November 29, 2018

Forest Drugs v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51708(U))

https://www.beynensonlaw.com/case-law/forest-drugs-v-global-liberty-ins-co-of-n-y-2018-ny-slip-op-51708u/

Court: Appellate Term, First Department
Decided: November 29, 2018
Citation: 2018 NY Slip Op 51708(U) · 61 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Forest Drugs v Global Liberty Ins. Co. of N.Y., 61 Misc 3d 147(A), 2018 NY Slip Op 51708(U) (App Term, 1st Dept 2018)

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 provider's medical affirmation and the assignor's subjective pain complaints failed to rebut the insurer's IME findings. The insurer established timely denials supported by an affirmed orthopedic IME report supplying a factual basis and medical rationale that the injuries had resolved and further treatment was unnecessary. The opposing medical affirmation was not based on an examination of the assignor and did not meaningfully address the examining physician's findings. Subjective pain complaints did not overcome the report's objective tests. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion in its entirety, and dismissed the complaint.

Reported in New York Official Reports at Forest Drugs v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51708(U))

[*1]

Forest Drugs v Global Liberty Ins. Co. of N.Y.

2018 NY Slip Op 51708(U) [61 Misc 3d 147(A)]

Decided on November 29, 2018

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570131/18

Forest Drugs a/a/o Uddin Kamar, Plaintiff-Respondent,
against
Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant appeals from so much of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered December 18, 2017, that denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered December 18, 2017, insofar as appealed from, reversed, with $10 costs, motion granted in its entirety, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on an affirmed independent examination report [IME] of its examining orthopedist, which set forth a factual basis and medical rationale for his stated conclusion that the assignor’s injuries were resolved and that there was no need for further treatment (see Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of NY, 61 Misc 3d 128[A], 2018 NY Slip Op 51358[U] [App Term, 1st Dept 2018]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]).

In opposition, the medical affirmation submitted by plaintiff failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining physician (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 29, 2018

Legal questions

A question 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 showing resolved injuries established lack of need for further treatment, and the provider's medical affirmation, not based on an examination and not meaningfully rebutting the IME findings, raised no triable issue.

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 71 decisions on this question in the First Department courts and the Court of Appeals, 28 (this one included) are in the same category.

Cited in this decision

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

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U)) FollowedThe insurer's IME report established that further acupuncture treatment was not medically necessary.
Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50900(U)) FollowedThe physical therapy provider failed to rebut the insurer's IME findings that the assignor's injuries had resolved and further treatment was unnecessary.

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.
Jamaica Chiropractic PT PLLC v MVAIC (2024 NY Slip Op 50614(U))MVAIC's IME report established lack of medical necessity, and the provider's opposition supplied no competent medical proof.

Similar decisions

Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))The insurer's contradictory submissions raised factual issues about timely and proper fee-schedule denials.
21st Century Pharm., Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51377(U))The insurer established timely mailing of IME scheduling letters and the assignor's failure to appear for the duly scheduled examinations.
Omega 18 Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50235(U))The insurer's affirmed peer review established that the prescribed medical supplies were unnecessary or redundant.
Sufficient Chiropractic Care, P.C. v Global Liberty Ins. Co. (2021 NY Slip Op 50959(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability on the policy.
Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))The insurer established proper mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.