August 7, 2012

Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U))

https://www.beynensonlaw.com/case-law/brownsville-advance-med-p-c-v-kemper-independence-ins-co-2012-ny-slip-op51629u/

Court: Appellate Term, Second Department
Decided: August 7, 2012
Citation: 2012 NY Slip Op 51629(U) · 36 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Brownsville Advance Med., P.C. v Kemper Independence Ins. Co., 36 Misc 3d 146(A), 2012 NY Slip Op 51629(U) (App Term, 2d Dept, 9th & 10th 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 IME report established lack of medical necessity, and the provider offered no opposing sworn evidence from a medical professional. The insurer supported its summary judgment motion with an affirmed IME report supplying a factual basis and medical rationale for the doctor's conclusion. That showing shifted the burden to the provider, which failed to offer medical evidence in opposition. The insurer also established timely mailing of its denial. The Appellate Term, Second Department, reversed the order of the District Court, Nassau County, and granted the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U))

[*1]

Brownsville Advance Med., P.C. v Kemper Independence Ins. Co.

2012 NY Slip Op 51629(U) [36 Misc 3d 146(A)]

Decided on August 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2011-442 N C.

Brownsville Advance Medical, P.C. as Assignee of RHONDA FRANCIS MUNRO, Respondent, —
against
Kemper Independence Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 7, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court denying defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim form, which denied plaintiff’s claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; All County, LLC v Unitrin Advantage Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50621[U] [App Term, 9th & 10th Jud Dists 2011]). In addition, annexed to defendant’s motion papers was an affirmed independent medical examination report that set forth a sufficient [*2]factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services provided (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), which shifted the burden to plaintiff to rebut defendant’s prima facie showing. In opposition to the motion, plaintiff failed to submit an affidavit or affirmation from a medical professional (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]; Total Equip., LLC, 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U]).

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

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: August 07, 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 affirmed IME report set forth a sufficient factual basis and medical rationale, shifting the burden, and the provider submitted no affidavit or affirmation from a medical professional in rebuttal.

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 sufficiently established that its denial of claim form, based on lack of medical necessity, had been timely mailed.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U)) FollowedThe insurer's chiropractor's affidavit and IME report established lack of medical necessity for the equipment, and the motion was unopposed.
All County, LLC v Unitrin Advantage Ins. Co. (2011 NY Slip Op 50621(U)) FollowedAn insurer's request for an IME is not subject to the objective justification requirement applicable to EUO requests.
Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U)) FollowedThe insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion.
B.Y., M.D., P.C. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50144(U)) FollowedThe providers' treating doctor's affirmation failed to rebut the insurer's peer review and IME evidence of lack of medical necessity.
Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50155(U)) FollowedThe insurer's affirmed IME report established lack of medical necessity for the supplies, and the provider failed to rebut that showing.

Similar decisions

Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U))The insurer established lack of medical necessity through an affirmed peer review report that the provider did not rebut with medical evidence.
Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.
Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co. (2008 NY Slip Op 51928(U))The insurer's unsigned peer-review report was inadmissible and failed to raise a triable issue on medical necessity.
South Nassau Community Hosp. v Kemper Independence Ins. Co. (2013 NY Slip Op 51384(U))The insurer's affidavits established timely mailing of IME scheduling letters and the assignor's nonappearance for the scheduled IMEs. The scheduling entity's owner described standard mailing practices, and the examining chiropractor attested to nonappearance.
Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co. (2012 NY Slip Op 51713(U))The insurer's sworn IME report established lack of medical necessity, and the provider did not rebut the insurer's prima facie showing.