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The Rogak Report: 01 May 2009 ** No Fault - Peer Reviews - Signatures **

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  • insurancelawyer
    ARBITRATOR FINDS INSURER S PEER REVIEWS SUSPECT AND REJECTS THEM BASED ON DOUBTS ABOUT WHETHER THEY ARE GENUINE In The Matter of the Arbitration Between
    Message 1 of 1 , May 2, 2009
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      ARBITRATOR FINDS INSURER'S PEER REVIEWS "SUSPECT" AND REJECTS THEM BASED ON DOUBTS ABOUT WHETHER THEY ARE GENUINE

      In The Matter of the Arbitration Between Lewis Gross DDS and Global Liberty Ins. Co. of New YorkAAA Case No. 412008041326, AAA Assessment No. 17 991 02655 09,

      Insurer's Claim File No. 083613NF01 (Aaron D. Maslow, Arbitrator) (Award dated 4/28/09)

      Edited by Lawrence N. Rogak

      One of the main issues in this no fault arbitration was "

      Whether statements contained within documents bearing facsimile, rubber-stamped, or computer-generated signatures should be accepted as truthful in No-Fault arbitrations."  The Arbitrator held in the negative.

      Dr. Gross filed this No-Fault arbitration, seeking $17,285.09 which he billed for performing dental services on Mar. 6 and 13, 2008, on the Assignor, a 53-year-old female, who was a passenger in a taxi involved in a motor vehicle accident on Jan. 11, 2008.  The bills were denied by Global Liberty.

      Global "timely denied these bills on the grounds of lack of medical necessity. In reality, however, its defense is not that the services were not medically necessary, but that there was no proximate causation between the motor vehicle accident and the services provided. In other words, Respondent maintains that Assignor was treated for conditions which existed prior to the accident and were not impacted by it. Normally, an insurer is restricted to defending a No-Fault litigation claim on the basis of the defenses asserted in the denial of claim form....  However, a defense that a condition for which an insured was treated was not proximately caused by a covered motor vehicle accident -- but was a pre-existing condition -- may be raised at any time."

      After finding that Dr. Gross had made out a prima facie case, the Arbitrator stated that Global "relied upon two peer reviews purportedly written by a Dr. Gregory W. Kalmar, D.D.S. The initial one was dated May 1, 2008, and the addendum was dated Aug. 25, 2008. However, based on my examination of the signatures on these two peer reviews, it is my factual finding that they were facsimile signatures which were computer generated. They are both identical and the conclusion is inescapable that they were computer generated. I do not think they were rubber-stamped inasmuch as rubber-stamped signatures bear distinctive characteristics not present here. It has been my position consistently that medical reports, narratives, and peer reviews which do not bear authentic signatures, but rather facsimiles, should not be accorded probative value for their contents, such as findings and opinions."

      "The entire process for No-Fault arbitrations was designed to enable the parties to resolve disputes over No-Fault compensation in an expeditious manner, without the formalities attendant to court actions. This lack of formality enables the parties in arbitration to submit written documents prepared by physicians and others -- in lieu of personally testifying -- in support of their positions. This would not be permitted in a regular court action, where the rules of evidence apply. Allowing this entails risks, however, that documents not really prepared or authorized by the signatories might be submitted."

      "Documents bearing rubber-stamped, computer-generated, or other facsimile signatures fall into this category. Were I to give credence to such documents, I would be encouraging their submission, thus leading to the possibility of the introduction into the arbitration process of fraudulent materials -- materials prepared by others bearing the signatures of the physicians who have no idea that they are being submitted."

      "So while I am in favor of adjudicating disputed issues on the basis of written submissions, which are hearsay, instead of compelling treating doctors, peer reviewers, and IME examiners to testify in person, I cannot permit suspect documents to taint the process."

      "Where it is clear to me that medical reports, narratives, letters of medical necessity, peer reviews, IME reports, or other documents are rubber-stamped with signatures, bear computer-generated signatures, or contain facsimile signatures, and I am not assured of their genuineness from other sources, I accord the contents no credence."

      "This reasoning was set forth by me early on, in an award in the arbitration of Park Avenue South Chiropractic, P.C. a/a/o "P.G." v. Country-Wide Insurance Co., AAA Case No. 17-991-69775-1, Dec. 15, 2002. In affirming the award, Master Arbitrator Victor J. Hershdorfer, stated: 'An arbitrator has broad powers and discretion in the manner in which hearings are conducted. It is he alone who determines what evidence is material and relevant, and the arbitrator is not obligated to conform strictly to the legal rules of evidence. 11 N.Y.C.R.R. 65.17(B)(5)(xx) permits the arbitrator to exercise broad discretion, largely free of substantive and procedural limitations. Matter of Petrofsky v. Allstate, 54 N.Y.2d 207. The arbitrator has in this case actually set forth a rational basis for his determination that rubber-stamped medical reports should be given little credence. But even had he not, the weight to be given to such reports would be solely within the discretion of the arbitrator and beyond the scope of a master arbitrator's jurisdiction to review."

      "In 76th Street Medical P.C. a/a/o "G.Q." v. St. Paul Travelers Insurance Co., AAA Case No. 17-R-991-11516-6, Aug. 10, 2006, my determination, resting upon a rejection of a peer review bearing a computer-generated signature, was affirmed by Master Arbitrator William F. Laffan, Jr.: 'The lower arbitrator, Aaron D. Maslow, Esq., awarded the health provider the sum of $390.00 on the ground that he did not accept the insurer's peer review because of the lack of a signature by the examining physician and [because it] only contained a signature which was not the product of a rubber stamp but rather one which had been scanned and reproduced by means of a computer."

      "A peer review containing a stamped facsimile of the doctor's signature is not admissible where there is nothing in the record to indicate that the doctor himself authorized it. Vista Surgical Supplies, Inc. v. Travelers Ins. Co., 50 A.D.3d 778, 860 N.Y.S.2d 532 (2d Dept. 2008), aff'g, 14 Misc.3d 128(A), 836 N.Y.S.2d 491 (Table), 2006 N.Y. Slip Op. 52502(U), 2006 WL 3858395 (App. Term 2d & 11th Dists. Dec. 15, 2006); Support Billing & Management Co. v. Allstate Ins. Co., 15 Misc.3d 126(A), 836 N.Y.S.2d 503 (Table), 2007 N.Y. Slip Op. 50496(U), 2007 WL 788903 (App. Term 2d & 11th Dists. Mar. 12, 2007)."

      "This holding should apply likewise in arbitration -- not because the admission of such documents would violate the rules of evidence (which do not govern arbitrations), but because such documents lack probative value. If the only evidence in support of lack of medical necessity is a peer review bearing a facsimile signature, the insurer has failed to raise a triable issue of fact on that issue. See Orthotic Surgical & Medical Supply, Inc. v. GEICO Ins. Co., 20 Misc.3d 137(A), 867 N.Y.S.2d 376 (Table), 2008 N.Y. Slip Op. 51540(U), 2008 WL 2814851 (App. Term 2d & 11th Dists. July 10, 2008)."

      "In the case at bar, I give no credence to the aforesaid peer reviews allegedly prepared by Dr. Kalmar and bearing his computer-reproduced facsimile signature. I am not persuaded that the peer reviews were genuinely prepared or approved by him. In the absence of a genuine signature of Dr. Kalmar, there is no assurance that he, and not someone else, wrote the peer reviews."

      "When one submits a report, letter, or other document authenticated with a rubberstamped, computer-generated, or other facsimile signature instead of a genuine one, for the purpose of asserting the truth of the contents therein, the evidence is of no probative value -- it is equivalent to submitting no evidence."

      "After discounting the peer reviews, the record lacks any other expert evidence from Respondent in support of its position of lack of proximate causation. Thus, I conclude that Respondent has failed to submit prima facie evidence of lack of proximate causation."

      "Notwithstanding my finding that the facsimile signatures render the two peer reviews non-probative of their contents, I will still analyze the evidence presented in this case as though Dr. Kalmar did prepare and sign the peer reviews. I am doing this so that this award will contain a thorough analysis."

      "I will first start by relating the testimony of Applicant. He testified at length and with much candor. Applicant has been practicing dentistry for over 30 years. On Mar. 6, 2008, Assignor presented with swelling in the top portion of her mouth. She informed Applicant that she had been a passenger in a taxi which was involved in an accident. Her head snapped in the accident and her top teeth loosened. Assignor had a pre-existing bridge over teeth # 8- 10. X-rays taken by Applicant revealed that the bridge snapped off the root of tooth #10. Tooth # 8 had a loose root. Tooth # 5 was broken. To repair this condition, Applicant had to extract teeth # 5, 8-10 and build a new bridge which spanned teeth # 6-12. Of course, teeth #5-12 had to be recreated."

      "Applicant also testified that on a clinical basis, Assignor needed to replace certain missing lower teeth in order to afford Assignor proper mastication. He conceded, however, that the condition on the lower teeth was not proximately related to the motor vehicle accident."

      "While there was no evidence, either in Assignor's hospital records or in her statements to him, that the mouth sustained direct impact during the accident, it was Applicant's opinion with a reasonable degree of certainty that the dental condition in the upper part of the mouth was proximately caused by the accident. This opinion was based on Assignor's statements to him and in her EUO that she sustained a whiplash whereby her neck snapped and teeth crunched. (Page 10 of the EUO, where Assignor testified as such was submitted into the record.) His opinion was also based on an examination of the x-rays he took of the bridge, in comparison to a Jan. 2007 x-ray of it. He was emphatic that the loose tooth # 8 and the snapped root of tooth # 10 could only have occurred due to trauma. He stated, 'While decay could contribute, I don't think that's what happened here.'"

      "In opposition to the testimony of Applicant are the two peer reviews allegedly written by Dr. Kalmar. In them, the analysis concludes that there was 'no objective evidence to support the causal relationship between the incident in question and the services provided.'"

      "Peer review, May 1, 2008. The salient points made in the May 1, 2008 peer review were: (1) The hospital records indicate that Assignor denied direct head trauma. (2) The accident was a low-impact one. (3) The box for mouth injuries on the ER report was not checked. (4) X-rays revealed long-term dental neglect. (5) The Dec. 1998 edition of the journal of the American Dental Association contained a comprehensive review of the literature on rearended motor vehicle accidents without direct head trauma which concluded that the forces on dentition in such accidents do not exceed the same forces what would occur in normal mastication."

      "Applicant wrote a rebuttal of the May 1, 2008 peer review, sending it to Respondent.  New documents were enclosed. He quoted from a written statement of Assignor's, in which she stated, among other things: 'When I was in the hospital, I was in a state of shock and was in very bad pain to my neck, mouth, and shoulder. The car hit me at such an impact that my teeth clenched and rattled from the impact. I was given medications that made me very groggy and dizzy from the pain. I cannot remember all the questions that were asked. When I left the hospital, I realized that my implant was now loose and about to fall out.' (The written statement is in the record.)"

      "Concerning the cited Dec. 1998 article, Applicant testified that having read it, he realized it focused more on TMJ disorder rather than on dental injuries. Applicant cited in his support a 1965 study by a Dr. Frankel which concluded that in an accident the jaw snaps shut. In his written rebuttal to the May 1, 2008 peer review, Applicant mentioned the 1965 study."

      "Respondent also relies upon an Aug. 25, 2008 addendum peer review allegedly written by Dr. Kalmar. The addendum acknowledges receipt of Applicant's written rebuttal.  It adhered to the original conclusion of a lack of a causal relationship. It opined that 'tooth # 5 and the bridge spanning teeth # 8 through # 10 were in severe jeopardy prior to the incident in question and were doomed to failure long before the motor vehicle accident in question.'"

      "I also take note of a Jan. 18, 2008 entry in the notes of chiropractor Doreena Druckman, wherein she recorded Assignor as stating that on Jan. 15 she forgot to mention that her front denture got dislodged and she was scheduling a dentist appointment. This minimizes the significance of Assigner's failure to say anything in the ER about her dental condition."

      "As I stated previously, it was my finding that since the two peer reviews bore facsimile signatures, Respondent did make out a prima facie case of lack of proximate causation. However, to provide a complete and thorough analysis of the evidence, I have reviewed the peer reviews as though Dr. Kalmar did indeed prepare and sign them. Based on that review and taking into account the documentation submitted by Applicant (including Assignor's written statement, the aforecited page of her EUO, and Dr. Druckman's notation) and his very credible in-hearing testimony, it is my finding of fact that the dental condition on the upper part of the mouth for which Assignor was treated by Applicant -- specifically the broken tooth # 5, the loose tooth # 8 root and the snapped tooth #10 root -- was indeed proximately caused by the subject motor vehicle accident and that the restorative and replacement work performed by Applicant was necessary to remedy the dental condition. I find that Applicant's distinguishing of the Dec. 1998 article cited in the peer reviews was credible as was his own citation of the Frankel study."

      "The above cited case of Kingsbrook Jewish Medical Center v. Allstate Insurance Co., ___ A.D.3d ___, 871 N.Y.S.2d 680 (2d Dept. 2009), contains a most salient point of law at page 687: "Exacerbations of pre-existing conditions are covered by the No-Fault Law (see Wolf v. Holyoke Mut. Ins. Co., 3 A.D.3d 660, 660-661, 770 N.Y.S.2d 458; Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d at 18, 699 N.Y.S.2d 77)." This means that if an eligible injured person has a pre-existing condition which is exacerbated by the motor vehicle accident, then the resulting medical treatment must be compensated for under the respective No-Fault insurance policy. As applied to the case at bar, it means that even if tooth #5 and the # 8-10 bridge were in severe jeopardy, as asserted by the addendum peer review, the exacerbations caused by the subject accident trigger No-fault coverage under the policy issued by Respondent. There is no doubt in my mind that the whiplash snapping impact on Assignor's head, which included teeth clenching, at a minimum exacerbated any pre-existing condition which might have been there. And that exacerbation triggers No-Fault coverage."

      "There is no doubt in my mind that Respondent has not proved lack of proximate causation by a preponderance of the credible evidence, were I to credit the two peer reviews."

      "Applicant testified that the condition of the bottom part of the mouth (for which he billed $2,250.00 for treatment) did not result from the accident. In light of this I cannot award compensation for it."

      "The within claim is granted to the extent of awarding Applicant the sum of $15,035.09, representing the unpaid amount in the billing for treatment of the upper portion of the mouth. (Respondent never asserted any defense relating to the amounts charged for the component services.)"

      Comment: This decision certainly should raise an eyebrow.  It is one thing to exclude a medical report on the technical ground that it lacks the legal foundation for admission into evidence.  It is another thing to state that the report is "suspect" and that the Arbitrator is concerned that the doctor may not have written or approved it.   The language used here by the Arbitrator is the strongest I have ever seen in writing regarding doubts about the genuineness of a medical report submitted by an insurer. Maybe this is less surprising in light of the fact that a Supreme Court decision last year called this insurance company's conduct in another case "shocking," "atrocious," and "criminal." See: http://groups.yahoo.com/group/TheRogakReport/message/1444.

      Larry Rogak

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