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The Rogak Report: 28 Jan 2009 ** No Fault - Manipulation Under Anesthesia **

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  • insurancelawyer
    THREE NEGATIVE IME S DEFEAT NO-FAULT CLAIM FOR MANIPULATION UNDER ANESTHESIA In the Matter of the Arbitration between Specialty Medical Services and Global
    Message 1 of 1 , Jan 28, 2009


      In the Matter of the Arbitration between Specialty Medical Services and Global Liberty Ins. Co., AAA Case No. 412008033426, AAA Assessment No. 17 991 19983 08 (Burt Feilich, Esq., arbitrator)

      Edited by Lawrence N. Rogak

      The issue in this AAA aribitration was "whether the medical, chiropractic and surgical services rendered by applicant for the eligible injured person/assignor were medically necessary for the care and treatment of injuries sustained in the accident; and, if so, what is the appropriate billing rate under the fee schedule for the various services claimed."

      At the hearing, Dr. Guilio Caruso appeared and testified under oath in connection with the services he rendered to this patient as well as to the health care procedure known as a Manipulation Under Anesthesia. Dr. Caruso was led through direct examination by his attorney, and cross-examined by respondent's counsel.

      This claim is brought in the amount of $14,040.00 and involves the subject of medical, surgical and anesthesia services rendered by applicant for the eligible injured person/assignor for the care and treatment of injuries sustained in an accident that occurred on December 8th, 2007.

      "Respondent contends that the services rendered were not medically necessary on the basis of three IME reports."

      The initial consultation evaluation report by Dr. Peter Albis, a chiropractor, dated December 14th, 2007  "indicates that claimant was a 36-year old male who was a driver involved in a car accident on December 8th, 2007. There was a 3-5 minute period of unconsciousness. He went to Westchester/Valhalla Hospital for emergency medical treatment and received x-rays and CT scans which were negative, and then he was released. The patient's initial complaints to Dr. Albis on December 14th, 2007 included headaches; and pain in the neck, low back, ribs and knees. There is no mention in his report of any previous related medical history or problems."

      "Dr. Albis's physical examination found pain, tenderness, spasm and restriction of motion of the cervical and lumbar spine with positive cervical compression and straight leg raising tests. There were no peripheral neurological deficits. The initial diagnosis was cervical, thoracic and lumbar subluxation complex; and sprains and strains of the knees."

      "The initial management plan included MRIs of the spine; orthopedic and neurological consults; EMG/NCS testing; and a course of chiropractic treatment."

      "On December 24th, 2007, there was an initial consultation by Dr. Michael Cushner, an orthopedist. Contrary to Dr. Albis, he indicated there was no period of unconsciousness following the accident. He noted patient complaints of neck pain radiating into the arms, and low back pain radiating into the legs. His physical examination found tenderness and restriction of motion of the spine. His peripheral neurological evaluation found reflexes equal and symmetrical throughout. There was generalized weakness of the lower extremities but not due to any neurological problem. Sensory function was abnormal at the L4-5 dermatomes. His diagnosis was cervical, thoracic and lumbar sprains and strains with intermittent radiculopathy. He recommended a continuation of chiropractic treatment, physical therapy and a lumbar MRI.  Dr. Cushner made no diagnosis concerning any problem with claimant's knees."

      "On January 15th, 2008, there was an initial neurological consultation by Dr. Bhim Nangia. His physical examination found musculoskeletal deficits of the spine. His diagnosis was cervical and lumbar spinal syndrome with the need to rule out herniated discs and radiculopathy. He recommended upper and lower EMG/NCS testing; MRIs; and a continuation of physical therapy and chiropractic treatment. No followup reports from Dr. Nangia were submitted into evidence."

      "On January 18th, 2008, Dr. Minerva Santos performed an evaluation. She indicated that a cervical MRI had found a herniated disc at C5-6 and bulging discs at C4-5 and C6-7. A lumbar MRI found no herniated or bulging discs. Her diagnosis was cervical herniated disc with the need to rule out radiculopathy; thoracic and lumbar sprains and strains; and bilateral knee sprains or contusions with the need to rule out meniscal tearing. She recommended a continuation of physical therapy and chiropractic treatment, and an MRI of the right knee."

      "On February 16th, 2008, an MRI of the right knee showed mild degenerative changes but no tearing of the meniscus."

      "Followup progress notes from Dr. Santos, dated February 15th, April 28th, June 2nd, and June 20th, 2008, indicate that on each occasion she found some evidence of cervical and lumbar radiculopathy, and an injury to the right knee. As a result of each examination Dr. Santos recommended additional physical therapy and chiropractic treatment. The progress note from June 20th, 2008 also makes no mention of the need for any Manipulation Under Anesthesia procedures, although it does contain a reference that claimant was expecting to have surgery on his right knee in the near future performed by orthopedist, Dr. Cushner. The peripheral neurological evaluation on June 20th was completely within normal limits."

      "The daily physical therapy and chiropractic treatment notes from Premier Health Choice Chiropractic and Premier Health Choice were submitted into evidence. Significantly, the chiropractic treatment records from July 28th, August 1st, and August 4th, 2008 make no mention whatsoever of the fact that claimant allegedly underwent manipulation under anesthesia treatments by applicant in this case on July 31st and August 2nd, 2008. On each date of chiropractic treatment there is a reference that claimant was making complaints about his neck and low back and that he was showing slow, progressive improvement."

      "Starting in the Spring of 2008 Dr. Albis began describing claimant's condition as chronic yet with slight improvement in pain and motion over time. He did not document serial range of motion studies of the spine to determine in an objective way if there was improvement."

      "On July 31st, 2008, Dr. John Gregg, osteopathic physician, performed an examination at the request of Dr. Guilio Caruso, claimant's treating chiropractor. It was indicated that claimant still had neck and back pain that radiated into the legs, and pain in the ribs on the right side. Claimant said he got only temporary relief from chiropractic and physical therapy treatments. Dr. Gregg's examination found decreased range of spinal motion but he also did not quantify the degree of restriction of motion. There were no neurological deficits. He diagnosed spinal segmental dysfunction and sprains and strains; bilateral hip sprains; and sacroilitis. He made no diagnosis of any injury to the knees. He recommended that claimant undergo 3 sessions of Manipulation Under Anesthesia, and thereafter continue with conservative treatment."

      "On July 31st and again on August 2nd, 2008, claimant underwent Manipulation Under Anesthesia by Dr. Gregg with assistance from Dr. Caruso. The pre-operative diagnosis was chronic cervical, thoracic and lumbar myofascitis; bilateral hip adhesive capsulitis; right knee tendonitis; and fibromyalgia. It was indicated that claimant had minimal improvement after conservative treatment and the surgical procedures would improve his function. Claimant tolerated each procedure in good condition."

      "Applicant has also submitted the pre-operative and anesthesia operative records for the two MUA procedures. At the continued hearing Dr. Caruso testified that he was furnished with claimant's medical records from Drs. Albis, Santos, and Nangia some time in the weeks before July 31st, 2008. Ordinarily, a decision to perform MUA would be made approximately one month before the date for the procedure. He was made aware of Dr. Gregg's physical examination findings from July 31st, 2008, and he felt that claimant was a good candidate for MUA procedures of the spine and knee, in that claimant had a chronic condition and had received over 6 months of conservative treatment without resolution of his symptoms. Dr. Caruso described the purpose and manner of performing MUA procedures which involves an attempt to elongate muscles in various joints that have become shortened due to fibrous adhesions developing following a trauma. MUA procedures are performed no sooner than 3 months after the beginning of conservative treatment, and usually not more than 8 months after a patient has been receiving treatment. It is performed when the patient is in a chronic stage of injury, where a plateau level has been made but without a resolution of symptoms. It is not to be performed when the patient is still in an acute stage of recovery following an injury."

      "The procedure is performed with the patient under twilight anesthesia. He testified that a patient would ordinarily feel improvement very shortly after the MUA is performed. Most patients are scheduled to have 3 MUA procedures performed over a period of about 1 week or less, and some times the 2nd or 3rd procedure is cancelled if the patient feels there is substantial immediate improvement. Dr. Caruso admitted that he never saw claimant before July 31st nor after August 2nd, 2008, so he had no personal knowledge of claimant's physical condition before the first MUA procedure nor after the last MUA procedure. He said that he had spoken to Dr. Albis by telephone sometime after the 2nd MUA procedure and learned that claimant was improving as a result of the procedures."

      "Dr. Caruso also conceded that there were no mentions in Dr. Albis's daily treatment records prior to July 31st, 2008, nor after August 2nd, 2008, of the fact that any MUA procedures had been performed. When told that Dr. Albis performed chiropractic manipulations or adjustments on August 1st, 2008, in between the first and second MUA procedure, he said that would be appropriate even though the MUA procedure reports make no mention of the fact that claimant continued to receive daily chiropractic treatment even during the week when the procedures were performed."

      "When Dr. Caruso was questioned about the fact that claimant had undergone 3 IME examinations in mid-April 2008, with essentially negative findings, Dr. Caruso said that he thought the IME doctors examinations were invalid and that according to Dr. Albis and Dr. Santos claimant continued to show subjective and objective evidence of continuing injuries especially to his spine and right knee."

      "Dr. Caruso also indicated that although Dr. Gregg's report of July 31st, 2008 made no mention of claimant having any prior related medical history, that the reference in the IME physicians reports that claimant had sustained minor injuries in a 2005 car accident would have made no difference on the need to perform the MUAs at this time."

      "In defense of the claim, respondent submits the IME report of Dr. Joseph Margulies, an orthopedist, dated April 17th, 2008. Dr. Margulies was informed that claimant had been receiving physical therapy, acupuncture, and chiropractic treatments 5 times per week since the accident with some mild relief. Claimant mentioned that he had been involved in a motor vehicle accident in 2005 and received treatment for unspecified injuries with a total recovery. At the time of the instant accident, claimant was a student and missed one day from school."

      "Claimant's chief complaints from this accident were pain in his neck, back, left shoulder and knees along with headaches. Dr. Margulies's physical examination was entirely within normal limits with no deficits or orthopedic or peripheral neurological function. His diagnosis was resolved sprains and strains of the cervical and lumbar spine; and resolved contusions of the shoulders and knees. He found no evidence of any continuing disability. He concluded that claimant had no further need for any physical therapy, orthopedic service or diagnostic testing or other treatment for injuries sustained in the accident of December 8th, 2007. As a result of Dr. Margulies's examination, respondent denied all further orthopedic, surgical, medical and diagnostic testing services as of May 30th, 2008."

      "Respondent has also submitted the chiropractic IME report of Dr. Robert Costello, also dated April 17th, 2008. Dr. Costello recorded a history and present complaints similar to those listed by Dr. Margulies. Other than claimant complaining of some tenderness in his left shoulder during the physical examination, with no restriction of motion of the shoulder, Dr. Costello otherwise found no abnormalities of function of the spine or of the extremities. His diagnosis was status-post cervical, thoracic and lumbar sprains and strains, all resolved. He also felt there was no evidence of any continuing disability. He concluded that claimant had no further need for any chiropractic services for injuries sustained in the accident. As a result of Dr. Costello's examination, respondent denied all further chiropractic services as of May 30th, 2008."

      "Finally, respondent also submits the physiatry IME report of Dr. Amy Weiss-Citrome, dated April 22nd, 2008. Her physical examination was also entirely normal. Her diagnosis was resolved sprains and strains of the cervical and lumbar spine, and resolved contusions of the knees. She found no evidence of any disability. She thought that claimant had no further need for any physiatry services, diagnostic testing, or other health care services due to injuries sustained in the accident of December 8th, 2007. As a result of Dr. Weiss-Citrome's examination, respondent denied all further physiatry services as of May 30th, 2008."

      "After having reviewed all of the evidence, including the medical reports and records submitted, and hearing the testimony of Dr. Caruso and the arguments of the parties, I find that respondent has met its burden of proving that the surgical and anesthesia services rendered from July 31st to August 2nd, 2008 following the post-IME cutoff were not medically necessary. In my estimation, the 3 completely negative IME examination reports were much more convincing and credible than the evidence submitted by applicant concerning the lack of need for any surgical procedures or MUA procedures following the effective date of the IME cutoffs. With the exception of a few progress reports from Dr. Santos from April 28th, June 2nd and June 20th, 2008, there was no other credible evidence submitted by applicant that would outweigh the IME evaluations by an orthopedist, physiatrist and a chiropractor in April 2008 that no further chiropractic and/or surgical procedures were necessary for this patient. Even Dr. Caruso's testimony regarding claimant's physical condition in mid-April 2008 is tempered by the fact he had not seen claimant during that time period and any opinion regarding the necessity of continuing services rendered after that time is dependent on the records and reports from Dr. Santos and Dr. Albis. I find Dr. Albis's daily chiropractic treatment records to lack credibility in that there is no mention in them whatsoever at any time that claimant was to have MUA procedures or that he underwent MUA procedures. It is also telling that there were no followup progress reports from Dr. Albis after his initial evaluation from December 14th, 2007, and that even Dr. Santos's office's progress reports mentioned above do not make any mention or recommendation for MUA procedures."

      "Without having to determine the credibility of the summary examination report by Dr. Gregg on July 31st, 2008, or of the records and testimony of Dr. Caruso based on his first seeing claimant on July 31st, 2008, I find that any reports or testimony from them is insufficient to counteract the impact of the 3 IME examinations from mid-April 2008. I would also add that the initial examinations by Dr. Albis, Dr. Santos, and by Dr. Nangia on January 18th, 2008 show nothing more than soft-tissue injuries for which conservative treatment in the nature of physical therapy and chiropractic care should have been more than sufficient to have resolved claimant's symptoms by mid-April 2008, and I accept respondent's IME doctors conclusion that as of that time there were no continuing objective indications of injuries, and no continuing clinical findings from the accident of December 8th, 2007, that would justify the services rendered by applicant in this case. Consequently, I sustain respondent's denial of claim for all of the services claimed by applicant in this proceeding as not being medically necessary for the patient."

      "Therefore, my award is in favor of respondent, and the claim is denied in the entirety."

      Comment:  Manipulation Under Anesthesia is supposed to be a procedure of last resort after conservative treatment fails.  The patient is anesthetized, and a chiropractor twists and manipulates the patient in a manner that would be too painful without anesthesia.   This stretching is supposed to break up adhesions and stretch tight tendons and muscles.   But it is an expensive procedure, and there is a lot of controversy over the question of what point a patient has to reach before it is justified.

      Larry Rogak

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