Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U))

Reported in New York Official Reports at Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U))

Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))

Reported in New York Official Reports at Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))

Richard Denise M.D. P.C. v New York City Tr. Auth. (2012 NY Slip Op 04925)

Reported in New York Official Reports at Richard Denise M.D. P.C. v New York City Tr. Auth. (2012 NY Slip Op 04925)

Richard Denise M.D. P.C. v New York City Tr. Auth.

2012 NY Slip Op 04925 [96 AD3d 561]

June 19, 2012

Appellate Division, First Department

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

As corrected through Wednesday, August 1, 2012

Richard Denise M.D. P.C., as Assignee of Irene Trapp, Respondent, v New York City Transit Authority, Appellant.

—[*1] Jones Jones LLC, New York (Agnes Neiger of counsel), for appellant.

Israel, Israel & Purdy, LLP, Great Neck (Jennifer Greenhalgh Howard of counsel), for respondent.

Order of the Appellate Term of the Supreme Court, First Department, entered July 22, 2009, which reversed an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered on or about May 7, 2007, granting defendant’s motion to dismiss the complaint as time-barred, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Because defendant New York City Transit Authority’s obligation to provide no-fault benefits arises out of the no-fault statute, the three-year statute of limitations as set forth in CPLR 214 (2) bars plaintiff’s claim (see M.N. Dental Diagnostics, P.C. v New York City Tr. Auth., 82 AD3d 409 [2011]).

We have reviewed plaintiff’s contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, DeGrasse, Richter and Abdus-Salaam, JJ. [Prior Case History: 25 Misc 3d 13.]Bajaj v GEICO (2012 NY Slip Op 51106(U))

Reported in New York Official Reports at Bajaj v GEICO (2012 NY Slip Op 51106(U))

[*1] Decided on June 18, 2012

Dr. Deepika Bajaj, as assignee of LUIS JARA, Plaintiff, against GEICO, Defendant.

CV-025897-10



Harold Solomon, Esq., Attorney for Plaintiff, 430 Sunrise Highway, Rockville Centre, New York 11571-1100, 516-764-2226;

The Law Offices of Teresa M. Spina, Attorneys for Defendant, 170 Froehlich Farm Blvd, Woodbury, New York 11797, 516-714-7750

Michael A. Ciaffa, J.

Plaintiff, Dr. Deepika Bajaj, commenced this no-fault action against defendant, GEICO, following denial of her claim for services rendered to Luis Jara after an auto accident. Prior to trial, the parties stipulated that plaintiff’s bill had been timely submitted and that defendant’s denial was timely. They further stipulated that the only issue for trial was the medical necessity of EMG/NCV testing that had been performed by Dr. Bajaj on June 26, 2007.

Dr. Bajaj’s claim had been denied based upon a peer review report, dated August 28, 2007, from Dr. Gary J. Florio. Although the report was marked for identification, plaintiff’s counsel would not stipulate to its admission into evidence, and defendant’s counsel did not otherwise seek to offer it into evidence. Defendant made no effort to call Dr. Florio as a trial witness. Instead, defendant presented expert testimony from a substitute doctor, Roy H. Brown, M.D.

Pursuant to the parties’ stipulation, Dr. Brown’s expertise was conceded. However, at the outset of his testimony, plaintiff objected to it on legal grounds. Since Dr. Florio’s peer review report had not been admitted into evidence, plaintiff contended that Dr. Brown should be precluded from giving testimony in support of the lack of medical necessity defense. The Court reserved decision on the issue. [*2]

Dr. Brown proceeded to give testimony setting forth a factual basis and medical rationale for defendant’s lack of medical necessity defense. Based upon his review of the medical records in evidence, and his review of Dr. Florio’s peer review report, Dr. Brown stated that he agreed with Dr. Florio’s opinion. In Dr. Brown’s view, he saw nothing in the medical records which supported the necessity of the tests. Although the medical records established the existence of lumbar radiculopathy, Dr. Bajaj’s patient was being adequately treated with conservative therapy. In such circumstances, he contended that the results of the EMG/NCV wouldn’t show anything that would have added to the treatment of Dr. Bajaj’s patient. Therefore, in his opinion, the test was not medically necessary.

By and large, Dr. Brown’s testimony did not go beyond the rationale set forth in Dr. Florio’s peer review report. In the few instances where defendant attempted to elicit testimony from Dr. Brown that went beyond the four corners of Dr. Florio’s report, plaintiff’s counsel maintained that the Court could properly consider Dr. Florio’s report for the limited purpose of restricting the scope of Dr. Brown’s medical opinion. This Court agreed with plaintiff’s contention on this point, and it reviewed the report in the course of Dr. Brown’s testimony solely for such limited purposes, and not as evidence in chief.

At the conclusion of Dr. Brown’s testimony, plaintiff’s counsel renewed his objection to Dr. Brown’s testimony and moved for a directed verdict, contending that defendant could not make out a prima facie case for the lack of medical necessity defense without offering the peer review report into evidence. The Court again reserved decision.

Upon further consideration, plaintiff’s contention is rejected. While the issue is not free from doubt, see Park Slope Med & Surgical Supply, Inc. v. Metlife Auto & Home, 35 Misc 3d 686, 2012 NY Slip Op 22064 (Civ Ct Queens Co.), current Appellate Term precedent appears to require nothing more than testimony from a medical expert setting forth a facially sufficient factual basis and medical rationale for the defense. The defendant’s expert need not be the same person who prepared the peer review report. As long as the substitute doctor can be subjected to cross-examination on the issue of medical necessity, his or her testimony cannot be precluded outright. See Radiology Today, P.C. v. Progressive Ins. Co., 2011 NY Slip Op 51724(U) (App Term 2d Dept); Dilon Med. Supply Corp. v. New York Central Mut. Ins. Co., 2007 NY Slip Op 52454(U) (App Term 2d Dept); Spruce Med. & Diagnostic, P.C. v. Lumberman’s Mut. Cas. Co., 2007 NY Slip Op 51104(U) (App Term 1st Dept); Home Care Ortho. Med. Supply, Inc. v. American Mfrs. Mut. Ins. Co., 2007 NY Slip Op 50302(U) (App Term 1st Dept).

In Radiology Today, supra, the Appellate Term reversed a trial court decision which had precluded the testimony of a substitute expert witness, holding that defendant’s expert “should have been permitted to testify,” and it did so without reaching the question “of whether the peer review report could have been entered into evidence.” In another recent case, Psychology YM, P.C. v. GEICO, 2011 NY Slip Op 51316(U) (App Term 2d [*3]Dept), the Appellate Term held that the Civil Court erred in precluding testimony from defendant’s expert witness in a case where the expert’s peer review report “was not in admissible form.”

Reading these cases together, a no-fault insurer apparently need not submit the underlying peer review report “in admissible form” at trial in a case where the defendant offers testimony from a substitute medical expert. As long as the substitute doctor’s testimony is “limited to the basis for the denial as set forth in the original peer review report,” see Park Slope Med. & Surgical Supply, Inc. v. Progressive Ins. Co., 2012 NY Slip Op 50349(U) (App Term 2d Dept), the plaintiff cannot complain. Any perceived inadequacies in the substitute doctor’s testimony can and should be exposed through vigorous cross-examination and/or rebuttal testimony from the treating doctor or another expert.

This Court, like many of its colleagues, have often viewed the testimony of substitute peer doctors through a critical lens. However, in the eyes of the Appellate Term, the practice is not inherently objectionable. If an insurer can make out a prima facie case for summary judgment by merely submitting a “naked” peer review report, see East 75th St. Diagnostic Imaging v. Clarandon Natl. Ins. Co., 33 Misc 3d 573, 2011 NY Slip Op 21315 (Dist Ct Nassau Co.), unaccompanied by medical records or other substantiating documentation, see Active Imaging, P.C. v. Progressive Northeastern Ins. Co., 2010 NY Slip Op 51842(U) (App Term 2d Dept), it seems clear to this Court that the only required proof is sworn testimony from an expert setting forth a non-conclusory facially valid factual basis and medical rationale for the defense. Cf. Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., 2011 NY Slip Op 50500(U) (Dist Ct Nassau Co.). Once the defendant adduces such testimony, it is up to the plaintiff to utilize the peer review report and the medical records to undermine the defendant’s case. See Novacare, supra. However, neither the report nor the records are a necessary part of the defendant’s prima facie burden. See Psychology YM, supra; Active Imaging, supra.

In reaching this conclusion, the Court has carefully reviewed the Civil Court’s recent decision in Park Slope Med & Surgical Supply, Inc. v. MetLife Auto & Home, supra. The Court in that case concluded that a substitute peer doctor should not be allowed to testify at trial unless a proper foundation is laid for the admission of the original peer review report. 35 Misc 3d at 687.

Were this Court writing on a clean slate, the Civil Court’s analysis may have been persuasive. But close examination of the Appellate Term’s recent decisions has convinced me otherwise. With all due respect for the otherwise well-reasoned decision of the Civil Court, the Appellate Term Second Department’s decisions are binding upon this Court, and control the Court’s resolution of the issue. Consequently, it follows that plaintiff’s motion for a directed verdict must be denied.

However, this conclusion does not end the Court’s analysis. Although Dr. Brown’s testimony on direct examination set forth a facially sufficient factual basis and medical [*4]rationale for the lack of medical necessity defense, his opinion was significantly undermined on cross examination. He acknowledged, in response to counsel’s questioning, that Dr. Bajaj’s patient had undergone a lumbar spine MRI which revealed a disc bulge and a disc herniation. But he also admitted that such MRI test results could not show whether the patient had nerve damage or denervation.

As part of plaintiff’s rebuttal case, Dr. Bajaj was called as a witness. She explained in clear and concise terms why she had ordered the EMG/NCV tests. Although other test results and examinations were sufficient to diagnose the patient’s disc herniation, radiating pains, and symptoms of radiculopathy, Dr. Bajaj testified that the EMG/NCV was prescribed to determine the existence and location of nerve damage in the patient’s lower extremities. The tests disclosed delayed nerve conduction velocity and denervation. It thus helped in the evaluation and treatment of the patient’s condition, and it was particularly useful in determining whether the patient might need surgery or could be expected to get better over time. She also persuasively rebutted Dr. Brown’s contention that such test results would not be useful in the treatment of a patient who was already receiving a course of conservative care. As she further explained, EMG/NCV test results often affect a doctor’s recommendations for conservative care. She therefore insisted that the tests were, indeed, medically necessary and appropriate.

On balance, the Court, as finder of fact, concludes that defendant’s proof, in the end, failed to meet its burden. While Dr. Brown was able to articulate a factual basis and medical rationale for the denial of plaintiff’s claim, the rationale was proven to be suspect, and was rebutted in any event by Dr. Bajaj’s credible testimony.

For these reasons, judgement is rendered for the plaintiff, for the principal amount in dispute ($1,509.24), with interest, costs and disbursements. Submit judgment on notice.

SO ORDERED:

___________________________

District Court Judge

Dated: June 18, 2012

cc:Harold Solomon, Esq.

Brian P. McDonough, Esq.Back to Back Chiropractor, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51088(U))

Reported in New York Official Reports at Back to Back Chiropractor, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51088(U))

Matter of MTA Bus Co. v ACE USA (2012 NY Slip Op 51190(U))

Reported in New York Official Reports at Matter of MTA Bus Co. v ACE USA (2012 NY Slip Op 51190(U))

[*1] Decided on June 13, 2012

In the Matter of the Arbitration of Certain Controversies Between MTA Bus Company, , Petitioner, against ACE USA, Respondent.

403338/2011

Peter H. Moulton, J.

Petitioner MTA Bus Company (MTA Bus) moves for an order pursuant to CPLR 7511 vacating an arbitration award on the grounds that the award was arbitrary and capricious, and that the arbitrator exceeded his authority by improperly asserting jurisdiction over the matter. MTA Bus also argues that, pursuant to CPLR 7507, the award should be vacated since it was not signed and affirmed by the arbitrator. Respondent ACE USA, who is owed $16,415.62 according to the award, argues that the petition should be denied as untimely and that the award should be confirmed.

On April 29, 2008, nonparty Mintra Busgith (Busgith), a home attendant, was injured during the course of her employment while on the wheelchair lift of an MTA Bus. ACE USA was the workers’ compensation carrier for Busgith’s employer, and paid Busgith benefits, including lost wages and medical expenses, in the total amount of $32,831.23. On May 18, 2011, ACE USA initiated an arbitration request through Arbitration Forums, Inc., seeking to recoup from MTA Bus what it paid to Busgith. Section 5105 of the Insurance Law (Comprehensive Motor Vehicle Insurance Reparations) provides that insurers, self-insurers and worker’s compensation insurers are subject to mandatory arbitration for disputes. Arbitration Forums, Inc. is the designated arbitrator for this mandatory arbitration process. MTA Bus does not believe that it should have been subject to mandatory arbitration since, among other reasons, it immediately disputed its responsibility to reimburse ACE USA, a workers’ compensation provider.

To commence arbitration, ACE USA filed an online “NY PIP-Form,” which is the form required for Personal Injury Protection (PIP) Arbitration Forum disputes. Both ACE USA and MTA Bus are subject to the additional New York PIP Arbitration Rules. The NY PIP Rule Revisions, attached as part of the record, state that these procedures “apply to the mandatory intercompany arbitration process pursuant to Section 65-4.11 (d) of the New York State [*2]Insurance Department Regulation No. 68.” MTA Bus’s Exhibit F, at 1.

In its PIP Arbitration Contentions Sheet, ACE USA cited to A.I. Transp. v New York State Ins. Fund (301 AD2d 380 [1st Dept 2003]), a case in which an arbitration was allowed to proceed whereby a workers’ compensation provider attempted to, and recovered for, benefits it paid to a passenger on a bus.

MTA Bus responded and filled out its PIP Arbitration Contentions Sheet in which there was a space to list affirmative defenses. MTA Bus did not list any. In its contentions, MTA Bus gave a synopsis of its argument, and mainly contended that, regardless of MTA Bus’s alleged liability, it was not liable for any payments to Busgith. No-fault regulations state that mandatory arbitration between insurers does not apply to claims where an insurer asserts, in good faith, a lack of coverage. MTA Bus maintains that Busgith was not covered under Insurance Law Section 5105 (a) because she was a passenger on a bus, rather than an owner, operator or employee of a bus company. Moreover, it argues that the present situation differs from the facts of the case cited to by ACE USA.

The three-arbitrator panel issued an award “the PIP Decision” published on September 1, 2011, and awarded ACE USA $16,415.62, which was 50% of the damages it was seeking. The arbitrators summarized the dispute as follows: “[a]pplicant contends that Respondent [sic] improper operation of wheelchair lift was the proximate cause of injury regarding Worker’s [sic] Compensation benefit. Respondent contends Applicant has no right to recovery.” The decision indicated that ACE USA proved 50% liability against MTA Bus and proved all damages. The arbitrators concluded with the following, in pertinent part:

What evidence caused you to render this decision and why?

Applicant supplies no information as to theory of liability vs. Respondent or exact mechanism which caused injury. We only know injury was caused by “fall from lift.” However, Respondent was cited for “improper use of lift”-which may be for allowing wheel chair and injured assistant on lift at same time. No mechanical issues with lift found upon inspection.

Award

State Negligence Law applied to award calculations: Pure Comparative.

MTA Bus’s Exhibit A, at 1.

On September 23, 2011, MTA Bus submitted an appeal of the arbitrators’ decision. In its appeal, MTA Bus cited to the general rules, not the specific PIP rules, and wrote that MTA Bus was entitled to pursue an appeal if there was a clerical or jurisdictional error. MTA Bus explained that a jurisdictional error had been made since the arbitrators failed to rule on an affirmative defense and/or decided an issue that was beyond their jurisdiction.

On October 11, 2011, a representative from Arbitration Forums, Inc. responded to MTA Bus and advised it that, pursuant to the PIP rules, there was no appeal process allowed for PIP claims. The representative explained to MTA Bus that the prior decision was final and binding. Regardless, even if there were an appeal process, according to the representative, the decision would be upheld. The letter to MTA Bus stated the following:

There is no review or appeal process under the NY PIP intercompany arbitration rules and regulations. The New York is [sic] Insurance Department, Regulation [*3]68, addresses the issue of reviewing a decision. A decision rendered by a panel is final and binding with no right to rehearing or appeal. Arbitration Forums has no authority to review the panel’s decision on issues of fact or law. Under Regulation 68, Arbitration Forums is authorized to correct only those decisions where Arbitration Forums’ staff has made a clerical or typographical error.

I have reviewed your contentions and no affirmative defenses were raised. In order to assert an affirmative defense, the Respondent must check the affirmative defense section of the contention sheet and raise any issue that does not address the dispute itself but rather raises issues that may be impediments to the arbitrator’s right to consider the dispute itself in this area.

In this case, neither party argued liability. However, the Applicant provided enough evidence to support the injury was caused by falling from the lift and that the Respondent was cited for improper use of lift. It appears the evidence further supported the Applicant insured may have been partially responsible; the panel only awarded 50%. The decision was within the discretion of the arbitrator, the issue of liability has been decided, and AF lacks the authority to void the decision.

MTA Bus’s Exhibit E, at 1.

On December 30, 2011, MTA Bus filed a petition seeking to vacate the letter dated October 11, 2011 from Arbitration Forums, Inc.

Pursuant to CPLR 7511 (a), “[a]n application to vacate or modify an [arbitration] award may be made by a party within ninety days after its delivery to him.” See e.g. Matter of Kunju v MTA, 94 AD3d 585 (1st Dept 2012) (“Petitioner’s application to vacate the arbitration award was made more than 90 days after the award was delivered to him and is therefore untimely”).

MTA Bus received the arbitration award on September 1, 2011, and this petition was not served until at least December 30, 2011. MTA Bus alleges that the letter received by Arbitration Forums, Inc. should be considered the final and binding arbitration award. As such, according to MTA Bus, it had 90 days from the date of this letter to file the petition. However, as set forth below, the record indicates that the award dated September 1, 2011 is the only arbitration award received by the parties.

As previously mentioned, both parties are subject to additional PIP rules as part of their mandatory arbitration. PIP Rule 5 (i) states that “[a] decision of an arbitrator, or a majority of an arbitration panel on issues of fact or law is final and binding.” MTA Bus’s Exhibit F, at 4. However, the parties may seek a correction of a clerical or administrative error within 30 days of receiving the decision. In its appeal, MTA Bus was not seeking the review of a clerical or administrative error, but was arguing that the decision should not be upheld for legal and jurisdictional reasons.

The October 11, 2011 letter written to MTA Bus also explicitly stated that the prior decision was final and binding. Furthermore, the letter indicated that MTA Bus had no right to appeal. It even went on to explain that, among other things, even if MTA Bus had the right to appeal based on MTA Bus’s argument that the arbitrators failed to rule on MTA Bus’s affirmative defenses, the original form sent to the arbitrators did not have any affirmative defenses listed [*4]underneath the heading. As such, this argument made by MTA Bus, seeking additional review, had no merit.

Despite receipt of this letter, which was clearly not an arbitration “award” pursuant to CPLR 7511 (a), MTA Bus waited more than 90 days from the receipt of the September 1, 2011 award to file this petition. Notably, petitioner was well within the statute of limitations when it received the letter, yet chose to ignore it.

MTA Bus attempts to excuse this failure by citing to rule 2-12 with respect to “Property and Special Forums” which specifies that an “appeals panel’s decision will be final and binding with no right to further review.” However, this arbitration was a PIP arbitration, and not one under Property or Special Forums. It is evident that MTA Bus was aware that the PIP rules applied as the forms all had PIP in the letterhead. MTA Bus also attached a copy of the additional PIP specific rules in its record, and the rules specified that they would “apply to the mandatory intercompany arbitration process pursuant to Section 65-4.11 (d) of the New York State Insurance Department Regulation No. 68.” That regulation, in turn, clearly provides that “[t]he decision of a majority of an arbitration panel shall be final and binding upon the insurers to the controversy. There shall be no right of rehearing or appeal. However, this provision does not preclude correction of clerical or typographical errors” (11 NYCRR § 65-4.11 [a] [3]). MTA Bus’s misunderstanding of the applicability of Property or Special Forums provisions in this PIP case, cannot overcome statutory deadlines. Furthermore, although MTA Bus complains that the award was unsigned, the general rules of Arbitration Forums, Inc. provide for electronic signatures and the affidavit from a manager at Arbitration Forums, Inc. indicates that the award was electronically signed. As such, MTA Bus’s application to vacate the award is dismissed as untimely and the court need not address MTA Bus’s arguments on the merits. See e.g. Werner Enters. Co. v New York City Law Dept., 281 AD2d 253, 253 (1st Dept 2001) (“Contrary to petitioner’s argument, there is nothing to suggest that, because petitioner seeks to vacate the subject awards upon grounds set forth in CPLR 7511 (b) (2), the time limitation set forth in CPLR 7511 (a) may be dispensed with”).

Pursuant to CPLR 7511 (e), “[u]pon denying a motion to vacate or modify an arbitration award, the court must confirm the award.” Larsen & Toubro Ltd. v Millenium Mgt., Inc., 45 AD3d 453, 453-454 (1st Dept 2007); see also Matter of American Fed. Group v AFG Partners, 277 AD2d 119 (1st Dept 2000) (“the court must confirm an award upon denying a motion to vacate or modify it” even when confirmation is not sought in opposition to an untimely motion to vacate). As confirmation is mandated, the merits of the dispute are of no import and therefore, will not be addressed. But compare Matter of New York Tel. Co. v State Farm Ins. Co., 137 Misc 2d 376, 378-79 (Sup. Ct, New York County [*5]1987). The September 1, 2011 arbitration award is confirmed in accordance with CPLR 7511 (e). See e.g. Matter of Rodriguez v New York City Tr. Auth., 269 AD2d 600, 600 (2d Dept 2000).

Accordingly, it is hereby

ADJUDGED that the petition of MTA Bus Company is denied as untimely; and it is further

ADJUDGED that the arbitration award dated September 1, 2011 is confirmed; and it is further

ADJUDGED that ACE USA have judgment and recover against MTA Bus Company, in the amount of $16,415.62 plus interest at the rate of 9% per annum from the date of September 1, 2011, as computed by the Clerk in the amount of $_____________, together with costs and disbursements in the amount of $_____________ as taxed by the Clerk, for the total amount of $______________, and that ACE USA have execution therefor.

Dated: June 13, 2012ENTER:

_______________________J.S.CVE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51074(U))

Reported in New York Official Reports at VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51074(U))

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51071(U))

Reported in New York Official Reports at Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51071(U))

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51068(U))

Reported in New York Official Reports at BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51068(U))

PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2012 NY Slip Op 51067(U))

Reported in New York Official Reports at PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2012 NY Slip Op 51067(U))