Index No. CV-714236-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Gallo Vitucci Klar LLP for Defendant

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

After argument and upon the foregoing cited papers, the decision on Defendant’s motion and Plaintiff’s cross-motion is as follows:

Plaintiff, PAK HONG SIK MD MEDICAL CARE, P.C. (hereinafter, “Plaintiff”), as assignee of JOSE FELICIANO (hereinafter, “Assignor”), commenced this action against the defendant, OMNI INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion (i) to dismiss for lack of personal jurisdiction and failure to state a cause of action and (ii) for summary judgment pursuant to CPLR 3212. Plaintiff cross-moved for a motion finding the Defendant in default for failing to interpose an Answer in this matter. The Defendant filed an affirmation in further support of its motion and in opposition to the cross-motion. The parties argued the motion before the undersigned on May 4, 2023, and the motion was marked submitted.

The Defendant moves to dismiss the matter on the grounds that this Court lacks personal jurisdiction over the Defendant. The Defendant argues that it is not licensed to issue insurance [*2]policies in New York or transact any business in New York. In support of its motion, Defendant presented an affidavit of Kim Blankenship, the Assistant Vice President of Operations of American Independent Companies Inc., (“AICI”) the alleged parent company of the Defendant. The Court notes that the affidavit was notarized in 2020 in Cobb County, Georgia and contains an unsigned certificate of conformity. While the lack of a certificate of conformity may be excused under CPLR 2001, the Court finds that the affidavit still predates the accident at issue by more than six months. Considering the Defendant’s motion is made more than 2 years after the affidavit was executed, the Defendant does not offer any reasonable explanation for failing to produce a contemporaneous affidavit.

The Defendant also submits a screenshot of a website entitled “NAIC.” The Court finds the screenshot of the NAIC website inadmissible for several reasons. The screenshot is not dated, does not have an accompanying affidavit explaining its origin, and does not list the website’s URL. While this website may be useful to the Defendant’s investigation, it is not offered in admissible form.

Also annexed to the Defendant’s motion is a NYS DMV MV-104 accident report (incorrectly labeled and referred to as a “Police Accident Report”). The Court takes judicial notice this is not a report issued or completed by the New York City Police Department. The accident report was allegedly completed and signed by Mr. Feliciano reporting the accident to the DMV listing the Defendant as his carrier. However, the state issuing the driver’s license and vehicle registration, along with the insurance code, are all missing from the document.

Defendant cites to Matter of Eagle Ins. Co. v Gutierrez-Guzman, a matter decided in 2005 by the Appellate Division, Second Department, in support of its motion (21 AD3d 489, 491 [2d Dept 2005]). In this case, the court found that the Supreme Court, Nassau County did not have personal jurisdiction over an insurance company named “American Independent Insurance Company” (“AIIC”). Defendant infers that AIIC and AICI are one in the same. However, there has been no evidence presented to demonstrate that the two companies are in fact the same entity or even the parent company of the Defendant. Assuming for a moment that AIIC and AICI are the same corporate entity, and the Defendant’s parent company, the Court does not find this decision binding since it was related to an accident that occurred over twenty years ago, and that the Defendant’s business practices in New York might have changed since the Appellate Division’s decision.

It should be noted that the Defendant brought a prior motion for identical relief that was denied by the undersigned in a decision and order dated January 30, 2023. In the prior order, the Court found Defendant’s unsigned affidavit of Ms. Blankenship to be defective and inadmissible. Inasmuch as the Defendant states that it disagrees with the Court’s prior order, there is no request before the Court to vacate the prior order.

In opposition, the Plaintiff argues that the Defendant is barred from bringing the instant motion due to the “single motion rule.” The Plaintiff also cites the “accident report” to support a finding of jurisdiction. The Court finds this to be a self-serving document signed by Mr. Feliciano in which any information relevant to jurisdiction is missing. In support of its cross-motion for a default judgment, the Plaintiff argues that the Defendant is in default for failing to file an answer within 30 days from the Court’s prior order, as it was directed to do.

DISCUSSION

Turning first to the branch of Defendant’s motion which is for summary judgment, that request must be denied. Since the Defendant has yet to file an answer, issue has not been joined, and any motion for summary judgment is improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). This does not bar the Defendant from bringing a motion for summary judgment once issue has been joined.

As to the Defendant’s motion to dismiss, this Court finds the Defendant is barred from seeking such relief in successive motions. CPLR 3211(e) states that “At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted” (emphasis added). Courts have consistently held this “single motion rule” to bar successive motions to dismiss (See Ramos v City of New York, 51 AD3d 753, 754 [2d Dept 2008]). The purpose of the single-motion rule is “not only to prevent delay before answer, but also to protect the pleader from being harassed by repeated CPLR 3211(a) motions and to conserve judicial resources” (Oakley v County of Nassau, 127 AD3d 946, 947 [2d Dept 2015] [internal quotation marks and citations omitted]). While the Defendant is barred from seeking pre-answer dismissal, the single motion rule will not prohibit the Defendant from seeking that relief in another form, such as a motion for summary judgment (See Id; Tapps of Nassau Supermarkets, Inc. v Linden Blvd., L.P., 269 AD2d 306, 307 [1st Dept 2000]).

The Court notes that if the Defendant’s motion was not barred by the “single motion rule,” the Defendant still failed to meet its entitlement to dismissal, based upon the defects and inadmissible evidence explained above.

As to the Plaintiff’s cross-motion, the Court finds that while the Defendant did not file an answer as directed by the Court, the Defendant did file this motion within 30 days of the Court’s prior order. Therefore, the Defendant is now placed on notice that this Court will not entertain any further pre-answer motions to dismiss and must interpose an answer in this matter.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED in its entirety; and it is further

ORDERED that the Defendant shall file and serve its Answer within 14 days from the date of this Order; and it is further

ORDERED that the Plaintiff’s cross-motion is DENIED, with leave to renew should Defendant fail to timely file its Answer as directed herein by the Court.

The foregoing constitutes the Decision and Order of the Court.

Index No. CV-713066-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Rossillo & Licata, PC for Defendant

Robert J. Helbock Jr., J.

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Upon the foregoing cited papers, the decision on Defendant’s motion is as follows:

Plaintiff, SERGEY KALITENKO MD (hereinafter, “Plaintiff”), as assignee of NORMAN BARAHONA (hereinafter, “Assignor”), commenced this action against the defendant, INTEGON NATIONAL INS. CO. (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion for summary judgment pursuant to CPLR 3212 for an order dismissing the instant matter due to the Assignor’s failure to appear for duly noticed independent medical examinations and examinations under oath. Defendant submitted opposition to the motion; and the motion was argued before the undersigned on March 2, 2023.

DISCUSSION

The procedural history of this matter warrants an explanation before the Defendant’s instant motion may be discussed. The summons and complaint in this matter were filed by the Plaintiff on July 15, 2022. An affidavit of service was filed in this matter on August 26, 2022, demonstrating that service was made outside the City of New York, in Saddle Brook, New Jersey, on July 27, 2022. According to section 402(b) of the Civil Court Act, “If the summons is served by any means other than personal delivery to the defendant within the city of New York, it shall provide that the defendant must appear and answer within thirty days after proof of service is filed with the clerk.” In this matter, service was made outside the City of New York. Therefore, the Defendant had thirty days to file its answer from when the affidavit of service was filed with the Court (August 26, 2022). The Defendant filed its answer on October 4, 2022, more than the 30-day statutory period. Plaintiff filed a rejection of Defendant’s answer two days later on October 6, 2022. The Defendant filed the instant motion on December 1, 2022. Notably, Defendant did not move to compel the Plaintiff to accept its late answer.

Since Defendant’s answer was rejected, issue has not been joined, and Defendant’s motion for summary judgment was improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]).

Under CPLR 3012(d), a court may “extend the time to appear or plead, or compel the acceptance of an untimely pleading, ‘upon such terms as may be just and upon a showing of reasonable excuse for delay or default'” (Bank of New York Mellon v Adago, 155 AD3d 594, 595 [2d Dept 2017]). This Court cannot sua sponte compel the Plaintiff to accept the Defendant’s untimely answer as no reasonable excuse for the default has been proffered by the Defendant. Therefore, before the Defendant’s motion for summary judgment can be decided, issue must be joined, by the acceptance of the Defendant’s untimely answer.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED without prejudice.

The foregoing constitutes the Decision and Order of the Court.

Index No. CV-701018-20/RI

Plaintiff’s Counsel
Joseph Sparacio Attorney At Law PLLC
292 Nelson Avenue
Staten Island, NY 10308
(718) 966-0055

Defendant’s Counsel
Law Offices of Tina Newson-Lee
PO Box 2904
Hartford, CT 06104
(917) 778-6500

MK Healthcare Medical PC (“MK Healthcare”) as assignee of Marleine Sully (“Assignor”) (collectively referred as “Plaintiff”), commenced this action to recover $913.39 in assigned first-party no-fault benefits from Defendant Travelers Insurance Company (“Defendant”).

Plaintiff represents that the Assignor sustained injuries during an accident that occurred on December 31, 2018, in which the Assignor was a front-seat passenger. According to the Plaintiff, Defendant improperly failed to pay for treatment rendered to the Assignor in connection with her alleged injuries in the amount of $913.39. Specifically, Plaintiff alleges that Defendant failed to pay for a “NCV w/f wave lower” (“F Wave”) and “Needle EMG lower” [*2](“EMG”) (collectively “Procedures”) performed on April 22, 2019. The Procedures were electrodiagnostic studies of the Assignor’s lower extremities. While Plaintiff argues that Defendant is responsible for paying for the Procedures, Defendant maintains that it was under no such obligation since the Procedures were not medically necessary.

On August 3, 2022, the Court held a virtual bench trial during which both Plaintiff and Defendant were represented by counsel. Pursuant to a stipulation entered into by the parties, Plaintiff and Defendant stipulated that MK Healthcare met its prima facie burden and consented to the admission of evidence, namely medical records, medical reports, expert witness disclosure, as well as portions of the Referral Guidelines for Electrodiagnostic Medicine Consultations. The parties also stipulated to the expertise of the Defendant’s expert, Ayman Hadhoud, M.D. (“Dr. Hadhoud”). Accordingly, the only matter at issue in the trial was whether Defendant’s denial of the claim on the ground of medical necessity was proper under Insurance Law § 5102[a][1].

Defendant’s sole witness was Dr. Hadhoud, a licensed physician and acupuncturist, who performed a peer review of MK Healthcare’s medical records. Dr. Hadhoud testified that Procedures prescribed by MK Healthcare (Richard A. Gasalberti, M.D.) were not medically necessary. Dr. Hadhoud testified as to his review of the relevant MK Healthcare records, which revealed that MK Healthcare recommended Assignor undergo “EMG/nerve conduction studies of the lower extremities to electrophysiologically document for lumbar radiculopathy.” Dr. Hadhoud testified that based upon his review of the medical records, the EMG was not necessary since the Assignor’s neurological exam was normal and there was no clinical presentation that would necessitate an EMG. Dr. Hadhoud further testified that considering the medical records from MK Healthcare, the F Wave was also not medically necessary because such procedure was not necessary in the context of ruling out radiculopathy in the Assignor.

The Court notes that during the trial, the Plaintiff did not call any witnesses. Furthermore, the only evidence that Plaintiff submitted in support of its claim that the Defendant violated Insurance Law § 5102[a][1] consisted of the documentary evidence that was stipulated into evidence by the parties.

Discussion

Under Insurance Law § 5101, “an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered ‘basic economic loss’ (Insurance Law 5102[a]), subject to the limitations of Insurance Law 5108.” (Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]). “The no-fault law defines “basic economic loss” (Insurance Law § 5102[a]) as ‘[a]ll necessary expenses incurred for: (i) medical, hospital … [and] surgical … services’ (id. § 5102[a][1][i]) as well as loss of earnings from work.” (Hernandez v Merchants Mut. Ins. Co., 206 AD3d 978, 979 [2d Dept 2022] (citing Insurance Law 5102[a][1]). See Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]; Forrest Chen Acupuncture Services, P.C. v Geico Ins. Co., 15 Misc 3d 137(A) [App Term 2007], affd, 54 AD3d 996 [2d Dept 2008]). As held by the Appellate Division, Second Department, “like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of ‘necessary expenses.'” (Hernandez v. Merchants Mut. Ins. Co., 206 AD3d [*3]978, 979 [2d Dept 2022] (citing to Long Is. Radiology v. Allstate Ins. Co., 36 AD3d 763, 764-65 [2d Dept 2007])).

The Court finds that based upon Defendant’s denial of claim forms and the findings of Dr. Hadhoud, encompassed in his testimony and report, Defendant sufficiently demonstrated that there was no medical necessity for the Procedures. (See Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 911 N.Y.S.2d 697 [App. Term, 2d Dept., 2010]). The Court found that Dr. Hadhoud’s testimony to be medically sound and credible. Dr. Hadhoud also sufficiently demonstrated that he relied upon his examination as well as his review of the Assignor’s medical records in order to reach his opinion that the Procedures were not medically necessary for the Assignor’s condition. Dr. Hadhoud’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the Procedures. (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 52 Misc 3d 139(A) [App Term 2016]). Based upon the credible testimony of Dr. Hadhoud and the relevant medical records submitted to the Court during trial, the Court finds that Defendant met its burden and demonstrated its entitlement to judgment in its favor.

The Court further finds that Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing. As noted above, “Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity.” (See New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 41 N.Y.S.3d 720 [App. Term 2d Dept., 2016] (holding that the Civil Court should have dismissed the complaint after Plaintiff failed to call a witness to rebut Defendant’s showing of lack of medical necessity.”)). Furthermore, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary.

Accordingly, it is hereby

ORDERED that judgment is rendered in favor of Defendant; and it is

ORDERED that the matter is dismissed with prejudice.

The foregoing constitutes the Decision and Order of the Court.

Dated: August 25, 2022
_____________________________
Staten Island, New York
Hon. Brendan T. Lantry
Judge of the Civil Court

[*1]

Civil Court of the City of New York, Richmond County, March 22, 2022

APPEARANCES OF COUNSEL

The Law Offices of Rubin & Nazarian for defendant.

Rizzo Law Group, PLLC, P.C. for plaintiff.

The decision on defendant’s motion for summary judgment is as follows:

Plaintiff, Kolb Radiology, P.C., as assignee of Claudia Walker (hereinafter, assignor), commenced this action against the defendant, Hereford Insurance Company, to recover assigned first-party no-fault benefits for medical treatment provided to assignor in the amount of $1,791.73.

Currently before the court is defendant’s motion seeking an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint as premature in that there are outstanding responses to defendant’s verification requests. By way of a cross motion, plaintiff submitted opposition to defendant’s motion. Defendant filed an affirmation in further support to its motion and in opposition to plaintiff’s cross motion. The motion was argued before the undersigned February 17, 2022, and submitted for decision.

Defendant moves for summary judgment dismissing plaintiff’s complaint on the grounds that defendant established its prima facie case in that plaintiff’s claim is premature as responses are outstanding to defendant’s verification requests. Plaintiff argues that its response to defendant’s request was made on August 28, 2020, with all documents in its control or possession. Plaintiff also cross-moves for summary judgment on the grounds that it has established its prima facie entitlement to judgment.

A motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any [of the] part[ies]” (CPLR 3212 [b]). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]).{**75 Misc 3d at 325}

The issue presented in the instant motion appears to be one of first impression in Richmond County, and a relatively novel issue in the Civil Court of New York City.^[FN*] The plaintiff performed an MRI that was billed and submitted to the defendant pursuant to the no-fault insurance regulations and subject to the applicable fee schedule. The defendant received the bills and made a timely demand for verification documents, which included a copy of the MRI films. The plaintiff responded to the verification demands but did not supply the MRI films requested by the defendant. Instead, the plaintiff demanded the payment of a $5 fee, as provided in ground rule 8 of the Workers’ Compensation Fee Schedule. The defendant replied to plaintiff stating its response was incomplete and improper but did not specifically address the demand for the payment of the fee. The result was a stalemate that must now be decided by this court.

The no-fault insurance system was established to expedite medical treatment and payment for injuries arising from motor vehicle accidents. In this instance, the plaintiff provided the MRI diagnostic test to the injured party, relying upon the contractual and statutory obligation of the defendant to pay for necessary health care pursuant to the fee schedule. Similarly, the plaintiff should have provided the films requested by the defendant and then billed defendant the statutory costs of $5. Instead, the plaintiff refused to provide the MRI films until it received the $5 from defendant. That act appears to this court to be more shortsighted than productive.

Conversely, the defendant received the demand for $5 and instead of promising or making payment of the $5, the defendant responded that the plaintiff only partially complied with the verification request and demanded the full compliance. An insurer is statutorily required to pay or deny a claim within 30 calendar days after proof of claim is received (11 NYCRR 65-3.8 [a]), but the deadline may be extended if the insurer makes a timely demand for additional verification of the claim (id. § 65-3.5; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]).

What concerns the court is that the defendant’s response appears strategic, aimed at promoting further litigation and thus delaying payment, rather than responding and addressing the{**75 Misc 3d at 326} dispute that was delaying the plaintiff’s compliance with the verification request.

For guidance, the court looks to the Office of the General Counsel of the NYS Department of Financial Services (formerly the State Insurance Department) that issued an opinion on April 4, 2008 (Ops Gen Counsel NY Ins Dept No. 08-04-08 [Apr. 2008]) entitled “Reproduction Cost of a Magnetic Resonance Imaging (‘MRI’) Film Necessary to Verify a No-Fault Insurance Claim.” That opinion directs that if the original MRI films are provided to the insurance company, then there is no charge. If a copy is provided to the insurance company, then the insurance company must pay the fee schedule rate. Since there is an option of producing an original or a reproduction, logically speaking, the insurance company would have to receive the reproduced MRI films first before payment would be made.

In this instance, the defendant would have had to receive the MRI film reproductions, and once in receipt of the copies, made payment to plaintiff. While this process appears overly bureaucratic, it is the procedure directed by the fee schedule.

Since both parties acknowledge that the films were not provided, and they were requested as part of the verification request, the fact that the defendant did not pay for the films in advance is not a sufficient justification for the delay in complying with the verification request.

Therefore, the defendant’s motion is granted, and the matter is dismissed without prejudice as premature. Plaintiff’s cross motion is denied without prejudice as moot.

Footnotes

CV-706933-20/RI

Sanders Barshay Grossman, LLC for Plaintiff;

Burke, Conway & Stiefeld For Defendant

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Papers Numbered

Amended Notice of Motion and Affirmation/Affidavit annexed 1-2

Affirmation in Opposition 3

Affirmation in Reply 4

Upon the foregoing cited papers, the decision on Defendant’s Motion to Dismiss is as follows:

Plaintiff, Happy Apple Medical Services, PC (hereinafter, “Plaintiff”), as assignee of Mario Eustache (hereinafter, “Assignor”), commenced this action against the defendant, Liberty Mutual Insurance Company (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion seeking an order pursuant to CPLR 3211(a)(2) dismissing Plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff submitted opposition to Defendant’s motion, and Defendant submitted an affirmation in reply. The motion was deemed submitted and decision was reserved.

Defendant moves to dismiss Plaintiff’s complaint on the grounds that this Court lacks subject matter jurisdiction over the underlying causes of action. Specifically, Defendant argues that as the New York State Workers’ Compensation Board (the “Board”) has found the underlying action to be a work-related accident, the Board has exclusive jurisdiction over all [*2]workers’ compensation claims. Defendant argues this claim is not covered under its policy.^[FN1] Therefore, Defendant argues, the complaint must be dismissed because the underlying accident was determined by the Board to be work-related.

In opposition, Plaintiff argues that Defendant’s policy exclusion defense should be precluded because the defense was not timely raised by a denial of the bill within 30 days of the submission of the claim (see Ins. Law 5106(a); 11 NYCRR 65-3.8(c)). The Plaintiff argues that there are only four exceptions to preclusion all involving “lack of insurance coverage” and since the exclusion due to a work-related injury is not one of them, Defendant’s motion should fail. The Plaintiff does not make any argument regarding the subject matter jurisdiction of the Court.

Discussion

Defendant is correct in noting that the Board has jurisdiction over the determination of whether an accident occurred within the scope of a claimant’s employment (O’Rourke v Long, 41 NY2d 219, 228 [1976]). The Court of Appeals has ruled that the Board has “the primary jurisdiction, but not necessarily exclusive jurisdiction, in factual contexts concerning compensability.” (Liss v Trans Auto Sys, 68 NY2d 15, 20 [1986]). “When the question is purely one of fact, the Workers’ Compensation Board has exclusive jurisdiction over the issue and it is only when the issue involves statutory construction that the trial court may hear the issue” (Gyory v Radgowsk, 89 AD2d 867, 869 [2d Dept 1982]). Therefore, it is outside this Court’s jurisdiction to make a factual determination as to the eligibility of a claimant for workers’ compensation benefits.

However, Plaintiff has not asked this Court to make such a determination. The causes of action before this Court seek monetary damages relating to unpaid invoices and attorneys’ fees in accordance with a no-fault insurance policy allegedly issued by Defendant to Assignor. This determination is squarely within the Civil Court’s jurisdiction (NY City Civ Ct Act § 202). The fact that the Assignor’s accident was deemed to have been work-related does not divest the Civil Court of its jurisdiction. Rather the Board’s determination is relevant to the extent that “workers’ compensation benefits serve as an offset against first-party benefits payable under no-fault as compensation for ‘basic economic loss'” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [2d Dept 1991]; Ins. Law § 5102(b)(2)).

Defendant’s motion mischaracterizes the underlying action as a claim for payment under a workers’ compensation insurance policy, rather than, as pleaded, for payment of benefits pursuant to a no-fault insurance policy. Therein lies the error of Defendant’s argument. The law provides the Defendant with a valid defense to such a Civil Court action — an exclusion from the no-fault insurance policy from payment in instances of a work-related accident.

The Insurance Law and corresponding regulations require the service of a timely denial of the payment of the bill upon the health care provider within 30 days to exercise the exclusion (Ins. Law § 5106(a); 11 NYCRR 65-3.8(c)). Defendant has failed not only to present any policy documentation but also a denial form, timely or otherwise. As such, that issue is not before the [*3]Court. Any discussion or argument pertaining to Defendant’s denial and issues of preclusion are not applicable to the current motion.

The sole question before this Court in the instant motion is whether the Court has subject matter jurisdiction. The matter before the Court is not a determination of a workers’ compensation claim, but rather a claim for reimbursement under a no-fault automobile insurance policy. The availability of workers’ compensation benefits can serve as a defense to the No-Fault claim, but it does not invalidate the Civil Court’s subject matter jurisdiction. This Court has jurisdiction to adjudicate the causes of action as it relates to the reimbursement and defenses under the no-fault insurance policy. The Defendant’s motion makes no other argument to justify the dismissal of the complaint other than alleging a lack of subject matter jurisdiction of the no-fault insurance claim.

Accordingly, the Defendant’s motion is hereby denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 13, 2021

Staten Island, New York

Hon. Robert J. Helbock, Jr.

Judge, Civil Court

Footnotes

Footnote 1:While New York law permits No-Fault policies to exclude payment for treatment of work-related injuries (11 NYCRR 65-3.16), the Defendant did not offer a copy of the no-fault insurance contract containing such an exclusion. However, the Court assumes the exclusion applies as a matter of the regular industry practice. However, this assumption, without admissible evidence, does not factor into the Court’s decision.

[*1]

Civil Court of the City of New York, Richmond County, November 12, 2019

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Offices of Gabriel & Shapiro, Wantagh, for plaintiff.

{**66 Misc 3d at 420}This action for first-party no-fault benefits arises out of a motor vehicle accident that occurred on August 2, 2014, involving plaintiff’s assignor, Chetram Paraboo. Due to the injuries that he sustained in the accident, plaintiff’s assignor received treatment at Krasner Chiropractic, P.C. (hereinafter, plaintiff). Plaintiff commenced this action seeking to recover $1,754.62 for services that were performed between August 4, 2014, and January 15, 2015, plus statutory interest and attorney’s fees.

Defendant IDS Property & Casualty Insurance Company now moves for summary judgment dismissing the complaint pursuant to CPLR 3212. Defendant argues it is entitled to summary judgment as the subject occurrence was not a covered event as it was an intentional act and plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim. Alternatively, defendant argues that it is entitled to summary judgment based upon plaintiff provider’s failure to appear for duly scheduled examinations under oath (EUOs) or partial summary judgment as to defendant’s prima facie case.

Plaintiff cross-moves for partial summary judgment as to its own prima facie case and opposes defendant’s motion. In response, defendant has submitted opposition to plaintiff’s cross motion.

In support of its motion, defendant submits the affidavit of Michael A. Callinan, Esq., of Bruno, Gerbino & Soriano, LLP, and the affidavits of senior special investigator James Glampe and litigation examiner Carrie Erickson. Defendant also submits copies of the police accident report relating to the subject occurrence and the EUO transcripts of Liloutie Sydnor (nonparty owner of the vehicle operated by nonparty Lisa Brown) taken on October 13, 2014; of plaintiff’s assignor, Chetram Paraboo, taken on November 24, 2014; of Lisa Brown (nonparty operator of the vehicle in which plaintiff’s assignor was a passenger) taken on December 2, 2014; and of Glenis Brown (nonparty husband of Liloutie Sydnor and the father of operator Lisa Brown) taken on March 23, 2015.

In his affidavit, Mr. Glampe states that the subject occurrence was not a covered event in that it was an intentional or staged act. He selectively provides a recitation of alleged discrepancies in the testimony of each of the above stated EUO witnesses regarding the subject occurrence. He also claims that the police accident report relating to the subject occurrence {**66 Misc 3d at 421}and a witness stated that the driver of the host vehicle, nonparty Lisa Brown, was attempting to make an extremely dangerous and illegal right turn.^[FN1]

In his affidavit, Mr. Callinan states that he is a partner with the firm of Bruno, Gerbino & Soriano, LLP, attorneys for defendant. In that capacity, he is personally responsible for the day-to-day handling of the within matter and all claims referred to his firm by defendant and its parent company Ameriprise Financial, Inc. Mr. Callinan sets forth the policies and procedures relating to the scheduling, confirmation and taking of EUOs in the ordinary course of business for the within matter. According to Mr. Callinan, in an effort to verify the medical bills for treatment rendered an EUO of plaintiff provider was scheduled for January 19, 2015, and February 27, 2015 (see defendant’s moving papers at exhibits S, T, X). The EUO request, dated December 19, 2014,^[FN2] scheduled the EUO of plaintiff provider for January 19, 2015. An amended EUO request, dated December 24, 2014,^[FN3] was sent requesting the EUO for the same date. On January 15, 2015, a letter was received from plaintiff’s counsel advising that plaintiff provider would not appear at the scheduled EUO since the claims had been denied. In response, defendant sent a letter acknowledging plaintiff’s letter, advising that the previously denied claims were being reconsidered and requesting alternate dates for the EUO. On January 19, 2015, plaintiff provider failed to appear for the EUO, and defendant proceeded to place a statement on the record. A second EUO request letter, dated January 22,{**66 Misc 3d at 422} 2015,^[FN4] scheduled the EUO for February 27, 2015. On or about January 23, 2015, and February 2, 2015, correspondence was exchanged between the attorneys as to defendant’s previously issued denials and the status of plaintiff provider’s claims in light of Lisa Brown’s request to be provided with another opportunity to appear for her EUO. By letter, dated February 25, 2015,^[FN5] defendant reiterated to plaintiff provider’s counsel that the previously denied claims were being reconsidered and to provide dates upon which plaintiff provider would be available to appear for an EUO. On February 27, 2015, plaintiff provider failed to appear, and a statement was placed on the record. Mr. Callinan was present in his office on January 19, 2015, and February 27, 2015. If plaintiff provider had appeared for its EUO on either day, he personally would have conducted said examination.

In her affidavit, Ms. Erickson initially states that an investigation of the subject occurrence determined that it was a staged intentional loss rather than an accident. She also asserts that plaintiff provider failed to appear for three EUOs^[FN6] that were needed to determine the facts of the alleged loss and{**66 Misc 3d at 423} to verify that all treatment and medical supplies billed on behalf of plaintiff’s assignor were received. She further asserts that each of the five claimed bills was denied within 30 days of receipt or within 30 days of plaintiff’s failure to appear for an EUO.^[FN7] Ms. Erickson also sets forth the policies and procedures utilized in the regular course of business for the creation and maintenance of delay letters with the explanation of benefits and the denial of claim forms—including those relating to the within matter (see defendant’s moving papers at exhibits D, E, F, G, H, I, J, L). She also sets forth the policies and procedures by which mail is received and sent from defendant’s offices and the methods by which the dates of same are recorded in the appropriate claim files.

In opposition to defendant’s motion and in support of its cross motion, plaintiff argues that defendant has failed to demonstrate that the subject incident was not a covered event; defendant’s denials are late and invalid as defendant failed to establish that it properly sought the EUOs; defendant deliberately defaulted plaintiff at the EUOs; defendant never formally rescinded its earlier denials; and there is no authority which would allow defendant to belatedly assert a new defense or issue verification requests beyond the statutory deadline. Plaintiff also argues that the testimony contained within the above stated affidavit of Ms. Erickson and the NF-3s annexed{**66 Misc 3d at 424} to defendant’s moving papers as exhibit C clearly demonstrate and establish plaintiff’s prima facie case.

Defendant opposes the within cross motion arguing that plaintiff has failed to establish that defendant failed to timely deny any of the claims at issue or prove its prima facie case that the prescribed statutory billing forms had been mailed and received, and that the payment of the no-fault benefits was overdue.

The portion of defendant’s motion seeking summary judgment on the basis that the subject occurrence was not a covered event because it was an intentional act and that plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim is denied. Defendant has failed to make a prima facie showing of entitlement to summary judgment. While assorted portions of the EUO testimony offered by the above stated affiants do conflict, said conflicts serve to create, rather than remove, issues of fact regarding how the subject occurrence took place. Furthermore, even if the above stated police accident report were in admissible form, which it is not as it is not certified as a business record pursuant to CPLR 4518, the officer did not witness or perform any investigation into the occurrence.

The portion of defendant’s motion seeking summary judgment on the basis that plaintiff failed to appear for a duly scheduled EUO is also denied and the defense of EUO no-show is precluded. As noted above, defendant initially requested plaintiff provider’s appearance at an EUO after it had received and denied plaintiff provider’s first three bills on the basis that the subject occurrence was not a covered event and that plaintiff’s assignor, Chetram Paraboo, had failed to appear for an EUO. Defendant’s request for plaintiff provider’s appearance at an EUO was sent after the denial of the first three bills and prior to defendant’s receipt of bills 4 and 5. At the time of the initial EUO request of plaintiff provider, there were no outstanding bills or claims.

This is a case of first impression wherein the defendant, after issuing a denial for one or more timely submitted claims, without notice to the plaintiff, decides to “reconsider” said claims while demanding that plaintiff provider appear for an EUO relating to the previously denied claims. The legislature established specific and uniform guidelines relating to the time and way no-fault claims are submitted, reviewed and denied. In Dermatossian v New York City Tr. Auth. (67 NY2d 219, 225 [1986]), the Court of Appeals stated that{**66 Misc 3d at 425}

“[t]o implement this legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations (see,11 NYCRR 65.15) are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays. Permitting evidence in a personal injury lawsuit of the fact that the defendant (if self-insured) or its insurer had paid the plaintiff the statutorily obligated first-party benefits would unquestionably frustrate the very purpose of the No-Fault Law by discouraging insurers from making prompt and voluntary payment of claims.”

There is no provision or exception in the no-fault statutes that provides for the defendant to unilaterally “review” cases again. This would obviate the intent and purpose of the No-Fault Law and create a dangerous precedent that could be used by defendants to improperly request additional verification such as EUOs or independent medical examinations.

Defendant is bound by its denials of November 17, 2014, and November 25, 2014 (see exhibits E, F, H of defendant’s moving papers), thereby making any EUO request of plaintiff provider untimely. Accordingly, defendant’s motion for summary judgment is denied and plaintiff’s cross motion is granted to the extent that plaintiff has demonstrated its prima facie case. The sole issue for trial is whether this is a covered event due to misrepresentations of the facts or it being a staged accident.

The remaining contentions of the parties are denied as moot.

Footnotes

Footnote 1:The court is given pause by what appears to be an attempt by defendant, through Mr. Glampe, to mislead this court. Defendant has clearly cherry-picked portions of the police accident report (see exhibit M of defendant’s moving papers) entitled “Accident Description/Officer’s Notes.” A whole reading of the section finds that it actually states:

“At t/p/o driver #1 states while driving W/B N. Conduit third lane/right lane driver #2 went from the middle lane attempted to make illegal right on Dumont causing her vehicle to collide with driver #2; Driver #2 states while driving straight on N. Conduit driver #1 rear ended her causing collision. No injuries; witness added to report.”

The police officer did not witness the incident and there are no affidavits from the driver of vehicle number 1 or the listed witness.

Footnote 3:Which addresses EIP/Claimant: Liloutie Sydnor and Lisa Brown (see exhibit T of defendant’s moving papers).

Footnote 4:Which addresses EIP/Claimant: Liloutie Sydnor & Lisa Brown (see exhibit X of defendant’s moving papers).

Footnote 5:Responding to a letter from plaintiff’s counsel that was received on February 24, 2015. Said letter requested proof that the previous denials had been properly rescinded and advised that plaintiff would not be available to appear for an EUO on February 27, 2015.

Footnote 6:Scheduling letters annexed to defendant’s moving papers as exhibits S, T and X only address EUOs scheduled for January 19, 2015, and February 27, 2015. Bills 1-3 were denied by defendant prior to the issuance of defendant’s first letter, dated December 19, 2014, requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibit S). Defendant’s second EUO letter, dated December 24, 2014 (prior to defendant’s receipt of bills 4 and 5), informed plaintiff provider’s attorney for the first time that defendant had elected to reconsider plaintiff’s previously submitted claims based on the request of Lisa Brown and plaintiff’s assignor Chetram Paraboo for an additional opportunity to appear at an EUO (see defendant’s moving papers at exhibit T). Said letter solely addressed the first three bills that had previously been submitted and were denied prior to defendant’s first EUO letter requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibits S, T). Defendant’s third letter, dated January 15, 2015, confirms receipt of a letter from plaintiff’s counsel advising that plaintiff would not appear at the EUO scheduled for January 19, 2015, and advised that based on the request of Lisa Brown to appear at an EUO, the claims for the first three bills were reopened and would be considered for payment (see defendant’s moving papers at exhibits U, V). As such, defendant would reschedule plaintiff’s EUO one final time (see defendant’s moving papers at exhibit V). Defendant’s letter of January 22, 2015 (see defendant’s moving papers at exhibit X), attempts to relate back to defendant’s original request of December 24, 2014 (which requested an EUO relating to the bills that had already been denied), as opposed to any new bills (i.e., bill 4 or 5) that may have been received. In addition, despite multiple requests from plaintiff’s counsel, defendant never advised plaintiff provider whether the previously served denials were formerly rescinded and never requested that plaintiff appear for EUOs relating to bills 4 or 5 as each succeeding letter from the defendant related to the initial EUO letter (see defendant’s moving papers at exhibits S, T, U, V, X, Y, Z, AA, BB).

Footnote 7:Bill 1 for date(s) of service (DOS) August 4, 2014-September 3, 2014, was received on September 22, 2014, delayed on October 8, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 2 for DOS September 4, 2014-September 25, 2014, was received on October 6, 2014, delayed on October 20, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 3 for DOS October 10, 2014, was received on November 17, 2014, denied on November 25, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 4 for DOS November 20, 2014-December 17, 2014, was received on December 29, 2014, allegedly delayed on January 12, 2015, and February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015; bill 5 for DOS December 30, 2014-January 15, 2015, was received on February 5, 2015, allegedly delayed on February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015 (see affidavit of Carrie Erickson ¶ 9; defendant’s moving papers at exhibits D-L).

[*1]

Civil Court of the City of New York, Richmond County, February 7, 2018

APPEARANCES OF COUNSEL

Baker Sanders, L.L.C., Garden City, for plaintiff.

Law Offices of Daniel J. Tucker, Brooklyn, for defendant.

American Transit Insurance Company (hereinafter, defendant) filed this motion to stay the action pending a determination from the Workers’ Compensation Board (hereinafter, the Board) on whether Chiropractic Testing Services of New York (hereinafter, plaintiff) could be paid for treatment of Nelson De La Cruz (hereinafter, assignor) under workers’ compensation. Defendant claims that since assignor was injured in the course of employment, his claims should be covered by workers’ compensation and not personal injury protection and, therefore, the matter must be adjudicated by the Board before it reaches this court.

Plaintiff argues that in order for the court to stay the proceeding, defendant must establish the existence of an employer-employee relationship, citing Matter of Global Liberty Ins. Co. v Abdelhaq (36 AD3d 909 [2d Dept 2007]) where a stay was denied because the claimant failed to submit evidence that the cab driver’s base was his employer at the time of the accident. This case is distinguishable from Global Liberty, however, because assignor did not own his vehicle. Here, American United Transportation (hereinafter, the cab company) owned the vehicle and was named as the insured on the automobile insurance policy.

According to Workers’ Compensation Law § 2 (3), a livery base shall be deemed the “employer” of a driver if it must register with the Taxi & Limousine Commission and is [*2]not an “independent livery base” as defined in section 18-c.^[FN1] Even in cases where the driver owned the vehicle and paid for its fuel and{**59 Misc 3d at 252} maintenance, the Board has found an employer-employee relationship because the vehicle carried the dispatcher’s sign and telephone number, the dispatcher provided his radio, and the dispatcher exerted control over which calls he would pick up and how much he could charge (see Matter of Olistin v Wellington, 3 AD3d 618 [3d Dept 2004]).

Insurance Law § 5102 (b) (2) states that a no-fault claimant is entitled to reimbursement for economic loss less amounts “recovered or recoverable” from workers’ compensation benefits. The Court of Appeals has held that a no-fault insurer may attain “party in interest” status to a Board proceeding, upon the discretion of the Workers’ Compensation Law Judge (WCLJ), while the WCLJ makes the determination whether an employer-employee relationship existed (Liss v Trans Auto Sys., 68 NY2d 15 [1986]). The courts have consistently ruled that the legislature has vested “primary jurisdiction” in the Board over the issue of the availability of coverage under the Workers’ Compensation Law, and that plaintiffs have “no choice but to litigate this issue before the Board” (id. at 21).

The Court of Appeals has further held that, where the availability of workers’ compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions (O’Rourke v Long, 41 NY2d 219, 228 [1976]). Essentially, where a determination as to whether an accident arose out of a plaintiff’s employment is likely to require extensive fact-finding, the court should, “in the exercise of sound discretion,” defer to the Board (Jing Huo Lac v American Tr. Ins. Co., 19 Misc 3d 1146[A], 2008 NY Slip Op 51177[U], *3 [2008], citing Weber v State of New York, 104 Misc 2d 947 [Ct Cl 1980]).

Defendant need not prove that assignor was employed by the cab company at the time of the accident, but merely show “potential merit” to its claim so as to trigger a determination by the Board (A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).^[FN2]

In this case, we do not know the degree of control exerted by the cab company over assignor, but that should not preclude{**59 Misc 3d at 253} plaintiff’s duty to seek recovery under workers’ compensation. The facts that the cab company owned the vehicle involved in the accident and is named as the insured on its automobile policy show “potential merit” that the cab company is not an independent livery base and, therefore, assignor would be covered under workers’ compensation.

The motion to stay is granted, pending a determination by the Workers’ Compensation Board on the parties’ rights under the Workers’ Compensation Law.

In the event plaintiff fails to file proof with the court of an application to the Workers’ Compensation Board within 90 days of the date of the order entered hereon, the court shall grant [*3]summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

Footnotes

Footnote 1:The Board designates a livery base as an “independent livery base” if the: (a) base is not the owner/registrant of any vehicle it dispatches; (b) drivers use their own clothing; (c) drivers set their own schedules; (d) drivers select which dispatches they want to pick up; (e) drivers are free to contract with other bases; (f) base does not issue a W-2 or any federal withholding; (g) drivers pay for their own fuel and maintenance for the vehicle; (h) base does not issue fines or penalties except refusal to provide dispatches in response to driver misconduct; and (i) driver cannot be fired or discharged.

Footnote 2:Plaintiff produced assignor’s sworn statement that he was not working when the accident occurred and a sworn statement by his purported employer that assignor was not working, and was not en route to or from work at the time of the accident; defendant interposed only a claims adjuster’s assertion that defendant had “made the determination that the [assignor] was eligible for Workers’ Compensation” which in turn was based solely on an employer’s unsworn statement dated 18 months before the accident and a police accident report.

Civil Court of the City of New York, Richmond County, June 24, 2014

APPEARANCES OF COUNSEL

Cassandra & Gullo, PLLC, Brooklyn (Dominick Gullo of counsel), for plaintiff.

Law Offices of James F. Sullivan, P.C., New York City (Eric Wahrburg of counsel), for defendant.

Plaintiff Forest Rehabilitation Medicine PC commenced the instant action against defendant [*2]insurance carrier to recover $3,490 in payment for the rendering of first-party no-fault medical benefit services to its assignor, Tracy Fertitta, pursuant to article 51 of the Insurance Law. The sole issue for this court’s determination is the medical necessity of “Calmare pain therapy,” also known as “scrambler therapy,” a relatively new and controversial form of treatment that has divided the medical field. Indeed, after a review of the testimony adduced at trial and the exhibits admitted in evidence, the apparent first impression question that must be determined is whether this form of therapy is merely another form of “junk science,” or a revolutionary form of pain management that demands and deserves acceptance.

Background

A bench trial was held before this court on February 10, 2014. Due to scheduling difficulties, said trial continued and culminated on May 14, 2014. Prior to the commencement of testimony, the parties stipulated to the establishment of plaintiff’s prima facie case, noting that defendant issued a timely denial of the claims asserting medical necessity as its defense. Additionally, the parties stipulated to various exhibits being admitted in evidence, including the claim forms, treatment records, medical records, defendant’s denials, and the peer review of Dr. Ayman Hadhoud. Neither party requested a Frye hearing, pursuant to Frye v United States (293 F 1013 [DC Cir 1923]).

The assignor, Tracy Fertitta, 35 years of age, was involved in a motor vehicle accident on May 12, 2011. Subsequent to the accident, she complained of pain in her neck, right arm, lower back, right leg, right shoulder and right knee. She eventually came under the care of Dr. Christopher Perez, M.D., a founding partner along with Jack D’Angelo, M.D., of plaintiff Forest Rehabilitation Medicine PC. Dr. Perez’s diagnosis relevant to the instant action was essentially right sided cervical and lumbar radiculopathy. His examination of Ms. Fertitta’s cervical spine, lumbosacral spine and right shoulder revealed tenderness and limited range of motion in all three areas. Consequently, Dr. Perez ordered an EMG of the upper extremities, advised Ms.{**44 Misc 3d at 478} Fertitta to engage in a course of physical therapy, to perform various home exercises, and to take analgesics as necessary. On December 21, 2011, Ms. Fertitta met with Dr. Perez to discuss the potential efficacy of treatment utilizing MC-5A Calmare pain therapy to treat her lumbar and cervical regions.

While the witnesses proffered by both plaintiff and defendant attempted to explain the specifics of the subject therapy, the court found a more precise explanation contained in a document entitled “Letter of Medical Necessity for Scrambler Therapy data submission based on New York State Insurance Commission Guidelines and insurance carrier requirements,” contained in a packet of documents admitted into evidence as plaintiff’s exhibit No. 1. Said document was prepared presumably for insurance purposes.

Under the phrase “Technology Description,” it states:

“[T]he MC-5A, using Scrambler Therapy Technology, Calmare Pain Therapy Treatment is a non-invasive method for rapid treatment of high-intensity oncologic, neuropathic, and drug resistant pain through a biophysical rather than a biochemical manner. The method incorporates a multiprocessor apparatus for electronic nerve stimulation, and uses the nerve fibers as a passive means to convey a message of normality to the nervous system by a procedure defined as scrambling or tricking of information, which then enables the nervous system to modify the reflex adaptive responses—referred to as TEMPR—Transcutaneous Electrical Modulation Pain Reprocessor . . . . In neuropathies there are [*3]complex reactions that modify the homeostatic equilibrium of pain system. In such a context, the Scrambler Therapy (ST5) interferes with the pain signal transmission, by mixing ‘non-pain’ information into the nerve fibers. The ST5 consists of a multiprocessor apparatus able to stimulate 5 artificial neurons by the application of surface electrodes on skin pain areas.”

The subject assignor, Ms. Fertitta, received one treatment on each of the following days: December 12, 2011, December 13, 2011, December 14, 2011, December 15, 2011, December 16, 2011, December 19, 2011, December 20, 2011, December 21, 2011, December 22, 2011 and December 23, 2011. The billed amount for each day was $349. The treatments were submitted to Allstate under code 64999, which is the category utilized for an “unlisted neurological procedure.”

{**44 Misc 3d at 479}Defendant called Dr. Ayman Hadhoud, a board certified specialist in the field of physical medicine and rehabilitation, as its sole witness. Initially, Dr. Hadhoud explained that the name “Calmare” is the name of a scientist responsible for the development of this therapy, whose name was then adopted by the manufacturer as the name for the particular mechanical device used in conjunction with the administration of the subject treatments. The court takes judicial notice that in the Italian language, the term “calmare” means “to soothe.” Dr. Hadhoud also testified that this subject course of treatment has mainly been used in treating patients receiving chemotherapy, a fact which he felt rendered it inapplicable in a clinical context. Thus, he testified that he reviewed all the available data concerning the treatment of Ms. Fertitta as a result of the accident, and concluded that the Calmare scrambler pain therapy treatment was not medically necessary. He also indicated that he found the subject treatment medically questionable in that Ms. Fertitta’s symptoms could be appropriately and sufficiently treated with basic physical therapy, and that pain and inflammation relief could easily be achieved with the use of regular oral analgesics.

Additionally, Dr. Hadhoud testified that because a no-pain message is transmitted to the nerve via the application of electrodes to the skin in close proximity to the area of pain, the subject treatment is merely just another form of physical therapy, wherein the primary goal is to reduce pain and inflammation. Thus, the numerous mechanisms, i.e., whirlpool, heat, and electric stimulation, which are regularly applied in physical therapy sessions would clearly be preferable and cheaper forms of treatment. Moreover, Dr. Hadhoud opined that since Calmare scrambler pain therapy is essentially physical therapy, any bills generated from its usage should be included in a fixed physical therapy fee.

Lastly, and most importantly, Dr. Hadhoud recited the definition of “medical necessity,” promulgated by the American Medical Association Policy Statement H-320.953 (Oct. 2000):

“services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing, or treating an illness, injury, or its symptoms in a manner that is: (1) in accordance with generally accepted standards of medical practice; (2) clinically appropriate in terms of type, frequency, extent, site, and duration; and (3) not{**44 Misc 3d at 480} primarily for the convenience of the patient, physician, or other health care provider.”

In response to Dr. Hadhoud’s testimony, plaintiff called a rebuttal witness, Jack D’Angelo, M.D., whose area of expertise is also physical medicine and rehabilitation. Dr. D’Angelo testified that Calmare scrambler pain therapy can be simplistically described as a computerized device which uses a biophysical in lieu of a biochemical approach. A “no pain” message is transmitted to the nerves via disposable surface electrodes applied to the skin in the area of the patient’s source of [*4]pain. Scrambler therapy synthesizes 16 different types of nerve patterns which override chronically aberrant signals of chronic pain with normal signals emanating from the brain. Hence, the no-pain message replaces the pain message, essentially cancelling out the pain message.

Dr. D’Angelo further testified that the goal of said therapy is to reduce a patient’s level of pain to a zero level/zone. Dr. D’Angelo conceded the fact that this type of therapy is essentially new. Nevertheless, he emphatically asserted that it has gained wide acceptance in the medical community, and has received approval by the Food and Drug Administration (FDA), for use in chemotherapy induced neuropathy as well as diabetic neuropathy. Moreover, he testified that the Calmare device has also been a European CE marked certified pain therapy medical device for the noninvasive treatment of neuropathic and oncologic pain. Dr. D’Angelo also testified that one third of Calmare devices are currently being utilized by the military, and independent studies are in the process of being conducted by the Mayo Clinic as well as Stanford University. More responsive to the concept of no-fault benefits, he testified that said device has also been approved by the Workers’ Compensation Medical Fee Schedule on a case by case basis.

Dr. D’Angelo explained that with scrambler therapy, the usual protocol is to start with 10 45-minute treatments applied to the “problem area.” He testified that Ms. Fertitta’s pain level was closely monitored after each session. When she initially began treatment, her pain level was five to six. However, upon the completion of said therapy, her pain level had actually been reduced to a three. It should be noted that Dr. D’Angelo conceded that it was too early to be able to render an opinion as to the potential long-term benefits of Calmare scrambler therapy.{**44 Misc 3d at 481}

Conclusions of Law

A denial of no-fault coverage premised on a lack of medical necessity must be supported by competent evidence, such as an independent medical examination or peer review, or other proof, which sets forth a factual basis and a medical rationale for denying the claim (see Healing Hands Chiropractic, P.C. v Nationwide Assur. Co., 5 Misc 3d 975 [Civ Ct, NY County 2004]; Bajaj v Progressive Ins. Co., 14 Misc 3d 1202[A], 2006 NY Slip Op 52387[U] [Civ Ct, Queens County 2006]).

Where a plaintiff provider proves that it timely submitted completed no-fault claim forms setting forth the facts and amount of the loss sustained, and that payment of the no-fault benefits are overdue, the provider establishes a prima facie case of medical necessity (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). However, “[w]here the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity” (2006 NY Slip Op 51871[U], *2, citing Prince, Richardson on Evidence §§ 3-104, 3-202 [Farrell 11th ed 1995]; see also Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

It has been held that a peer review’s medical rationale is insufficient if it is unsupported by or controverted by evidence of medical standards or generally accepted practice (see Bajaj v Progressive Ins. Co., 14 Misc 3d 1202[A], 2006 NY Slip Op 52387[U] [Civ Ct, Queens County 2006]; CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608 [Civ Ct, Kings County 2004]; Nir v Allstate Ins. Co., 7 Misc 3d 544 [Civ Ct, Kings County 2005]). “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values [*5]that define its calling” (CityWide Social Work & Psychological Servs. v Travelers Indem. Co. at 616).

In the instant case, the court finds that despite the fact that Dr. Hadhoud’s expert testimony included a factual basis and a medical rationale for his opinion, this is insufficient to establish a lack of medical necessity for the Calmare pain therapy rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. v Maryland Cas. Co., 32{**44 Misc 3d at 482} Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). It seems that Dr. Hadhoud’s main problem with Calmare pain therapy is that it is not cost effective.

The court, despite extensive research, was unable to locate any reported cases involving the issue of the medical necessity of Calmare scrambler therapy. In order to ascertain the medical necessity of Calmare scrambler therapy, the court must determine if it is generally accepted as reliable science.

The Court in Marsh v Smyth (12 AD3d 307, 310 [1st Dept 2004]) instructed that

“[t]he important purpose of the Frye test is to ensure that courts do not rely upon an expert’s testimony regarding a novel procedure, methodology or theory unless it has been ‘generally accepted’ within the relevant scientific community as leading to reliable results (see People v Angelo, 88 NY2d 217, 223 [1996]). The focus of the Frye test is to distinguish between scientific principles which are ‘demonstrable’ and those which are ‘experimental’ (see People v Wesley, 83 NY2d 417, 422 [1994], quoting Frye, 293 F at 1014). The Wesley court went on to emphasize that ‘the particular procedure need not be “unanimously indorsed” by the scientific community but must be “generally acceptable as reliable” ’ (83 NY2d at 423, quoting People v Middleton, 54 NY2d 42, 49 [1981])” (see also Lugo v New York City Health & Hosps. Corp., 89 AD3d 42, 56 [2d Dept 2011]).

Therefore, this court in applying the Frye standard finds that the evidence presented by the experts regarding Calmare scrambler therapy is reliable.

The court is not unduly concerned by the fact that Dr. D’Angelo testified that he could not comment with any semblance of certainty as to the long-term effects of Calmare scrambler therapy treatments. Nor is the court unduly concerned with the current lack of information concerning the potential adverse effects of prolonged treatments. It is common knowledge that most if not every type of medication on the market has potential adverse side effects. Indeed, every commercial on television advertising medication for various ailments comes replete with unnerving warnings about the potential adverse side effects of said medication. After viewing some of these commercials, one has to wonder if the ailment might not be preferable to the cure.{**44 Misc 3d at 483}

In all frankness, the court is fascinated with the entire concept of Calmare scrambler therapy. It has found that the Calmare device is approved by the FDA for marketing in the United States. According to the official FDA website, an FDA 510 (k) classification essentially clears a medical device for commercial distribution. For a medical device to be approved by the FDA, pursuant to 21 USC § 360c (a) (3) (A):

“the effectiveness of a device is, for purposes of this section . . . to be determined, in accordance with regulations promulgated by the Secretary, on the basis of well-controlled investigations, including 1 or more clinical investigations where appropriate, by experts qualified by training and experience to evaluate the effectiveness of the device, from which investigations it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to [*6]have under the conditions of use prescribed, recommended, or suggested in the labeling of the device.”

Furthermore, 21 USC § 360c (a) (3) (B) provides:

“If the Secretary determines that there exists valid scientific evidence . . .

“(i) which is sufficient to determine the effectiveness of a device, and

“(ii) from which it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling of the device,

“then, for purposes of this section . . . the Secretary may authorize the effectiveness of the device to be determined on the basis of such evidence.”

Additionally, the FDA, pursuant to 21 USC § 360c (a) (3) (A) and (B), also requires the individual or entity seeking approval of a device to provide adequate, well-controlled investigations which include clinical investigations by qualified experts who, by possessing the necessary training and expertise, can conclude that the device in question will have the effect it purports to have when used as directed (see also 21 USC § 355 [d] [setting forth the “substantial evidence” required for approval of a new drug]).

The court finds unavailing the fact that no specific evidence that Calmare scrambler pain therapy is widely accepted in the medical field for the treatment of neurological pain has been{**44 Misc 3d at 484} presented. The court notes that no real evidence of nonacceptance has been presented. What is significant and noteworthy is that evidence of independent testing was presented which demonstrated that Ms. Fertitta’s pain level decreased following the administration of Calmare scrambler pain therapy treatments.

The court certainly recognizes that anything new, whether it be a mechanical device or a scientific theory, will inevitably have “kinks” which need to be worked out over time. However, this fact should not fuel any unreasonable fear or disapproval of a device which has the potential to literally revolutionize how the medical field addresses and combats chronic pain.

Therefore, in consideration of this, the court finds no reason to deny the instant claim for reimbursement. The court finds that Calmare scrambler therapy, in the instant action, was a medical necessity for Ms. Fertitta’s pain management.

Accordingly, it is hereby ordered that judgment in the amount of $3,490, in addition to attorney’s fees and statutory interest, is awarded to plaintiff Forest Rehabilitation Medicine PC as assignee of Tracy Fertitta.

Civil Court of the City of New York, Richmond County

6352/11

Law Office of Jennifer M. Cassandra (plaintiff)

24 Shepard Avenue

Staten Island, NY 10314

Law Office of Teresa M. Spina (defendant)

170 Froehlich Farm Boulevard

Woodbury, NY 11747

Philip S. Straniere, J.

Do something special

Anything special

And you’ll get better because

You gotta get gimmick

If you want to get applause.^[FN1]

[*2]Plaintiff, Forest Rehabilitation Medicine PC (Forest) assignee of John Russo (Russo), commenced this action against the defendant, GEICO Insurance Company (GEICO), alleging that the defendant failed to pay for first party medical benefit services rendered to Russo as required by the New York State No-Fault Insurance Law [Article 51 New York State Insurance Law]. A trial was held on January 29, 2013. Both sides were represented by counsel.

The parties stipulated that the plaintiff had timely submitted the billings in question and that the defendant had timely denied payment based on “lack of medical necessity.” The services in question are high frequency pulsed electromagnetic stimulation treatments performed by plaintiff using a TMR 1200 machine manufactured by Scientific Imaginetics. TMR stands for “therapeutic magnetic resonance” and is a method of providing high frequency electromagnetic stimulation on patients in order to facilitate pain relief. As explained by plaintiff’s witness, John D’Angelo, MD, the process has nothing to do with MRI’s-magnetic resonance imaging.

Plaintiff bills $800.00 for each of these TMR treatments and recommends for most patients a series of four to five treatment sessions with a maximum of ten to twelve sessions. Plaintiff is seeking to be paid $4,000.00 for five treatments given to Russo on December 8, 10, 13, 15, & 17, 2010.

The treatments were submitted to GEICO under Code 64999 which is used for an “unlisted neurological procedure.” Apparently if plaintiff had submitted the treatments under a standard recognized electro-stimulation code, plaintiff would have been paid. However, under the standard code carriers are required to make payment at a rate substantially less than that for Code 64999.

Plaintiff apparently taking a cue from Miss Mazeppa, Electra & Tessie Tura of “Gypsy” fame who sang the above cited lyrics, has found “something special” in using the TMR 1200, a relatively unique pain management modality for the treatment of pain by the use of high frequency electromagnetically produced waves. Plaintiff testified that there are only about fifty such machines in use in the United States and the TMR 1200 device costs about $150,000.00. Although there are other similar devices available, plaintiff is using the [*3]TMR 1200 which is manufactured by Scientific Imaginetics.^[FN2]

When first confronted with the name of the machine the court pondered if a TMR 1200 was either a type of racing car, an alumni group from Ten Mile River Scout Camp, or the machine Marvin the Martian used to try to eliminate the Earth from blocking his view of Venus.^[FN3] Plaintiff quickly dispelled any of these misconceptions and while testifying on rebuttal described the science of the machine and how it was designed to be part of a comprehensive pain management program.

Defendant’s denial of the claim was based on a “Peer Review” conducted by Edward Weiland, MD, on January 11, 2011 in which Weiland concluded that the clinical status of Russo did not warrant “multiple therapeutic magnetic resonance high frequency electromagnetic post therapy treatments” and that the procedure “would not have accelerated claimant’s clinical recovery” from an accident on October 22, 2010.

On the trial date, Dr. Weiland was unavailable to testify and the defendant called Mitchell Weisman, MD as its “re-peer doctor” and expert witness testifying as to the lack of the medical necessity of the procedures rendered by plaintiff after having reviewed the same records as Weiland as well as Weiland’s report. It was stipulated that Weisman was an expert in the area of physical medicine and rehabilitation and that he could testify as the “Re-Peer Review” doctor.

Weisman agreed with Weiland’s conclusion that the procedure was not medically necessary. However, as an expert witness, Weisman opined that “TMR” and similar procedures are not generally accepted in the medical community as a valid treatment option. He stated that the normal electrical stimulation used in physical therapy is all that [*4]is required and that TMR and other high frequency based modalities are neither needed nor has it been established that they provide any benefit.

There are a few problems with defendant’s case. First, no where in his peer review does Weiland state that the TMR procedures were “not medically necessary.” He concludes that “medical justification has not been established.” The standard to be applied is lack of “medical necessity,” the term”medical justification” is not necessarily the same thing and does not meet the statutory/regulatory standard for evaluating the appropriateness of a treatment.

Second, although he recites the American Medical Association definition of “medical necessity” he fails to apply that definition to the specific facts of this claim.

Third, unlike Weisman who testified that TMR is not accepted in the medical community as a form of treatment, Weiland never addresses that issue, and implies that had there been some other documentation presented to him to review, he might have concluded that the procedures were necessary and that TMR is an appropriate treatment. Weiland justified his conclusion on the fact that there was no clinical basis for these treatments and that the customary modalities used in physical therapy should be sufficient to treat Russo.

The conclusions expressed by Weisman at trial cannot be accepted as they are beyond the scope of the Weiland Peer Review. Because Weiland never specifically found a “lack of medical necessity,” Weisman cannot amend that peer review to reach the conclusion that lack of medical necessity is the appropriate finding and thereby correct the deficiencies in the initial peer review report to which plaintiff was expected to respond at the trial..

Further, Weisman based his conclusion primarily on his assertion that TMR and similar treatments are not accepted in the medical community. It seems his opinion was secondarily, if at all, based on a lack of clinical findings to necessitate such treatments. Therefore, Weisman failed to reach his conclusion based on the same criteria used by Weiland. Weisman was in effect raising a new and different reason for denying payment, that is, the plaintiff’s seeking payment for a procedure not accepted in the medical community for the purpose used by the plaintiff. In general, plaintiffs are required only to rebut in litigation the grounds set forth in the denial by the carrier and not be surprised at trial by new grounds for rejecting payment of a claim.

The above being said these facts do create the interesting issue of whether the court can deny coverage and dismiss plaintiff’s cause of action based on the reasoning stated by the defendant’s expert at trial when the expert is testifying as to matters not used by the defendant to initially decline paying the claim. Weisman was qualified as an expert witness in the area of physical medicine and rehabilitation. The function of an “expert” is to provide the trier of fact with information that would be beyond the knowledge of the general public. Applying this standard, it would seem that the court could accept the [*5]expert’s testimony as to whether TMR is an accepted treatment protocol recognized in the medical community, especially when the expert is subject to cross-examination by plaintiff’s counsel; the plaintiff was present in court for the expert’s testimony; was called as a rebuttal witness and given the opportunity to challenge the conclusions of defendant’s expert.

What is also causing the court to question the appropriateness of the TMR 1200 electromagnetic therapy procedure is the apparent lack of any studies to show that the high frequency pulsed electromagnetic stimulation has any benefit to a patient such as Russo or that it is accepted in the medical community. The fact that plaintiff testified that there are only fifty machines in the United States would tend to support a conclusion either that the therapy is a new and emerging one as postulated by plaintiff and that he is on the cutting edge and ahead of the community curve, or that it is not accepted in the medical community and considered experimental at best, as advocated by the defendant.

The website of Scientific Imaginetics, the manufacturer of the TMR 1200 warns that “TMR is intended for temporary symptomatic relief of chronic intractable pain”it goes on to list as one of its nine “Warnings” that “the TMR has no proven curative value.” In the area “Contraindications” the manufacturer warns, “Never use the device when pain syndromes are undiagnosed until the etiology is established.” This contraindication is of particular interest because other than X-rays, taken in the emergency room on the date of the accident, there appears to have been no diagnostic or objective tests conducted on Russo so as to determine the cause of his pain. Linking it to a car accident, does not necessarily mean the etiology has been established.

In fact, Johns Hopkins Medicine/Johns Hopkins Healthcare in a report dated 3/15/12 instituted a policy that “High Frequency Pulsed Electromagnetic Stimulation (also known as therapeutic magnetic resonance)’ would not be authorized for “Treatment of soft tissue injuries.” A similar conclusion was reached by Aetna in a report dated 4/27/12. Although both of these reports are generated by insurance companies, no report contradicting these findings was produced by plaintiff^[FN4].

In order for a medical device such as the TMR 1200 to be “approved” for use by the Food and Drug Administration(FDA) the plaintiff must establish that:

there exists valid scientific evidence…which is sufficient to determine the

effectiveness of a device and from which it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to have under the conditions of use prescribed, recommended or suggested in labeling the device [21 USCA §360c(a)(3)(B)(I)(ii)].

The FDA requires the person seeking approval of the device to provide adequate, well-controlled investigations which includes clinical investigations by qualified experts [*6]possessing scientific training and experience who could conclude that the device will have the effect it purports to have when used as directed [21 USCA §355(d)]. A device can be denied approval if the studies were not designed well, not quantifiable, and not otherwise conducted under applicable and essential principles of adequate, well-controlled clinical investigations [United States v An Article of Device…Diapulse, 768 F2d 826, 831 (1985)].

Plaintiff herein has failed to establish that the TMR 1200 is in fact FDA approved nor has plaintiff provided any independent studies to establish that this treatment modality is accepted in the medical community for the purposes for which plaintiff is using the device.However, the mere fact that the FDA has approved a device or procedure does not mean that the process is covered by insurance or Medicare [Svidler v US Dept of Health & Human Services, 2004 WL 2005781; Diapulse Corporation of America v Sebelius, 2010 WL 1037250 (EDNY)].

A similar issue as is presented in this litigation was before the United States District Court, Eastern District of New York, regarding whether the use of a device manufactured by Diapulse for treatment of persons by electromagnetic therapy would be covered under Medicare Part B [Diapulse Corporation of America v Sebelius, supra]. In regard to Medicare payments, the current status of such reimbursement requests is to be determined on a case by case basis. Medicare will not cover the electromagnetic therapy device but will cover the service provided by a physician or other medical clinician, thereby not allowing at home treatment. In this no-fault case the issue is not reimbursement for an “at home” device, it is for a physician provided service in the physicians office, which if a Medicare claim might be considered for payment.

For a service or a device to be covered by Medicare, it must be not only be safe, but also must be demonstrated as effective and generally accepted in the medical community, and an appropriate treatment [Estate of Aitken v Shalala, 986 F.Supp.57, 59 (Dist. Mass. 1997)].

As there are no reported cases involving electromagnetic therapy involving no-fault insurance claims nor are there any specific to the TMR 1200, the court is forced to analogize from these federal court rulings regarding other electromagnetic therapy protocols. It also would not make sense for one-third party source (Medicare) recognize that TMR treatments are reimbursable while another third party source(no-fault insurance) would find the treatments not covered based on lack of acceptance in the medical community. Either the procedure is accepted or it is not.

In rebuttal the physician who performed the TMR treatments, D’Angelo, explained how the process works and the benefits of using high frequency pulsed electromagnetic therapy to ease a patient’s pain. One of the reasons he recommends this treatment is that he believes it provides pain relief without the use of medication. Conceptually most people would agree that the less medication a person takes the better off they will be. However, as laudable as that goal may be, plaintiff in his rebuttal failed to reference any independent studies that document any real benefit from the TMR procedure. In fact, plaintiff did not [*7]articulate as to why this is a better protocol than regular low frequency electric stimulation therapy.

Clearly on a cost basis analysis justifying TMR that is billed at $800.00 a treatment session against the relatively low cost of the standard widely accepted electrical stimulation, which plaintiff testified is about $17.95 per session, and which most physical medicine practitioners utilize, is a huge burden to overcome. If that figure is accurate, a patient could undergo 44 regular electrical stimulation treatments for the cost of one by plaintiff using the TMR 1200 ^[FN5]. In a political and economic climate where rising health care costs are a concern to everyone, to require an insurance carrier to pay for treatments which are not widely accepted in the medical community and for which alternative less costly treatments are available does not make sense. Of course, this case has arisen in the “No-Fault Zone” where often procedures which either are non-emergency in nature or are being begun well after the date of the accident, are routinely paid by carriers when pre-approval would be required for the same treatments under any other type of insurance coverage.

Plaintiff testified that he recommends this procedure for patients who are not responding to conservative treatments. He asserts he is not recommending these treatments to patients who have experienced benefits from a conservative treatment plan. Yet the documents submitted in support of payment contradict that statement and reveal he is rendering these treatments within a relatively short period of time after the accident, often before the success of a standard course of treatment could be evaluated. In this case the accident was on October 22, 2010 and the first TMR treatment was on December 8, 2010, less than seven weeks later. There is no question that the injury received was related to the accident. The issue is whether the TMR is even recognized in the medical community as treatment for the injuries of Russo.

In light of this, the peer review physician Weiland, was correct in stating that such treatments are not “justified”either because less costly accepted treatment options had not been exhausted or from a cost/benefit analysis. It does not appear that cost standing alone is one of the criteria available to a carrier to disallow payment of a claim.

The court is reminded that science and improvements in medicine and health only advance when individuals are willing to experiment and take a chance on implementing new ideas and procedures. History is replete with examples such as Galileo Galilei who advocated a heliocentric solar system rather than the accepted thinking of his time of a geocentric one and was forced to recant his theories under the penalty of death; Edward Jenner who successfully developed a small pox vaccine and had to convince the medical establishment of its preventative abilities; or Joseph Lister who challenged the then current methods for treatment of wounds and promoted the use of antiseptics, and had the medical community accepted his teachings, perhaps James Garfield would not have died of the gunshot wound he received from Charles Guiteau. [*8]

On the other hand history is full of examples of “cures” for just about everything that “ails you” and hawked at “patent medicine shows” throughout America from real life examples such as Lydia Pickham’s Herb Medicine, Fletcher’s Castoria, and Kickapoo Indian Sagwa. To fictional ones like Al Capp’s “Kickapoo Joy Juice” from “Li’l Abner”; Jackie Gleason’s “Mother Fletcher’s” line of products; and “Pirelli’s Miracle Elixir” from Stephen Sondheim’s “Sweeney Todd.”

Conclusion:

Plaintiff should be encouraged to seek to find new treatments to benefit his patients. As noted by George and Ira Gershwin in “They All Laughed ^[FN6]” many people have had to advocate ideas and products which people at that time questioned but turned out to be accepted as the norm.

They all laughed at Christopher Columbus

When he said the world was round

They all laughed when Edison recorded sound

They all laughed at Wilbur and his brother

When they said that man could fly

They told Marconi

Wireless was phony

It’s all the same old cry….

They all laughed at Rockefeller Center

Now they’re fighting to get in

They all laughed at Whitney and his cotton gin

They all laughed at Fulton and his steamboat

Hershey and his chocolate bar

Ford and his misery

Kept the laughers busy

That’s how people are….

Plaintiff may be on the cutting edge of a new therapy treatment for soft tissue injuries and if he firmly believes that the procedure benefits his patients, should continue to provide the services, track the results and use his findings to convince the medical community of the benefits of electromagnetic therapy for persons with complaints similar to Russo’s.

Unfortunately, there is no evidence that high frequency electromagnetic therapy has been widely accepted in the medical community for the treatment of soft tissue injuries such as suffered by Russo in this accident. [*9]

Based on the fact that the defendant’s expert opined that the procedure is not accepted and that the plaintiff heard that testimony and had the opportunity to rebut it with evidence that it was accepted but failed to do so, the court must deny the claim for reimbursement.

In the event that the plaintiff can refute this presumption of nonacceptance with some independent recognized tests, the court will consider revisiting the issue in this or in another of the many open lawsuits for similar relief plaintiff has pending in this court.

Judgment for defendant. Plaintiff has failed to rebut defendant’s defense. Plaintiff’s cause of action is dismissed.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated:February 27, 2013

Staten Island, NYHON. PHILIP S. STRANIERE

Judge, Civil Court

ASN byon

Footnotes

Footnote 1:A rearrangement of the order of the lyrics to “You Gotta Have A Gimmick” from “Gypsy” Music by Jule Styne, Lyrics by Stephen Sondheim.

Footnote 2: Not to be confused with the TMR 1200 made by Patz and described as a vertical food mixer.

Footnote 3: Marvin actually used an Illudium Q-36 Explosive Space Modulator.

Footnote 4:It should be noted that the Aetna report does cite some studies where high-frequency pulsed electromagnetic stimulation has shown some benefits in wound healing and treatment of ulcers, Aetna denies coverage for all uses. Johns Hopkins recognizes for treatment of certain types of ulcers and certain wound therapies. Neither of them recognize it as beneficial for soft tissue injuries.

Footnote 5:By charging $800.00 for each treatment, plaintiff will recoup the cost of the TMR 1200 machine with 187.5 treatment sessions. Were plaintiff to have billed the service under standard electro-stimulation codes at $17.95 the machine would not be paid for until 8357 sessions had been completed.

Footnote 6:Written for the film “Shall We Dance” and sung by Fred Astaire.

Civil Court of the City of New York, Richmond County

23900/10

Joseph Sparacio Esq.

Counsel for Plaintiff

2555 Richmond Avenue

Staten Island, NY 10314

Richard T. Lau & Associates

Counsel for Defendant

300 Jericho Quadrangle, Ste 260 P.O Box 9040

Jericho, N 11753-9040

Philip S. Straniere, J.

This litigation involves two separate law suits brought by plaintiffs for first-party no-fault benefits provided to defendant State Farm Mutual Automobile Insurance Company’s insured. In the first action (Index No.23900/02), plaintiff, J.R. Dugo, DC, PC, as assignee of Anthony Giambrone, sought payment of $9,600.00 for chiropractic services rendered in the form of manipulation under anesthesia(MUA) to Giambrone. In the second action (Index No.23902/02), plaintiff, J.R. Dugo, Jr., DC, as assignee of Giambrone, sought payment of $7,200.00 for chiropractic services in the form on MUA to Giambrone. As the services by both chiropractors was rendered to the same patient at the same time and place for injuries received in the same motor vehicle accident, the parties agreed that there were common issues of law and fact that warranted trying the cases together. A trial was held on November 27, 2012. All parties were represented by counsel.

Background:

On January 14, 2010, Giambrone was injured in a motor vehicle accident in Staten Island, New York. He was treated at Richmond University Hospital both in the emergency room and as an admitted patient. His primary injury was a fractured right patella. Soft tissue injury to his back was also diagnosed. On January 30, 2010, he was admitted to Staten Island University Hospital for treatment for cardiac problems apparently unrelated to injuries received in the accident. On March 5, 2010, he came under the care of Daniel Wilen, MD, an orthopedic surgeon. At some point Giambrone sought chiropractic and physical therapy treatment. There are no records in evidence from any treating chiropractor or physical therapist and none was reviewed by the peer review chiropractor utilized by the defendant.

Dr. Wilen’s notes indicate that on March 19, 2010 Wilen was made aware that Giambrone had consulted both a physical therapist and chiropractor. The name “Dugo” is listed in those notes for both services. Giambrone underwent diagnostic testing at the hospital on January 14 & 15, 2010 and had MRI’s conducted on April 8, 2010 of the knee and the spine at an MRI facility.

On May 4-5-6, 2010 at Specialty Surgery of Middletown, LLC, in Middletown, New Jersey, the plaintiffs participated in MUA on Giambrone to treat his knee, cervical, thoracic and lumbar spin. On May 6, 2010 and May 27, 2010 Giambrone apparently received epidural injections for continued back pain.

Plaintiffs timely billed for these services. Defendant denied coverage alleging that the MUA was not medically necessary. Although in this case the standard is that the services were “not chiropractically necessary” as chiropractors do not practice medicine in New York [Education Law Article 65]. Part of the problem is that in New York neither the Insurance Law, the regulations of the commissioner, nor the insurance policies themselves define what is meant by “medical necessity.” In Prime Psychological Services, PC v Progressive Casualty Ins. Co., 24 Misc 3d 1244 (A), 2009, the court noted that in New York,

A presumption of medical necessity attaches to a defendant’s admission of the [*2]plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity (citations omitted). Defendant thus bears “both the burden of production and the burden if persuasion with respect to the medical necessity of the treatment or testing for payment is sought” (citations omitted).

Although there have been few decisions elucidating defendant’s exact burden of proof to establish that the services were medically unnecessary, (citation omitted) at the minimum, a defendant must “establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services.” (citation omitted). The New York courts “explicitly or implicitly look to generally accepted practice in determining medical necessity. (citation omitted).

In contrast the court in Advanced Rehabilitation LLC v UnitedHealth Group Inc.. 2012 WL 4354782, in discussing whether MUA was a covered service under four healthcare plans the insurance carrier offered, the court outlined some of the criteria to take into account in order to determine if a service was “medically necessary.” Although this litigation was brought under ERISA, and not a “no-fault” law, absent some indication that a different standard is to be applied, the court set out some general criteria to look at when “medical necessity” of a procedure is in question. The court noted medical necessity

generally required treatment to be necessary to meet the patient’s need, (2) not solely for the patient’s convenience, (3) the most appropriate level of service that could safely be supplied (4) supported by national medical standards, and (5) considered by medical literature to be a safe and effective method of treating the patient’s symptoms.

On May 20, 2010, Robert Snitkoff, DC, conducted a peer review in regard to the necessity of the MUA procedure. For some reason his report states he is reviewing services performed only on May 5 & May 6 and not May 4. Presumably this is a typographical error as he indicated both in his report and at trial that the MUA was not necessary.

It should be pointed out that in his report he noted that he was not provided with certain documentation for his review, primarily a comprehensive narrative report from the treating chiropractor and detailed chiropractic progress notes. At trial he admitted that he would have preferred to have had this and some other background information for him to use in preparing his peer review report.

Issue Presented:

Do the Duo of Doctors Dugo Deserve Dollars Due for Diverting Derangement Disorders or Does Defendant’s Denial Definitely Declare the Doings of the Duo of Doctors Dugo Deficient Depriving them of Dough?

1. May Chiropractors Perform MUA in New York?

This court has on more than one prior occasion concluded that chiropractors in [*3]New York cannot perform MUA’s as this procedure is classified as surgery and chiropractors are not permitted to perform surgery in New York. The most recent decision rendered on that issue is Willets Point Chiropractic PC v Allstate Insurance, 36 Misc 3d 1235(A) (2012), 2012 WL 3667433. This prohibition is in place irrespective of the fact that the MUA was performed in New Jersey where chiropractors are permitted to do it and the chiropractors performing the procedure are licensed in both New York and New Jersey, as the insured is covered by a New York insurance policy and New York no-fault law. The court will not restate the findings in that case here but will apply them in full to the facts of this litigation.

As this court has pointed out in several decisions, MUA appears to be the “flavor of the month” in regard to chiropractic treatment with a marked spike in claims for this service being filed and litigated in this and other courts. In many of them the court has had to question whether the alleged benefits of the MUA procedure to reduce “pain” is outweighed by the risks to the patient to undergo the anesthesia necessitated by MUA. I’m not a doctor and don’t even play one on TV, yet common sense asks whether using MUA for this patient was appropriate considering it appears that his hospitalization in late January 2010 was for chest pain and heart related issues.

In fact, it is not a settled question as to whether manipulation under anesthesia is widely accepted in the medical and chiropractic communities so as to allow it to be paid for under various types of insurance policies. Three cases reported since this court decided the Willets Point Chiropractic case in August question whether MUA is an accepted procedure [Advanced Rehabilitation LLC v UnitedHealth Group, Inc., 2012 WL 4354782 (CA 3 NJ); Sanctuary Surgical Centre, Inc. v Connecticut General Life Ins. Co., 2012 WL 5386555 (SD Fla); Ambrose v Coffey, 2012 WL 5398046 (ED Cal)].

2. Is the Peer Review Valid?

What makes this litigation particularly galling is that the defendant has utterly failed to provide a basis for the peer review chiropractor to render an informed opinion. It failed to provide him either with a copy of the treating chiropractor’s narrative or progress notes. Nor is there any evidence of pre-surgical screening by a physician and the result of that screening. The peer review chiropractor even requested this additional information from the defendant’s intermediary and never received it. At the trial he admitted it would be preferable to have had this information, but then testified that he still could render an opinion based on what documents he was given. This is somewhat analogous to the court deciding a case by only reading the defendant’s answer or motion papers rather than the pleadings of both parties.

If these were claims for any other treatment, the court would have to award the plaintiffs their fees as the defendant would have failed to have established the lack of medical necessity for the procedure. The failure to give the peer review health care professional a complete record practically insures that the claim will be denied because it [*4]will be based on incomplete documentation placed before the reviewer, who will have to conclude that the record as reviewed does not support the treatment. This is the “no-fault world” definition of a self-fulfilling prophecy. It would of course be better that the peer reviewers indicate “I can’t render an opinion based on this incomplete record.” But in the real world where these reviewers are being compensated by the person referring the matter for review, too many rejections for incomplete information will inevitably lead to a diminishment of referrals from that source to the reviewer.

What also is troubling about the peer review is that it is supposedly of MUA performed over three days, May 4-5-6 2010. Yet the reviewer starts out that he is reviewing services performed on May 5-6 2010. Is it to be concluded that the first day’s treatment was permitted or is this a typographical error? It also appears that the reviewer was rendering an opinion in regard to all of the charges submitted to the defendant concerning the MUA as he indicates that bills of $4,033.18; $15,571.62; and two for $19,497.44 were included in the information he received. If these figures are accurate, this defendant is being asked to pay for almost $60,000.00 worth of services. Parenthetically, none of those numbers matches with the amount the plaintiffs are seeking as damages. Also, as pointed out below, other than the plaintiffs herein, none of the other claims for payment by the health care providers involved in the MUA are part of this litigation. Neither is there any evidence as to what was defendant’s position on those charges, assuming that the providers submitted bills nor even the status of those claims.

Insurance carrier defendants cannot continue on a regular basis to submit incomplete records to doctors for review and expect that such a submission is acceptable. It is not fair to any party in the litigation nor the court. It deprives the court of the ability to have a full record to review and properly decide the case. The only explanation for this continued behavior is that the amount of money involved, although important to the individuals, is “chump change” for the carriers so there is no motivation to address the situation and actually prepare a file for a legitimate peer review and subsequent litigation.

3. Did the Defendant Have the Obligation to Join Other Claims?

Many things come in “fives.” Dionne babies. Books of Moses. Marx Brothers in Vaudeville. And so do apparently bills for MUA services ^[FN1]. There are at least five separate charges submitted to insurance carriers when a person undergoes MUA- the two chiropractors-one primary the other an assistant, the anesthesiologist, the screening [*5]physician and the facility. Yet for some reason, the insurance companies refuse to either try these cases together or to even provide the court information as to the status of these other claims.

The defendant has all of the injured party’s records and will know what medical providers he visited, when he visited them, what services were performed and what services were paid for or denied coverage. To claim that it is speculative as to what would be contained in those documents, as argued by defendant’s counsel, is ludicrous especially because the defendant is the only party to the action with that knowledge or the ability to obtain the information from its own records. Its failure to provide the information initially as part of the submission to the peer review person, especially after requested, can only be concluded as an attempt to control the outcome of the peer review process so as to justify a denial.

It would seem that this information is readily available to all carriers, including the defendant, by putting some information into a computer and generating a list of providers who filed claims and were paid. On the outside chance that defendant’s records are still kept by hand by eye-shaded workers with #2 Dixon-Ticonderoga Pencils such as at the accounting firm of “Whitehall & Marks” where Leo Bloom worked in the “Producers,” one would still believe the information could have been forwarded to the peer reviewer in a timely manner so as to give some added credibility to his report.

This court in Willets Point, questioned whether MUA cases were ones where there should be permissive joinder under CPLR §1002. In fact, CPLR §1001 may be more appropriate where it says:

(a) Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to an action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.

Clearly a finding by this or any other court in regard to the claim of one of the five participants in the MUA process as to the necessity for the procedure would be binding on participants. It would be inconsistent to find that the anesthesia was medically necessity, but the procedure was not. Or that the facility fee was not covered but the pre-screening was. Therefore, the rights of any provider not participating in the litigation would be “inequitably affected by a judgment” in the action brought by only one of the five providers.

Because each of the five participants is potentially an independent actor, as a plaintiff they would be unaware of whether or not any of the others have filed a claim (the failure of them to have done so being extremely improbable) or whether the carrier had paid or denied the claim. Only the defendant has such knowledge. The defendant would also be the only party who could easily identify if any of the providers whose claim for [*6]MUA related services was denied commenced a civil action and in what court that action was pending. As such, the defendant has the obligation to take affirmative action to have all of the claims arising from the MUA if not joined as parties in one suit, at least consolidated for a joint trial.

The real question is why does the no-fault insurance industry as well as professional associations representing health care providers continue want to tolerate this system? Carriers are undertaking to defend MUA cases where the basic issue of the necessity of the procedure affects all providers on the service in different courts in different counties leading to potentially different results and the appeal of inconsistent verdicts. Health care providers run the risk of discovering that their pending cases are now subject to an adverse decision in litigation brought in another venue in which they failed to have notice or participation.

CONCLUSION:

This case creates an interesting problem. First, this case should be dismissed. Based on the prior rulings of this court, chiropractors cannot collect for MUA services in New York primarily because MUA is classified a surgery and chiropractors cannot perform surgery in New York.

Second, part of the plaintiff’s claim is for manipulation of the patient’s knee. Nowhere in the Education Law, where chiropractic services are defined, is there an authorization for manipulation of a person’s knee . Chiropractors under the statute deal only with the spine. So even if the MUA were otherwise permitted, plaintiffs have not established that they are legally permitted to manipulate knees.

Third, case law holds that chiropractic services under the CPT codes are restricted to 68.4% of the relative value unit allowable for medical doctors [Flatbush Chiropractic, PC v Metlife Auto & Home, 35 Misc 3d 1203(A), (2012)]. Plaintiffs have not established whether the amounts they billed were at the full value or the reduced rate for chiropractic services.

Fourth, a review of the diagnostic tests in evidence reveals degenerative changes and conditions which could be the cause of back pain there is insufficient evidence to link the need for the MUA to the motor vehicle accident which might preclude payment for the procedure through no-fault insurance rather than processing a claim through regular medical insurance. Although MUA through medical insurance coverage would probably entail getting “pre-approval”such as the procedure which exists in the Workers’ Compensation arena, “pre-approval” is a term which is foreign in no-fault world. In fact, it’s the no-fault insurance equivalent of “He-Who-Must-Not-Be-Named” in Harry Potter stories ^[FN2]. This is the case even when requesting the MUA procedure to be performed in a non-emergency situation, such as in this case four months after the accident date. [*7]Sometimes it is easier to explain “Flub-a-dub” to someone who never watched “Howdy Doody” than to understand certain practices in the world of no-fault.

The above being said, in the event that there is an appellate court decision in this case, another MUA case, or a change in the statutes or rules governing chiropractors authorizing the performance of MUA and thereby permitting the plaintiffs to recover for MUA services, the court would have to address whether the plaintiffs would have prevailed had this trial been treated as one for any other covered no-fault first party benefit cases. Examining this case from that viewpoint leads to the conclusion that the plaintiffs would be permitted to recover because the defendant utterly failed to provide the peer reviewer with sufficient documentation to render an opinion as to the medical or chiropractic necessity of the MUA services. The peer reviewer was not provided with the reports or treatment notes from the treating or referring chiropractor as well as other essential documents. The peer reviewer even requested these documents after receiving the file and was not provided them by the defendant. As such, if this were a no-fault case other than MUA, the court would rule in favor of the plaintiffs.

Finally, in MUA cases, the defendant insurance carrier is required to consolidate all claims arising from a particular MUA for a joint trial so as to prevent inconsistent verdicts arising from the same treatment. In those actions which have not as yet been consolidated for trial, the carrier must notify the court as to the status of all of the claims for services provided in connection with the particular MUA and to request a stay of the action so that all the claims can be consolidated for joint trial in one venue. Perhaps this is something which will have to be mandated by a court rule to insure universal and consistent treatment of these MUA claims.

Judgment for defendant. Plaintiffs cause of action in each case is dismissed for the reasons set forth above.

If it turns out that MUA is authorized by an appellate court or statute, then based on the failures of the defendant to prove its case, plaintiff J.R. Dugo in action Index #23900/10 would be entitled to $6,566.40 [68.4% of the $9,600.00 billed] and plaintiff Jack R. Dugo in action Index #23902/10 would be entitled to $5,024.80 [68.4% of the $7,200.00 billed] together with interest, costs, disbursements and attorney’s fees as permitted by statute.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after a receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated: December 26, 2012

Staten Island, NYHon. Philip S. StraniereJudge, Civil Court

ASN byon

Footnotes

Footnote 1:

There are numerous other “fives” such as Jacksons and Dave Clarks , Graves to Cairo, Easy Pieces, Golden Rings, de Mayo celebrations, O’clock shadows, consecutive Yankee World Championships, to name a few. However to include them above would break the “rule of three.” For those of you deficient in vaudeville history the five Marx Brothers are Chico(Leonard), Harpo(Adolph later Arthur), Groucho (Julius), Gummo (Milton), and Zeppo (Herbert).

Footnote 2: Voldemort.