Appellate Term, Second Department
Sep 19, 2011
2011 NY Slip Op 51727(U)
Insurer prevailed
The provider's incomplete verification responses left the insurer's time to pay or deny untriggered and the action premature. The Appellate Term, Second Department, reversed the order, denied the provider's motion, and granted the insurer summary judgment dismissing the complaint. Timely initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b) were undisputed. The provider merely stated that supplies were prescribed without identifying or locating the prescribing doctor so the insurer could seek the requested information. Under 11 NYCRR 65-3.8 (a), the payment or denial period had not begun. The majority reached no other issue; a dissent would have affirmed because the provider timely advised that it lacked the requested physician records and the insurer neither paid nor denied within 30 days.
Appellate Term, Second Department
Sep 16, 2011
2011 NY Slip Op 51724(U)
The insurer's expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial. The Appellate Term, Second Department, reversed the judgment for the provider and remitted the matter for a new trial. Under CPLR 3212 (g), the nonjury trial was limited to medical necessity. Before the insurer called any witnesses, the Civil Court excluded its peer review report, precluded its expert's testimony, and directed a verdict for the provider. Following Psychology YM, P.C. v Geico Gen. Ins. Co. and Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., the appellate court found the testimony should have been allowed; it expressly did not decide whether the peer review report was admissible.
Appellate Term, Second Department
Sep 16, 2011
2011 NY Slip Op 51721(U)
Split result
The insurer established full fee-schedule payment for acupuncture codes 97810 and 97811 but offered no basis to dismiss the initial-visit claim. The Appellate Term, Second Department, modified the order to grant the provider summary judgment only for the initial visit billed under code 99204 and grant the insurer summary judgment dismissing the remaining claims. The workers' compensation fee schedule could be judicially noticed under Workers' Compensation Law § 13, 11 NYCRR 68.1 (a), and CPLR 4511 (b), despite the insurer's failure to submit it. The provider did not dispute the chiropractic fee-schedule amounts or timely denials for codes 97810 and 97811. The insurer offered neither evidence nor argument warranting dismissal of the code 99204 claim.
Appellate Term, Second Department
Sep 16, 2011
2011 NY Slip Op 51719(U)
Provider prevailed
The insurer failed to prove lack of medical necessity at trial, and the record supported deference to the trial court's credibility findings. The insurer's expert, who had performed two IMEs, testified that the disputed chiropractic treatment was unnecessary. The majority found a fair interpretation of the evidence supported Civil Court's determination that the insurer had not met its burden, giving substantial deference to the trial court's assessment of the witness. The Appellate Term, Second Department, affirmed the provider's nonjury judgment. A dissent would have dismissed the complaint, treating the uncontradicted expert testimony as establishing that further treatment was unnecessary and applying the necessary-expense requirement in 11 NYCRR 65-1.1.
Appellate Term, Second Department
Sep 16, 2011
2011 NY Slip Op 51717(U)
Provider prevailed
An assignor's status as a qualified person does not depend on MVAIC's receipt of written proof that insurance was unavailable. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, rejected MVAIC's argument that missing proof of no insurance defeated qualified-person status under Insurance Law § 5202 (b). The provider established prima facie entitlement to summary judgment, and MVAIC's remaining arguments were raised for the first time on appeal. The court affirmed the provider's judgment. A separate concurrence agreed with the result under controlling authority but maintained that the provider should have to prove the absence of private insurance as a condition precedent to recovery.
Appellate Term, Second Department
Sep 16, 2011
2011 NY Slip Op 51720(U)
Provider prevailed
The insurer failed to establish that the provider's no-fault action was barred by the six-year contract statute of limitations. The Appellate Term, Second Department, reversed dismissal under CPLR 3211 (a) (5) and denied the insurer's motion. Under CPLR 203 (a), CPLR 213 (2), and CCA 400, filing on June 27, 2007 barred claims accruing before June 27, 2001. Benefits became overdue 30 days after receipt of proof under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (g), now 11 NYCRR 65-3.8. Accepting the complaint's alleged June 6 submission, accrual could occur no earlier than July 7, 2001. The insurer failed to show that two allegedly earlier bills were the bill sued upon.
Appellate Term, Second Department
Sep 16, 2011
2011 NY Slip Op 51718(U)
Insurer prevailed
The insurer established timely IME notices and denials and the assignor's nonappearance, defeating a condition precedent to coverage. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint. An employee of the scheduling company established timely mailing of the IME requests through standard office practices. The scheduled examiner's affidavit established nonappearance, and the insurer's litigation examiner established timely mailing of the denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., IME attendance was a condition precedent to liability. The insurer properly denied the claims and was not precluded from raising that defense. The court did not reach the remaining appellate contentions.
Appellate Term, First Department
Sep 14, 2011
2011 NY Slip Op 51677(U)
Insurer prevailed
The insurer established proper mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue. The Appellate Term, First Department, reversed denial of the insurer's summary judgment motion, granted the motion, and dismissed the assigned no-fault complaint. The insurer's submissions established proper mailing of initial and follow-up notices to the assignor and the assignor's attorney. The provider failed to raise a factual issue concerning the reasonableness of the requests or the assignor's failure to attend. Its remaining arguments lacked merit.
Appellate Term, First Department
Sep 9, 2011
2011 NY Slip Op 51663(U)
Insurer prevailed
The provider's unsworn medical report failed to rebut the insurer's showing that the medical supplies were unnecessary. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's motion for summary judgment, and dismissed the complaint for assigned no-fault benefits. The insurer's submissions established prima facie that the supplies furnished to the assignor lacked medical necessity. The provider relied on an undated report that was not properly sworn under CPLR 2106 and 2109 and therefore should not have been considered. Following CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., the court further concluded that, even if considered, the report was insufficient to raise a triable issue.
Appellate Term, First Department
Sep 9, 2011
2011 NY Slip Op 51660(U)
Provider prevailed
Statutory interest on overdue no-fault claims runs from 30 days after presentation for payment, subject to any applicable toll. The providers established mailing and receipt of prescribed billing forms and overdue payment under Insurance Law § 5106 (a); the insurer raised no triable issue. The Appellate Term, First Department, upheld summary judgment for the providers but modified the order to remand for calculation of interest. The court applied 11 NYCRR 65.15 (h) (1), now 65-3.9 (a), and directed consideration of any applicable toll under 11 NYCRR 65.15 (h) (3), now 65-3.9 (c). Whether tolling applied was left for consideration on remand; the order was otherwise affirmed.
Trial court, Second Department
Sep 8, 2011
2011 NY Slip Op 21315
Provider prevailed
The diagnostic provider showed that records underlying the insurer's peer reviews were needed to oppose summary judgment. The insurer disputed the medical necessity of three MRIs but did not attach the treating doctors' records on which its reviewer relied. The provider lacked those records and had requested discovery more than a year earlier. Under CPLR 3212 (f), disclosure could supply relevant evidence for challenging the reviews' factual basis or obtaining expert rebuttal. Although CPLR 3214 (b) stayed disclosure upon service of the motion, the court could order otherwise. The District Court, Nassau County, granted the provider's cross motion to require production of the reviewed materials and permitted the insurer to re-notice its motion afterward for determination on the merits.
