P.C. v. Praetorian Ins. Co., 34 Misc 3d 138A (NY App. Term 2011); Megacure Acupuncture, P.C. v. Clarendon Natl. Ins. Co., 33 Misc 3d 141A (NY App. Term 2011); Cornell Med., P.C. v. Mercury Cas. Co., 24 Misc 3d 58 (NY App. Term 2009); Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 (2d Dept 2004). Pursuant to Insurance Law § 5108 (a), the amounts to be charged by providers of health services "shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers' compensation board except where the insurer determines that unusual procedures or unique circumstances justify the excess charge." See also Great Wall Acupuncture v. GEICO Gen. Ins. Co., 16 Misc 3d 23, 25 (NY App. Term 2007). Therefore, in order to prevail, Defendant must demonstrate that it was correct in its reading of the Fee Schedule. Defendant did not contest that Plaintiff was entitled to bill utilizing the surgical section of the Fee Schedule, see John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 29 Misc 3d 367, 370 (NY Civ. Ct. 2010) (where this Court held that a chiropractor who performs an MUA is entitled to bill utilizing the surgical section of the Fee Schedule), however, Defendant contended that the amounts billed by Plaintiff were in excess of the Fee Schedule as chiropractors are not entitled to bill as the same rate as surgeons and that the fees billed would be decreased pursuant to Surgical Ground Rules 5 and 12.
Defendant's claims examiner testified that pursuant to the Workers Compensation Board chiropractors should only be compensated at a rate of 68.4% of the Fee Schedule. Through the testimony of Dr. Super, Plaintiff refuted this position stating that the Fee Schedule makes no such distinction. While this reduced rate is not noted in the Fee Schedule, the Court takes judicial notice of an opinion letter (dated August 14, 2009) from Kenneth J. Munnelly, General Counsel of the Workers' Compensation Board, which concludes that chiropractors who perform MUAs should be compensated at a rate of 68.4% of the allowable rate for medical doctors who perform the same procedure given the relative experience and training of a medical doctor versus that of a licensed chiropractor. Accordingly, the Court, following the reasoning of the Workers' Compensation Board, finds that MUA services performed by chiropractors should be compensated at a rate of 68.4% of the Fee Schedule.
Also at issue was the applicability of Ground Rules 5 and 12 of the Fee Schedule. Ground Rule 5, the multiple procedure rule, stands for the proposition that when multiple procedures are performed payment for the first procedure is paid at 100% and payment for additional procedures is reduced by 50%. Ground Rule 12(d), which Defendant applied, covers the apportionment of payment between two attending surgeons. Here, Defendant reduced Plaintiff's bill according to Ground Rules 5 and 12. Plaintiff argued that Ground Rule 5 does not apply to MUAs because MUAs of the shoulders, hips, and cervical, thoracic, and lumbar spine are each distinct, stand-alone procedures involving separate body parts and as a result it was not appropriate to reduce payment pursuant to Ground Rule 5. Dr. Super compared MUAs to regular chiropractic manipulation procedures, where each part of the spine is billed as a separate and distinct procedure. Dr. Super also stated that Ground Rule 12 does not apply because according to the "Introduction and General Guidelines" of the Fee Schedule and Modifier 62, each chiropractor is entitled to separate and full payment for their services when two chiropractors work together as primary chiropractors and perform distinct parts of a procedure. Dr. Super maintained that both he and Dr. Klass are entitled to 100% of the fee billed because MUA guidelines require MUAs to be performed by two doctors, and here both he and Dr. Klass were co-attending chiropractors who each performed co-primary functions throughout the MUAs which entitled them each to full payment for the procedures independent of each other.The Court agrees and credits Dr. Super's testimony and finds that the Plaintiff did not bill in excess of the Fee Schedule. Dr. Super has performed and billed MUAs for the past thirteen years. He was trained in the Fee Schedule by certified coding experts and has conducted research on the Fee Schedule in order to ensure that he bills according to the services performed and pursuant to the Fee Schedule. As the treating chiropractor, Dr. Super is in the best position to assess the treatment rendered and bill accordingly. Dr. Super's testimony that each of the MUAs he performed are separate and distinct procedures coupled with the fact that MUA guidelines mandates two chiropractors justifies full compensation for each chiropractor.
Dr. Super and Dr. Klass submitted bills for their MUA services in the total amount of $21,624.18. As MUA services performed by chiropractors should only be compensated at a rate of 68.4% of the Fee Schedule, each chiropractor is entitled to payment in the amount of $7,395.47 as the MUAs of the shoulders, hips, and cervical, thoracic and lumbar spine are distinct procedures performed by two-chiropractors. As Defendant previously paid each chiropractor $2,228.91, both Dr. Super and Dr. Klass are entitled to an additional $5,166.56.In accordance with the above, judgment in favor of the Plaintiff in the amount of $ 10,333.12 plus costs, disbursements, statutory interest and statutory attorneys fees.
This constitutes the decision and order of the Court.
ENTER:
March 19, 2012
______________________________
Pamela L. Fisher
Judge, Civil Court