May 22, 2013

Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co. (2013 NY Slip Op 50904(U))

https://www.beynensonlaw.com/case-law/brooklyn-chiropractic-sports-therapy-p-c-v-a-cent-ins-co-2013-nyslip-op-50904u/

Court: Appellate Term, Second Department
Decided: May 22, 2013
Citation: 2013 NY Slip Op 50904(U) · 39 Misc 3d 148(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Verification requests Fee schedule
Legal questions: Lack of medical necessity · Outstanding verification and premature actions · Proof of mailing · Proving a fee schedule defense (see the maps)

Cite as

Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co., 39 Misc 3d 148(A), 2013 NY Slip Op 50904(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2013)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer established lack of medical necessity for one claim and outstanding verification for two, but obtained no dismissal of twelve others. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing three of fifteen claims. The provider's competing IME report raised factual issues concerning eleven claims denied based on the insurer's IME, but no medical evidence rebutted the peer review supporting denial of another claim. Two claims remained premature because timely initial and follow-up verification requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b) went unanswered, tolling payment or denial under 11 NYCRR 65-3.8 (a). Dismissal of the remaining claim was denied because the insurer failed to establish that its charge exceeded the workers' compensation fee schedule.

Reported in New York Official Reports at Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co. (2013 NY Slip Op 50904(U))

[*1]

Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co.

2013 NY Slip Op 50904(U) [39 Misc 3d 148(A)]

Decided on May 22, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : LaSALLE, J.P., NICOLAI and IANNACCI, JJ
2012-855 S C.

Brooklyn Chiropractic and Sports Therapy, P.C. as Assignee of VENUS GARCIA, Respondent, —
against
A. Central Insurance Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated March 21, 2012. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $2,516.58, $967.52 and $832.92, respectively, are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits upon 15 claims, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

As to 12 of the 15 claims at issue, defendant established that it had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) those claims on the ground of lack of medical necessity. Defendant also submitted an affirmed report of an independent medical examination (IME) with respect to 11 of the 12 claims, and a peer review report with respect to the 12th, each of which set forth a factual basis and medical rationale for the conclusion that the services in question were not medically necessary.

In opposition to defendant’s motion, plaintiff submitted an affirmed report of an IME, conducted by a different doctor one day after the IME performed by defendant’s doctor. The IME report submitted by plaintiff contradicted the findings of defendant’s IME report and was sufficient to raise a triable issue of fact as to the medical necessity of the 11 claims which had been denied based upon defendant’s IME report (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

However, plaintiff failed to offer any medical evidence to rebut the conclusions of [*2]defendant’s peer review report, which established a lack of medical necessity for the
12th claim. Accordingly, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claim for $2,516.58, which was denied based upon the peer review, should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With regard to two of the three remaining claims, for $967.52 and $832.92, respectively, defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679) initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Defendant also established that it had never received responses to these requests. Thus, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those two claims should have been granted, as defendant’s time to pay or deny those claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Finally, as to the 15th claim, defendant failed to establish as a matter of law that the fee charged exceeded the amount set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and therefore it was not entitled to summary judgment on this claim.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims for $2,516.58, $967.52 and $832.92, respectively, are granted.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: May 22, 2013

Legal questions (4)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held the provider's contrary affirmed IME report raised a triable issue on eleven claims denied on the insurer's IME, though one claim denied on an unrebutted peer review was dismissed.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Outstanding verification and premature actions

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Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature

Held two claims premature because the insurer timely mailed initial and follow-up verification requests and never received responses, so its time to pay or deny had not begun.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer showed timely mailing of its medical-necessity denials and of initial and follow-up verification requests under the standard office practice rule.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Proving a fee schedule defense

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)

Held the insurer failed to establish as a matter of law that the fee charged on one claim exceeded the workers' compensation fee schedule, so summary judgment on it was denied.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U)) FollowedThe provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038) FollowedThe hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Cited by

A label shows how the later decision treated this one.

Huntington Regional Chiropractic, P.C. v Truck Ins. Exch. (2015 NY Slip Op 51068(U)) FollowedThe providers' medical affidavits raised a triable issue of medical necessity despite the insurer's sufficient IME reports.

Similar decisions

Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52398(U))Neither party established entitlement to summary judgment on the claims reviewed after reargument.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
Compas Med., P.C. v GEICO Ins. Co. (2014 NY Slip Op 51857(U))The insurer proved lack of medical necessity for one claim but failed to establish its payment, late-submission and fee-schedule defenses.
Rogy Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50629(U))The insurer established lack of medical necessity for three claims and outstanding verification for two, but failed on two others.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.