All County, LLC v Tri-State Consumer Ins. Co. (2012 NY Slip Op 50119(U))

District Court of Nassau County, First District

CV-013190-10

Friedman, Harfenist, Kraut & Perlstein, LLP

Verrill & Goodstein, Esqs.

Fred J. Hirsh, J.

Defendant moves for summary judgment in this action for first party no-fault benefits.

BACKGROUND

Lawrence Wilkes (“Wilkes”) sustained injuries in a motor vehicle accident that occurred on June 18, 2009.

Tri-State Consumer Insurance Company (“Tri-State”) was the insurance carrier that provided Wilkes with no-fault benefits for injuries sustained as a result of the accident.

All County, LLC (“All County”) performed a thoracic MRI of Wilkes on September 17, 2009. Wilkes assigned his rights to no-fault benefits to All County. All County submitted a No Fault Assignment of Benefits form, an NF-3 and a bill dated September 22, 2009 to Tri-State for payment.

Tri-State acknowledged receipt of the bill on September 25, 2009.

Tri-State issued an NF-10 dated September 29, 2009 denying payment of the claim for the thoracic MRI in full on the grounds all no-fault benefits for orthopedic treatment or testing had been denied effective September 13, 2009 based upon an Independent [*2]Medical Examination (“IME”) conducted by Kenneth Falvo, M.D. on August 18, 2009.

Tri-State does not state whether a copy of the denial of all claims for orthopedic testing or treatment subsequent to September 13, 2009 was provided to Wilkes or if so, when and how such notice was given.

The doctor who ordered the thoracic MRI is not known since a copy of the prescription or referral for the thoracic MRI and/or the MRI report is not contained in the record.^[FN1] The date the MRI was ordered is not stated because the prescription for the test is not contained in the record.

Dr. Falvo’s IME report reflects Wiles chief complaints pain in the neck, back, right knee an both hands. Dr. Falvo’s IME report states Wilkes had been examined by Dr. Goldstein an orthopedist, Dr. Liguori a neurologist, Dr. Stein, a psychologist and Dr. Mondshine a dentist for treatment of TMJ. The report states Wilkes is receiving acupuncture and chiropractic treatment 3 to 4 times a week. The IME report does not state from whom Wilkes was receiving chiropractic or acupuncture treatments.

The IME report reflects Dr. Falvo had received and reviewed a neuro-psychological evaluation and test report prepared by Dr. Stein dated July 3, 2009, a dental evaluation report of Dr. Mondshine dated July 16, 2009 and neurological evaluation report of Dr. Liguori dated June 26, 2009. Even though Dr. Falvo’s IME report reflects Wilkes was examined by Dr. Goldstein on the date of the accident, Dr. Falvo did not receive or review any reports or records from Dr. Goldstein. Dr. Falvo also did not receive or review any reports or records for the chiropractic or acupuncture treatment Wilkes was receiving.

Dr. Falvo examination revealed Wilkes had restriction of motion of the lumbar spine in all planes.

Dr. Falvo makes a diagnosis of cervical sprain, resolved, lumbar sprain resolved, contusion of the right knee, resolved and contusion carpometacarpal joints of both hands, healed. Dr. Falvo’s attributes Wilkes signs and symptoms in part to the June 18, 2009 motor vehicle accident. He attributes the low back injuries and conditions in part to Wilkes longstanding, symptomatic law back condition for which Wilkes was receiving treatment at the time of the June 18, 2009 motor vehicle accident.^[FN2]

The IME report does not state Dr. Falvo examined Wilkes thoracic spine. The report does not contain any mention of an orthopedic or neurological examination of the thoracic spine. The IME report discusses and evaluates Wilkes injuries and complaints relating to his cervical spine, his arms and wrists, his low back and his knees. The IME report does not make mention of the thoracic spine.

The court must start its analysis of this motion as it does with all no-fault claims that [*3]a timely submitted claim creates a presumption of medical necessity. Globe Surgical Supply v. Geico Ins. Co., 59 AD3d 129 (2nd Dept. 2008); Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004); and All County Open MRI & Diagnostic Radiology. P.C. v. Travelers Ins. Co., 11 Misc 3d 131(a) (App.Term 9th & 10th Jud. Dists. 2006). All County submitted the claim for the thoracic MRI within five days of the performance of the MRI which is well within 45 days required by the no-fault regulations. 11 NYCRR 65-1.1. Defendant’s denial admits receipt of the claim on September 25, 2009, 8 days after the thoracic MRI was performed. Therefore, the claim is timely submitted thus creating a presumption the thoracic MRI was medically necessary.

Since the claim was timely submitted, the burden shifted to the defendant to rebut the presumption of medical necessity. A.B. Medical Services PLLC v. Utica Mut. Ins. Co., 10 Misc 3d 50 (App.Term 2nd & 11th Jud. Dists. 2005); and AP Orthopedics & Rehabilitation, P.C. v. Allstate Ins. Co., 27 Misc 3d 1098 (Civil Ct. Richmond Co. 2010).

Medical treatment or testing is not medically necessary if the treatment or testing is not in accordance with general accepted medical practices. Nir v. Allstate Ins. Co., 7 Misc 3d 544 (Civil Ct. Kings Co. 2005). Treatment or testing is medically necessary if a reasonably prudent doctor exercising his or her best judgment under the circumstances and in accordance with the standard of care in that community would have provided the treatment or performed or ordered the test. Nestorowich v. Ricotta, 97 NY2d 393 (2002). To determine whether a reasonably prudent doctor exercising his or her best judgment would have ordered a thoracic MRI, the court must consider factors such as who ordered the test, when was the test ordered, what were the patient’s complaints and symptoms when the test was ordered, what treatment was the patient receiving, how was the patient responding to that treatment, how much time had elapsed between the time the injury or condition was diagnosed and the time the test was ordered, what was the diagnosis made by the medical provider who ordered the test, was the test needed for diagnosis and/or to determine appropriate treatment and/or would the results of the test change or affected treatment.

To establish treatment or testing is not medically necessary, the defendant must establish a factual basis and medical rationale for its determination the treatment or testing was not medically necessary. Biobalance Medical, P.C. v. Clarendon National Ins. Co., 34 Misc 3d 134(A) (App Term, 2nd, 11th & 1th Jud. Dists. 2011); and Right Aid Diagnostic Medicine, P.C. v. Geico Ins. Co., 34 Misc 3d 133(A) (App.Term, 2nd, 11th & 13th Jud. Dists.).

In this case, defendant has not offered any factual or medical basis for its conclusion the thoracic MRI was not medically necessary. Dr. Falvo’s IME report does not indicate he examined the thoracic spine. His IME report relates to the cervical and lumbar spine, the right knee and the carpometacarpal joints of both hands.

Dr. Falvo’s IME report reflects Wilkes had been examined and was under the care of an orthopedist, a neurologist and a chiropractor. Dr. Falvo’s report does not indicate who ordered the thoracic MRI. Dr. Falvo’s report does not indicate he was aware a thoracic MRI had been ordered. Dr. Falvo’s IME report indicates Wilkes does not need any additional treatment or testing from the viewpoint of an orthopedist for injuries to the cervical and lumbar spine, wrists and knee. The IME report does not state treatment is not needed for injuries to the thoracic spine. [*4]

Dr. Falvo is a board certified orthopedist. He is not a neurologist or a chiropractor. The denial indicates no-fault benefits for orthopedic diagnostic testing had been denied as of September 13, 2009 based upon the IME of Dr. Falvo. However, the IME and denial does not indicate no-fault benefits were being denied for neurological or chiropractic evaluation, treatment and/or testing. The papers before the court do not state who ordered the thoracic MRI. Dr. Falvo’s IME report would not be sufficient to establish the thoracic MRI was not medically necessary is the MRI was ordered by either the neurologist or the chiropractor. See, Shectman v. Wilson. 68 AD3d 848 (2nd Dept. 2009); and Geffner v. North Shore University Hosp., 57 AD3d 838 (2nd Dept. 2009).

Dr. Falvo’s IME report does not state the thoracic MRI was not medically necessary when it was ordered. As noted previously, the IME report does not indicate who ordered the MRI or when the MRI was ordered. Ordinarily, a period of time passes from the date an MRI is ordered and the MRI is performed. A diagnostic radiology facility should not have its claim summarily dismissed if the MRI was ordered prior to the effective date of the denial.

An insurer may not simply deny payment of a timely submitted no-fault claim based upon a “IME cut-off”. In order to obtain summary judgment based upon on IME cut-off, the IME report must present a factual basis and a medical rationale establishing the treatment provided and/or the testing performed was not medically necessary. Amato v. State Farm Ins. Co., 30 Misc 3d 238 (District Ct. Nassau Co., 2010).

In order to obtain summary judgment, the party moving for summary judgment must establish a prima facie entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); and Zuckerman v. City of New York 49 NY2d 557 (1980).

When deciding a motion for summary judgment, the court’s function is to determine if triable issues of fact exist. Matter of Suffolk County Dept. of Social Services v. James M. 83 NY2d 178 (1994); and Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). Summary judgment should be denied is the court has any doubt regarding the existence of triable issues of fact. Freese v. Schwartz, 203 AD2d 513 (2nd Dept. 1994); and Miceli v. Purex Corp., 84 AD2d 562 (2nd Dept. 1984)

If the party moving for summary judgment fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied. Cendant Car Rental Group v. Liberty Mut. Ins. Co., 48 AD3d 397 (2nd Dept. 2008); Widmaier v. Master Products, Mfg, 9 AD3d 362 (2nd Dept., 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept., 1999).

Defendant has failed to make a prima facie showing of entitlement to judgment as a matter of law. Questions of fact exist relating to who ordered the MRI, when was the MRI ordered and the condition of Wilkes thoracic spine that resulted in the ordering of the thoracic MRI.

For the foregoing reasons, defendant’s motion for summary judgment is denied.

SO ORDERED:

Hon. Fred J. Hirsh [*5]

District Court Judge

Dated: January 23, 2012

Footnotes

Footnote 1:The name of the medical provider who ordered the MRI can generally be determined by reviewing the MRI report because the report is generally addressed to the medical provider who ordered the MRI.

Footnote 2:The IME notes Wilkes is on Social Security Disability. The report notes Wilkes had a lumbar laminectomy in 1997. The IME report states Wilkes is evaluated by Dr. Goldstein every six months regarding his disability status.