February 9, 2009

AJS Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 50208(U))

https://www.beynensonlaw.com/case-law/ajs-chiropractic-p-c-v-mercury-ins-co-2009-ny-slip-op-50208u/

Court: Appellate Term, Second Department
Decided: February 9, 2009
Citation: 2009 NY Slip Op 50208(U) · 22 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

AJS Chiropractic, P.C. v Mercury Ins. Co., 22 Misc 3d 133(A), 2009 NY Slip Op 50208(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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's chiropractic IME report and supporting affidavit established lack of medical necessity, and the provider offered no rebuttal evidence. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint. The Civil Court had apparently treated the examination report as inadmissible despite the chiropractor's accompanying affidavit. The appellate court found that the report and affidavit together supplied a factual basis and medical rationale for the opinion that the services were unnecessary. The insurer also established timely mailing of its denials through its standard office practices and procedures. With that showing unrefuted, the insurer was entitled to dismissal.

Reported in New York Official Reports at AJS Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 50208(U))

[*1]

AJS Chiropractic, P.C. v Mercury Ins. Co.

2009 NY Slip Op 50208(U) [22 Misc 3d 133(A)]

Decided on February 9, 2009

Appellate Term, Second Department

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

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on February 9, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and STEINHARDT, JJ
2008-401 Q C.

AJS Chiropractic, P.C. as assignee of JONATHAN CORDERO, Respondent,
against
Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 5, 2007. The order denied defendant’s motion for summary judgment.

Order reversed without costs and defendant’s motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services allegedly rendered to plaintiff’s assignor lacked medical necessity. Although the Civil Court found that defendant had timely denied the claims, the court denied defendant’s motion, apparently on the ground that the independent chiropractic examination report, upon which defendant had based its denials, was not in admissible form, notwithstanding the accompanying affidavit executed by the chiropractor. This appeal by defendant ensued.

Defendant demonstrated that it had timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant’s independent chiropractic examination report, together with the affidavit of the chiropractor, provided a factual basis and medical rationale for the chiropractor’s [*2]opinion that the services rendered were not medically necessary (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff failed to present any evidence to refute that showing, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; A. KhodadadiRadiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 09, 2009

Legal questions (2)

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

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

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the chiropractic IME report with the chiropractor's affidavit was admissible and gave a factual basis and medical rationale, and the provider offered no evidence to refute it, so the complaint 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, 315 (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 the denials through its standard office practice designed to ensure items are properly addressed and mailed; the dispute centered on the IME report.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Delta Diagnostic Radiology, P.C. v Progressive Casualty Insurance Company (2008 NY Slip Op 52450(U))The insurer's peer review reports and chiropractor's affidavit established that two MRIs were not medically necessary.
Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co. (2008 NY Slip Op 51761(U))The insurer proved two claims medically unnecessary but failed to establish the assignor's EUO nonappearance on the remaining claim.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Cited by

A label shows how the later decision treated this one.

Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U)) FollowedThe insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.

Similar decisions

AJS Chiropractic, P.C. v Travelers Ins. Co. (2009 NY Slip Op 52446(U))The insurer's unrebutted chiropractic peer review established lack of medical necessity for the provider's first cause of action.
Co-Op City Chiropractic, P.C. v Mercury Ins. Group (2010 NY Slip Op 50452(U))The provider's treating chiropractor's affidavit raised a triable issue of fact concerning the medical necessity of the services.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U))The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U))The provider's supervising acupuncturist failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.
Mutual Care Med. Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 51734(U))The insurer's peer-review evidence established lack of medical necessity, and the provider failed to submit a meaningful medical rebuttal.