American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: North Shore University Hospital / Applicant_ 1 (Applicant) - and - Liberty Mutual Fire Insurance Company (Respondent) AAA Case No. 412012104400 AAA Assessment No. 17 991 61618 12 Applicant s File No. Insurer s Claim File No. LA2030210651200 3 AWARD ON REMAND I, Paul Israelson, Esq., 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: Injured person. 1. Hearing(s) held on 08/19/13 04/14/14 and declared closed by the arbitrator on 4/14/14. Erin Crowley Esq. participated in person for the Applicant. Robert Trestman Esq. participated in person for the Respondent. 2. The amount claimed in the Arbitration Request, $12,317.99, was NOT AMENDED at the oral hearing. STIPULATIONS were made by the parties regarding the issues to be determined. (Stipulations, if any, set forth below) The parties entered into the following stipulations: the date of the subject automobile accident was November 14, 2011, there is no verification of claim issue, there is no fee schedule issue, and the submission of proof of claim was timely. 3. Summary of Issues in Dispute May the respondent deny the applicant's claim on the basis that, pursuant to 11 NYCRR 65-1.1, there is no no-fault coverage because the injured person was operating the subject motor vehicle while her ability was impaired because of the use of a drug, as the term drug is defined within the meaning of Vehicle and Traffic Law section 1192 ( VTL 1192 )? 1
4. Findings, Conclusions, and Basis Therefor The applicant made a claim in the amount of $12,317.99 for medical services provided to the injured person during the period of November 15, 2011 to December 1, 2011. On December 22, 2011, the respondent received the applicant s invoices for the subject claim. On February 13, 2012, the respondent received the final form of verification it had requested from the applicant. On February 27, 2012, the respondent sent its first denial to the applicant, denying the applicant s claim for the medical services provided on November 15, 2011 on two bases: first, pursuant to 11 NYCRR 65-1.1, there is no no-fault coverage because the injured person was operating the subject motor vehicle while her ability was impaired because of the use of a drug, as the term drug is defined within the meaning of VTL 1192; and second, the injured person failed to provide notice of the subject automobile accident to the respondent within 30 days of the date of the subject automobile accident, as required by 11 NYCRR 65-1.1. On March 29, 2012, the respondent sent its amended denial to the applicant, denying the applicant s claim for medical services provided during the period of November 15, 2011 to December 1, 2011 on a single basis, to wit: pursuant to 11 NYCRR 65-1.1, there is no nofault coverage because the injured person was operating the subject motor vehicle while her ability was impaired because of the use of a drug, as the term drug is defined within the meaning of VTL 1192. On August 19, 2013, the applicant and the respondent appeared before arbitrator Michael Parson to adjudicate both bases for denying the applicant s claim as described above. On August 26, 2013, Arbitrator Parson ruled that the injured person s failure to provide notice of the subject automobile accident to the respondent within 30 days of the date of the subject automobile accident and failure to provide a reasonable justification for that same notification was sufficient basis to deny the applicant s claim pursuant to 11 NYCRR 65 1.1. Further in this regard, Arbitrator Parson ruled that, because the applicant s claim should be denied on the basis that the injured person violated the 30 day notice of accident rule (required by 11 NYCRR 65-1.1), he did not need to adjudicate the issue of whether or not the injured person operated the subject motor vehicle while her ability was impaired because of the use of the drug (as the term "drug is defined within the meaning of VTL 1192). The applicant appealed Arbitrator Parson s ruling as described above. On November 18, 2013, Master Arbitrator Frank Godson ruled that, because the respondent failed to raise its defense based upon the injured person s failure to provide notice of the subject automobile accident to the respondent within 30 days of the date of the subject automobile accident (as required by 11 NYCRR 65-1.1) when serving its March 29, 2012 amended denial, the respondent waived that same basis for denial, and therefore, the respondent could only defend against the subject no-fault claim on the basis that the injured person was operating the subject motor vehicle while her ability was impaired because of the 2
use of a drug, as the term drug is defined within the meaning of VTL 1192. Further in this regard, because Arbitrator Parson did not adjudicate the issue as to whether or not the injured person was operating the subject motor vehicle while her ability was impaired because of the use of a drug, a new hearing was required for that determination. Consequently, I read Master Arbitrator Godson s November 18, 2013 Master Arbitration Award to limit the scope of this arbitration to a determination as to whether or not the injured person was an "eligible injured person" (for no-fault coverage) under 11 NYCRR 65-1.1 because she was operating the subject motor vehicle while her ability was impaired because of the use of a drug, as the term drug is defined within the meaning of VTL 1192. At the hearing for this arbitration matter counsel for both the applicant and the respondent expressly agreed with this limitation/description of the scope of the issues which I am to adjudicate. With regard to this same determination, the respondent provided the medical records for the medical treatment received by the injured person while treated at Jamaica Hospital Medical Center during the period of November 14, 2011 to November 15, 2011. These same medical records contain the following information concerning the issue as to whether or not the injured person was operating the subject motor vehicle while her ability was impaired because of the use of a drug, as the term drug is defined within the meaning of VTL 1192: 1. On November 14, 2011 at 1:16 AM, the injured person s urine tested negative for cocaine and positive for an opiate. 2. On November 14, 2011 at 1:34 AM, the injured person s urine tested positive for cocaine and negative for an opiate. 3. The injured person informed someone at Jamaica Hospital Medical Center that she, took unspecified number of fioricet prior to crashing into pole and then another car. 4. The November 14, 2011 at 6:50 AM medical record noted that the injured person, was given morphine for pain but continued crying using unkind words about Jamaica hospital and staff. 5. The November 14, 2011 at 5:48 AM medical record noted that the injured person, removed c-collar instructed pt the reason for c-collar, pt states she does not care and do [sic] not want c-collar replaced. The respondent also provided the January 18, 2012 and January 30, 2012 internal medicine file review reports by Dr. Stuart Stauber M.D. which interpreted the injured person s urine test results as described above. Dr. Stauber concluded that, the reason why the first urine test was negative for cocaine and then some minutes later (Dr. Stauber states 30 minutes later) the second urine test was positive for cocaine was because the injured person ingested the cocaine at a time when it had not yet metabolized for the first urine test but had metabolized for the second urine test. Similarly in this regard, Dr. Stauber concluded that, the reason why the first urine test was positive for opiate and then some minutes later (Dr. Stauber states 30 minutes later) the second urine test was negative for opiate was because there was sufficient opiate in the urine at the time of the first urine test, however, with the passage of time (Dr. Stauber states 30 minutes) the opiate dissipated to the point that it was no longer detectable in the presence of urine. Finally, from this evidence Dr. Stauber concluded that the injured 3
person was operating her motor vehicle under the influence of drugs at the time of the subject motor vehicle accident. The applicant has not provided any medical expert opinion to contradict the conclusions drawn by Dr. Stauber as to the presence of cocaine or an opiate in the injured person s urine or that the injured person was operating a motor vehicle under the influence of drugs at the time of the subject motor vehicle accident. Additionally in this regard, the respondent cited the portion of 11 NYCRR 65-1.1 setting forth the criteria for an eligible injured person, which reads in pertinent part as follows: Exclusions This coverage does not apply to personal injury sustained by: (g) any person as a result of operating a motor vehicle while in an intoxicated condition or while his or her ability to operate the vehicle is impaired by the use of a drug (within the meaning of section 1192 of the New York Vehicle and Traffic Law) except that coverage shall apply to necessary emergency health services rendered in a general hospital, as defined in section 2801(10) of the New York Public Health Law, including ambulance services attendant thereto and related medical screening. However, where the person has been convicted of violating section 1192 of the New York Vehicle and Traffic Law while operating a motor vehicle in an intoxicated condition or while his or her ability to operate such vehicle is impaired by the use of a drug, and the conviction is a final determination, the Company has a cause of action against such person for the amount of first party benefits that are paid or payable; Further in this regard, the respondent provided the following statutory authority demonstrating that cocaine and an opiate are a "drug" as that term is defined in VTL 1192: Vehicle and Traffic Law 1192 4-a. Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs. McKinney's Vehicle and Traffic Law 114-a The term drug when used in this chapter, means and includes any substance listed in section thirty-three hundred six of the public health law. McKinney's Public Health Law 3306 Schedule I. (a) Schedule I shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section. 4
(b) Opiates. Unless specifically excepted or unless listed in another schedule, any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers and salts is possible within the specific chemical designation (for purposes of 3-methylfentanyl only, the term isomer includes the optical and geometric isomers): Schedule II. (a) Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section. (4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances including cocaine and ecgonine, their salts, isomers, and salts of isomers, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine. Therefore, the respondent has provided sufficient factual basis and legal authority to find that the injured person operated her motor vehicle while under the influence of a "drug", as that term is used in VTL 1192, i.e. either cocaine or an opiate. In response to the above described evidence and legal authority, the applicant has argued that the applicant has failed to provide evidence indicating that the injured person's use of a drug at the time she was operating her motor vehicle was the proximate cause of the subject motor vehicle accident, and that such evidence of such proximate cause is an essential element which the respondent must demonstrate in order to deny coverage on the basis that the injured person was not an "eligible injured person" under 11 NYCRR 65 1.1 (because she was operating the subject motor vehicle while her ability was impaired due to the use of a drug, as the term drug is defined within the meaning of VTL 1192). In fact, the applicant is correct that, in order for an insurer to deny no-fault coverage on the basis that an injured person was not an "eligible injured person" under 11 NYCRR 65-1.1 because she was operating her motor vehicle while her ability was impaired due to the use of a drug, the insurer must provide some evidence indicating that the injured person's use of the drug was the proximate cause of the motor vehicle accident, Westchester Medical Center v. Progressive Cas. Ins. Co., 51 A.D.3d 1012, 858 N.Y.S.2d 767 (2nd Dept. 2008); Westchester Medical Center v. State Farm Mut. Auto. Ins. Co., 44 A.D.3d 750, 843 N.Y.S.2d 182 (2nd Dept. 2007); Lynch v. Progressive Ins. Co., 12 A.D.3d 570, 784 N.Y.S.2d 390 (2nd Dept. 2004); Cernik v. Sentry Ins., 131 A.D.2d 952, 516 N.Y.S.2d 810 (3rd Dept. 1987). Specifically in this regard, the above cited authorities have indicated in dicta that the mere demonstration of a driver operating a motor vehicle while intoxicated is insufficient to demonstrate that the driver s intoxication was the proximate cause of the motor vehicle accident the driver was involved in. For example, in Westchester Medical Center v. Progressive Cas. Ins. Co., supra, the Appellate Division, Second Department stated: On its cross motion to renew, the defendant submitted Beaton's certificate of disposition on her charge of driving while intoxicated pertaining to the accident. However, this failed to establish, as a matter of law, that Beaton's intoxication was the cause of her accident and her resultant injuries (see Westchester Med. Ctr. v. 5
Progressive Cas. Ins. Co., 46 A.D.3d at 679, 849 N.Y.S.2d 576; Westchester Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 44 A.D.3d 750, 753, 843 N.Y.S.2d 182; Cernik v. Sentry Ins., 131 A.D.2d 952, 516 N.Y.S.2d 810). Thus, upon renewal, the Supreme Court also correctly adhered to its denial of the defendant's cross motion for summary judgment dismissing the complaint. As well, the Appellate Division, Third Department in Cernik v. Sentry Ins., supra, stated: "Initially, we note that plaintiff might have been convicted of operating a motor vehicle while under the influence of alcohol as a felony, rather than a misdemeanor, had he elected to proceed to trial rather than enter a guilty plea (see, Vehicle and Traffic Law 1192[5]). Nevertheless, we do not believe that it is appropriate to say, without more, that defendant has established that plaintiff was committing a felony at the time of the accident. The fact remains that he was convicted only of a misdemeanor. With respect to plaintiff's intoxication at the time of the accident, although plaintiff's conviction could estop him from now asserting that he was not intoxicated at the time of the accident (see, Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49, 423 N.E.2d 807; Matter of Princess CC., 120 A.D.2d 917, 502 N.Y.S.2d 554), we agree with plaintiff's contention that the mere fact of his conviction does not automatically entitle defendant to deny him first-party benefits. Insurance Law 5103(b)(2) permits such denial when a person [i]s injured as a result of operating a motor vehicle while in an intoxicated condition (emphasis supplied). Those words, as a result of, indicate that there must be a causal connection between the operation of the vehicle in an intoxicated condition and the injuries sustained." Thus, the next inquiry is whether or not any "drug" (as that term is used in VTL 1192) in the injured person's body at the time of the subject motor vehicle accident proximately caused the subject motor vehicle accident. I have reviewed the records supplied by both parties for evidence as to whether or not the presence of either cocaine or an opiate in the injured person's body at the time of the subject motor vehicle accident proximately caused the subject motor vehicle accident. In this regard, and as noted above, on November 14, 2011, the injured person informed someone at Jamaica Hospital Medical Center that she, "took unspecified number of fioricet prior to crashing into pole and then another car." This statement serves as evidence that the injured person was admitting that she had ingested some drug, which she identified as Fioricet, prior to the subject motor vehicle accident, and thereafter, she crashed into a pole and then another car, thus serving as evidence that the drug the injured person admitted to ingesting proximately caused the subject motor vehicle accident. Specifically in this regard I hasten to note that, my legal research regarding whether or not Fioricet is a "drug" as that term is used in VTL 1192 indicates that Fioricet is not listed as a drug in Public Health Law section 3306, and therefore, is not a "drug" as that term is used in VTL 1192, cf. People v. Primiano,16 Misc.3d 1023, 843 N.Y.S.2d 799 (Co. Ct., Sullivan Cty. 2007), "This Court holds that the term any drug or drugs as used in newly enacted V & T 1192(4 a) means any substance listed in public health law 3306 as required under V & T 114 a." Nonetheless, it is entirely likely that the injured person did not want to admit to ingesting either cocaine or an opiate, and thus identified the drug she ingested prior to the subject motor vehicle accident as Fioricet. The above described urine test results, however, suggest that the injured person ingested either cocaine or an opiate rather than Fioricet. Because this same statement made to someone at Jamaica Hospital Medical Center shortly after the subject motor vehicle accident does not ascribe the cause of the subject motor vehicle accident to any cause other than ingesting a drug (which the injured person identified as 6
Fioricet, however, there is medical evidence to suggest that it was in fact cocaine or an opiate), I am comfortable finding that this same evidence supports the respondent's argument that the subject motor vehicle accident was proximately caused by the injured person's ability to drive being impaired by a drug, as that term is used in VTL 1192. As to evidence which tends to suggest that the subject motor vehicle accident was not proximately caused by either cocaine or an opiate present in the injured person's body, the New York Motor Vehicle No-Fault Insurance Law Application For Motor Vehicle No-Fault Benefits form indicates that the injured person was, "driving straight & car breaks would not respond @ stop sign." Further in this regard, there are repeated notations in the applicant's medical chart indicating that, "Pt states she lost control of her car when her breaks stopped working, and she struck a parked car and a pole." These same statements obviously attribute the cause of the subject motor vehicle accident to break failure. As the finder of fact for this arbitration matter I am permitted to weigh the above described evidence so as to determine whether or not the presence of cocaine or an opiate in the injured person's body at the time of the subject motor vehicle accident proximately caused that accident. In this regard, I find that the injured person was more likely to be candid regarding the circumstances leading up to the subject motor vehicle accident when she first related them to someone at Jamaica Hospital Medical Center, in that it was only a short time after the subject motor vehicle accident and the injured person did not have a lot of time to reflect upon the propriety of the information she was providing in this regard. It was at this same time (shortly after the subject motor vehicle accident) when the injured person provided the information, "took unspecified number of fioricet prior to crashing into pole and then another car", apparently attributing the cause of the subject motor vehicle accident to the drug she admitted ingesting. By contrast, the statements the injured person made at the applicant's facility and on the New York Motor Vehicle No-Fault Insurance Law Application For Motor Vehicle No-Fault Benefits form attributing the cause of the subject motor vehicle accident to break failure were made many days after the subject motor vehicle accident and at a time when the injured person had an opportunity to reflect upon the propriety of the information she was providing concerning the circumstances leading up to the subject motor vehicle accident. Therefore, the weight of the evidence is sufficient for me to find that the injured person candidly admitted that some drug was in her body at the time of the subject motor vehicle accident and that this same drug proximately caused the subject motor vehicle accident when she provided the information that she, "took unspecified number of fioricet prior to crashing into pole and then another car." Further, there is sufficient evidence for me to find that the particular drug in the injured person's body at this same time was either cocaine or an opiate. As well, the weight of the evidence is sufficient for me to find that the injured person's statements attributing the cause of the subject motor vehicle accident to break failure were not candid statements, as they were made at a time sufficiently long after the subject motor vehicle accident so as to motivate the injured person to ascribe the cause of the subject motor vehicle accident to break failure rather than her drug use. This same factual finding, in combination with the above cited authorities, permits me to find that, at the time of the subject motor vehicle accident, the injured person operated her motor vehicle while her ability was impaired by a "drug" as that term is used in VTL 1192, i.e. either cocaine or an opiate. Consequently, in accordance with the criteria for an eligible injured person (for no-fault benefits) as set forth in 11 NYCRR 65-1.1 (and as quoted above), the injured person is not an eligible injured person (for no-fault benefits), and therefore, the within claim is denied. 7
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. 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, Paul Israelson, Esq., do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 4/17/14 (Dated) (Paul Israelson, Esq.) 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. 8