American Arbitration Association

New York No-Fault Arbitration Tribunal

In the Matter of the Arbitration between:

DNA Pharmacy Inc AAA Case No. 17-18-1105-2835
(Applicant) Applicant's File No. SS-78887
- and - Insurer's Claim File No. 0539947350101012
NAIC No. 22055
Geico Insurance Company
(Respondent)

ARBITRATION AWARD

I, Ellen Weisman, the undersigned arbitrator, designated by the American Arbitration

Association pursuant to the Rules for New York State No-Fault Arbitration, adopted pursuant
to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and
having heard the proofs and allegations of the parties make the following AWARD:

Injured Person(s) hereinafter referred to as: Patient

1. Hearing(s) held on 01/27/2020

Declared closed by the arbitrator on 01/27/2020

Abraham Meir, Esq. from Samandarov & Associates, P.C. participated in person for the
Applicant

David Muller, Esq. from Goldstein, Flecker & Hopkins participated in person for the
Respondent

2. The amount claimed in the Arbitration Request, $ 949.00, was NOT AMENDED at the
oral hearing.
Stipulations WERE made by the parties regarding the issues to be determined.

The parties stipulated that Respondent issued a timely denial.

3. Summary of Issues in Dispute

This arbitration stems from treatment of a 52 year-old male who sustained injuries as the
driver of a motor vehicle involved in an accident on February 14, 2018. The issues are
whether Diclofenac Gel 3% at $944.00 and the associated dispensing fee at $5.00 on
February 16, 2018, were medically necessary; and if so, whether Applicant's bill is in
accord with the New York Workers' Compensation Medical Fee Schedule.

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4. Findings, Conclusions, and Basis Therefor

The defense of lack of medical necessity for topical Diclofenac Gel 3% is premised on a
Peer Review Report of Gary Florio, M.D. dated April 6, 2018. Applicant submitted a
Rebuttal Report of James R. Avellini M.D. dated April 13, 2019. All submissions will
be considered.

Applicant's Medical Records:

The Initial Report of Dr. Avellini dated February 14, 2018, the date of the accident,
reflects that the patient complained of neck and back pain. Dr. Avellini documented that
he had no known drug allergies and that he was not taking any medications. Also, the
patient denied having any significant past medical or surgical history. Based on positive
examination findings, he was diagnosed with neck and low back pain for which topical
Diclofenac Gel 3% and oral Mobic were prescribed, both of which are non-steroidal
anti-inflammatory drugs ("NSAID"). The prescription confirms that Diclofenac Gel 3%
was ordered of February 14, 2018, and the Delivery Slip confirms that it was delivered
to the patient on February 16, 2018. He was instructed to apply it topically twice each
day to the affected areas for 30 days, without refills.

Respondent's Peer Review Report:

Dr. Florio concluded that topical Diclofenac Gel 3% was not medically necessary or
clinically warranted for this patient. He stated that this medication was used in a matter
that was outside the accepted clinical standards of care which call for the use of standard
oral NSAID to treat pain and inflammation associated with spinal injuries. A topical
NSAID provides a low level of systemic absorption which can be advantageous when
treating patients for whom the systemic administration of medications is contraindicated
such as those with hypertension, cardiac failure, gastrointestinal disease or renal
insufficiency. This patient did not present with any such contraindications to the use of
an oral NSAID as confirmed by the fact that oral Mobic was also prescribed by the
treating physician. Also, he noted that the concurrent prescription of topical Diclofenac
Gel 3% and oral Mobic represented "clinically inappropriate poly-pharmacy."

Applicant's Rebuttal Report:

Dr. Avellini disagreed with the peer physician and concluded that Diclofenac Gel 3%
was medically necessary. He stated that the presence of a contraindication to systemic
administration of an oral medication is not the only reason to prescribe a topical
formulation. There is no specific absolute structured path universally prescribed for
patients and deference should be afforded to the treating provider.

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Topical administration of medications for pain management has become increasingly
more common. Patients often need more than one medication to treat their pain. For
some patients, the adverse effects and allergies to oral medications are "too much to
bear." A topical NSAID can be used for the treatment of acute pain and allows for
significantly reduced blood concentrations while affording successful pain control.
Diclofenac Gel 3% has been approved by the FDA as a NSAID for the delivery of
effective pain relief as it has a favorable safety profile. The advantages of topical
administration of drugs include easy application, along with faster onset of symptoms
relief at a steady rate for a longer amount of time using a small amount of medication
while bypassing the digestive system. This results in ease of delivery which allows for a
more cooperative and compliant patient, and avoidance of first-pass metabolism with
enhanced efficacy and safety.

Arguments of Counsel:

Respondent's counsel argued that the standard of care called for the prescription of an
oral NSAID, and further that the patient was also prescribed Mobic, an oral
anti-inflammatory. Therefore, there was no reason for the application of topical
medication. He relied on the thorough and credible Peer Review Report, and argued that
it suffices to sustain the defense. Applicant's counsel countered that this patient was a
candidate for topical pain medication. He also argued that the Rebuttal Report is
thorough and credible, and suffices to refute the defense and justify this topical
medication which has a known safety and efficacy profile in pain management.

Findings:

Applicant has established its primae facie entitlement to reimbursement for Diclofenac
Gel 3% based on submission of a properly completed claim form setting forth the
amounts of the losses sustained and establishing that No-Fault payment is overdue. The
denial is found to be sufficient as a matter of law. Therefore, Applicant's burden is also
established by submission of sufficient medical records. Ave. T MPC Corp. v. Auto One
Ins. Co., 32 Misc.3d 128(A) 934 N.Y.S.2d 32 (Table), 2011 N.Y. Slip Op. 41292(U),
2011 WL2712964 (App. Term 2d, 11th & 13th Dists., 7/5/2011); Mary Immaculate
Hospital v. Allstate Insurance Company, 5 A.D.3d 782, 774 N.Y.S.2d 564 (2d Dept.,
2004), Vista Surgical Supplies, Inc. v. Metropolitan Property and Casualty Ins. Co.,
2005-1328 K C., 2006 N.Y. Slip Op. 51047(U), June 2, 2006.

The burden then shifts to Respondent to establish lack of medical necessity for
Diclofenac Gel 3% which warrants competent, expert proof in admissible form.
Citywide Social Work & Psy. Serv., P.L.L.C. v. Travelers Indemnity Co., 3 Misc.3d 608,
777 N.Y.S. 2d 241, 2004 N.Y. Slip Op. 24034 (Civ. Ct., Kings Co., 2004), aff'd., 8

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Misc. 3d 1025 (2005). I find that Respondent's Peer Review Report is sufficient to meet
its burden of proof of lack of medical necessity and to rebut Applicant's evidence.

Thereafter, the burden shifts back to Applicant to present competent medical proof as to
the medical necessity for Diclofenac Gel 3% by a preponderance of the credible
evidence. West TremontMedical Diagnostic, P.C. v. GEICO, 13 Misc.3d 131[A], 824
N.Y.S.2d 759 (Table), 2006 N.Y. Slip Op. 51871(U), 2006 WL 2829826 (App. Term 2d
& 11th Jud. Dists. 9/29/06), A. Khodadadi Radiology, P.C. v. N.Y. Central Fire Mutual
Insurance Company, 16 Misc. 3d 131[A], 841 N.Y.S.2d 824, 2007 WL 1989432 (App.
Term 2d & 11th Dists. 7/3/08). Ultimately, the burden of proof rests with the Applicant (
See, Insurance Law Section 5102).

I find further that this burden has not been met by Applicant's medical records, the
Rebuttal Report of Dr. Avellini, or the evidence collectively. Rather, I am convinced by
the comprehensive and credible Peer Review Report of Dr. Florio, coupled with the
medical records, that this topical NSAID medication was not medically necessary. The
treating physician, Dr. Avellini has failed to adequately explain why he concurrently
prescribed a topical and an oral NSAID for treatment of his patient's mild to moderate
neck and back pain at the initial visit on the date of loss of February 14, 2018.

Of note, based on the Initial Report of Dr. Avellini, there is no indication that this
patient was unable to tolerate oral medications or that there were any contraindications
to the use of oral medications, as confirmed by the facts that he also prescribed oral
Mobic and he documented the absence of known drug allergies and medical conditions.
It is also unclear why the patient required two NSAID, or why Mobic would have been
insufficient to control his level of pain. According to the Initial Report, there was
nothing unusual about his presentation, such as an allergy to standard, oral pain
medications; evidence of severe or longstanding pain as these drugs were prescribed on
the date of the accident; or any other medical issue that required the administration of
topical pain cream.

Thus, the prescription of this topical pain cream at the patient's initial visit while he was
in the acute stage of injury is found to have been medically unnecessary and contrary to
accepted standards of care. The Initial Report documents the presence of soft tissue
injuries for which oral Mobic would have sufficed as confirmed by Dr. Florio. I am
convinced that a topical pain cream was not medically necessary in conjunction with an
oral medication particularly as Dr. Avellini confirmed in his report the absence of
known drug allergies or other contraindications to the use of oral medications. Finally,
the Rebuttal Report is found to be vague and conclusory, and as such it lacks credibility.

Accordingly, in light of the foregoing, based on the arguments of counsel, and after
thorough review and consideration of all submissions, I find in favor of Respondent and
deny this claim in its entirety with prejudice.

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 5. Optional imposition of administrative costs on Applicant.
Applicable for arbitration requests filed on and after March 1, 2002.

I do NOT impose the administrative costs of arbitration to the applicant, in the amount
established for the current calendar year by the Designated Organization.

6. I find as follows with regard to the policy issues before me:

The policy was not in force on the date of the accident
The applicant was excluded under policy conditions or exclusions
The applicant violated policy conditions, resulting in exclusion from coverage
The applicant was not an "eligible injured person"
The conditions for MVAIC eligibility were not met
The injured person was not a "qualified person" (under the MVAIC)
The applicant's injuries didn't arise out of the "use or operation" of a motor
vehicle
The respondent is not subject to the jurisdiction of the New York No-Fault
arbitration forum

Accordingly, the claim is DENIED in its entirety

This award is in full settlement of all no-fault benefit claims submitted to this arbitrator.

State of New York

SS :
County of Nassau

I, Ellen Weisman, do hereby affirm upon my oath as arbitrator that I am the individual
described in and who executed this instrument, which is my award.

01/28/2020
Ellen Weisman
(Dated)

IMPORTANT NOTICE

This award is payable within 30 calendar days of the date of transmittal of award to parties.

This award is final and binding unless modified or vacated by a master arbitrator. Insurance
Department Regulation No. 68 (11 NYCRR 65-4.10) contains time limits and grounds upon
which this award may be appealed to a master arbitrator. An appeal to a master arbitrator
must be made within 21 days after the mailing of this award. All insurers have copies of the
regulation. Applicants may obtain a copy from the Insurance Department.

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ELECTRONIC SIGNATURE

Document Name: Final Award Form

Unique Modria Document ID:
5b7b664ea2a19868e4ebde86e774019c

Electronically Signed

Your name: Ellen Weisman

Signed on: 01/28/2020

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