January 2, 2007
Olympic Chiropractic, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50011(U))
https://www.beynensonlaw.com/case-law/olympic-chiropractic-p-c-v-american-tr-ins-co-2007-ny-slip-op-50011u/
- Decided
- January 2, 2007
- Citation
- 2007 NY Slip Op 50011(U) · 14 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 3 later decisions (see Cited by)
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.
Reported in New York Official Reports at Olympic Chiropractic, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50011(U))
| Olympic Chiropractic, P.C. v American Tr. Ins. Co. |
| 2007 NY Slip Op 50011(U) [14 Misc 3d 129(A)] |
| Decided on January 2, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1730 K C. NO. 2005-1730 K C
against
American Transit Insurance Co., Respondent-Appellant.
Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 27, 2005. The order denied plaintiff’s motion for summary judgment and, in effect, granted defendant’s cross motion to the extent of severing and dismissing three of plaintiff’s five claims (in the sums of $425.44, $101.10 and $404.40).
Cross appeal by defendant dismissed as abandoned.
Order, insofar as reviewed, modified by granting plaintiff’s motion for summary judgment as to its claims for $269.60 and $33.70 and matter remanded to the court
below for a calculation of statutory interest and an assessment of attorney’s fees thereon; as so modified, affirmed without costs.
In this action to recover first-party no-fault benefits for health care services provided plaintiff’s assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant’s admissions of receipt cured the deficiencies, if any, in plaintiff’s proof of mailing (Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119 [App Term, 2d & 11th Jud Dists [2006]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). The burden shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The record supports the determination of the court below that, with respect to the claims [*2]in the sums of $425.44, $101.10, and $404.40, defendant validly (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2005]) sought verification of the assignor’s social security number, a request we find appropriate in that such information must be provided on the statutory NF-2 application for no-fault benefits form, “and made the requisite follow-up requests” (Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co., 12 Misc 3d 145[A], 2006 NY Slip Op 51439[U] [App Term, 2d & 11th Jud Dists]). Plaintiff’s failure to produce the verification requested merited defendant’s refusal to pay the claims, and for that matter, to take any action on the claims, rendering plaintiff’s lawsuit thereon premature (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004] [“A claim need not be paid or denied until all demanded verification is provided . . . [and when a claimant] fails to respond to a verification request . . . any claim for payment . . . is premature”]; see also A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 54 [App Term, 2d & 11th Jud Dists 2005]), thereby warranting the claims’ severance from the remainder of the action and their dismissal (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).
However, we find that plaintiff should have been granted summary judgment as to the remaining claims for $269.60 and $33.70. Although defendant issued timely denials on the ground of lack of medical necessity based on a report of an independent medical examination (IME), the denial forms contained no facts satisfying the statutory requirement that the insurer state the reason for the denial “fully and explicitly” on the claim denial form (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, 96 [App Term, 9th & 10th Jud Dists 2004]), and to the degree necessary to “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (New York University Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006] [quotation marks and citation omitted]). A timely denial does not avoid the preclusion sanction “where said denial is factually insufficient, conclusory or vague” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30, 31 [App Term, 2d & 11th Jud Dists 2006]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). While an insurer is not required to attach a peer review report to its denial of claim form (see 11 NYCRR 65-3.8 [b] [4]), where the peer review is not attached the form itself must set forth, with the requisite particularity, the factual basis and medical rationale for the denial (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]), or at the very least, the insurer must supply claimant with a peer review report within the same period within which the denial is due. The same rules apply to denials based on an IME report (Contempo Med. Care, P.C. v Travelers Indem. Ins. Co., 12 Misc 3d 139[A], 2006 NY Slip Op 51338[U] [App Term, 2d & 11th Jud Dists]). Defendant failed to submit to plaintiff the IME report within the statutory claim determination period. Since the said period was not otherwise tolled as to the two aforementioned claims (SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists), defendant is precluded from asserting the defense (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra; see also A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra). Absent any defense to the two claims that survived the preclusion sanction, plaintiff is awarded summary judgment thereon and the matter is remanded to the court below for a calculation of the [*3]statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Belen, J., concur.
Weston Patterson, J., concurs in part and dissents in part in a separate memorandum.
Weston Patterson, J., concurs in part and dissents in part and votes to deny the motion for summary judgment as to all but plaintiff’s first three claims in the following memorandum:
While I agree with the majority that defendant properly refused to pay plaintiff’s first three claims, I disagree with the majority’s decision to grant plaintiff summary judgment on its remaining claims. In my view, defendant’s timely denials of those claims provided adequate notice of the reasons for the denials.
Defendant’s denial forms state, in pertinent part:
“The Service(s) Submitted Were Rendered Beyond Denial, Based On An Independent Medical Examination.”
In a sworn supporting affidavit, Morton Nussbaum states:
“1. That on November 17, 2003 I saw Andrea Campbell for a chiropractic independent examination. The following was found:” (emphasis added).
Following these forms is a copy of a detailed independent medical examination (IME) report prepared by Dr. Nussbaum indicating no chiropractic disability.
Unlike the cases cited to by the majority (see A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]), here, it is clear from the denial of claim forms that Dr. Nussbaum’ s IME report was attached to the denials. The denial forms specifically refer to additional findings, which were contained in a copiously detailed report following the denials. Under these circumstances, it cannot be said that defendant’s denial of claim forms were factually insufficient to apprise plaintiff of the reasons for the denials.
Decision Date: January 2, 2007
Legal questions (3)
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.
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 three claims premature because the insurer validly requested the assignor's social security number and followed up, and the provider never supplied it, so those claims were severed and dismissed.
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider made its prima facie case by proof of submitted claims and overdue payment, the insurer's admissions of receipt curing any defects in the mailing proof.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)
Held the insurer's admissions of receipt cured any deficiencies in the provider's proof that it mailed its claims.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 26269)An improper self-referral defense survives a late denial when a health care provider seeks benefits through an entity in which it has an interest.
- A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
- Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co. (2006 NY Slip Op 51439(U)) FollowedThe insurer raised a triable issue of medical necessity through detailed peer reviews and timely denials following verification.
- New York & Presbyt. Hosp. v Progressive Cas. Ins. Co. (2004 NY Slip Op 01750) FollowedThe insurer proved policy exhaustion on one hospital claim and absence of coverage on another, requiring dismissal of both.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2005 NY Slip Op 25456)The providers obtained partial summary judgment because defective EUO requests and incomplete IME follow-up failed to toll denial time.
- Park Neurological Servs. P.C. v GEICO Ins. (2004 NY Slip Op 24210) FollowedThe insurer's denial did not set forth a factual basis and medical rationale for lack of medical necessity, precluding its medical-necessity defense.
- New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (2006 NY Slip Op 06223) FollowedThe insurers were precluded from contesting a hospital claim because they failed to establish that their denial letter met regulatory requirements.
- A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2006 NY Slip Op 26133) FollowedA timely medical-necessity denial must state a sufficiently particular factual basis and medical rationale to avoid preclusion.
- Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
- Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119) FollowedAn insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.
- A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U))A sufficient peer review report cannot cure a denial that omits the factual basis and medical rationale for lack of medical necessity.
- Contempo Med. Care, P.C. v Travelers Indem. Ins. Co. (2006 NY Slip Op 51338(U)) FollowedThe insurer's vague medical-necessity denials did not establish entitlement to partial summary judgment.
- SZ Med. P.C. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51428(U)) FollowedThe insurer's timely denial lacked a factual basis or medical rationale, precluding its medical-necessity defense.
Cited by
A label shows how the later decision treated this one.
- American Tr. Ins. Co. v PDA NY Chiropractic, P.C. (2023 NY Slip Op 50938(U)) FollowedA provider's substantial compliance with reasonable additional verification requests does not make its claims payable.
- DSL Med. Practice, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50398(U)) FollowedThe provider's four claims were premature because timely verification requests for the assignor's Social Security number remained unanswered.
- Top Choice Pharm. Corp. v Merchants Mut. Ins. Co. (2022 NY Slip Op 50867(U)) FollowedThe insurer waived its assignment objection and failed to support its medical-necessity defense with a nonconclusory opinion.
- Prime Psychological Servs., P.C. v American Tr. Ins. Co. (2008 NY Slip Op 28273)An insurer's failure to send a denial in duplicate does not invalidate an otherwise sufficient denial absent claimed notice defects or prejudice.
Similar decisions
- A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51415(U))A peer review submitted on summary judgment cannot cure a medical-necessity denial lacking specific facts and medical rationale.
- A.M. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51426(U))The insurer's conclusory medical-necessity denials were ineffective, but policy-limit exhaustion remained a factual issue.
- Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
- Boai Zhong Yi Acupuncture Servs. PC v General Assur. Ins Co. (2005 NY Slip Op 50329(U))The provider obtained summary judgment because two denials were late and the third relied on an unavailable IME nonappearance defense.
- A.B. Med. Servs. PLLC v Peerless Ins. Co. (2006 NY Slip Op 26318)A provider need not prove assignment validity where the insurer neither sought verification nor raised an assignment defect in its denials.