May 11, 2012

BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))

https://www.beynensonlaw.com/case-law/blr-chiropractic-p-c-v-american-tr-ins-co-2012-ny-slip-op50882u/

Court: Appellate Term, Second Department
Decided: May 11, 2012
Citation: 2012 NY Slip Op 50882(U) · 35 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

BLR Chiropractic, P.C. v American Tr. Ins. Co., 35 Misc 3d 141(A), 2012 NY Slip Op 50882(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut. The Appellate Term, Second Department, reversed the order denying the insurer's cross motion and granted summary judgment dismissing the complaint. The provider had withdrawn its own summary judgment motion. The insurer's affidavits established timely denial, and its peer review report supplied a factual basis and medical rationale for finding the services unnecessary. Contrary to the Civil Court's finding, the copy of the report together with the reviewing chiropractor's affidavit established the defense prima facie. The burden therefore shifted to the provider, which failed to rebut that showing.

Reported in New York Official Reports at BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))

[*1]

BLR Chiropractic, P.C. v American Tr. Ins. Co.

2012 NY Slip Op 50882(U) [35 Misc 3d 141(A)]

Decided on May 11, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 11, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2011-68 K C.

BLR Chiropractic, P.C. as Assignee of JOSE RAMIREZ, Respondent, —
against
American Transit Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 16, 2010. The order denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff’s motion was withdrawn, and defendant’s cross motion was denied.

The affidavits submitted by defendant were sufficient to establish that defendant had timely denied plaintiff’s claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb
Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. Defendant also submitted a peer review report, which set forth the factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue, as well as an affidavit executed by the chiropractor who had performed the peer review. Contrary to the Civil Court’s finding and plaintiff’s argument on [*2]appeal, the annexed copy of the peer review report and the accompanying affidavit established, prima facie, a lack of medical necessity for the services at issue. Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), but plaintiff failed to do so.

Accordingly, the order is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 11, 2012

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

Open the full map

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 peer review report and the reviewing chiropractor's affidavit established prima facie a lack of medical necessity, shifting the burden to the provider, which failed to rebut it, so the insurer's cross motion was granted.

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's affidavits sufficient to establish that it timely denied the claim on the ground of lack of medical necessity.

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

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U)) FollowedThe insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.

Cited by

American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.
A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.

Similar decisions

American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U))The provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.
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.
Bay Plaza Chiropractic, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52315(U))The provider's chiropractor affidavit raised a triable issue of medical necessity despite the insurer's supported peer review.
Baybenson Chiropractic, LLC v Clarendon Natl. Ins. (2013 NY Slip Op 50756(U))The provider's chiropractor failed to rebut the insurer's peer review and IME findings that the chiropractic services were unnecessary.
Biobalance Med., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52378(U))The insurer established lack of medical necessity through a supported peer review report that the provider failed to rebut.