Appellate Division, Third Department
Dec 12, 2024
2024 NY Slip Op 06268
Insurer prevailed
Workers' compensation remains primary to no-fault benefits even when the employer lacks workers' compensation insurance. The Appellate Division, Third Department, affirmed summary judgment dismissing the injured claimant's complaint and denial of the claimant's cross motion. The claimant had not sought workers' compensation before pursuing no-fault benefits for basic economic loss. Under Insurance Law § 5102 (b) (2) and 11 NYCRR 65-3.16 (a) (9), workers' compensation benefits recovered or recoverable reduce no-fault payments. Lack of employer coverage changes the potential payment source, with the Uninsured Employers' Fund acting as surety under Workers' Compensation Law § 26-a, rather than permitting an election contrary to Workers' Compensation Law § 11. Eligibility must first be determined by the Workers' Compensation Board.
Appellate Term, Second Department
Dec 20, 2024
2024 NY Slip Op 51832(U)
Insurer prevailed
The insurer's reply argument against verification tolling was properly considered because it responded to the provider's new evidence. The Appellate Term, Second Department, affirmed dismissal of the no-fault action as time-barred and denial, as moot, of the provider's motion for a default judgment. The provider's sole appellate contention challenged consideration of the reply argument. In opposition to dismissal, the provider submitted an owner's affidavit alleging, on information and belief, that verification had been requested and supplied, postponing accrual. That affidavit conflicted with the complaint and an earlier affidavit submitted with its motion. Because the insurer's reply addressed this new evidence, the Civil Court properly considered it.
Appellate Term, Second Department
Dec 19, 2024
2024 NY Slip Op 51822(U)
Insurer prevailed
An insurer may timely schedule more than two EUOs and deny a claim within the required period after the last scheduled EUO. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint. At the first EUO, the provider's counsel refused to allow its owner to answer claim-related questions and directed the insurer to treat the appearance as a no-show. The insurer timely scheduled four additional EUOs; the owner attended the last but left before questioning began. Following Quality Health Supply Corp. v Nationwide Ins., the denial six days later was timely. The insurer was not required to supply objective reasons for requesting EUOs to establish entitlement to summary judgment on nonappearance grounds.
Trial court, Second Department
Dec 12, 2024
2024 NY Slip Op 51785(U)
Provider prevailed
Multiple units of CPT code 76942 are reimbursable under the Workers' Compensation Medical Fee Schedule with trigger point injections. After a joint trial of two no-fault actions, the District Court, Suffolk County, awarded judgment to the providers. The insurer had paid for one unit of ultrasound guidance accompanying injections billed under CPT code 20553 and denied the remaining units. The court treated the fee schedule as the primary authority and read its general ground rules and Radiology Ground Rule Three as permitting multiple reimbursements. AMA coding materials supporting a single unit did not supersede the fee schedule's express rules. The testimony and evidence established that the multiple units were properly billed.
