Appellate Division, Second Department
Apr 10, 2013
2013 NY Slip Op 02390
Provider prevailed
The hospital's UB-04 form was not the functional equivalent of an NF-5 and did not support tolling before receipt of the NF-5. Under 11 NYCRR 65-3.5 (f) and (g), the UB-04 lacked substantially the same information, omitting policy, accident, and diagnosis details and stating a different charge. The insurer's only effective verification request followed receipt of the NF-5 by six business days. Under 11 NYCRR 65-3.6 (b), a follow-up was required within 10 days after the 30-day response period expired. None issued, so the initial toll expired and the action was not premature. The Appellate Division, Second Department, reversed and reinstated the order granting the hospital summary judgment on the first cause of action and denying the insurer's motion.
Appellate Division, Third Department
Apr 4, 2013
2013 NY Slip Op 02302
Provider prevailed
The insurer's canceled checks failed to raise a factual issue as to full satisfaction of the provider's judgment. After obtaining partial summary judgment for psychological services, the provider sought a turnover order under CPLR 5225 (a) to recover the unpaid balance. The Appellate Division, Third Department, affirmed the orders granting that relief and directing payment. A summary judgment analysis was permissible, and the provider showed that the judgment remained unpaid. The insurer's checks did not correlate with the dates or amounts of the outstanding claims. The court also found the appeal frivolous under 22 NYCRR 130-1.1 (c) (2), granted the provider reasonable counsel fees for responding to it, and remitted for determination of those fees.
Appellate Term, Second Department
Apr 30, 2013
2013 NY Slip Op 50711(U)
Insurer prevailed
The provider submitted its claims more than 45 days after services were rendered and failed to offer a sufficient justification for lateness. The insurer's claims examiner affidavit established late submission under 11 NYCRR 65-1.1 and timely mailing of the denial. The denial adequately stated its basis and advised the provider that a reasonable justification could excuse the delay, as required by 11 NYCRR 65-3.3 (e). The provider's proffered reason was insufficient. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment motion dismissing the complaint.
Appellate Term, First Department
Apr 18, 2013
2013 NY Slip Op 50643(U)
Insurer prevailed
The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture. For one group of claims, the provider's principal described procedures for logging verification requests but disclosed no search results showing whether the insurer's letters were recorded as received. The bare denial of receipt raised no triable issue. For the remaining claims, the insurer's IME report supplied a factual basis and medical rationale for finding the assignor's injuries resolved and further acupuncture unnecessary. The provider's affidavit described traditional Chinese medicine generally without addressing the assignor's injuries or the treatments' necessity. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing all claims.
Appellate Term, First Department
Apr 16, 2013
2013 NY Slip Op 50586(U)
Provider prevailed
The insurer's peer review lacked a factual basis or medical rationale for finding the prescribed supplies unnecessary. The reviewer asserted that the assignor's voluminous medical file lacked useful or supportive information but did not explain which records, if any, were missing. The peer review report and accompanying affidavit therefore failed to eliminate triable issues concerning medical necessity. In any event, the treating chiropractor's affidavit identified the assignor's conditions and described the intended benefit of each prescribed supply, independently raising a triable issue. The Appellate Term, First Department, affirmed the order, insofar as appealed from, leaving the partial denial of the insurer's summary judgment motion in place.
Appellate Term, First Department
Apr 16, 2013
2013 NY Slip Op 50589(U)
Insurer prevailed
The insurer established that the treated condition was unrelated to the accident, and the provider failed to raise a triable issue. The provider sought assigned no-fault benefits for a surgical procedure. Its principal, the orthopedist who performed the surgery, submitted an affidavit offering only a single-sentence causation conclusion without a factual basis. The affidavit also failed to address or rebut the insurer's medical experts' contrary findings. The Appellate Term, First Department, reversed the denial of the insurer's summary judgment motion and granted dismissal of the complaint, following Mount Sinai Hosp. v Triboro Coach.
Appellate Term, Second Department
Apr 15, 2013
2013 NY Slip Op 50595(U)
Provider prevailed
The provider established its claims through admissible billing records and an order precluding evidence of the medical-necessity defense. The insurer's denials admitted receipt of the two claim forms, establishing submission. The provider also showed that the forms were admissible under CPLR 4518 (a) to prove the fact and amount of the loss. A prior preclusion order rendered the insurer's lack-of-medical-necessity defense meritless as a matter of law, and the insurer raised no triable issue in opposition. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remitted for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 and its implementing regulations.
Appellate Term, First Department
Apr 11, 2013
2013 NY Slip Op 50581(U)
Insurer prevailed
A healthcare provider that fails applicable licensing requirements is ineligible for reimbursement of assigned no-fault benefits. In three actions, the insurer demonstrated that the provider's services were not reimbursable because they were not performed by a medical professional corporation or licensed health provider. The provider failed to raise a triable issue. Applying Mallela and 11 NYCRR 65-3.16 (a) (12), the court explained that payments to unlicensed or fraudulently licensed providers are excluded from basic economic loss under Insurance Law § 5102 (a) (1). Business Corporation Law §§ 1503 (a), 1507, and 1508 require licensed professional ownership and control. The Appellate Term, First Department, affirmed all three orders granting the insurer summary judgment dismissing the complaints.
Appellate Term, Second Department
Apr 8, 2013
2013 NY Slip Op 50531(U)
Insurer prevailed
The insurer obtained a stay because admissible evidence raised an issue whether the assignor was eligible for workers' compensation benefits. In the provider's action for assigned no-fault benefits, the insurer submitted sufficient evidence to raise a question whether the assignor was acting as an employee at the time of the accident. Following O'Rourke v Long, the court explained that the Workers' Compensation Board must resolve that issue in the first instance. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to stay the action pending the Board's determination of the parties' rights under the Workers' Compensation Law.
Appellate Term, Second Department
Apr 8, 2013
2013 NY Slip Op 50532(U)
The insurer's evidence raised a workers' compensation eligibility issue requiring initial resolution by the Workers' Compensation Board. The provider sought assigned no-fault benefits, and the insurer contended that the assignors were acting as employees when the accident occurred. Contrary to Civil Court's ruling, the insurer supplied sufficient admissible evidence to raise that issue. Following O'Rourke v Long, the Appellate Term, Second Department, reversed and remitted both summary judgment motions for determination after final Board resolution under the Workers' Compensation Law. Neither motion was decided on the merits. Unless the provider files proof of a Board application within 90 days or shows good cause, Civil Court must grant the insurer's motion to dismiss and deny the provider's cross motion.
Appellate Term, Second Department
Apr 4, 2013
2013 NY Slip Op 50521(U)
Insurer prevailed
The insurer's proof, including a police accident report, warranted a stay to resolve possible workers' compensation eligibility. The provider sought assigned no-fault benefits and appealed an order staying the action. The insurer's evidence raised a factual question whether the assignor was acting as an employee when the accident occurred. Under O'Rourke v Long, that issue had to be resolved by the Workers' Compensation Board. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to stay the action pending the Board's determination of the parties' rights under the Workers' Compensation Law.
Trial court, Second Department
Apr 26, 2013
2013 NY Slip Op 50652(U)
Split result
An IME demand must advise the applicant of reimbursement for lost earnings and reasonable transportation expenses to support a no-show defense. The District Court, Nassau County, denied summary judgment dismissing the fourth through seventh causes of action because the insurer's IME notices did not comply with 11 NYCRR 65-3.5 (e). A statement that the carrier would pay all appointment fees implied payment of the doctor's fees and did not advise of reimbursement rights. Although nonappearance was established, regulatory notice compliance was a condition precedent to demanding an IME, defeating dismissal on that ground. The court granted the unopposed branch dismissing the second and third causes of action concerning the first bill, which the insurer asserted it had paid in full.
Trial court, Second Department
Apr 22, 2013
2013 NY Slip Op 50633(U)
Insurer prevailed
⚠ Reversed by Stracar Med. Servs. v Nationwide Mut. Ins. Co. (2015 NY Slip Op
51761(U))
The provider's claims were dismissed because a Virginia consent order voided the assignor's policy from inception. The Civil Court, Kings County, granted the insurer summary judgment and dismissed the complaint with prejudice. Although Vehicle and Traffic Law § 313 barred the insurer's unilateral retroactive cancellation, the assignor consented through counsel to the Virginia order. Full faith and credit and CPLR article 54 required recognition, leaving no rights to assign despite the earlier assignment. The insurer's affidavits established mailing, and verification tolled the denial period under 11 NYCRR 65.15 (g) (7). The court left unresolved conflicting authority on preclusion of fraudulent-procurement defenses and preserved coverage for innocent injured third parties. Dismissal was without prejudice to the provider's claims against the assignor.
Trial court, Second Department
Apr 3, 2013
2013 NY Slip Op 50645(U)
Insurer prevailed
An arbitration award applying a proposed acupuncture fee schedule instead of controlling precedent is subject to vacatur. The insurer challenged a master arbitrator's confirmation of an award reimbursing a licensed acupuncturist at physician rates. The original arbitrator relied on a pending amendment to 11 NYCRR 68, despite Great Wall Acupuncture v GEICO Gen. Ins. Co., which applied the chiropractic fee schedule. Under Insurance Law § 5106, 11 NYCRR 65-4.10 (a), and CPLR 7511, the challenge concerned settled law rather than prohibited factual review. The Civil Court, Kings County, vacated the award and directed calculation under the chiropractic fee schedule, granting the insurer relief.
