AMERICAN ARBITRATION ASSOCIATION – NO-FAULT – BIOMECHANICAL EXPERT OPINION – USE OR OPERATION – CAUSAL RELATIONSHIP – EMG/NCV TESTING
Matter of Arbitration between Scott A. Croce, DC, PC/Erie County Chiropractic aao [Assignor] and Preferred Mut. Ins. Co.(Arbitrator Fred Lutzen, dated 3/28/2019)
(Master Arbitrator Marilyn Felenstein, dated 7/15/2019)
Mura & Storm associate Ryan Mura was privileged to represent Preferred Mutual Insurance Company (PMIC) in this American Arbitration Association mandatory no-fault arbitration matter.
PMIC denied payment of the applicant's EMG/NCV testing billing based on the "Biomechanical Injury Causation Analysis" peer review report of expert biomechanist Dr. Jacqueline M. Lewis, Ph.D., which had concluded:
1. On May 18, 2017, [IP/Assignor] was the driver of a 2011 Buick LaCrosse that was traveling in the Walgreens parking lot (3288 Main Street), in Buffalo, New York, when contact occurred between the rear of a 2001 Ford Focus and the front of her vehicle.
2. The subject incident is consistent with a Delta-V of less than 6.4 miles per hour, and more comparable to 2.5 miles per hour with an average acceleration of less than 1.7g, and more comparable to 0.65g for the subject Buick in which [IP/Assignor] was seated.
3. The accelerations experienced by [IP/Assignor] were within the limits of human tolerance, and were comparable to those experienced during various daily activities.
4. Had the subject incident been sufficient to initiate occupant motion, [IP/Assignor] would have moved primarily forward relative to the subject Buick's interior.
5. There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed cervical spine injuries. As such, a causal relationship between the subject incident and the claimed cervical spine injuries cannot be made.
6. There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed thoracic spine injury. As such, a causal relationship between the subject incident and the claimed thoracic spine injury cannot be made.
7. There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed lumbar spine injuries. As such, a causal relationship between the subject incident and the claimed lumbar spine injuries cannot be made.
8. There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed bilateral knee injuries. As such, a causal relationship between the subject incident and the claimed bilateral knee injuries cannot be made.In finding that PMIC had demonstrated by a preponderance of credible evidence that the assignor's claimed injuries did not arise out of the use or operation of a motor vehicle, AAA No-Fault Arbitrator Fred Lutzen held:
I find that Respondent's expert has sufficient scientific and technical knowledge, and is competent based on her credentials and experience to provide the aforementioned opinion. The report appears to be based on sufficient facts or data, is the product of reliable principles and methods, and Dr. Smith has applied the principles and methods reliably to the facts of this case (see, FRE 702).
The 14-page report provides an extremely detailed analysis, which includes calculating the IP/Assignor's weight, speed of the vehicle, vehicle damages, and other relevant factors. Dr. Smith concludes that the vehicle was traveling approximately 2.5 mph, and that any impact would have produced acceleration that was comparable to or less than typical activities of daily living. She concludes that the reported injuries were not caused by the accident.
Applicant's counsel argued that the medical records and reports establish a causal connection between the disputed treatment and the accident. I have reviewed all of the evidence submitted. Without additional evidence, like the IP/Assignor's own statement adequately explaining the injury onset and causality, Dr. Smith's accepted opinion is not sufficiently rebutted.The records alone are not sufficiently persuasive to overcome the extremely detailed, comprehensive, and convincing expert opinion by Dr. Smith.
I find that the preponderance of credible evidence presented in this case supports that the IP/Assignor's EMG/NCV testing performed on 9/7/17 was unrelated to the accident that occurred on 5/18/17, and that the purported injuries did not arise out of the use or operation of a motor vehicle.The applicant filed for master arbitration, and AAA No-Fault Master Arbitrator Marilyn Felenstein, in AFFIRMING Arbitrator Lutzen's award, found:
Arbitrator Lutzen, in his award, explained why he reached his conclusion that the claimed injuries could not have been caused by the claimed incident. He refer to the police report and the photographs attached thereto and notes that the police report indicated “no injury reported and no visible injury seen”. He notes the facts of the accident and discusses in detail the report by Dr. Lewis. The arbitrator found Respondent’s expert to be qualified to make the analysis regarding causation and found that Applicant had failed to rebut the expert’s conclusion.
It is clear that a lower arbitrator has the authority to assess the facts and apply the relevant case law. He had the right to determine what evidence would be considered, including the expert report submitted by Respondent. I have carefully reviewed the parties’ briefs and the record on appeal. The arbitrator’s findings were within the arbitrator’s sound discretion and rational interpretation of the evidence and I find no reversible error within my purview as a Master Arbitrator. Per 11 NYCRR 65-4.5[o][1], the arbitrator shall be the judge of the relevance and materiality of the evidence offered. It would be improper for me, as a Master Arbitrator, to conduct a de novo review of the case and I cannot substitute my interpretation or my view as the weight or credibility of the evidence over that of the lower arbitrator.
Furthermore, considering that there is case law to support the position that New York courts have specifically held that a biomechanical engineer is qualified to give opinion testimony regarding whether the force of impact in an accident could case the alleged injuries, it cannot be said that the arbitrator’s conclusion was not rational. Plate v. Palisade Film Delivery Corp., 39 AD3d 835 (2nd Dept. 20017). The request for vacatur of the award is denied.
You can read both awards/decisions for more details. Any questions about this matter can be directed to Ryan Mura at ryan.mura@muralaw.com.