March 18, 2016

Friedman v Allstate Ins. Co. (2016 NY Slip Op 50390(U))

https://www.beynensonlaw.com/case-law/friedman-v-allstate-ins-co-2016-ny-slip-op-50390u/

Court: Appellate Term, Second Department
Decided: March 18, 2016
Citation: 2016 NY Slip Op 50390(U)
Posture: Trial
Outcome: Provider prevailed
Issues: Medical necessity Priority, other coverage
Legal questions: Lack of medical necessity · Workers' comp or other insurer primary (see the maps)

Cite as

Friedman v Allstate Ins. Co., 2016 NY Slip Op 50390(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 proved by a preponderance of the credible evidence that the disputed acupuncture treatments were medically necessary. At a nonjury trial, the insurer's IME examiner testified that the assignor's injuries had resolved and further acupuncture was unnecessary. The treating provider testified that the injuries persisted after the IME and that work as a parking valet exacerbated them and impeded treatment. After the insurer showed lack of medical necessity, the provider met its burden of proving necessity. The insurer was also precluded from asserting possible workers' compensation eligibility because its denials relied solely on the IME. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits.

Reported in New York Official Reports at Friedman v Allstate Ins. Co. (2016 NY Slip Op 50390(U))

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

Paul Friedman, L.Ac., LMT, as Assignee of ANTHONY SOLURI, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 30, 2014. The judgment, entered upon a decision of the same court dated December 31, 2012, after a nonjury trial, awarded plaintiff the principal sum of $2,160.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated December 31, 2012 is deemed a premature notice of appeal from the judgment entered April 30, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits for acupuncture services rendered to its assignor, the sole issue was the medical necessity of acupuncture treatments rendered by plaintiff to its assignor during the spring of 2008. Defendant’s expert medical witness, Dr. Chiu, who had performed an independent medical examination (IME) of plaintiff’s assignor on July 17, 2007, testified that, at the time of the IME, the assignor’s injuries had resolved and that there was no further need for acupuncture treatment. Dr. Friedman, who had commenced treatment of the assignor in June 2007, testified that he was of the opinion that the assignor’s injuries had not resolved at the time of the IME and that further acupuncture treatment was necessary. He had examined and treated the assignor after the IME had been conducted and had concluded that the assignor’s condition was sometimes better and sometimes worse, but that the assignor still often suffered from pain arising from his injuries. It was his opinion that the assignor’s injuries were caused by the accident, but that the injuries were exacerbated by the nature of his job as a parking valet, which “impeded . . . the progress of the treatment.” In a decision after trial, from which defendant appeals, the Civil Court concluded that the acupuncture services in question were medically necessary. A judgment in favor of plaintiff was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is undisputed that defendant denied plaintiff’s claims solely on the basis of Dr. Chui’s IME, which concluded that the services rendered were not medically necessary, and not on the basis of the assignor’s possible eligibility for workers’ compensation benefits, which is a defense subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]). Since defendant did not deny plaintiff’s claims based upon the assignor’s possible eligibility for workers’ compensation benefits, defendant is precluded from raising that defense.

With respect to defendant’s contention that it demonstrated at trial that the acupuncture services in question lacked medical necessity, we find that, after defendant made its showing that the services in question were not medically necessary, plaintiff met its burden of demonstrating, by a preponderance of the credible evidence, that the services at issue were, in fact, medically necessary (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). There is, therefore, no basis to disturb the Civil Court’s determination in favor of plaintiff.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: March 18, 2016

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held that after the insurer's IME doctor testified the injuries had resolved, the treating acupuncturist's testimony that injuries persisted proved by a preponderance that the post-IME acupuncture was medically necessary, so judgment for the provider was affirmed.

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, 94 (this one included) are in the same category.

Workers' comp or other insurer primary

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Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: The insurer may not rely on workers' compensation because it did not raise it in time

Held the insurer precluded from asserting the assignor's possible WC eligibility because that defense is subject to preclusion and the insurer had denied the claims only for lack of medical necessity.

Referred to WC BoardWC primary: claim failsWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decisionCites it or cited by itCited or followed

Of the 69 decisions on this question in the Second Department courts and the Court of Appeals, 10 (this one included) are in the same category.

Cited in this decision

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

Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.

Cited by

Madison Prods. of USA, Inc. v American Tr. Ins. Co. (2020 NY Slip Op 50749(U))A workers' compensation defense is precluded by an untimely denial, requiring a threshold timeliness determination before a stay.

Similar decisions

Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361)An insurer's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty.
Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 50119(U))The insurer established full payment under the workers' compensation fee schedules and lack of medical necessity for later acupuncture services.
Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50706(U))The insurer lacked expert fee-schedule proof, and the provider's treating acupuncturist raised a factual issue on medical necessity.
Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment.