February 11, 2013

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 50199(U))

https://www.beynensonlaw.com/case-law/viviane-etienne-med-care-p-c-v-country-wide-ins-co-2013-ny-slip-op50199u/

Court: Appellate Term, Second Department
Decided: February 11, 2013
Citation: 2013 NY Slip Op 50199(U) · 38 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Fee schedule Verification requests
Legal questions: Proof of mailing · Lack of medical necessity · Outstanding verification and premature actions · Proving a fee schedule defense (see the maps)

Cite as

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 38 Misc 3d 139(A), 2013 NY Slip Op 50199(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 timely denial of one claim or its fee schedule defense to another, requiring denial of dismissal as to both. The insurer's affidavit was silent about the first claim, and its proof did not conclusively establish excessive fees on the second. Dismissal remained warranted for other claims: an unrebutted sworn IME report established lack of medical necessity, and unanswered verification requests made three claims premature under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the judgment, vacated dismissal of the claim lacking timely-denial proof and the fee schedule claim, denied the corresponding cross-motion branches, and remitted for further proceedings. The provider's summary judgment motion remained denied, and dismissal of the other claims remained intact.

Reported in New York Official Reports at Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 50199(U))

[*1]

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.

2013 NY Slip Op 50199(U) [38 Misc 3d 139(A)]

Decided on February 11, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-38 K C.

Viviane Etienne Medical Care, P.C. as Assignee of ABRAHAM CAMEAU, Appellant, —
against
Country-Wide Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jacqueline D. Williams, J.), entered May 4, 2010, deemed from a judgment of the same court entered December 7, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 4, 2010 order denying plaintiff’s motion for summary judgment and granting the branch of defendant’s cross motion seeking, in effect, summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 4, 2010 as granted the branches of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services rendered October 10, 2005 is vacated, those branches of defendant’s cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is [*2]deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, its motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

With respect to defendant’s cross motion, defendant established that it 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]) the claims at issue in this action, with the exception of a bill in the sum of $880.44 for services rendered September 7, 2005. As the affidavit by defendant’s no-fault litigation supervisor which defendant submitted is silent with respect to this claim, defendant did not establish that the claim had been timely denied.

With respect to the claims which were denied based upon an independent medical examination (IME), the sworn IME report, which was annexed to defendant’s cross motion as an exhibit, established a lack of medical necessity for the services, and plaintiff failed to rebut defendant’s prima facie showing. Consequently, defendant was entitled to the dismissal of those claims (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With respect to the claims seeking the sums of $1,109.05, $3,227.26 and $1,153, the affidavit by defendant’s no-fault litigation supervisor established that the initial and follow-up verification requests for additional verification had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) and that plaintiff had failed to provide all of the requested additional verification. Since plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not begin to run and, thus, so much of the complaint as sought to recover upon these claims is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Defendant was not entitled to the dismissal of so much of the complaint as sought to recover upon a claim for $880.44 for services rendered October 10, 2005 because “defendant failed to conclusively establish its stated defense[] that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009])” (Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51623[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2012]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Accordingly, the judgment is reversed, so much of the order entered May 4, 2010 as granted the branches of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services [*3]
rendered October 10, 2005 is vacated, those branches of defendant’s cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 2013

Legal questions (4)

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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: Different mailing results for different documents or claims in one decision

Held the litigation supervisor's affidavit established timely mailing of denials and verification requests for most claims but not for one claim, about which the affidavit was silent.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 55 (this one included) are in the same category.

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the sworn IME report established lack of medical necessity and the provider failed to rebut it, so the IME-based claims were dismissed.

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.

Outstanding verification and premature actions

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Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature

Held three claims premature because the insurer timely mailed initial and follow-up verification requests and the provider did not show it supplied the verification before suit.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (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's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)

Held the insurer failed to conclusively establish that the fees on one claim exceeded the workers' compensation fee schedule, so its cross motion was denied as to that claim and the dismissal of that claim was vacated.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 21039) FollowedThe provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation.
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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038) FollowedThe hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U)) FollowedThe insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.
Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.

Similar decisions

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50196(U))The insurer established lack of medical necessity for several claims but failed to substantiate its fee-schedule defenses.
First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co. (2010 NY Slip Op 50594(U))The provider's claims failed in part for outstanding verification and duplicate billing, while separate reimbursement remained disputed.
St. Vincent Med. Care, P.C. v Country-Wide Ins. Co. (2010 NY Slip Op 50444(U))Unanswered verification requests rendered seven claims premature, while separate-reimbursement denials raised factual issues on two others.
St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50488(U))Unanswered verification requests kept eight claims premature despite a follow-up mailed before the full response period expired.
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.