SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered March 30, 2004, as denied their motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding plaintiff A. B. Medical Services PLLC partial summary judgment in the sum of $14,602.46 on 29 claims, plaintiff D.A.V. Chiropractic P.C. partial summary judgment in the sum of $2,232.58 on 14 claims, and plaintiff Lvov Acupuncture P.C. partial summary judgment in the sum of $6,016.12 on 12 claims, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining three claims; as so modified, affirmed without costs.

Plaintiff health care providers commenced this action to recover first-party no-fault benefits for medical services rendered to their assignors for injuries allegedly sustained in a motor vehicle accident, and thereafter moved for summary judgment in the sum of $23,214, which was comprised of $14,727.90 in claims (consisting of 30 bills) for A.B. Medical Services PLLC, $2,299 in claims (consisting of 15 bills) for D.A.V. Chiropractic P.C., and $6,186.12 in [*2]claims (consisting of 13 bills) for Lvov Acupuncture P.C. Upon a review of the record, we find that with the exception of three of the 58 claims, plaintiffs established a prima facie entitlement to summary judgment by showing that they submitted claims setting 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 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]). Inasmuch as defendant failed to pay or properly deny 55 of the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Although the 30-day period may be extended by a timely request for verification, a letter which merely informs a claimant that a decision on the claim is delayed pending an investigation, and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period (see Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; see also Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as the letters sent by defendant in the instant case were not requests for verification, they did not operate to toll the 30-day period.

Insofar as the claim denials were based upon “multiple fraud indicators,” defendant neither interposed a defense of fraud in its answer, nor provided in its papers in opposition to plaintiff’s summary judgment motion any support for its allegations of fraud. Moreover, to the extent that some of the claim denials which were timely were based upon lack of medical necessity, they were not supported by a sufficiently detailed factual basis and medical rationale (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the absence of any such support, said defense was waived. Accordingly, with the exception of the three claims set forth below, plaintiffs were entitled to summary judgment.

With respect to the A.B. Medical Services PLLC claim form dated March 4, 2003 for $125.44 for services rendered on February 3, 2003 and February 27, 2003, the D.A.V. Chiropractic P.C. claim form dated March 3, 2003 for $67.40 for services rendered on February 3, 2003 and February 27, 2003, and the Lvov Acupuncture P.C. claim form dated March 5, 2003 for $170 for services rendered on February 3, 2003 and February 27, 2003, summary judgment was properly denied. Plaintiffs did not allege the date that defendant received those claim forms, and failed to submit proof that defendant’s requests for verification and follow-up requests for the “applicant’s completed NF-2” and a “complete narrative report” were complied with. Assuming the verification requests by defendant insurer were timely submitted, it had no obligation to act on the claims until it received the requested verification (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]). Absent proof of compliance with the verification requests, plaintiffs cannot be said to have made out a prima facie case upon the instant motion with respect to those three claims (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on the aggregate sum of $22,851.16, that portion [*3]of the claims for which summary judgment is granted, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining three claims.
Decision Date: March 02, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (A. Schack, J.), entered November 24, 2003, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to dismiss, deemed an appeal from the judgment of the same court entered pursuant thereto on February 10, 2004, awarding plaintiff the principal sum of $3,268.85, plus statutory interest and attorney’s fees (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, it moved for summary judgment on the ground that defendant had failed to pay or deny its claims within 30 days of their receipt, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]). Plaintiff further alleged that defendant had failed to extend the statutory time period by issuing a timely verification request on the prescribed forms. A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; see also 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]). The burden then shifted to defendant to show the existence of a triable issue of fact (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant opposed plaintiff’s motion and cross-moved for summary judgment on the ground that it had sent timely letter requests for verification, which tolled the commencement of the 30-day period within which it was obligated to pay or deny the claim. The motion court found in favor of plaintiff, finding that defendant’s verification requests were not made on the prescribed forms, and therefore did not operate to toll the 30-day period.

We disagree with the lower court’s determination that a request for additional verification may not be made by letter and must be made on a prescribed form (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482 [2002]; see also S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]). However, we affirm the order, albeit for reasons other than those stated by the court below, on constraint of Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374 [2001]). The record on appeal in that case establishes that defendant insurer’s employee averred in his affidavit in opposition to plaintiff’s motion for summary judgment that “in the regular course of business at Nationwide, denial letters that are sent to the provider . . . are sent by regular mail on the day that the letter is dated.” Noting that the employee had no personal knowledge that the denial of claim form had been mailed on the date it was issued, the Appellate Division, Second Department, also found that the allegation regarding defendant’s office practices was conclusory and
insufficient to establish that the office followed practices which were geared to ensure the likelihood that denial of claim forms were always properly addressed and mailed on the date issued. Similarly, in the case at bar, the assertion of defendant’s no-fault claims examiner that it was “the usual and customary course of business at GEICO that all documents are mailed on the same day they are generated” was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with. Since defendant’s opposition papers did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish by competent evidence that it timely mailed its verification requests, and the
30-day period within which it was required to pay or deny the claim was therefore not tolled (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U], supra). [*3]Accordingly, plaintiff was entitled to summary judgment.
Decision Date: March 02, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (S. Krauss, J.), entered on October 29, 2003, as denied the motion for summary judgment by plaintiff A.B. Medical Services PLLC, seeking the sum of $8,182.88.

Order, insofar as appealed from by A.B. Medical Services PLLC, unanimously modified by providing that, upon searching the record, summary judgment is awarded
to defendant dismissing the complaint as to plaintiff A.B. Medical Services PLLC; as so modified, affirmed without costs.

Appeal by plaintiff Royalton Chiropractic P.C. unanimously dismissed.

Plaintiffs A.B. Medical Services PLLC (A.B. Medical) and Royalton Chiropractic P.C. commenced the instant action seeking to recover first-party no-fault benefits for medical services rendered to their assignors in the sum of $10,394.42. In their brief on appeal, plaintiffs have withdrawn the claims of Royalton Chiropractic P.C. and have limited the appeal to the claims of A.B. Medical for the sum of $8,182.88.

In support of its motion for summary judgment, A.B. Medical annexed the NF-3 claim forms which identified it as the “provider.” The item calling for information where the “treating provider is different than [the] billing provider,” indicated that the licensed “treating provider” was Desh D. Sachdev, M.D., and that the “business relation” was that of “independent contractor.” In opposition to the motion, defendant argued that it properly denied A.B. Medical’s claims on the ground that the medical provider of services was an independent contractor, and that A.B. Medical was not entitled to recover no-fault benefits as a licensed billing provider of those services.

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits . . . directly to the applicant or . . . upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to seek [*2]recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

In the instant action, it is uncontroverted that both A.B. Medical and Dr. Sachdev are licensed providers of health care services, and as such, both may be independently entitled to recover no-fault benefits for medical services they rendered. A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer.

Our decision is consistent with the Insurance Department’s interpretation of the insurance regulations (see informal opinions dated February 21, 2001, February 5, 2002, March 11, 2002, and October 21, 2003; see also Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444 [Civ Ct, Queens County 2004]) which is entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]).

Accordingly, the order of the court is hereby modified by providing that, upon searching the record, summary judgment is awarded defendant dismissing the complaint as to plaintiff A.B. Medical.

Inasmuch as no issue is raised by the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: March 01, 2005

[*1]

Supreme Court, Appellate Term, Second Department, March 1, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Bruno Gerbino & Macchia LLP, Melville, and Rivkin Radler LLP, Uniondale (Evan H. Krinick, Stuart M. Bodoff and Rosemarie Bruno of counsel), for respondent.

{**9 Misc 3d at 74} OPINION OF THE COURT

Memorandum.

On the court’s own motion, the decision and order of this court entered December 8, 2004 in the above-entitled matter is recalled and vacated and the following decision and order is substituted therefor.

Order insofar as appealed from affirmed without costs.

In this action to recover first-party no-fault benefits for medical treatment provided its assignor, plaintiff established its prima facie case for summary judgment “by submitting evidentiary proof that the prescribed statutory billing forms had been . . . received, and that payment of the no-fault benefits was overdue” (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]; see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Defendant’s opposition to the motion failed to rebut plaintiff’s proof of an untimely claim denial, an event that precludes most defenses (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). However, defendant was not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of plaintiff’s claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a[*2]“founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.{**9 Misc 3d at 75}

We note that to the extent that defendant’s opposition to plaintiff’s motion for summary judgment was based on the assignor’s failure to attend examinations under oath (EUOs), it is without merit. Plaintiff submitted its claim on April 3, 2002, two days prior to the effective date of Insurance Regulation 68 which for the first time provided in the mandatory personal injury protection endorsement that an eligible injured person shall submit to EUOs as may reasonably be required (11 NYCRR 65-1.1 [d]). Consequently, under the applicable prior regulations (11 NYCRR 65.12 [e]), defendant had no right to request an EUO (see Kings Med. Supply Inc. v GEICO Ins., 4 Misc 3d 138[A], 2004 NY Slip Op 50904[U] [App Term, 2d & 11th Jud Dists 2004]) and, thus, such request did not toll the 30-day period in which an insurer must act upon a claim or be precluded. Even if the claim had been submitted subsequent to the effective date of the new regulations, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect (see Circular Letter No. 9 [2002])” (S&M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], *2 [App Term, 9th & 10th Jud Dists 2004]). Thus, an insurer may not, in any event, invoke the new regulations as a basis to defend the claim upon an assignor’s failure to comply with its EUO requests where its opposition papers fail to prove that it had issued an endorsement, effective April 5, 2002, that contained the new regulation (see S&M Supply v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2004]).

Patterson and Golia, JJ., concur; Aronin, J.P., taking no part.

[*1]

Civil Court of the City of New York, Kings County, February 28, 2005

APPEARANCES OF COUNSEL

Israel, Israel & Purdy, LLP (Scott H. Fisher of counsel), for plaintiff. Robert P. Tusa (Josephine M. Celano of counsel), for defendant.

OPINION OF THE COURT

Milagros A. Matos, J.

Facts

Plaintiff medical provider Dr. Jacob Nir, assignee of Josapphat Etienne, instituted this action to recover first-party no-fault benefits from defendant insurer Allstate. Dr. Nir, a neurologist, was denied payment by the insurer for diagnostic testing he performed on the patient/insured Josapphat Etienne. The patient was injured in an automobile accident on January 15, 2004. On February 6, 2004, Dr. Nir examined the patient and conducted electromyography and nerve conduction velocity (EMG/NCV) tests that revealed nerve injury in the patient’s lower back.

At the time the services were rendered, the patient Josapphat Etienne was insured under a no-fault insurance policy issued by defendant Allstate. The no-fault benefits were properly assigned to Dr. Nir, who submitted claim forms to Allstate in the amount of $2,227.71 on February 24, 2004. On April 7, 2004, Allstate made a partial payment to Dr. Nir in the amount of $211.85, leaving a balance of $2,015.86. Defendant denied the remaining claims based upon a peer review report stating that the tests were not medically necessary. Before trial the parties stipulated that the only issue for determination by the court was whether the diagnostic testing was medically necessary as defined by Insurance Law § 5102 (a) (1), and thus whether or not defendant properly denied payment of the claim. The court conducted a full trial of this matter on February 7, 2005.

At trial, both sides presented the testimony of a physician. For defendant, the doctor that had authored the peer review report testified that the diagnostic tests were not medically necessary based on his review of Dr. Nir’s medical reports. The peer review doctor did not examine the patient himself. Even though the diagnostic testing resulted in positive findings of neurological damage to the patient’s lower back, the peer review doctor found that the tests, performed three weeks after the accident, were “medically unnecessary.” Specifically, the peer review doctor testified that not enough time had elapsed from the time of the accident to the time [*2]of the testing, and therefore the testing was premature.

Plaintiff’s expert witness testified that the EMG/NCV testing was medically necessary based on his review of Dr. Nir’s medical report and accredited medical publications. He testified that the patient’s symptoms suggested that there was injury to the nerve. The patient presented complaints of persistent “radiating” pain in the cervical and lower back as well as numbness and tingling. The expert witness concluded that the tests were medically necessary to diagnose radiculopathy, or nerve damage. Finally, plaintiff’s witness testified that the timing of the testing was consistent with the generally accepted medical practices set forth by the American Association of Electrodiagnostic Medicine (AAEM) for both EMG and NCV testing.

Discussion

Although there have been no appellate court rulings on the issue, trial courts have consistently held that the insurer bears both the burden of production and the burden of persuasion with respect to medical necessity of the treatment or testing for which payment is sought. (King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 771 [Civ Ct, Kings County 2004] [“(i)t is by now firmly established that the burden is on the insurer to prove that the medical services or supplies in question were medically unnecessary”]; Behavioral Diagnostics v Allstate Ins. Co., 3 Misc 3d 246 [Civ Ct, Kings County 2004]; A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 [App Term, 2d Dept 2003]; see also Karen B. Rothenberg and Jennifer R. Rapaport, No-Fault: The Litigation Epidemic, NYLJ, Jan. 5, 2004, at 4, col 4.) Therefore, once plaintiff has established its prima facie case, defendant must prove that the treating doctor’s services were not medically necessary. As an element of its proof defendant may use a peer review report, which is a medical professional’s written evaluation of the medical necessity of the services provided. In the summary judgment context, defendant may raise triable issues of fact for lack of medical necessity with a peer review report that “set[s] forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection.” (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; S & M Supply v Kemper Auto & Home Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50209[U] [App Term, 2d & 11th Jud Dists 2004].) In other words, “to withstand a motion for summary judgment, a peer review report must set forth a factual basis sufficient to establish, prima facie, the absence of medical necessity.” (Choicenet Chiropractic P.C. v Allstate Ins. Co., 2003 NY Slip Op 50672[U], *1 [App Term, 2d & 11th Jud Dists 2003].)

In the trial context, few decisions elucidate on defendant’s burden of proof, or what evidence may be sufficient to establish that the services were medically unnecessary. At a minimum, defendant must establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services. (See CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608 [Civ Ct, Kings County 2004]; Inwood Hill Med. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U] [Civ Ct 2004] [at trial, the defense that the claim was not medically necessary “must be supported by sufficient factual evidence or proof and cannot simply be conclusory”].) Therefore, if defendant [*3]provides an insufficient factual basis or medical rationale for its peer review report at trial, the court will afford the peer review report minimal weight, and defendant may fail to sustain its burden of proof.

A peer review report’s medical rationale is insufficient if it is unsupported by or controverted by evidence of medical standards. For example, the medical rationale may be insufficient if not supported by evidence of the “generally accepted medical/professional practice.” (CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608, 612 [Civ Ct, Kings County 2004].) “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling.” (CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d at 616, supra.) Alternatively, if the plaintiff offers evidence that its medical services were consistent with generally accepted medical practice, the defendant’s peer review report will be afforded less weight and defendant may fail to sustain its burden of proof at trial. (See Elm Med., P.C. v American Home Assur. Co., 2003 NY Slip Op 51357[U], *12 [Civ Ct 2003] [defendant peer review doctor’s conclusion that the electrodiagnostic testing was not “properly documented” did not contradict plaintiff’s testimony of medical necessity and defendant failed to carry its burden].)

A peer review report’s factual basis may be insufficient if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim. (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004].) For example, a defendant may not establish lack of medical necessity if the only reason for the denial was that the peer review doctor did not have enough information in the claim file upon which a determination could be made. (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 2d Dept 2004].) One court held that a peer review report may be insufficient if the peer review doctor merely reviewed records, rather than examining the insured patient, in preparing the peer review report. (Alliance Med. Off. v Allstate Ins. Co., 196 Misc 2d 268 [Civ Ct, Kings County 2003]; see also Fifth Ave. Pain Control Ctr. v Allstate Ins. Co., 196 Misc 2d 801 [Civ Ct, Queens County 2003].)

In this case, defendant’s doctor recommended denial of plaintiff’s claim because, in his opinion, the diagnostic testing performed by plaintiff Dr. Nir was done prematurely. During testimony the peer review doctor cited only a review of Dr. Nir’s medical reports as the basis for his peer review report. He did not physically examine the patient before writing the peer review report. He cited no medical authority, standard, or generally accepted medical practice as a medical rationale for his findings. Finally, defendant was not able to explain how the tests could be medically unnecessary when the tests did in fact yield positive findings of nerve damage. Such scant factual basis and medical rationale will not sustain defendant’s burden of proof.

Furthermore, defendant’s case was competently rebutted by plaintiff’s expert witness. Defendant could not establish its conclusory medical rationale, that the testing was done [*4]prematurely, in the face of plaintiff’s evidence of the generally accepted medical practice. Plaintiff’s witness testified that the AAEM recommends EMG/NCV testing either “acutely” after or “several weeks” after an accident occurs. On cross-examination, defendant’s peer review doctor agreed that the AAEM is authoritative in the field of electrodiagnostic medicine. The generally accepted medical practice cited by the AAEM was consistent with Dr. Nir’s practice in this case.

Conclusion

Based on the evidence, the court concludes that the testimony and peer review report of defendant’s peer review doctor were insufficient to sustain defendant’s burden of proof on the only issue before this court, lack of medical necessity. Judgment should be entered for the plaintiff in the amount of $2,015.86, plus interest from February 24, 2004 and attorneys’ fees as provided by the insurance regulations, together with the statutory costs and disbursements of this action.