July 28, 2014

Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co. (2014 NY Slip Op 51233(U))

https://www.beynensonlaw.com/case-law/optimal-well-being-chiropractic-p-c-v-utica-mut-ins-co-2014-ny-slipop-51233u/

Court: Appellate Term, Second Department
Decided: July 28, 2014
Citation: 2014 NY Slip Op 51233(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show Timeliness and preclusion Medical necessity
Legal questions: No-show: coverage defense or precludable? · Lack of medical necessity (see the maps)

Cite as

Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co., 2014 NY Slip Op 51233(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 insurer failed to establish that its IME nonappearance and services-not-rendered defenses were free from preclusion. Seeking summary judgment dismissing the provider's assigned no-fault claims, the insurer asserted that the assignor missed IMEs and swore that the claimed treatment had never been received. Following Fair Price Med. Supply Corp. v Travelers Indem. Co., the Appellate Term, Second Department, found neither ground warranted summary judgment; review of the record also did not support dismissal for lack of medical necessity. It affirmed the order, insofar as appealed from, denying the insurer's cross motion. The court noted that 11 NYCRR 65-3.8 (g) removes preclusion for the services-not-provided defense for treatment rendered after April 1, 2013.

Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co. (2014 NY Slip Op 51233(U))

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

Optimal Well-being Chiropractic, P.C. as Assignee of ALVIN BOHONNE, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered January 3, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied defendant’s cross motion for summary judgment dismissing the complaint.

While defendant sought summary judgment on the grounds that plaintiff’s assignor had failed to appear for independent medical examinations and that plaintiff was seeking to recover for treatment which the assignor swore he never received, defendant failed to establish that such defenses are not precluded.^[FN1] As result, contrary to defendant’s contention on appeal, the record does not demonstrate that defendant is entitled to summary judgment dismissing the complaint on either of these grounds (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2d Dept 2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). To the extent that defendant also sought summary judgment on the ground of lack of medical necessity, we find, upon a review of the record, that defendant is also not entitled to summary judgment on that ground.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: July 28, 2014

Footnotes

Footnote 1: We note that if the treatment at issue had been rendered after April 1, 2013, pursuant to the revised Insurance Department Regulations, the defense that the services were not provided would not be subject to preclusion (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [g] [eff Apr. 1, 2013]).

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer not entitled to summary judgment on its IME no-show defense because it failed to establish that the defense was not precluded, treating it as subject to the timely-denial rule.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited) (rules on the question, but another ground decided the case)

Held on review of the record that the insurer was not entitled to summary judgment on lack of medical necessity.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Cited in this decision

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

Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.

Similar decisions

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U))The insurer failed to prove the provider's EUO nonappearances through someone with personal knowledge.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.
Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co. (2014 NY Slip Op 51807(U))The provider's evidentiary preclusion did not warrant dismissal because the insurer's denials admitted receipt of the bills.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51325(U))The insurer established proper mailing of IME scheduling letters and denial forms, as well as the assignor's nonappearance.