Appellate Term, Second Department
Sep 26, 2013
2013 NY Slip Op 51583(U)
Insurer prevailed
A provider aware of the owner of the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC benefits. Both the provider and assignor knew the owner's identity. Under Hauswirth v American Home Assur. Co., exhaustion was required, but the provider did not demonstrate that it had exhausted remedies against the owner. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denying MVAIC's cross motion. It denied the provider's motion and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 13, 2013
2013 NY Slip Op 51538(U)
Split result
The insurer established proper fee-schedule reimbursement for codes 97813 and 97814 but failed to address the evaluation billed under code 99202. Its claims employee's affidavit showed proper use of the workers' compensation fee schedule for acupuncture services performed by chiropractors. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion as to the initial-evaluation claim and otherwise affirmed dismissal of the acupuncture claims and denial of the provider's motion. The provider's affidavit did not establish that the evaluation claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. Neither side therefore obtained summary judgment on the initial-evaluation claim.
Trial court, Second Department
Sep 30, 2013
2013 NY Slip Op 23357
Provider prevailed
The physical medicine fee schedule's eight-unit daily reimbursement limit applies to each provider individually. The District Court, Suffolk County, entered judgment for the provider after a framed-issue trial, allowing reimbursement for eight of its ten billing units. The insurer had denied payment because it had already reimbursed other providers for eight units. The court held that paragraph 11 of the Official New York Workers' Compensation Medical Fee Schedule operates separately from policy-limit exhaustion under 11 NYCRR 65-3.15. The fee limitation prevents excessive billing by individual providers and does not create an exhaustion bar across providers; unlike policy-limit exhaustion, the fee schedule defense must be timely asserted.
Trial court, Second Department
Sep 26, 2013
2013 NY Slip Op 23332
Provider prevailed
Outstanding verification tolls payment only if it bears a rational or reasonable relationship to the specific provider's claim. The District Court, Nassau County, denied the insurer's summary judgment motion to dismiss the provider's action as premature. Under 11 NYCRR 65-3.8 (a), EUO verification was received when the assignor appeared, leaving the insurer 30 days to pay or deny unless another toll applied. The insurer relied on letters advising the provider that records from other providers and insurers remained outstanding. Neither the letters nor the motion papers explained their relevance to the anesthesia claims. Factual questions remained whether the letters were verification requests or merely delay letters, which do not toll the payment deadline.
Trial court, Second Department
Sep 13, 2013
2013 NY Slip Op 51519(U)
Split result
A provider's unreasonable delay in prosecuting a no-fault action permits retroactive tolling of statutory interest under 11 NYCRR 65-3.9 (d). After ten years without progress and nearly five years since the sole shareholder's death, the District Court, Nassau County, denied the insurer's CPLR 1021 dismissal motion without prejudice. Appointment proceedings remained ongoing, and estate-interested persons had not received the required opportunity to show cause. The court stayed proceedings under CPLR 2201 pending appointment of an administrator. Finding unreasonable delay before the death and no proof of diligent efforts afterward, it limited any eventual post-commencement interest under Insurance Law § 5106 (a) to the period beginning when the necessary Surrogate's approval is obtained, subject to further tolling for additional unreasonable delay.
