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No-Fault Collection
Super Associates helps medical practitioners collect on their unpaid claims against no-fault insurance companies. Through the understanding of our clients practice, we effectively help our clients get paid on improper denials based on medical necessity of the procedure or testing, assertions that the procedure is outside the practitioners scope of practice, fee scheduling, timeliness of bill submissions and alleged policy violations.
We can help you determine the appropriate forum for your unpaid claims, be it arbitration or litigation, and prosecute your claims in the proper forum vigorously. Whether claim prosecution requires preparing you for examinations under oath (EUO) and defending you at the examination, attending the independent medical examination (IME) of insureds, rebutting the findings of insurance company paid peer reviewers, rebutting the findings of the insurance companys medical examiners IME Doctors, or looking for technical defects in the carriers denials, we aggressively push the case forward to achieve results.
Commercial Litigation
Super Associates is experienced in handling a broad array of litigation matters. We are fearless in the courtroom and are ready to take on any opposition on behalf of our clients. Our loyalty, passion, creative thinking, cost engineering and smart lawyering are the qualities that keep clients returning to our firm.
We pride ourselves on our meticulous care and creativity with client matters that have lead to a track record of success.
Real Estate Transactions
Super Associates takes a personal approach to each of our client's real estate transactions, and work closely with each client through the entire process, in order to insure that your financial and legal interests are properly protected. For most people, the sale or purchase of a home, whether a house, condominium or cooperative apartment is the largest financial transaction of a lifetime. Super Associates is an experienced real estate firm, handling the sale of condominiums, cooperative apartments and single and multi-family houses.
For more than a decade, Steven's practice has included commercial litigation, bankruptcy litigation, complex litigation, long term disability insurance litigation, representing medical providers in no-fault arbitrations and litigations, real estate transactions and commercial transactions. With a professional degree in architecture, Steven also provides legal services for all aspects of architectural practice including dispute resolution, professional service contracts, construction contracts, business venture agreements and professional liability.
Steven received his Juris Doctorate from Thomas Jefferson School of Law and a Bachelor of Architecture from the New York Institute of Technology. While in school, Steven received American Jurisprudence awards in contracts and trusts and was selected for Who's Who Amongst American Law Students. Prior to founding the firm, Steven was associated with two Manhattan firms focusing on commercial and bankruptcy litigations, and mass tort and industry wide litigations in the pharmaceutical, medical device and commercial product sectors. Steven also provided risk management assessments in the areas of construction, architectural professional service, new technologies and innovative products.
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Select Reported Cases
Fisher v. Qualico Contracting Corp., 98 N.Y.2d 534, 779 N.E.2d 178 (2002), In re Cross Media Marketing Corp., 367 B.R. 435 (S.D.N.Y., 2007)
Prior to Marc'’s career as a lawyer, he worked as a paralegal at the Kings County District Attorney’s Office and two small law firms specializing in employment law and commercial class action litigation.
Marc received his Juris Doctorate from Pace University School of Law and a Bachelor of Arts from New York University. While in law school, Marc was a law intern with the Port Authority of NY & NJ and received an honors externship with the Westchester County District Attorney’s Office as well as obtaining a judicial externship with New York State Supreme Court Judge Joan B. Lefkowitz.
After law school, Marc worked as a law intern with the Passaic County Prosecutor’s Office in the Domestic Violence Bureau and as a volunteer attorney for New York State Supreme Court Judge Judith N. McMahon.
Washington DC Courts
Florida State Courts
New York County Lawyers Association
Queens County Bar Association
Richmond County Bar Association
Untimely EUO Demands Don't Toll Insurer's Time to Pay or Deny Claims
Following receipt of the bills in question, respondent forwarded a letter dated April 19, 2011 explaining that the respondent was seeking additional verification, including an examination under oath of the assignor, and an examination under oath of the applicant or the healthcare provider who performed the procedure in issue.
The letter is not a request for additional verification. It is what it purports to be-an explanation as to why the applicant's claim is being delayed but such explanation does not delay the time to pay or deny the claim pursuant to the Regulations. No specific request for additional verification was made by that letter.
Respondent sent a second letter, dated May 23, 2011, again explaining that the claim was being delayed for the reasons stated in the April 19, 2011 letter. No specific request for an examination under oath, or any other additional verification, was made at that time.
Respondent does not demonstrate that either examination under oath was actually requested until a July, 2011 letter was sent to the applicant requesting the examination under oath of the chiropractor who performed the manipulation under anesthesia. This request was made long after the time period of 30 days after receipt of the claim had expired.
The right of an insurer to conduct an examination under oath (EUO) of an applicant for benefits must be addressed first.
The prescribed Mandatory Personal Injury Protection Endorsement, set forth in 11 NYCRR 65-1, provides in the section titled “Conditions”:
Conditions
Action Against Company. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.
…
Proof of Claim; Medical, Work Loss, and Other Necessary Expenses. ….Upon request by the Company, the eligible injured person or that person’s assignee or representative shall:
(b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same;
….
11 NYCRR 65-3.5 provides:
65-3.5 Claim procedure. (a) Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS Form N-F 2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.
(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.
Any requests by an insurer for additional verification need not be made on any prescribed or particular form. If a claim is received by an insurer at an address other than the proper claims processing office, the 15 business day period for requesting additional verification shall commence on the date the claim is received at the proper claims processing office. In such event, the date deemed to constitute receipt of claim at the proper claim processing office shall not exceed 10 business days after receipt at the incorrect office.
(c) The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.
(d) If the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.
(e) All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and medical examinations shall be conducted in a facility properly equipped for the performance of the medical examination. The insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request. When an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination. Insurer standards shall be available for review by Department examiners.
The insurer, therefore, has the right under the Regulations to make a reasonable request for an EUO of an eligible injured person or that person’s assignee or representative.
Is the request for an examination under oath an element of additional verification?
The First Amendment to Regulation No. 68-C removed the requirement, formerly contained in subsection (d) of 11 NYCRR 65-3.5, that an EUO be scheduled within thirty (30) calendar days from receipt of any prescribed verification forms, while leaving intact the requirement that medical examinations be scheduled within such time. It also removed the phrase “as additional verification” from the following sentence in subsection (e):
“When an insurer requires an examination under oath of an applicant as additional verification to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination.”
Such changes establish that as of the effective date of that amendment, an EUO may be requested to establish proof of claim but, if not requested in response to a bill, it is not an element of additional verification. For these reasons, the request for the EUO is not defective if the examination was requested before receipt of the bill, but any bill received after such request that is delayed pending a previously requested EUO must be timely delayed by notice to the applicant to that effect.
Notwithstanding the foregoing, insurers may not employ red-tape dilatory practices and schedule EUOs in an unreasonable manner. The Insurance Regulations require that verification proceed “as expeditiously as possible” 11NYCRR §65-3.2 [c] ; see also State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 (2005); Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD 3d 720, 722 (2006).
While an examination under oath may not be an element of additional verification, in this case, it was purportedly used as an element of additional verification. However, respondent did not seek it in a timely fashion and failed to request it within 15 days of receipt of the bills as required by the Regulations.
A No-Fault claim must be paid or denied within 30 calendar days after proof of claim is received. See, New York Insurance Law Sec. 5106(a); 11 NYCRR §65-3.8 (a) (1); Presbyterian Hospital v. Maryland Cas. Co., 90 NY2d 274, 660 NYS2d 536 (1997). The insurer may extend that time frame by requesting additional verification. An insurer has 15 business days from receipt of a verification form to request additional verification. 11 NYCRR 65-3.5(b). If any requested verification is not supplied to the insurer within 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom verification was requested. At the same time, the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested. 11 NYCRR 65-3.6(b). An insurer does not have to pay or deny the claim until it has received verification of all the relevant information requested (see 11 NYCRR, former 65.15(g)(1)(i); (2)(iii)).
However, failure to request additional verification within that time, if requested within 30 days of the date of receipt of the claim, does not invalidate the request or the subsequent denial but reduces the time to pay or deny the claim one day for each day that the request for additional verification is late. 11 NYCRR 65-3.8(j). “When an insurance company fails to comply with its duty to act expeditiously in processing No-Fault claims, it will be precluded from raising most defenses.” See, Presbyterian Hospital v. Aetna Cas. & Sur. Co., 233AD2d 421, 432 (2d Dept. 1996) lv to app. den’d, 90 NY2d 802(1997).
This analysis is consistent with the essence of respondent’s argument. Respondent argues that an examination under oath is not an element of additional verification and, therefore, the usual time constraints placed upon an insurer to pay or deny a claim do not apply. It is true that applicable language was deleted from the Regulations and excludes an examination under oath from the category of additional verification. However, that exclusion does not relieve the respondent of the burden to pay or deny a claim in a timely fashion, or request additional verification in a timely fashion. Respondent could have obtained the examination under oath when it sought it, while at the same time paying or denying this claim in a timely manner, or delaying its time to pay or deny the claim by timely requesting additional verification. The additional verification sought might have been these examinations under oath, if requested within 15 business days of receipt of the claim, or some other element of additional verification, if requested within 15 business days of receipt of the claim.
Had respondent requested these examinations under oath within 15 days business days of receipt of the claim, the examination under oath would have served both purposes: the investigatory tool permitted by the Regulations and a proper request for additional verification, delaying respondent's time to pay or deny these claims. Had respondent requested some other proper form of additional verification within 15 business days of receipt of the claim, and requested these examinations under oath when it did, the "other proper form of additional verification" would have delayed its time to pay or deny this claim, and the requested examination under oath would have allowed respondent the use of this investigatory tool.
Respondent did neither. It therefore never delayed its time to pay or deny this claim. Accordingly, respondent has no defense to this claim including any defense with regard to the applicable Fee Schedule for the services. This includes respondent’s purported defense that the claim exceeds the applicable amount under the Workers’ Compensation Fee Schedule.
An untimely or defective denial precludes respondent from asserting the affirmative defenses of lack of medical necessity and non-conformity with the Worker Compensation Fee Schedule (see, Presbyterian Hospital in City of New York v Maryland Casualty Co;, 90 NY2d 274, 660 NYS2d 536, 683 NE2d), Mingmen Acupuncture Services PC v Liberty Mutual Insurance Co., 2002 NY Slip Op 40244u, 2002 New York Misc Lexis 745 (Supreme Court, App Term 2002). Untimely denials preclude the defense that the benefits claimed exceed the maximum benefits provided by the Worker's Compensation Law, Triborough Chiropractic & Acupuncture PLLC v. NY Central Mutual Fire Insurance Co., 2005 N Y Slip Op 50110 (u) (App Term, 2d Department 2005), New York Hospital Medical Center of Queens v Countrywide Insurance Co., 295 AD2d (2) 583, 586 (2002); Abraham v Countrywide Insurance Co., 3 Misc 3d 130 (8), 2004 NY Slip Op 50388 (u) (App Term, 2d & 11th Jud Dist); Mingmen, supra.
It is well settled that an applicant for no-fault benefits establishes its prima facie entitlement to payment by proving that it submitted a claim, set forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law §5106[a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742; 774 N.Y.S.2d 564; 2004 N.Y. App. Div. LEXIS 3597 (2nd Dept. 2004); Amaze Med. Supply v. Eagle Ins. Co., 2 Misc.3d 128[A], 2003 N.Y. Slip Op 51701 [U] (App Term 2d & 11th Jud Dists). A “facially valid claim,” is presented where it sets forth the name of the patient; date of accident; date of services; description of services rendered and the charges for those services. See, Vinings Spinal Diagnostic P.C. v. Liberty Mutual Insurance Company, 186 Misc.2d 287; 717 NYS2d 466 (1st Dist. Ct. Nass. Co.)
Proof that the benefits were “medically necessary” is not an element of the prima facie case. The defense that the benefits were not “medically necessary” is an affirmative defense borne by the insurer. If that defense is not raised in a timely denial of claim, the insurer is precluded from raising it at the time the claim is adjudicated. See Vinings, supra. In Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 (2d Dept 2000), the Appellate Division definitively held that an insurer's claim that the treatment for which payment is sought is "medically excessive" is a defense subject to preclusion under Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY.2d 195; 659 N.Y.S.2d 246 (1997).
A contrary rule would defeat the legislative mandate for prompt and efficient claim resolution of first party no-fault claims and impose upon the applicants the extra burden to obtain medical proofs in excess of the forms that establish medical necessity, rewarding an insurer that fails to issue a timely and proper denial by requiring more of an applicant at the time of adjudication that at the time a claim is made. Damadian MRI v. Liberty Mutual Insurance Co., 2003 NY Slip Op 51700U; 2 Misc. 3d 128A; 784 N.Y.S.2d 919; 2003 N.Y. Misc. LEXIS 1750 (App Term 2003)
State Farm v. Domotor
With regard to the threshold issue of the timeliness of the denials, notice is taken that the bills were received on April 2, 2010 and denied on July 21, 2010. The denials reflect that final verification was requested on May 23, 2010, and received on June 28, 2010, which is the date on which Respondent received the executed Examination Under Oath ("EUO") transcript …
***
Applicant’s counsel argued that having issued a general denial dated April 9, 2010, which terminated this patient's chiropractic benefits as of April 13, 2010, Applicant was no longer obligated to submit bills or to respond to verification requests. He relied on the precedent set forth in State Farm Insurance Company v. Domotor, 266 A.D.2d 219, 697 N.Y.S.2d 348 (2d Dept., 1999), which he stated has been affirmed by the more recent holding of Auerbach v. Otsego Mutual Fire Insurance Co., 36 A.D.3d 840, 829 N.Y.S.2d 195, 2007 Slip Op. 00590 (2d Dept., 2007) (the defendant was not entitled to insist upon strict adherence to the terms of its policy after repudiating liability by sending a letter disclaiming coverage subsequent to a fire loss, citing Domotor, 266 A.D.2d at 219). Moreover, he argued that once these bills were sent to Respondent by Applicant, it was incumbent upon Respondent to pay or deny them within thirty days thereafter [11 NYCRR 65-3.8(c)], as any subsequent verification requests should be deemed invalid as they fail to properly delay Respondent's time in which to issue denials. Counsel argued further that having repudiated liability under this contract months earlier, Applicant is no longer obligated to comply with verification requests (citing Domotor, 266 A.D.2d at 219). Thus, the fact that [the Provider] agreed to attend a global EUO on multiple pending and anticipated claims does not negate the fact that in this matter, there was no basis on which to delay the bills which were submitted.
Applicant’s counsel argued further that once Applicant sent these bills to Respondent subsequent to its repudiation of liability pursuant to an IME, Respondent was required to deny them within thirty days as it could no longer issue verification requests delaying its time in which to deny these bills. He argued that while the insurance policy remained in effect following the cutoff of benefits, that cutoff of chiropractic treatment effectively negates Applicant's obligation to comply with any verification requests relating to that specialty. In addition, he noted that since one bill in connection with this patient was also denied based upon the IME cutoff without the need for the EUO testimony …, there is ample proof that Respondent had enough information to timely deny all bills pursuant to a Peer Review Report and failed to do so. [The Provider] must not be penalized for voluntarily appearing at an EUO while maintaining his right to object to improper verification requests, Applicant contends. [The Provider] testified with regard to hundreds of claims and his appearance at that proceeding should not be interpreted to have waived any of his objections regarding each individual case.
Respondent’s counsel countered that the denials are timely. … He argued that if the holding of Domotor, 697 N.Y.S.2d at 348, governs this dispute, the cutoff of benefits essentially voids this insurance contract rendering the timeliness of the denials irrelevant and allowing a defense premised on lack of coverage to be raised at any time.
In accordance with the precedent set forth in Domotor, 697 N.Y.S.2d at 348, I find that Applicant was excused from further compliance with conditions precedent including the submission of its bills to Respondent. In that case, the Second Department held that having repudiated liability by terminating “further orthopedic, chiropractic, acupuncture, physical therapy, massage therapy, diagnostic testing, supplies, and surgery” treatment and stating in its general denial that “all benefits … (for those specialties were) denied effective 12:01 a.m. on 4/13/2010,” the insurance carrier may not create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy. "Rather, the insurance carrier ‘must’ stand or fall upon the defense upon which it based its refusal to pay." This precedent was reiterated in the holding of Auerbach, 829 N.Y.S.2d at 840, wherein the Court held that any ambiguity in an insurance policy must be resolved in favor of the insured and against the insurer. In light of this precedent, I find that Applicant was not obligated to submit its bills to Respondent, or to respond to the verification requests issued. The fact that [the Provider] agreed to provide testimony to this Respondent on multiple claims does not negate its obligations under the Regulation.
Therefore, based on the absence of timely denials, I find that Respondent's evidence and defenses, including the fee schedule defense are precluded. [See, Westchester Med. Ctr. v.American Transit Insurance Co., 17 A.D.3d 581, 793 N.Y.S.2d 489 (2005, NY App. Div., Lexis 4130), and N. Y. Hosp. Med. Ctr. v. Countrywide Insurance Co., 295 A.D.2d583, 744 N.Y.S.2d 201 (2002, NY App. Div. Lexis 6771), where the Respondent fails to issue a timely denial, it is precluded from asserting the defense that the Applicant’s bills are in excess of the fee schedule]. I find further that Applicant has established its primae facie entitlement to reimbursement for MUA on March 24, 2011, based on submission of properly completed claim forms setting forth the amounts of the losses sustained, and establishing that No-Fault payments are overdue. Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.3d 782, 774 N.Y.S.2d 564 (2d Dept. 2004), Amaze Medical Supply v. Eagle Insurance Co., 2 Misc. 3d 128A, 784 N.Y.S.2d 918, N.Y. Slip. Op. 51701U [App. Term, 2d & 11th Jud. Dists., 2003], and Vista Surgical Supplies, Inc. v. Metropolitan Property and Casualty Ins. Co., 2005-1328 K C., 2006 NY Slip Op. 51047U, June 2, 2006.
Ground Rule 12(d)
MUA Chiropractors Should be Considered Co-Surgeons
An insurance carriers timely asserted defense that the bills submitted were not properly No-Fault rated or that the fees charged were in excess of the Workers' Compensation fee schedule is sufficient, if proven, to justify a reduction in payment or denial of a claim. See New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 A.D.2d 583, 586 (2002); East Coast Acupuncture, P.C. v. New York Cent. Mut. Ins., 2008 NY Slip Op 50344(U) (App. Term 2d Dept., Feb. 21, 2008); A.B. Med. Servs., PLLC v. American Tr. Ins. Co., 15 Misc.3d 132(A), 2007 NY Slip Op 50680(U) (App. Term, 2d & 11th Jud Dists 2007); Rigid Medical of Flatbush, P.C. v. New York Cent. Mut. Fire Ins. Co., 11 Misc.3d 139(A), 816 N.Y.S.2d 700, 2006 NY Slip Op 50582 (U) (App. Term 2d & 11th Jud Dists. 2006); Ultra Diagnostics Imaging v. Liberty Mut. Ins. Co., 9 Misc.3d 97, 98, 804 N.Y.S.2d 532, 2005 N.Y. Slip Op. 25402 (App Term, 2d Dept.); Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526 (U) (2005); Triboro Chiropractic & Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc.3d 132 (A), 2005 NY Slip Op 50110 (U) (App Term, 2d & 11th Jud Dists 2005); Park Health Center v. Prudential Property & Cas. Ins. Co., 2001 NY Slip Op 40650 (U) (2nd & 11th Jud Dists).
However, Respondent has failed to persuade me that the charges were excessive under the fee schedule. While the insurer cited to the decision in Flatbush Chiropractic P.C. and Allstate Prop. and Cas. Ins. Co., AAA Case No. 412010019014, AAA Assessment No. 17 991 13816 10, (Sept. 30, 2010), wherein arbitrator Philip R. Wolf determined that Surgical Ground Rule 12(b), which maintains that surgical assistants should bill at a rate of sixteen (16%) percent of the applicable fee code, is applicable to the services provided by Dr. Klass, Applicant, on the other hand, maintained that Ground Rule 12(d) applies and referred to arbitrator Toby DeSimones decision in Blumenthal Chiropractic P.C. and Auto One/General Assurance, AAA Case No. 412009020285, AAA Assessment No. 17 991 13343 09 (March 1, 2010). In the latter case, Ms. De Simone referred the question of which provision of Ground Rule 12 should apply to an Independent Health Consultant Dr. Kevin D. Toss, who opined that two chiropractors jointly performing MUA are co-surgeons and not a surgeon and assistant surgeon. Accordingly, Ms. De Simone ruled that billing for the second chiropractor under Ground Rule 12(d) is appropriate.
Procedure Performed After IME Cutoff Deemed Medically Necessary
Under New York’s Comprehensive Motor Vehicle Insurance Reparation Act (the “No- Fault Law”), New York Ins. Law §§ 5101 et seq., an insurance carrier is obligated to reimburse an injured party (or his or her assignee) for all “reasonable and necessary expenses” and “medical expenses” arising from the use and operation of the insured vehicle.
Lack of medical necessity is a valid defense to an action to recover No-Fault benefits, Countrywide Ins. Co. v. 563 Grand Med., P.C., 50 A.D.3d 313 (1st Dept. 2008); A.B. Med. Servs., PLLC v. Liberty Mut. Ins. Co., 39 A.D.3d 779 (2d Dept. 2007), if raised in a denial that is (1) timely, Presbyterian Hosp. in the City of New York v. Maryland Casualty Ins. Co., 226 A.D.2d 613 (2nd Dept. 1996); Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 N.Y.2d 195 (1997), (2) includes the information called for in the prescribed denial of claim form, 11 NYCRR § 65-3.4 (c) (11); Nyack Hosp. v. Metropolitan Prop. & Cas. Ins. Co., 16 A.D.3d 564 (2d Dept. 2005); Nyack Hosp. v. State Farm Mut. Auto. Ins. Co., 2004 WL 2394038, 2004 NY Slip Op 07663 (2d Dept. Oct. 25, 2004); Summit Psychological, P.C. v. General Assur. Co., 9 Misc.3d 8, 11 (App Term 9th & 10th Jud Dists., 2005); Shtarkman v. Allstate Ins. Co., 8 Misc.3d 129(A), 2005 NY Slip Op 51028(U) (App Term 2d & 11th Jud Dists.), and (3) “promptly apprise(s) the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated”, General Accident Ins. Group v. Cirucci, 46 N.Y.2d 862, 864, 414 N.Y.S.2d 512, 387 N.E.2d 223 (1979); New York University Hosp. Rusk Ins. v. Hartford Acc. & Indem. Co., 32 A.D.3d 458, 2006 NY Slip Op 06223 (2d Dept. 2006).
The issue of whether treatment is medically unnecessary cannot be resolved without resort to meaningful medical assessment, Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 2009 NY Slip Op 00351 (App Div 2d Dept., Jan. 20, 2009); Channel Chiropractic, P.C. v. Country- Wide Ins. Co., 2007 Slip Op 01973, 38 A.D.3d 294 (1st Dept. 2007); Bronx Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co., 2007 NY Slip Op 27427, 17 Misc.3d 97 (App Term 1st Dept., 2007), such as by a qualified expert performing an independent medical examination, conducting a peer review of the injured person’s treatment, or reconstructing the accident. Id.
An insurance carrier may utilize an independent medical examination (IME) to determine whether an eligible injured person is entitled to further care and treatment or other first-party benefits. See Rowe v. Wahnow, 26 Misc.3d 8, 11-12 (App Term, 1st Dept 2009, McKeon, P.J., dissenting).
“An IME is a snapshot of the injured party's medical condition as of the date” it is conducted. Amato v. State Farm Ins. Co., 2010 NY Slip Op. 20431 (Dist. Ct. Nassau Co., Fred J. Hirsh, J., Oct. 13, 2010).
An IME report must set forth a sufficient factual basis and medical rationale for the conclusion that further services are not medically necessary. E.g., Ying E. Acupuncture, P.C. v. Global Liberty Insurance, 20 Misc.3d 144(A), 2008 N.Y. Slip Op. 51863(U) (App Term 2d & 11th Dists. Sept. 3, 2008).
If the report is conclusory in nature and lacking a detailed basis and medical rationale for the denial of benefits, it is clearly insufficient to sustain Respondent’s evidentiary burden. See Vladimir Zlatnick, M.D., P.C. v. Travelers Ins. Indemnity Co., 12 Misc. 3d 128(A) (App. Term 1st Dept. 2006); East Coast Acupuncture Servs., P.C. v. American Tr. Ins. Co., 2007 NY Slip Op 50213(U) (App. Term 1st Dept., Feb. 8, 2007); Amaze Medical Supply v. Eagle Ins. Co., 2 Misc.3d 128(A), 2003 NY Slip Op 51701(U) (App. Term 2d Dept., Dec. 24, 2003).
The determination that an eligible injured person no longer needs treatment is generally based upon an examiner’s findings that result in the conclusion that: (1) the EIP has fully recovered from the injuries; (2) the EIP has made as full a recovery as is possible taking into account the nature and extent of the injuries, the EIP’s age, pre-existing conditions or other factors; and/or (3) additional treatment or testing will not provide any medical benefit to the EIP. Amato v. State Farm Ins. Co., 2010 NY Slip Op. 20431 (Dist. Ct. Nassau Co., Fred J. Hirsh, J., Oct. 13, 2010).
Inasmuch as Dr. Sesto observed no swelling, redness or tenderness, no muscle spasm, no motor or sensory deficits, negative orthopedic testing, normal reflexes, and normal range of motion of the cervical, thoracic and lumbar spine; characterized assignor's injuries as cervical and lumbar spine sprain/strains; concluded that the conditions had resolved; and recommended that no further chiropractic treatment was necessary, I find that the IME sets forth an adequate factual basis and medical rationale for the rejection of the disputed claim, and, thus, is sufficient to rebut the presumption of medical necessity attached to it. See East Coast Acupuncture Servs., P.C. v. American Tr. Ins. Co., 2007 NY Slip Op 50213(U) (App. Term 1st Dept., Feb. 8, 2007); Vladimir Zlatnick, M.D., P.C. v. Travelers Ins. Indemnity Co., 12 Misc. 3d 128A (App. Term 1st Dept. 2006).
When, as here, an insurer interposes a timely denial of claim that sets forth a sufficiently detailed factual basis and adequate medical rationale for a claim’s rejection, the presumption of medical necessity attached to the applicant’s properly completed claim is rebutted and the burden shifts back to the claimant to refute the peer review and/or IME and prove the necessity of the disputed services. Id. See, e.g., CPT Med. Servs., P.C. v. New York Cent. Mut. Fire Ins. Co., 2007 NY Slip Op 27526, 18 Misc.3d 87 (App. Term 1st Dept.); Eden Med., P.C. v. Progressive Cas. Ins. Co., 2008 NY Slip Op 51098(U), 19 Misc.3d 143(A) (App Term 2d & 11th Jud Dists., 2008); Bath Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 50347(U) (App. Term 2d Dept., Feb. 26, 2008) (since the provider failed to rebut peer review’s showing of a lack of medical necessity, defendant was entitled to dismissal of complaint); Be Well Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 50346(U)(App. Term 2d Dept., Feb. 21, 2008) (inasmuch as the provider offered no medical evidence to rebut the insurer’s peer review, insurer should have been granted summary judgment); A. Khodadadi Radiology, P.C. v. NY Cent. Mut. Fire Ins. Co., 2007 NY Slip Op 51342(U) (App Term 2d Dept.); West Tremont Med. Diagnostic, P.C. v. Geico Ins. Co., 2006 NY Slip Op 51871 (U) (App Term 2d Dept.); S&M Supp. Inc. v. Peerless Ins. Co., 2004 WL 2979217, 2004 NY Slip Op 51683 (U) (App Term, 2nd & 11th Jud Dists 2004); Amaze Medical Supply v. Eagle Ins. Co., 2 Misc.3d 128(A), 2003 NY Slip Op 51701(U) (App. Term 2d Dept., Dec. 24, 2003); Damadian MRI In Elmhurst v. Liberty Mut. Ins. Co., 2003 NY Slip Op 51700(U) (App. Term 2d Dept., Dec. 24, 2003) (“a provider’s proof of a properly-completed claim…shift(s) the burden to the insurer who…may rebut the inference by proof…establishing that the health benefits were not medically necessary”, which, “(i)f not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment”).
In order for an applicant to prove that the disputed expense was medically necessary, it must meaningfully refer to, or rebut, the conclusions set forth in the IME report. Eastern Star Acupuncture, P.C. v. Mercury Ins. Co., 2010 NY Slip Op. 50380(U) (App. Term 2d, 11th & 13th Dists. Mar. 8, 2010).
A letter of medical necessity sworn to by a provider who had examined assignor, along with other medical documentation, may be sufficient to rebut the peer review and establish the medical necessity of the services rendered. See Quality Psychological Servs., P.C. v. Mercury Ins. Group, 2010 NY Slip Op 50601(U) (App Term 2d Dept., April 2, 2010). See also Vinings Spinal Diagnostic, P.C. v. Geico Gen. Ins. Co., 2010 NY Slip Op 51897(U) (App Term 2d Dept., Nov. 8, 2010) (an affidavit from a chiropractor “meaningfully referred to” the peer and “sufficiently rebutted the conclusions set forth therein”).
In rebuttal to Dr. Cesto’s IME report, Applicant submitted inter alia a letter of medical necessity from Dr. Super and the report of Dr. Super’s April 27, 2010 examination, which pertinently noted complaints of low back and hip pain, full range of motion of the cervical spine and shoulders, reduced range of motion of the lumbar spine and hips, and positive Kemp’s, Ely’s, Yeoman’s, Thomas and Fabere/Patrick tests.
Dr. Super also reported reviewing diagnostic studies, including a lumbar spine MRI, which revealed a L5-S1 central herniation with impingement.
Dr. Super, a chiropractor licensed in New York State for 13 years with a certification in manipulation under anesthesia (MUA), and an adjunct professor at the University of Bridgeport (Connecticut) Chiropractic College where he teaches MUA, also testified that the positive findings of the central herniated disc on the lumbar spine MRI “clinically correlated” with the complaints made by the EIP of “lower back pain radiating into the legs”, as well as his clinical findings of “significant decreased ranges of motion” and “positive orthopedic testing in the lumbar spine all indicating a level of involvement” (Transcript of February 7, 2011 proceedings,
32:18-25).
Contrary to Dr. Sesto’s determination that assignor suffered from sprain/strain injuries that had fully resolved, Dr. Super diagnosed assignor with herniation or displacement of lumbar IVD without myelopathy, contracture of joint, pelvic, thigh and hip, and sacral and sacroiliac chronic segmental dysfunction, and concluded that assignor’s condition warranted further treatment including manipulation under anesthesia.
He further testified – to my mind, credibly – that, consistent with accepted medical practice as set forth by the National Academy of MUA Physicians’ guidelines and protocol, he determined that assignor was an appropriate candidate for one to three days of manipulation under anesthesia, given that he “had paravertebral muscular contraction with the related biomechanical dysfunction”, “muscle contraction beyond splinting”, “chronic spasm”, “tolerance to previous treatments”, and “pain eight weeks later” (Transcript, 39:11-23).
After careful consideration of both parties’ medical evidence, I find that Applicant has successfully refuted Dr. Sesto’s diagnostic determination and conclusion that assignor’s conditions had fully resolved as of May 4, 2010. To the contrary, the preponderance of credible medical evidence established that further treatment was warranted given the injuries sustained by the EIP in the motor vehicle accident. See B.Y., M.D., P.C. v. Progressive Casualty Ins. Co., 2010 N.Y. Slip Op. 50144(U) (App. Term 9th & 10th Dists. Jan. 28, 2010); Innovative Chiropractic, P.C. v. Mercury Ins. Co., 2009 NY Slip Op. 52321(U) (App. Term 2d, 11th & 13th Dists., Nov. 13, 2009); Pan Chiropractic, P.C. v. Mercury Ins. Co., 2009 NY Slip Op 51495(U) (App Term 2d Dept., July 9, 2009).
Denial Must Include a High Degree of Specificity as to the Basis for Denial
MUA Services
Although an insurer may disclaim coverage for a valid reason (Insurance Law, s 167, subd. 8); the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated. Absent such specific notice, a claimant might have difficulty assessing whether the insurer will be able to disclaim successfully. This uncertainty could prejudice the claimants ability to ultimately obtain recovery. In addition, the insure[r]s responsibility to furnish notice of the specific ground on which the disclaimer is based is not unduly burdensome, the insurer being highly experienced and sophisticated in such matters." General Accident Insurance Group v. Cirucci, 46 N.Y.2d 862, 864, 414 (1979). Where an insurer omits the information called for in Items 23 through 30 of the prescribed denial of claim form, this fatal defect renders the denial untimely; it is not cured by the subsequent provision of the information in a letter issued after the expiration of the 30-day deadline to pay or deny the claim. Nyack Hospital v. State Farm Mutual Automobile Ins. Co., 11 A.D.3d 664, 784. A proper denial of claim must include the information called for in the prescribed denial of claim form. Nyack Hospital v. Metropolitan Property & Casualty Insurance Co., 16 A.D.3d 564, (2d Dept. 2005). See also, A.B. Medical Services PLLC v. Liberty Mutual Insurance Co., 10 Misc.3d 128(A), 809, 2005 N.Y. Slip Op. 51902(U), (App. Term 2d & 11th Dists. Nov. 21, 2005). A denial of claim form containing no information in terms of the date the bill was submitted or the amount allegedly claimed is defective and the insurer is precluded from raising the defense asserted therein. St. Barnabas Hospital v. Auto One Ins. Co., 2009 N.Y. Slip Op. 32819(U) at 4, (Sup. Ct. Nassau Co., Arthur M. Diamond, J., Nov. 20, 2009). In the instant matter, the respondents denials are factually inaccurate in terms of when the bills were first received, when the final verification was requested and when the verification was ultimately received. Accordingly, I find the denials to be invalid.
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