July 21, 2017

Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co. (2017 NY Slip Op 50937(U))

https://www.beynensonlaw.com/case-law/orlin-cohen-orthopedic-assoc-v-allstate-ins-co-2017-ny-slip-op50937u/

Court: Appellate Term, Second Department
Decided: July 21, 2017
Citation: 2017 NY Slip Op 50937(U)
Posture: Trial
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Trial and evidence
Legal questions: Lack of medical necessity (see the maps)

Cite as

Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co., 2017 NY Slip Op 50937(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 failed to prove that spinal surgery was medically necessary after the insurer rebutted the presumption of necessity. At a nonjury trial, the insurer presented the orthopedist who prepared its peer review, who testified that the surgery was not causally related to the accident. The provider cross-examined that witness but offered no rebuttal witnesses. Giving substantial deference to the trial court's credibility assessment, the Appellate Term, Second Department, found that the provider had not met its ultimate burden of proving medical necessity by a preponderance of the evidence. It affirmed the judgment insofar as appealed from, dismissing the spinal-surgery claim.

Reported in New York Official Reports at Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co. (2017 NY Slip Op 50937(U))

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

Orlin & Cohen Orthopedic Assoc., as Assignee of Kenneth Bader, Appellant,
against
Allstate Insurance Company, Respondent.

Law Offices of Mandell and Santora, (Eitan Nof, Esq.), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 12, 2014. The judgment, entered upon a decision of the same court dated February 7, 2014, insofar as appealed from, after a nonjury trial, in effect, dismissed so much of the complaint as sought to recover upon a claim in the sum of $12,862.87.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 7, 2014 is deemed a premature notice of appeal from the judgment entered March 12, 2014 (see CPLR 5520 [c]); and it is further,

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

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for a directed verdict upon a claim dated November 3, 2007 was granted and the trial proceeded with respect to the medical necessity of a claim seeking the sum of $12,862.87 for spinal surgery. Defendant’s witness was the orthopedist who had prepared the peer review report upon which defendant relied when it denied plaintiff’s claim. Although plaintiff’s counsel cross-examined defendant’s witness, plaintiff did not call any witnesses to rebut defendant’s doctor’s testimony that the surgery was not medically necessary because it was not causally related to the accident in question. The Civil Court awarded plaintiff the principal sum of $1,376.32 upon the November 3, 2007 claim, and found in favor of defendant and dismissed the complaint insofar as it sought to recover upon the claim for spinal surgery. Plaintiff appeals from so much of the judgment as, in effect, dismissed so much of the complaint as sought to recover upon the claim in the sum of $12,862.87.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, [*2]bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

The record supports the determination of the Civil Court, which was based upon its assessment of the credibility of defendant’s witness. Since defendant sufficiently rebutted the presumption of medical necessity and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the spinal surgery was medically necessary, we find no basis to disturb the Civil Court’s finding with respect thereto (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017

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

Upheld dismissal of the spinal surgery claim because the credited peer reviewer's testimony that the surgery was not medically necessary, being unrelated to the accident, rebutted the presumption and the provider called no witnesses.

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.

Cited in this decision

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

Dayan v Allstate Ins. Co. (2015 NY Slip Op 51751(U)) FollowedA provider bears the ultimate burden of proving medical necessity after the insurer rebuts the claim form's presumption at trial.

Cited by

A label shows how the later decision treated this one.

Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U)) FollowedThe insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary.

Similar decisions

Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51656(U))The insurer failed at trial to prove lack of medical necessity, and the record supported the provider's recovery on the third cause of action.
Advanced Orthopedics, PLLC v GEICO (2019 NY Slip Op 50500(U))The insurer's medical-necessity defense was sustained based on the trial court's supported assessment of the experts' credibility.
Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))An insurer bears the initial burden at trial of rebutting the presumption of medical necessity that attaches to a claim form.
Greater NY Med. Care, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51849(U))The provider's trial judgment was reversed because it contradicted findings that the insurer proved lack of medical necessity without rebuttal.
Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))The parties' conflicting medical expert opinions raised a triable issue of fact concerning medical necessity.