Matter of Global Liberty Ins. Co. v McMahon, 2019 NY Slip Op 03692 (1st Dept. 2019)
This appears to be a very large issue in modern NY no-fault jurisprudence, as the coding of billings becomes the main issue in many arbitration. I was only zapped by this issue once, but once is enough. Despite the clear wording of the regulation and the Fee Schedule, I knew I was going to be at the First Department on this case.
Here is the substance of the case:
“The lower arbitrator, in rendering an award to respondent in that amount, refused to consider CPT Assistant, on which Global had relied, based on the arbitrator’s view that CPT Assistant was “not authorized by statute or regulation applicable to the No-Fault Law.” On Global’s appeal, the master arbitrator affirmed the lower arbitrator’s award. Thereafter, Supreme Court denied Global’s petition to vacate the award. On Global’s appeal, we reverse and grant the petition.
The Official New York Workers’ Compensation Medical Fee Schedule, promulgated by the chair of the Workers’ Compensation Board, directs users to “refer to the CPT book for an explanation of coding rules and regulations not listed in this schedule.” The CPT book, in turn, expressly makes reference to CPT Assistant. By both statute and regulation, the fee schedules established by the chair of the Workers’ Compensation Board are expressly made applicable to claims under the No-Fault Law (see Insurance Law § 5108; 11 NYCRR 68.0, 68.1[a][1]; see generally Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63-64 [2d Dept 2015], affd 27 NY3d 22 [2016]). Accordingly, because CPT Assistant is incorporated by reference into the CPT book, which is incorporated by reference into the Official New York Workers’ Compensation Medical Fee Schedule applicable to this claim under the No-Fault Law, the award rendered without consideration of CPT Assistant [*2]is incorrect as a matter of law (see 11 NYCRR 65-4.10[a][4]) “
To me, the rule that I cannot reference the CPT Code book or the CPT Assistant was meritless. Apparently, this was another “Maslow rule” that a sizable minority of arbitrators held as gospel. You could find out who the arbitrator and master arbitrator was in this case as it is e-filed.
My angst here is not so much with the lower arbitrator as (s)he had a body of “law” to rely upon in coming to his/her decision. Why the arbitrators are so moved by Maslow rules of regulatory interpretation is a question I may never get an answer to (this is the second Maslow rule the Appellate Division reverse d- no easy feat), but I can live with the underlying lower arbitrator’s decision.
My problem here is with the master arbitration program. For starters, if you move from New York, you should not be a master arbitrator. Aren’t there plenty of New York attorneys with coverage backgrounds who can review arbitrator decisions? Second, if you find that Petrofsky blocks you from making legal determinations (or disguising factual issues and legal issues), then you should be appearing on traffic tickets and not as a master arbitrator. Third, if you require me to prove the merits of my case by clear and convincing evidence (I will not call out this master arbitrator) because you have not followed the recent Article 75 cases in the First and Second Department, you also should not be a master arbitrator. I master a lot of cases and the awards I read are absolutely horrible. Honestly, they should allow us to go directly to Court as we do on UM cases. Having to write a $325 check is the expression of putting good money after bad money.
2 Responses
The master arb system is One of the main reasons I’ve stopped filing arbs. They are pointless and cumbersome to handle.
Further, maslow often fails to follow basic Nofault laws. I recently did an art 75 BECAUSE he made up his own exclusion from the 30 day rule and then found my filing was FRIVOLOUS.
It is all volume. If I was a provider attorney and had a lot of volume, I would be an arb filer. That way, I could absorb the good and the bad. If you are a smaller player – like you – arb is too variable. If you get certain arbitrators (I will not name them), you will go broke some months. You were forced back to court. I at times find hell a more hospitable place than Civil Court.
I will disclose that I lost my last two wage arbs which should have been winners. I settled my last two wage cases I filed in Supreme Court. One loss was affirmed by the First Dept (Matter of Miller), but that was just a horrible decision. To say I am horrified by what happened in Miller would be an understatement. I filed another one that we lost due to an arbitrator unaware that not everybody gets paid every 2 weeks. Watch that one go the Appellate Division. Needless to say, I am not filing wage arbs anymore unless certain factors are met. Also, bad faith law on the EIP side has progressed to the point that I think certain cases are just better suited in court. But I will end with this – the fact that these Article 75s are successful should give DFS and AAA pause as to how their program is being administered. Imagine if I worked for GEICO (instead of suing them) and was in charge of picking out every case that should be a candidate for Article 75 review? Keep that in mind