March 11, 2014

Martin Plutno v Travelers Ins. Co. (2014 NY Slip Op 50412(U))

https://www.beynensonlaw.com/case-law/martin-plutno-v-travelers-ins-co-2014-ny-slip-op-50412u/

Court: Appellate Term, Second Department
Decided: March 11, 2014
Citation: 2014 NY Slip Op 50412(U) · 42 Misc 3d 150(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Fee schedule Timeliness and preclusion
Legal questions: Lack of medical necessity · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Martin Plutno v Travelers Ins. Co., 42 Misc 3d 150(A), 2014 NY Slip Op 50412(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 raised a factual issue on medical necessity but failed to rebut the insurer's fee-schedule defense to one claim. The insurer's affidavits established timely denials, and its employee showed that the unpaid balance of one partially paid claim exceeded the workers' compensation fee schedule. A sworn statement from the chiropractor who performed the IME supplied a factual basis and medical rationale for denying further treatment. In opposition, the treating chiropractor's sworn medical-necessity letter raised a triable issue concerning the remaining claims, but the provider raised no factual issue on the fee-schedule reduction. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment only on the unpaid portion of the partially paid claim.

Reported in New York Official Reports at Martin Plutno v Travelers Ins. Co. (2014 NY Slip Op 50412(U))

[*1]

Martin Plutno v Travelers Ins. Co.

2014 NY Slip Op 50412(U) [42 Misc 3d 150(A)]

Decided on March 11, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-130 Q C.

Martin Plutno, D.C. as Assignee of DONNA BARONE, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 15, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 through August 25, 2007; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment.

Contrary to plaintiff’s contention, the affidavits submitted in support of defendant’s motion for summary judgment were sufficient to establish that defendant had timely denied (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]) plaintiff’s claims either pursuant to the workers’ compensation fee schedule or on the ground of lack of medical necessity. The affidavit submitted by defendant’s employee established that, as to plaintiff’s claim for dates of service August 3, 2007 through August 25, 2007 seeking the sum of $235.90, defendant had paid $134.80 thereof and had denied the remaining $101.10 on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers’ compensation fee schedule. With respect to plaintiff’s remaining claims, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for further treatment. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint.

In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact with regard to the unpaid portion of the claim for dates of service August 3, 2007— August 25, 2007. Thus, defendant is entitled to summary judgment with respect thereto. However, plaintiff did submit, among other things, a letter of medical necessity sworn to by plaintiff’s treating chiropractor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see Zuckerman v City of New York, 49 NY2d 557 [1980] Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Dists 2010]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 [*2]through August 25, 2007.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

Legal questions (3)

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 the chiropractor's sworn IME statement made a prima facie showing, but the treating chiropractor's sworn letter of medical necessity raised a triable issue of fact.

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 612 decisions on this question in the Second Department courts and the Court of Appeals, 95 (this one included) are in the same category.

Proving a fee schedule defense

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer proved the billed amount exceeded the applicable fee schedule

Held the insurer's employee affidavit established that it paid part of the claim and denied the remaining $101.10 as exceeding the fee schedule, and the provider raised no triable issue, so that portion was dismissed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 147 (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)

Rejected the provider's challenge and held the insurer's affidavits sufficient to establish timely denial of the claims on fee schedule and medical-necessity grounds.

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 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (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.
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U)) FollowedThe insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.

Similar decisions

Triumph Assoc. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50875(U))The insurer proved its fee-schedule reductions, but the treating doctor's findings raised a factual issue on the remaining claims' necessity.
Innovative Chiropractic, P.C. v Travelers Ins. Co. (2009 NY Slip Op 52447(U))The treating chiropractor's conclusory affidavit failed to rebut the insurer's peer review on the provider's fifth cause of action.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U))Peer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))The insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue.
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.