Judge Katherine Levine
Insurer Allstate moved to vacate a master arbitrator’s award, challenging the confirmation of the original arbitrator’s decision, claiming it was contrary to well-settled law. The issue before the original arbitrator was which fee schedule should apply in the absence of a Workers’ Compensation Fee Schedule applicable to licensed acupuncturists. Allstate argued licensed acupuncturists were entitled to be paid at the same fee schedule rates as medical doctors certified in acupuncture. The original arbitrator looked to a proposed amendment to 11 NYCRR §68 which would allow licensed acupuncturists to charge the same as licensed doctors certified to perform acupuncture. The court noted the proposed legislation to increase reimbursement rates for both chiropractors and acupuncturists was still pending, yet the master arbitrator confirmed the award finding Allstate impermissibly sought to have him conduct a de novo review. The court disagreed finding Allstate did not seek a de novo or factual review, instead it argued the decision was contrary to well-settled law. It ruled it could not countenance an award finding that "pending legislation trumps well established precedent." Thus, the award was vacated.
