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.

Civil Court of the City of New York, Richmond County

017113/11

Philip S. Straniere, J.

Your toe bone connected to your foot bone,

Your foot bone connected to your ankle bone,

Your ankle bone connected to your leg bone,

Your leg bone connected to your knee bone,

Your knee bone connected to your thigh bone,

Your thigh bone connected to your hip bone,

Your hip bone connected to your back bone,

Your back bone connected to your shoulder bone,

Your shoulder bone connected to your neck bone,

Your neck bone connected to your head bone,

I hear the word of the Lord!^[FN1] [*2]

Plaintiff, Willets Point Chiropractic, PC (Willets)assignee of Mirna Flores (Index No. 17113/11) and plaintiff, Richard Grosso, DC, PC (Grosso) assignee of Mirna Flores (Index # 17119/11) each commenced an action against Allstate Insurance Company seeking to be compensated for professional chiropractic services rendered to Mirna Flores in the form of “manipulation under anesthesia” (MUA) which was denied by defendant Allstate as neither medically nor chiropractically necessary.

It is stipulated that the plaintiffs timely and in proper form submitted their respective bills for service and that the defendant timely and in proper form denied their respective applications. Defendant’s denial was based on an independent chiropractic examination (ICE) report of Chester Bogdan DC (Bogdan), dated August 5, 2010, in which he concluded that no further chiropractic treatment was chiropractically necessary. The MUA services rendered herein were performed almost one year later, in July 2011.

A trial was commenced on June 13, 2012 and concluded on June 26, 2012. Both sides were represented by counsel. The parties had stipulated that both actions for chiropractic services rendered during the MUA could be joined together for trial as they involved common issues of law and fact. It was also conceded that neither side had information as to whether payment to the pre-screening physician, the anesthesiologist and facility involved in the MUA had been either made or denied by Allstate. Nor was there any evidence presented as to whether the plaintiffs commenced actions seeking payment for regular chiropractic services rendered to Flores after the August 2010 Bogdan report.

TREATMENT HISTORY:

The patient, Mirna Lopez-Flores was injured in an automobile accident on May 9, 2010. She did not go immediately to the hospital, but later that same day went to the emergency room at Winthrop Hospital where she was examined, X-rayed, had a CT scan and was released. She came under the care of Richard Grosso, DC, chiropractor, an orthopedist, Dov Berkowitz, MD and Eric Jacobson, MD, a specialist in Physical Medicine and Rehabilitation. She was initially receiving chiropractic treatment five times a week, which apparently was commenced on or about May 19, 2010 and which was later reduced to three times a week. In addition Flores was going to physical therapy three times a week.

At the time of the peer review on August 5, 2010, Flores was still receiving chiropractic treatment and physical therapy three times a week. Dr. Berkowitz had recommended her for three MRI exams.

On June 19, 2010, she underwent MRI’s of both her cervical and lumbar spine. The radiologist rendered an impression of “posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally.” The cervical MRI came back negative.

On June 22, 2010, Flores had an MRI of her right shoulder. The radiologist’s impression was “findings consistent with an intrasubstance tear of the subscapularis muscle. Subacromial-[*3]subdeltoid bursitis.”

On August 5, 2010, Bogdan, DC conducted an ICE of Flores and concluded that no further chiropractic treatment was required. In spite of the denial, Flores continued to receive chiropractic treatment. It is unclear whether these treatments were performed by plaintiff Grosso or by plaintiff Willets where Grosso is the chief executive officer according to the Department of State, Division of Corporations records, as the progress notes and “SOAP” notes don’t have any letterhead or its equivalent but appear to be signed or initialed by Grosso.

On July 16, July 23, and July 30, 2011 plaintiffs performed MUA’s on Flores at a facility at the New Horizon Surgical Center in Paterson, New Jersey. Each plaintiff billed defendant $1,641.92 for each of the three treatments and each seeks to be compensated in the sum of $4,925.76 for their services. It should be noted this does not include a fee from the facility, the pre-screening physician or the anesthesiologist.

Bogdan rendered his opinion after conducting his chiropractic examination but did so without being provided with any records from the treating chiropractor by the defendant. Bogdan indicated that he did not need the treating chiropractor’s notes in order to render his own opinion based on a chiropractic exam ^[FN2].

There was another issue raised in regard to Bogdan. He admittedly is not certified to perform MUA and therefore cannot give an opinion as to the necessity of that particular procedure. However, Allstate’s and Bogdan’s position is that he was opining only as to the need for further chiropractic service after August 2010 and did not have to deal with the issue of MUA because there was no need for any additional chiropractic services as Flores’ conditions had resolved and she had reached maximum benefit from her treatments, let alone her requiring the MUA performed almost one year later in July 2011. The court agrees that the threshold issue was extension of chiropractic treatment after the ICE date and that the MUA is being viewed as part of the overall chiropractic treatment Flores received. [*4]

Plaintiffs have several burdens in these cases. First, establishing that additional chiropractic services were needed after the date of Bogdan’s ICE. Second, that the injuries that necessitated the MUA were causally related to the automobile accident of May 2010. Third, that MUA is a recognized treatment for Flores’ injuries. The credible evidence is that the plaintiffs have not met their burden in those regards and have not successfully rebutted defendant’s decision to terminate treatment.

Issues Presented:

A. Are Chiropractors Permitted to Perform MUA?

Before addressing the above issues particular to these claims, it is necessary to determine if chiropractors may perform MUA. This court is concerned by the growing number of no-fault claims for MUA which seem to be proliferating over the last year or so in the court system. Several carriers refuse to recognize MUA as a compensable treatment option under no-fault or other health related insurance policies. In fact there is debate in the medical and chiropractic communities as to the effectiveness of MUA as a treatment.

In this vein, it should be noted that in all of the MUA trials presided over by this judge, no litigant has ever presented any independent study supporting the effectiveness or need for this treatment or establishing that the patient who received MUA had a condition which was made appreciably better after the MUA rather than if only conservative chiropractic treatment had been continued or some other modality employed.

Are there any studies showing what is the status of the patient six months or a year after MUA? None has been presented to this court. No one has answered the question whether the reason patients are not seen again by chiropractors after undergoing MUA is that insurance coverage has run out rather than they are better and no longer need treatment. And because the patients for whom MUA is recommended by definition do not tolerate “pain” well, is there any study examining whether they “feel” better and have “greater” range of motion because they think the procedure works rather than it actually did anything physically to them to ease their pain and increase mobility? It would seem that because pain is subjective and these patients are by definition not tolerant of pain, this would be something an independent academic or health care professional institution would have studied. But as noted above, no such independent studies have been presented to this court.

A quick on-line search disclosed that most of the “success” reports are self-serving statements from the persons who practice MUA and who recommend the treatment and not by unaffiliated peer review process. Is MUA an accepted medical/chiropractic procedure or is it “junk” medicine/chiropractic? This court is not convinced that this issue has been resolved so as to warrant the seemingly sky-rocketing use of this procedure in no-fault insurance situations.

Finally, MUA appears to be a procedure whereby a chiropractor who has been unsuccessful treating the patient with conservative treatment recommends that the patient [*5]undergo MUA to be performed by the same chiropractor. Rarely, if ever, is a second opinion obtained before this “surgical” procedure is undertaken.

There have been several published decisions in regard to MUA and an apparent acceptance that MUA is a recognized treatment option for chiropractic patients and subject to being compensated for under a no-fault insurance policy [Flatbush Chiropractic PC v Metlife Auto & Home, 35 Misc 3d 1023(A), (2012); Kraft v State Farm Mutual, 34 Misc 3d 376 (2011); Giugliano v Merchants Mutual, 29 Misc 3d 367 (2010)].

The common theme for approval of payment on these claims is that the Workers’ Compensation Fee Schedule allows it. No-fault insurance claims do not have there own fee schedules and health service providers are compensated under workers’ compensation codes [Insurance Law §5108]. As noted in Giugliano, the Workers’ Compensation Fee Schedule (WCFS) contains a category for “Anesthesia, Surgery, Radiology, Pathology & Laboratory, Medicine and Physical Medicine”-parenthetically all health related procedures which a chiropractor is not licensed to perform- as well as a separate “Chiropractic” fee schedule. The courts in those cases allowing compensation have reasoned because chiropractors by the statutory definition of their profession can perform “manipulations” they may perform “manipulations under anesthesia” [emphasis added] so long as the anesthesia is administered by an anesthesiologist or some other authorized medical professional. The protocol for MUA also has a requirement that a medical doctor examine the patient and approve of the procedure and that it be performed at a surgical center or its equivalent, thereby somehow further legitimatizing the chiropractic MUA.

The conclusions in these cases have been reached even though the chiropractors performing the MUA bill their services for the procedure under the WCFS as “surgery.” Routinely these bills are submitted with the designation for the procedures as being under CPT Code 22505 “manipulation of spine requiring anesthesia, any region.” In the current cases Code 27194 was also used by the plaintiffs. This code is used for closed fractures and is designated for the hip and pelvic area. It is described as “treatment of pelvic ring fracture, dislocation, diastasis or subluxation; with manipulation, requiring more than local anesthesia.” There is no equivalent CPT Code for chiropractic performance of MUA under the Chiropractic Schedule. Why this code was used by plaintiffs for an alleged shoulder injury is curious or else there was no apparent billing for the shoulder manipulations.

Rather than reaching the conclusion that chiropractors cannot do these procedures, some Workers’ Compensation Board judges and the court decisions which have addressed this issue, concluded that MUA was allowed because it was “manipulation,” which chiropractors can, by licensing, perform. These cases also refer to a State Education Department letter dated September 18, 2007 which allegedly concluded that the Education Law does not prohibit a chiropractor from performing MUA. None of these cases concluded that this letter permitted the practice only that it was not prohibited. Although neither side submitted a copy of this “letter,” the court was able to obtain one. And as Billy Flynn notes in the musical “Chicago” concerning the identity of [*6]“Mary Sunshine”, “things often aren’t what they seem.”

The letter in question is actually dated September 13, 2007 and not September 18, 2007. It is on letterhead from the State Board of Chiropractors and signed by the Executive Secretary. It is not addressed to anyone in particular but has the salutation “To Whom It May Concern” which in and of itself is a curious way to address a document which by its contents is apparently authorizing chiropractors to perform MUA a procedure not specifically granted in the licensing statute. It starts “I write in response to your inquiry regarding chiropractic manipulation under anesthesia” yet does not indicate who made the request.

Analysis of the contents of the letter discloses rather than an outright endorsement of chiropractic MUA it is more akin to the wedding scene in “Fiddler On The Roof” when Tevye asks the Rabbi if men and women are permitted to dance together.

Tevye:Well, Rabbi?

Rabbi:Dancing…Well it’s not exactly forbidden, but….

Tevye:There you see? It’s not forbidden.

At which point the men and women break “tradition” and begin dancing together leaving the question unresolved.

When the entire letter is read, it is clear that all it does is say that as written the Education Law does not prohibit MUA, it does not indicate that it is specifically permitted. There is no discussion of the issue of whether or not the procedure is “surgery” and whether chiropractors may perform surgery. In fact, the language of the letter emphasizes the word “may” in regard to MUA and then sets forth limiting parameters and caveats as to its use. It says:

While the practice act does not specifically prohibit a chiropractor from performing spinal manipulation on patients who are under anesthesia, this type of procedure may present special risks and a practitioner should carefully evaluate such use. Furthermore, the chiropractor is not authorized to order or administer anesthesia.

Every chiropractor licensed in New York State must be competent to perform any procedure that they provide by virtue of education or training. Also, the procedure must be warranted by the condition of the patient and, thus, does not constitute excessive treatment, which would be a violation of Part 29 of the Regents Rules on Unprofessional Conduct.

I would note that while it may be permissible in New York State for chiropractors to perform manipulations on patients under anesthesia, gaining hospital privileges and obtaining physicians willing to prescribe and administer anesthesia for this purpose must be addressed.

As pointed out later in this decision, there is nothing in the Education Law which permits the executive secretary to expand the statutory description of the areas of practice of a particular profession. The letter is neither an “opinion of counsel” nor does it indicate that the opinion is [*7]that of the State Board of Chiropractic.

Education Law §6551(1) defines the practice of chiropractic.

(A)s detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

Nothing in this section permits a chiropractor to conduct a surgical procedure ^[FN3] nor apparently, is “surgery” specifically prohibited to a chiropractor by Education Law §6551(3) other than a prohibition to treating “any surgical condition of the abdomen.” As difficult as it is to believe, there apparently is no New York statute defining “surgery.” Considering barbers at one time performed surgery, hence the red in a classic barber pole, you would think New York would want to define that term. Because it is undefined perhaps chiropractors have the same privilege as barbers.

Stedman’s Medical Dictionary, 27th Edition, defines “surgery” as “1. The branch of medicine concerned with the treatment of disease, injury, and deformity by physical operation or manipulation. 2. The performance or procedures of an operation.”

Stedman’s defines “medicine” as “2. The art of preventing or curing disease; the science concerned with disease in all its relations. 3. The study and treatment of general diseases or those affecting the internal parts of the body, especially those not usually requiring surgical intervention.”

Applying the Stedman’s definition of “surgery” to that of chiropractic in the Education Law, leads to the conclusion that chiropractors cannot practice surgery because they are not engaged in the practice of “medicine.” In New York chiropractic care is not considered “medicine” neither is a chiropractor a “physician.”Although chiropractors engage in “manipulation,” they do not treat “disease, injury or deformity.” Nor can they “operate” [Education Law §6551(3)]. The Education Law §6520 defines the “practice of medicine” as “diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.” Chiropractors are not permitted to do any of these things. Does MUA cross the line between “correcting” and “treating?”

It is clear then, that if MUA is a form of surgery, which the CPT Code labels it as such, chiropractors are prohibited from engaging in it. If MUA is not a form of surgery, then why is not it included under the Chiropractic CPT Code? [*8]

Can the court and the Workers’ Compensation Board judges rely on an Education Department letter as a basis for permitting this practice? A review of the Education Law does not disclose any authority for the Board of Regents to expand the practice of a profession beyond that set forth by the legislature in the statute. Education Law §6504 states:

Regulation of the professions.

Admission to the practice of the professions (licensing) and regulation of such practice shall be supervised by the board of regents…and administered by the education department, assisted by a state board for each profession….

Education Law §6506 gives the board of regents the authority to “supervise the admission to and the practice of the professions.” Education Law §6507 grants the authority to administer the admission and practice of the professions to the state education department and to promulgate regulations [Education Law §6507(2)(a)]. State boards for each profession are established by Education Law §6508 for the purpose of assisting the board of regents and the education department on “matters of licensing, practice and conduct.” The board may conduct and grade examinations, assist in other licensing matters [Education Law §6508(2)], and conduct disciplinary proceedings [Education Law§6508(3)].

When taken together it is apparent that these bodies are charged with regulating professions which include both medicine and chiropractic. But there is nothing in the statute that gives these entities the authority to expand the scope of a defined practice beyond that which the legislature has set forth. If the general consensus is that chiropractors should perform MUA then the statute should be changed to include MUA and not by a letter which does not even have the authority of an “opinion of counsel” or the imprimatur of the Board of Regents or the State Board of Chiropractic. As has been done in the past, when new treatment techniques and diagnostic tools have evolved the legislature has so acted. This is evidenced by the legislative history of the chiropractic statutes. It behooves the chiropractic profession to amend the statute because if chiropractors are performing MUA when they are not authorized to do so under the statute, it would be “professional misconduct” under Education Law §6509(2).

This issue of whether MUA is a surgical procedure and therefore the practice of medicine was recently litigated in Texas [Texas Board of Chiropractic Examiners v Texas Medical Association, ___SW3d___, 2012 WL 2742554, 7/16/12]. Unlike New York, Texas specifically defines a surgical procedure and prohibits chiropractors from engaging in surgical procedures [Texas Occupational Code §201.002 (a)(4) and §201.002( c)(1)]. In fact, the Texas statute in describing what is included in a “surgical procedure” refers to those “procedures included in the surgery section of the common procedures coding system as adopted by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services.” The Texas Court of Appeals ruled MUA is in fact a surgical procedure under those codes and cannot be performed by chiropractors.

Presumably MUA in Texas is performed in the same manner as in New York, so how can it be “surgery” in Texas and not “surgery” in New York. Is there a difference merely because [*9]when no-fault MUA is performed in New York it is billed under Workers’ Compensation CPT schedules while Texas uses Medicare/Medicaid CPT schedules promulgated by the federal government? That would make sense if each state was describing two different procedures. The MUA procedure is the same so it cannot be more than one classification.

For instance if you are asked “What’s big, grey, weighs over a ton and has a trunk in front?” the answer can be either an elephant or a Volkswagen Beetle. But in that case the description fits two different things. If you throw in an engine, there is only one possible answer ^[FN4]. Here there is agreement as to what is meant by MUA. The question becomes whether it is really surgery. To allow MUA by chiropractors would mean that the entities that code MUA as “surgery” are wrong in their classification of the procedure and that it should be reclassified. If it is not “surgery” then why is it performed at “surgical centers?”

If MUA is surgery, then chiropractors cannot perform it because surgery can only be performed by practitioners of medicine and that does not include chiropractors. This is not to say that chiropractors do not have the skill and training to perform MUA, it is that there is a gap in the legislation that created the parameters of the chiropractic profession. It is the function of the legislature to correct the problem and not for the courts to expand the definition beyond the plain language of the statute.

B. Can chiropractors manipulate parts of the body other than the vertebral column?

Assuming that chiropractors are permitted to perform MUA, to what extent can they manipulate parts of the body other than the vertebral column? This court has been confronted with claims by chiropractors for manipulation of not only the spine but of other parts of the body.

In this case, according to the three procedure reports the plaintiffs prepared, they performed MUA on the cervical spine, the thoracic spine, the lumbopelvic spine(which included some hip manipulation) and the shoulders of Flores. The cases that have approved these extra-spinal manipulations have focused on the language in the Education Law describing chiropractic as able to treat “structural imbalance, distortion or subluxations in the human body” as permitting such treatments. The problem with this interpretation is that it ignores the plain language of the rest of the statute that the purpose must be the “removing of nerve interference and the effects thereof where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.”

Taking the broadest interpretation of this statute, which some courts apparently have done, then a chiropractor could conceivably treat all of the parts of the body in “Dem Bones” because nerves reach each of them and those nerves are connected to the spine. So a chiropractor could manipulate the toes because the nerves in those appendages hurt? [*10]

However, the language of the statute makes it clear that the treatment has to arise from a “distortion, misalignment or subluxation of or in the vertebral column” and not a problem in another area of the body not generated from the spine. The problem must originate in the spinal column and not vice versa. A strict reading of the statute permits the chiropractor to manipulate the spinal column to relieve pain in another area of the body. They cannot by the statute manipulate the other area to relieve the pain in that area. Again we are back at the difference between “treatment” and “correction.” If this is something chiropractors are trained to do, then the statute has to be changed.

In the no-fault setting this means that the non-spinal area which is being treated must not only have “nerve interference” but that nerve interference must be related to the automobile accident. The plaintiff herein, as have other chiropractors, testified that the manipulation is necessary to break down fibrous adhesions and scar tissue which the patient developed. The cases supporting the procedure cite a Workers’ Compensation Board case [Aramak, 2009 WL 456874 (NY Work. Comp. Bd)] as permitting chiropractors to perform these procedures [See also Solomon Schechter Day School , 2006 WL 3889159 (NY Work. Comp. Bd.]. Aramak rested its conclusion on the representation that the chiropractor was only going to perform manipulation to break-up fibrous adhesions and scar tissue formed around the spine and not in other areas of the body, so its applicability to more extensive manipulation must be questioned.

These holdings are interesting in view of the fact that they appear to be an expansion of chiropractic care beyond the words of the governing regulations concerning Workers’ Compensation claims.

Limitations of chiropractic treatment.

(a) When care is required for a compensable injury, an injured employee may select to treat him or her any duly registered and licensed chiropractor authorized by the chair to render chiropractic care only if said injury consists solely of a condition which may lawfully be treated by a chiropractor as defined in section 6551 of the Education Law. If the injury does not consist of a condition which may lawfully be treated by a chiropractor or consists of multiple conditions, any one of which is outside the limits prescribed by the Education Law for chiropractic treatment, the chiropractor may not initially treat such employee for any condition but must so advise the injured employee and instruct him or her to consult a physician of the employee’s choice for appropriate care and treatment. Such physician shall supervise the treatment of said condition, including the future treatment to be administered to the patient by the chiropractor. [12 NYCRR §346.1].

Based on this regulation to be an authorized treatment for Workers’ Compensation purposes, the plaintiff would have to establish that the patient’s condition can only be treated by a chiropractor and that the MUA was the appropriate treatment. Although this is a no-fault case, the compensation is made pursuant to the Workers’ Compensation CPT Code. As there is neither a chiropractic nor a separate no-fault code for MUA, and payment is made under the Workers’ Compensation code, then the standard to be applied to authorize treatment must be the same as in Workers’ Compensation. The plaintiffs have not shown that the patient’s injury could not and [*11]should not have been treated by a physician such as an orthopedist or neurologist, or to a lesser degree by a physical therapist rather than by MUA.

But again, this interpretation gets back to the same problem, what exactly does the Education Law §6551 permit a chiropractor to do.

A review of the treatment records and the testimony, establish that there is an utter failure to prove that the condition Flores complained of was related to the motor vehicle accident. Flores’ complaints were of pain in the lower back, neck and right shoulder. There was no complaint concerning the thoracic area of her spine, yet plaintiff felt the need to perform MUA in that area. There was no MRI done of the thoracic spine. The MRI of the cervical spine showed no injury whatsoever, in fact, it was a “normal examination,” so what was the need for MUA of either the cervical or thoracic area?

The patient’s complaint in regard to her shoulder was only of injury to her “right” shoulder. So why was it necessary to perform MUA on both shoulders? In fact, the MRI which was taken of the right shoulder only and it revealed “an intrasubstance tear of the subscapularis muscle” and “subacromial-subdeltoid bursitis.” Plaintiff cannot explain how MUA is the proper treatment for a tear of a shoulder muscle and bursitis and where a chiropractor has the authority to treat an injury of that nature. It is unclear under which billing code the MUA of the shoulder was submitted to the defendant as it was not listed on plaintiffs’ claim forms. There is nothing in the record, nor did plaintiff’s trial testimony, show how manipulation of the spine or of the shoulders would relieve nerve interference in the vertebral column affecting the shoulders.

The MRI of the lumbosacral spine revealed “posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally.” When the court questioned the plaintiff as to the appropriateness of performing MUA on someone with disc herniations, the witness responded there is no danger if you know what you are doing. He produced no accepted professional studies that supported his conclusion. In fact, if the Education Department letter stands for anything, it warns chiropractors not to be undertaking MUA if there is some inherent risk to the patient beyond regular chiropractic manipulation.

Also, there is no indication that the plaintiffs ever received a copy of any of the MRI reports as they are addressed to Dr. Berkowitz with a copy to Dr. Jacobson, both medical doctors. Did the plaintiffs even have a copy of the reports when they did the MUA’s? There is a question as to whether the plaintiffs as chiropractors are trained or permitted to read MRI’s and diagnostic tests other than X-rays. The Education Law §6551 only discusses X-rays in regard to chiropractors and their training. Does New York permit chiropractors to be certified to read MRI’s and other more modern diagnostic tools? The plaintiffs are licenced in New Jersey and performed the MUA there where the New Jersey statute does recognize that chiropractor’s use other diagnostic tests besides X-rays. If the plaintiffs did not receive the actual MRI’s to view even if they got copies of the reports, how could they seriously consider performing the MUA on a patient with a disc herniation? And if they did have the actual MRI’s they have to establish they [*12]have the training to read the MRI’s,

Again, this is not to say that the plaintiffs and other chiropractors are not qualified to perform MUA assuming that is a recognized treatment, it is that New York does not currently allow them to do it.

Finally, plaintiff has failed to explain why it billed defendant using CPT Code 27194 which is for closed fractures in the hip and pelvic area and performed MUA in that area when there is no record of any complaint or injury in that area by the patient.

Based on the MRI and other reports, it is difficult to conclude exactly what are the “structural imbalance, distortion and subluxations” that Flores suffered from that the plaintiffs sought to correct by the MUA?

This position of the plaintiffs that the MUA was safe may have been acceptable if the plaintiff had any proof that a physician had examined the patient and approved the MUA procedure for her. No such report was presented at trial nor do the records submitted by the plaintiff even reveal the name of that physician. None of the three procedure reports prepared by the plaintiffs disclose the clearing physician’s name. In fact the MUA report for the third day of procedure, July 30, 2011 lacks even the name of the anesthesiologist.

Also, missing from the plaintiff’s submissions is a consent form signed by the patient. As this is a “surgical” procedure requiring the use of anesthesia, it would seem that such a document is required. Because the MUA was performed on three different dates each a week apart, an argument could be made that a consent form was needed for each procedure.

Pubic Health Law §2805-d provides:

Limitations of medical, dental or podiatric malpractice action based on lack of informed consent

1. Lack of informed consent means the failure of the person providing professionaltreatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.

2. The right of action to recover for medical, dental or podiatric malpractice based on lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.

Although the case at bar is not a malpractice action, the language of the statute may be helpful in resolving the issue of how to treat chiropractic MUA. As is obvious from the statute, chiropractors are not specifically mentioned. Does this mean that they are not required to obtain [*13]an “informed consent” from a patient? After all Education Law §6551 does not use the terms “treatment or diagnosis” in describing chiropractic. These terms are reserved for the practice of medicine (Education Law §6521). Or is this another situation where “medical” malpractice is being given an interpretation beyond the language of the Education Law and is being used to refer to all health treatment by professionals other than those performed by dentists and podiatrists?

If it is concluded that chiropractors are not subject to obtaining informed consent from a patient, then can it also be concluded that they cannot perform “surgery” because informed consent is required for non-emergency surgery under the Public Health Law and MUA is considered a non-emergency surgical procedure under the Workers’ Compensation codes.

In addition to all of the problems analyzed above, plaintiff failed to explain how the accident caused scar tissue or fibrous adhesions to develop which required the MUA and that the patient’s complaints were not related to her general physical condition ( 40 years old, 5’3″ and 163 lbs.) or her job (medical assistant). If not related to the accident than some other source other than the no-fault carrier should pay for the services.

Plaintiff testified that Flores met the criteria for MUA established by the National Academy of Manipulation Under Anesthesia Physicians and went through the eight listed items a practitioner of MUA should check before recommending MUA to a patient. Plaintiff testified that Flores met the first seven criteria. The plaintiff indicated that the National Academy also set forth eight diagnoses that are “responsive to MUA” and that Flores met four of the eight criteria. A skeptic might ask if a patient had been unresponsive to chiropractic care for the extended period that this patient underwent-over one year of chiropractic treatment, why would you conclude that more aggressive chiropractic care was needed rather than determining some other treatment should be undertaken or that the patient had in fact achieved the maximum benefit?

Interestingly, the criteria relied upon by the plaintiff are issued by the “National Academy of Manipulation Under Anesthesia Physicians” (emphasis added). As pointed out above in New York chiropractors are not considered physicians. Stedman’s Medical Dictionary defines a physician as someone who practices medicine. So the very entity which is establishing guidelines for MUA by definition excludes chiropractors in New York. The clear implication is that MUA is to be performed by physicians and not chiropractors unless physician has some other connotation.

The facts of this case trigger another line of inquiry to be addressed. The MUA’s were performed in New Jersey. The first question to be asked would be could a licensed New York chiropractor perform MUA in New Jersey? It would seem that to perform any chiropractic services in New Jersey, like most professions, the chiropractor would have to be licensed there. Plaintiff’s submitted copies of their New Jersey registration certificates indicating that they are permitted to perform MUA in New Jersey. It also appears that the definition of chiropractic services in New Jersey is much broader than that in New York. In fact, in New Jersey [*14]chiropractors can have the title “chiropractic physician.” However, they are not included in the definition of the practice of medicine and surgery [NJSA 45:9-5.1]. Neither side provided any information as to whether MUA would qualify as “surgery” in New Jersey. It does appear that chiropractors in New Jersey may be permitted to perform surgery such as MUA under a different statue.

The New Jersey statute provides: “No licensed chiropractor shall…perform surgery as requires cutting by instruments or laser excepting adjustment of the articulations of the spinal column or extremities”[NJSA 45:9-14.5(b)]. The definition of chiropractic in that statutory section specifically includes manipulation of the soft tissue of the body, as well as the spine and other joints so, presumably MUA would be a permitted practice in New Jersey. This definition is far more liberal than that of the New York statute. In fact case law in New Jersey holds that whether a chiropractor can do adjustments beyond the spinal area mus be addressed in a case by case basis [Bedford v Riello, 195 NJ 210 (2008)].

Unfortunately, for the plaintiffs, the claim arose from an accident in New York, the patient resides in New York and the claim is filed under the New York State Insurance Law. So the New York definitions as to the scope of the services that a chiropractor may provide and not the law of the situs of the service determines whether the plaintiffs are entitled to payment for the MUA. This is not the place to continue the debate from “Gypsy” as to whether New York is the center of the world as asserted by Miss Cratchitt or New York is the center of New York as Mama Rose alleges.

It must be concluded that as the New York statute is written, chiropractors cannot treat areas of the body outside of the spinal column unless there is a direct link between the pain in that area and a problem which manipulation of the spinal column can alleviate. Plaintiffs have failed to establish that Flores’ treatment by an MUA was related to the automobile accident.

C. “This is another fine mess you’ve gotten me into.”

Without the assistance of Stan Laurel, no-fault insurance in New York is clearly in need of reform. Since the Civil Court began tracking these cases in 2006, the number of cases brought in New York City has exceeded 200,000 or about 25% of the court’s case load. It does appear that the number of filings has declined in 2011 & 2012 to less than 200,000 cases. The court must wonder what is in the economic structure of this system where health care providers are willing to not be paid for services they previously rendered to a patient and then to have to litigate the issue in the hope that some percentage of the claims will be settled or paid after prevailing at a trial. And again the court is only seeing the claims that result in litigation. It excludes claims that are not pursued at all or wind up in arbitration. Is the reimbursement rate for no-fault so high when compared to other insurance payments that it is economically feasible to absorb so many unpaid claims? It must be questioned why highly trained professionals are so willing to work for free. [*15]

On the other hand, why would the insurance industry continue to want to have a system in place which is litigation generating with all its attendant expenses by its very nature? The cost of trying cases must be less than paying the claims or else they would be seeking to remedy the system.

In no-fault land carriers assert the “Goldilocks Rule” in regard to diagnostic testing. Health care providers are only paid if the test is not performed “too early” or “too late” but “just right.” Also where else but in no-fault land do you get to have two attorneys trying cases-with doctors as witnesses- where the amount in controversy is less than the cheap seats at Yankee Stadium?

Ironically, no-fault uses the workers’ compensation fee schedule to pay health care providers. Yet, by statute, workers’ compensation requires pre-approval of all non-emergency treatments something that for some unknown reason is missing from the no-fault law [Workers’ Compensation Law Article 2; 12 NYCRR §325-1.4]. Actually there is nothing in the no-fault law which precludes obtaining pre-approval before rendering non-emergency treatment so why not require it by contract? Unless of course the terms of the entire no-fault contract is generated by the State Insurance Department and because those regulations do not include pre-approval it is barred.

Also, worthy of comparison is the language of Education Law §6731 covering physical therapists. It limits treatments by a physical therapist to ten visits or thirty days if the treatments were “without referral from a physician, dentist, podiatrist, nurse practitioner or licensed midwife….”[Education Law §6731(d)]. Absent from the list are chiropractors. No similar treatment restriction is found in regard to treatment by chiropractors in Education Law Article 132.

Adoption of either of these standards to no-fault insurance claims would reduce the amount of this litigation.

Part of the problem apparently is the inability of the legislature to consistently apply the language of its own statutes. Under the Education Law Article 131, only physicians practice “medicine” and only medical doctors may be referred to as a “physician.” Chiropractors do not practice medicine and are not physicians. The fact that the legislature does not adhere to its own statutes is obvious when the no fault law is read [Insurance Law Article 51]. Insurance Law §5102 defines “basic economic loss” under the no-fault law as

(1) All necessary medical expenses incurred for:(i) medical, hospital(…)surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy(provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation; (iii) non-medical remedial care and treatment in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time provided within one year after the date of the accident causing the injury if it is ascertainable that [*16]further expenses may be incurred as a result of the injury.

A reading of the above section would lead to the conclusion that chiropractors are not covered by the no-fault statute as they are the only health service provider governed by Education Law, Title VIII, the “Professions” other than veterinarians and mid-wives not mentioned in the Insurance Law. The only way to include chiropractors is to say that they are covered in the”any other professional health services” of the statute. Considering all the other licensed professions are mentioned specifically and chiropractors have been licensed in New York from a time before the no-fault law was enacted, what the legislature intended must be questioned. Early cases interpreting the no-fault statutes held that if the language of the statute was followed, chiropractic services were not covered. Other courts held that the broadest definition of “medical” should be applied and that it obviously included chiropractors. This of course is a complete rewriting of the law defining medicine by the courts.

It should also be noted that chiropractors are not specifically mentioned in the Workers’ Compensation Law §13 as persons who could provide treatment to an injured worker and a separate section was added to include chiropractors [WCL §13-l].

It is clear that almost all of the current no-fault litigation in the court system could be eliminated by requiring “pre-approval” of all non-emergency care. Such a procedure would eliminate legitimate health care providers having to work for free when a claim is denied and would allow insurance carriers to investigate fraudulent claims beforehand and not after the fact.

MUA is the “icing on the cake,” “cherry on top,” or “gold ring on the merry-go-round” of the irrationality of the current no-fault system. MUA has the potentiality of generating five different lawsuits; one from each of the two chiropractors involved; one from the anesthesiologist; one from the pre-screening physician and one from the facility. Each suit could be brought in a separate county in New York City because the jurisdiction of the Civil Court is citywide and insurance carriers cannot claim they are not present in a particular county as they do business in them all. This situation would potentially result in five different rulings, or at a minimum two different ones such as the screening facility gets paid and the chiropractors do not.

Where else but in no-fault land can you have the situation where the chiropractor testifying is the same person who determined the corrections he has been giving are not working so that he can recommend a more aggressive treatment-requiring anesthesia and a surgical setting, to be performed by him, and who after it is done proclaims it a success. In no-fault land the patient who received the services never testifies. The court is only presented with the self-serving recommendation for the MUA and the self-serving conclusion that it was successful.

It would seem that the carrier would seek permissive joinder of these claims under CPLR §1002 as in theory, it is in the best position to know if it is being sued in different jurisdictions in regard to claims arising from the same occurrence or at a minimum should have the ability to check its own records to obtain that information. Why carriers apparently refuse to do so cannot [*17]be explained.

D. Did plaintiffs prove their prima facie case?

Where a plaintiff provider, as here, proves that completed claims forms have been submitted to the defendant carrier setting forth the fact and the amount of the services provided and 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 Medical Diagnostic, PC. V Geico Insurance Co., 13 Misc 3d 131(A), (2006)]. However, “[w]here the defendant insurer presents sufficient evidence to establish a defense based on a lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity” [id., citing Prince Richardson on Evidence §§3-104. 3-202 (Farrell 11th ed.); see also Delta Diagnostic Radiology, PC v American Transit Insurance Co., 2007 Slip Op. 52455(U)].

The court found defendant’s expert, Bogdan, to be a credible witness. The witness’ testimony sufficiently demonstrated that the treatment at issue was not chiropractically necessary. This shifted the burden back to the plaintiff to show that the treatments were chiropractically necessary. Although Grosso testified, the court concludes that his testimony was insufficient to establish that any chiropractic treatment, let alone MUA, of Flores was necessary after the services were terminated by defendant after receipt of Bogdan’s ICE report.

The cause of action of each plaintiff therefore must be dismissed.

Conclusion:

For all of the reasons above, plaintiffs causes of action in both cases are dismissed. Chiropractors are prohibited from performing MUA in New York. In addition, plaintiffs failed to establish that the patient’s injuries were causally related to the motor vehicle accident and that a physician screened the patient before the MUA was performed. Plaintiffs failed to establish that the MUA was chiropractically necessary.

Even if the court were to determine that MUA was chiropractically necessary the plaintiffs are not permitted to collect the full CPT Code rate they are restricted to 68.4% of the relative value unit allowable for medical doctors [New York State Workers’ Compensation Board Office of General Counsel letter August 14, 2009; see also Flatbush Chiropractic, PC v Metlife Auto & Home, 35 Misc 3d 1203(A) 2012].

Again this is not to say that properly trained chiropractors should not be prohibited from performing MUA. It is the function of the legislature to expand the definition of the chiropractic profession and not the court system.

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. [*18]

The foregoing constitutes the decision and order of the court.

Dated: August 16, 2012_________________________

Staten Island, NYHon. Philip S. Straniere

Judge, Civil Court

Footnotes

Footnote 1: One of the versions of “Dem Bones” also known as “Dry Bones” or “Dem Dry Bones” an often recorded folk song attributed to James Weldon Johnson.

Footnote 2: Also for some reason Bogdan “affirmed” his report and did not have it notarized. CPLR §2106 sets forth who can affirm documents rather than having to locate a notary and chiropractors are not on that list. This makes Bogdan’s independent chiropractic evaluation inadmissible in this action. The question of whether an insurance carrier such as Allstate can rely on the report to terminate services is not addressed in the CPLR as it applies only to reports being used for a “pending” action and no action was pending when the report was prepared. Absent a section of the Insurance Law or an Insurance Department regulation requiring a carrier to have an affirmation/affidavit in order to deny coverage, it is apparent that Allstate could use the improperly affirmed report to terminate chiropractic services. Neither side presented any law on this question. Allstate avoided the issue at trial by having Bogdan testify and be subject to cross-examination on what records he reviewed and the extent of the ICE.

Footnote 3: Ironically, there does not appear to be a definition in any New York statute or administrative rule as to what constitutes surgery. Apparently New York believes that it does not know exactly how to define surgery but knows what it is when it sees it.

Footnote 4: An elephant on a motorcycle is not an acceptable alternative response.

Civil Court of the City of New York, Richmond County

08R014639

A P P E A R A N C E S:

Attorneys for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

Attorneys for Defendant:

Peter C. Merani, P.C.

298 Fifth Avenue, 3rd Floor

New York, NY 10001

Katherine A. Levine, J.

Plaintiff Anthony Mandracchia, D.C. (“plaintiff”), a medical service provider, brings this action pursuant to Insurance Law § 5106(a) to recover $320.30 for services it provided to its assignor, Dwayne Loftin (“assignor”), for injuries he allegedly sustained in an automobile accident. Defendant Allstate Insurance Co. (“defendant”) moves to dismiss pursuant to CPLR § 3211 or, in the alternative, for summary judgment pursuant to CPLR § 3212 on the grounds that the instant action is barred by the six (6) year Statute of Limitation. Plaintiff opposes the motion.

Pursuant to Insurance Law § 5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. Under the old regulations applicable to insurance policies issued before April 5, 2002, the written proof of claim must be submitted to the insurance company “as soon as reasonably practicable, but in no event later than 180 days after the date services are rendered or 180 days after the date written notice was given to the insurer. 11 NYCRR 65.12. See Rockman v. Clarendon, 2008 NY Slip Op 52093 (U), 21 Misc 3d 1118(A) (Civil Ct., Richmond Co. 2008) citing Montefiore Medical Center v. Mary Immaculate Hospital, 9 AD3d 354 (2d Dept. 2004). Within 30 days of receiving the claim, an insurer shall either pay or deny the claim in whole or in part. See 11 NYCRR 65.15(g)(3). In the event an insurer fails to timely deny a claim or request verification from the provider, the insurer is precluded from asserting that the claim was untimely or incomplete. Presbyterian Hosp. In City of NY v. Maryland Cas. Co., 90 NY2d 274, 282 (1997); Montefiore Medical Center v. NY Cent. Mut. Fire Ins. Co., 9 AD3d 354, 355 (2d Dept. 2004); NY Hosp. Med. Ctr. Of Queens v. Country-Wide Ins. Co., 295 AD2d 583 (2d Dept. 2002).

An action to recover first party benefits owed under an insurance policy is viewed as a breach of contract governed by the six year statute of limitations contained in CPLR 213(2). Alleviation Supplies, Inc. v Enterprise Rent-A-Car, 12 Misc 3d 787, 791 (Civil Ct., Richmond Co. 2006). See, Benson v. Boston Old Colony, 134 AD2d 214, 215 (1st Dept. 1987); Spring World Acupuncture, PC. V. NYC Transit Authority ., 24 Misc 3d 39 (2009). In contract cases, the cause of action accrues ,and the statute of limitations begins to run at the time of the breach.Micha v. Merchants Mutual Ins. Co., 94 AD2d 835, 836 ( 2d Dept. 1983). [*2]

In no fault actions, a defendant insurer’s contractual obligation to pay the first party benefits arises after it receives the claim. As set forth above, pursuant to Insurance Law §5106, an insurer must either pay or deny the claim within 30 days of submission of proof or the bill becomes overdue. The cause of action thus accrues once the claim is overdue. In Line Chiropractic v. MVAIC, 2005 NY Slip Op 50275U, 6 Misc 3d 1032A (Civil Ct, Bronx Co. 2005), and the statute of limitations thus commences either upon the denial of the claim or, if the thirty days after the submission of plaintiff’s proof of claim. Mandarino v. Travelers Prop. Cas. Ins. Co., 37 AD3d 775 (2nd Dept. 2007); Micha v. Merchants Mut. Ins. Co., 94 AD2d 835, 836 (3d Dept. 1983), citing Insurance Law 675(1); Chester Medical Diagnostic v. Kemper Casualty Ins. Co., 2008 NY Slip Op. 52009(U), 21 Misc 3d 1108(A) (Civil Ct., Kings Co. 2008).

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. Cimino v. Dembeck,61 AD3d 802 (2d Dept. 2009). See, Swift v New York Med. Coll., 25 AD3d 686, 687 ( 2d Dept. 2006). “In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff’s cause of action accrued” (Swift v New York Med. Coll., 25 AD3d at 687). Furthermore, in deciding a CPLR 3211 motion to dismiss, “a court must take the allegations in the complaint as true and resolve all inferences ] in favor of the plaintiff” Cimino, supra, (Sabadie v Burke, 47 AD3d 913, 914,(2d Dept. 2008).

On a motion for summary judgment, a court may consider evidence contained in documents supplied by a party to the court. See Kwiecinski v. Chung Hwang, 2009 NY Slip Op 06630, 2009 NY App. Div. LEXIS 6503 (3d Dept. 2009); Sonnenfeldt v. Kyriakoudes, 226 AD2d 286 (1 Dept. 1996) citing Central Petroleum Corp. v. Kyriakoudes, 121 AD2d 165 (1st Dept. 1986). A court may utilize these admissions as evidence upon which it can make findings of fact. Potamkin Cadillac Corp. v. BRI Coverage Corp., 38 F3d 627 (2d Cir. 1994); Freemantle v. U.S. Hoffman Machinery Corp., 2 AD2d 634 (3d Dept. 1956)(statements in answers to interrogatories or in proposed findings of fact are admissions against the party that made them); Bertha Building Corp. v. National Theatres Corp., 248 F.2d 833, 836 (1957).

Plaintiff has annexed to its complaint a ledger providing the particulars of the assignor’s bill, including the date of accident and the date of service of August 25, 1998. The complaint avers that “the bill was received timely”; i.e. that plaintiff submitted the bill to Allstate within 180 days. The complaint also avers that more than 30 days have passed since the bill was submitted and that defendant failed to properly deny the bill within 30 days of receipt. Given these admissions, the court follows the rational of Pinnacle Open MRI, PC., v. Republic Western Insurance Co., 18 Misc 3d 626 (Dist. Ct., Nassau Co. 2008), in determining the latest date by which plaintiff could have commenced the lawsuit and be timely. In Pinnacle, the defendant insurer averred that it did not have the NF-3 claim form filed with it by the plaintiff, although it did not deny its receipt. The court therefore used the date of service, added the additional 180 days that plaintiff had to file the claim, and then added the maximum of 30 days in which the insurer had in which to pay or deny the claim to determine the day that plaintiff’s cause of action ripened.

Utilizing this formula, plaintiff would be barred by the six year statute of limitations from [*3]bringing this action. Adding the additional 180 days to the date of service – August 25, 1998- and then adding an additional 30 days in which the insurer had to pay or deny the claim – bring the date that the claim became overdue to March 23, 1999. Since plaintiff admits that the service of the summons and complaint upon defendant was completed on August 6, 2008 ( see proposed judgment and attorney’s affirmation of plaintiff’s counsel dated October 6, 2008 annexed to defendant’s motion as Exhibit “B”) it is clear that the instant action was commenced way beyond the six year statute of limitations. As such, the complaint is dismissed.

The foregoing constitutes the order and decision of the court.

Dated: April 28, 2010_____________________________

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

ASN by_________on________

A P P E A R A N C E S:

Attorneys for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

Attorneys for Defendant:

Peter C. Merani, P.C.

298 Fifth Avenue, 3rd Floor

New York, NY 10001

Civil Court of the City of New York, Richmond County

23541/08

Kim Dollard, J.

This is an action by the plaintiff medical provider, to recover no-fault benefits for medical services provided to Orlando Lainez-Rodriguez, plaintiff’s assignor, arising from an automobile accident that occurred on June 16, 2008.

A trial was held before the undersigned on December 15, 2009. The parties had stipulated that the plaintiff established its prima facie case by having submitted the claims in dispute to the defendant, and that the defendant mailed timely denials of the claims. The only issue before the court was the question of medical necessity of the medical services provided to the assignor.

Defendant presented two witnesses in support of their case. Dr. Jonathan Lown was called to testify on the issue of medical necessity. His testimony was based upon the findings of Dr. Harold A. Schechter who performed a peer review of this case and prepared peer review reports. Defendant also called Karen Waldenheimer, a representative of Progressive Insurance Company. The purpose of Ms. Waldenheimer’s testimony was to lay a foundation for the peer review reports, and to admit the peer review reports into evidence.

Plaintiff objected to admission of the of the peer review reports into evidence through Ms. Waldenheimer’s testimony. Plaintiff further objected to the testimony of Dr. Lown on the grounds that defendant did not comply with CPLR 3101(d). The court heard the testimony of both witnesses, and reserved decision on the issues raised by plaintiff. Both sides submitted briefs to the court as to the admissibility of the peer review reports and the testimony of Dr. Lown.

CPLR 3101(d) – EXPERT TESTIMONY

CPLR 3101(d)(1)(i) states: “Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert witness is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.”

Plaintiff claims that the disclosure notice provided by defendant is insufficient and vague, and therefore Dr. Lown should not have been permitted to testify and at trial and his testimony should be stricken.

Defendant, at the outset, states that plaintiff never requested any expert witness

disclosure, rendering its objection to the disclosure notice improper. The disclosure notice was given to plaintiff by defendant on its own volition. Further, defendant maintains that the disclosure notice is in full compliance with the statute. Additionally, defendant states that plaintiff neither objected to the Notice of Trial filed with the court, wherein defendant indicated that discovery was complete, nor did plaintiff make a motion to vacate the Notice of Trial.

The Expert Disclosure states in relevant part, “1. Defendant intends to call Jonathan Lown, MD,… to testify on Dr. Harold A. Schechter’s peer review report; see copies of Dr. Schechter’s peer reviews and Dr. Lown’s CV annexed hereto.”

A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court. (see Hubbard v Platzer, 260 AD2d 605; Lyall v City of New York, 228 AD2d 566; McGlauflin v. Wadhwa 265 AD2d 534). In the case at bar, the expert witness disclosure statement is not so inadequate or inconsistent with the expert’s testimony as to have been misleading, or to have resulted in prejudice or surprise. (see Gagliardotto v. Huntington Hosp., 25 AD3d 758, 759; Andaloro v. Town of Ramapo, 242 AD2d 354, 355; Rabinowitz v. Elimian, 55 AD3d 813, 814). Accordingly, preclusion is not warranted herein. (see Rowan v. Cross County Ski & Skate, Inc., 42 AD3d 563; Young v. Long Is. Univ., 297 AD2d 320; Abramson v. Pick Quick Foods, Inc., 56 AD3d 702, 703). The court will not strike Dr. Lown’s testimony upon these grounds.

ADMISSIBILITY OF PEER REVIEW REPORTS

AS A BUSINESS RECORD UNDER CPLR 4518(a)

CPLR 4518(a) permits the introduction of a business record as an exception to the hearsay rule. Pursuant to Rule 4518(a), “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter….” To admit a record under the CPLR 4518(a) business records exception for the truth of its contents, the four foundational elements must be satisfied. It must be shown that the [*3]document or record was made in the regular course of business; that it was the regular course of such business to make the record; that the record was made at the time of the act or occurrence recorded or within a reasonable time thereafter, and that the person who made the record had actual knowledge of the event recorded or received the information from someone within the business who had actual knowledge and was under a business duty to report the event to the maker of the record or if the statement of an outsider within the business record satisfies an independent hearsay exception. (see Alexander Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C4518:1). To make this showing requires testimony from a sponsoring witness, someone from within the particular business such as the author, a records custodian or other employee who can testify as to the nature of the record keeping practices of the business (see Alexander Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C4518:2; Prince, Richardson on Evidence, § 8-306 [Farrell 11th Ed.] ); Kaiser v. Metropolitan Transit Authority, 170 Misc 2d 321, 323).

As a rule, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (Standard Textile Co. v National Equip. Rental, 80 AD2d 911).Defendant contends that Karen Waldenheimer, as a representative of Progressive Insurance Company, is competent to lay a foundation for the admission of Dr. Schechter’s peer review reports on the basis that she worked with and was familiar with peer review reports and that defendant relies upon peer review reports in making its determinations regarding the medical necessity of services rendered. Essentially, defendant is claiming that the peer review reports are business records of defendant. Defendant relies primarily upon the holding in People v. Cratsley, 86 NY2d81 wherein the court held that

The testimony of a mentally retarded rape victim’s counselor established the requisite foundation under the business records exception to the hearsay rule (CPLR 4518) for the admission of an IQ test report, prepared by a psychologist at the time of the victim’s admission to a sheltered workshop that provided opportunity and support for adults who are mentally retarded….Through the counselor’s testimony, the People established that the report was prepared for the workshop and in conformity with its procedures. That the psychologist was not himself a workshop employee does not, under these facts, defeat admission, because he was acting on behalf of the workshop and in accordance with its requirements when he prepared the report. Although the counselor could not relate the psychologist’s specific recordmaking practices, she was able to state that the report conformed with the statutory and regulatory requirements with which she was familiar. Coupled with her testimony that no client was accepted into the workshop program without such a report, and that the reports were routinely relied on by the workshop in making determinations regarding its clients, the evidence was sufficient to establish that the report, prepared at the time the examination was conducted, [*4]was made in the regular course of business and that it was the regular course of business te prepare such reports.

While it is true that Dr. Schechter may have been acting on behalf of defendant, his peer review reports may not be accepted into evidence through Ms. Waldenheimer. The court in Cratsley, supra made it clear that the admission of the report in that case was permissible under the facts presented in that case. The facts herein do not justify the same conclusion.

Additionally, as plaintiff points out, Dr. Schechter is not an employee of Progressive Insurance Company and was hired by a third party to prepare the reports. Further, Ms. Waldenheimer did not testify that she was familiar with Dr. Schecter’s business practices or exactly when Dr. Schecter prepared the reports.

The peer review reports are not accepted into evidence.

TESTIMONY OF DR. LOWN

The final issue before this court is the admissibility of Dr. Lown’s testimony notwithstanding that the peer reports are not in evidence. Dr. Lown was qualified as an expert, and presented his opinion testimony as an expert. Further, he was subject to full cross-examination.

“It is well settled that, to be admissible, opinion evidence must be based upon one of

the following: first, personal knowledge of the facts upon which the opinion rests: second,

where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and materials in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted by the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.” (Wagman v Bradshaw at 292AD2d84, 86-87; Velen Medical Supply Inc. v. Travelers Ins. Co. 20 Misc 3d 781,783).

The identical issue was presented to the court in SK Medical Services, P.C. v. New York Central Mutual Fire Insurance Co., 12 Misc 3d 686. Similarly, in that no-fault case, the doctor who prepared the peer review report was not available to testify on the issue of medical necessity of services rendered to plaintiff’s assignor. Defendant presented another doctor to testify to the same facts and opinions that were set forth in the peer review doctor’s report. The court held, that there was no legitimate basis to preclude the doctor from testifying. “Each of defendant’s denials of claim, which asserted lack of medical necessity as a defense, was timely issued (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]), contained the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664), and, with [*5]the inclusion of the peer review report upon which it was based, promptly apprise[d] the claimant[s] with a high degree of specificity of the ground . . . on which [it was] predicated’ (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864; see also, Nyack Hosp., 11 AD3d at 664; Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151, 153). Defendant therefore preserved its right to defend the claims at trial on the ground of lack of medical necessity for the reasons stated in the peer review reports.”SK Medical Services, P.C. v. New York Cent. Mut. Fire Ins. Co., supra.

The Appellate Term in both the First and Second Departments has also addressed the issue before the court. In Home Care Ortho. Med. Supply, Inc. v. American Mfrs. Mut. Ins. Co., 14 Misc 3d 139(A), an action to recover assigned, first party no-fault benefits, plaintiff moved to preclude defendant’s expert’s testimony on the ground that the expert did not personally undertake the peer review underlying defendant’s denial of the two claims at issue. The court held “This was error, since the expert would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report” (see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864; Home Care Ortho. Med. Supply, Inc. v. American Mfrs. Mut. Ins. Co. 14 Misc 3d 139(A)).

The same conclusion was reached in Bronx Expert Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co., 24 Misc 3d 134(A); see also Dilon Medical Supply Corp. v. New York Cent. Mut. Ins. Co. 18 Misc 3d 128(A) where the Appellate Term, Second Department held that “Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832), the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant’s denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff’s services would be limited to the basis for the denials as set forth in

the original peer review reports, the expert witness should have been permitted to testify. (see Spruce Med. Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143(A); Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139(A)). In the instant case, the peer review reports had been provided to plaintiff prior to trial. In fact, a review of the court file reveals a summary judgment motion that had been filed by plaintiff, although subsequently withdrawn, which included a copy of the peer review reports. Additionally, the peer review reports were attached to the CPLR 3101(d) Expert Disclosure notice. Plaintiff was well apprised of defendant’s position regarding lack of medical necessity. Dr. Lown’s testimony and opinion, based upon the findings in the peer review reports is admissible and accepted by this court.

Accordingly, upon due consideration of all the testimony and documentary evidence before the court, the court finds as follows:

The medical expert who testified in this matter is wholly credible, and the defendant [*6]has proven a prima facie case that the services provided to the assignor were not medically necessary herein. Plaintiff has failed to overcome this and has failed to put forth any expert testimony in rebuttal. (see Be Well Medical Supply, Inc. v. New York Central Mutual Fire Insurance Mutual Fire Insurance Co., 18 Misc 3d 139 (A))

Accordingly, judgment for the defendant. Case dismissed.

The foregoing shall constitute the Decision and Order of the Court.

Dated: March 15, 2010

KIM DOLLARD

Judge, Civil Court

ASN by__________ in Court

[*1]

Civil Court of the City of New York, Richmond County, March 5, 2010

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**29 Misc 3d at 187} OPINION OF THE COURT

Katherine A. Levine, J.

During oral argument, the parties stipulated that the only issue before the court was whether 11 NYCRR 65-3.6 (b) requires the insurer to notify the injured party when it sends the follow-up verification request to the plaintiff provider. This court has already determined and reiterates herein that the injured party need not be notified. (See Cambridge Med., P.C. v Nationwide Prop. & Cas. Ins. Co., Civ Ct, Richmond County, Feb. 22, 2010, index No. 4561/08.)

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial. (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 889-890 [2d Dept 2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997].) An insurer may toll the 30-day period by properly requesting additional verification within 15 days from the receipt of the no-fault insurance claim forms (NF-3 or claim form). (Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004]; 11 NYCRR 65-3.5 [b].) If the

“requested verification[ ] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (11 NYCRR 65-3.6 [b] [emphasis added]; see Pine Hollow Med., P.C. v Global Liberty Ins. Co. of N.Y., 25 Misc 3d 244 [Civ Ct, Richmond County 2009].)

If the insurer does not receive the verification request after its follow-up request is sent, its time to pay or deny the claim is tolled pending submission of the requested information. “A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; Westchester County Med.{**29 Misc 3d at 188} Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999].) The insurer must pay or deny the claim within 30 days after it receives verification of all relevant information it requested pursuant to its original request for additional information. (11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1]; Westchester County Med. Ctr., supra.)

The clear language of 11 NYCRR 65-3.6 (b) does not even mention the term “applicant” within the context of its requirement that the insurer follow up with the party from whom the verification was requested. Rather, the term “applicant” is only utilized within the context of the further obligation of the insurer to inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.

Plaintiff interprets the term “applicant” of 11 NYCRR 65-3.6 (b) to mean that the insurer must inform the assignor and the assignor’s attorney of the reasons why the claim is delayed at the same time the defendant requests a follow-up verification from the provider, since the defendant failed to notify the assignor and the assignor’s attorney, hence negating its motion for summary judgment. The defendant counters that upon the assignment of no-fault [*2]benefits, the medical provider steps into the shoes of its assignor and assumes all of his rights and obligations, thereby becoming the applicant within the meaning of 11 NYCRR 65-3.6 (b). Moreover, defendant argues that the plaintiff provider’s attorney’s letter directing the defendant to send all correspondence, including payment and verification requests to the provider’s attorney’s office or to “face unnecessary litigation,” placed the defendant on notice that the provider’s law firm was acting as the agent for the bills at issue.

In East Acupuncture, P.C. v Allstate Ins. Co. (61 AD3d 202 [2d Dept 2009]), the Second Department recognized that the no-fault regulations do not specifically define the term “applicant,” which generically refers to both the provider/assignee and injured persons in various no-fault sections. In Doshi Diagnostic Imaging Servs. v State Farm Ins. Co. (16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]), the Appellate Term interpreted the term “applicant” as used in 11 NYCRR 65-3.6 (b), to apply to an MRI facility which was the medical services provider/assignee. Accordingly, the plain meaning of 11 NYCRR 65-3.6 (b) refers to any entity, whether an injured person or a provider/assignee, who submits a claim or applies to an insurance{**29 Misc 3d at 189} company for no-fault benefits. (East Acupuncture, P.C., 61 AD3d at 210, citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

Furthermore, the objective behind the aforementioned law is the efficient and speedy processing of the no-fault claims. It therefore begs all reason to require an insurer to seek verification from a party who has divested his interest in no-fault benefits by assigning his rights to his provider. (Mia Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009] [assignment of no-fault benefits divests eligible injured persons of their interest in no-fault benefits and makes them nonparties to actions commenced by their assignees].) The letter mailed by the plaintiff provider’s attorney to the defendant, directing that all correspondence, including payment and verification requests, be mailed to the plaintiff provider’s attorney clearly placed the defendant on notice that the provider’s law firm was acting as the agent for receipt of all correspondence concerning the bills at issue. (See Lenox Hill Radiology & MIA P.C. v Global Liberty Ins., 20 Misc 3d 434 [Civ Ct, NY County 2008].)

The court therefore deems the provider to be the applicant in the instant matter. Since the plaintiff did not provide the verification sought by the defendant, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run and the instant case is premature. (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999].)

Accordingly, the defendant’s motion is granted.

[*1]

Civil Court of the City of New York, Richmond County, February 5, 2010

APPEARANCES OF COUNSEL

Law Office of Robert P. Tusa, Brooklyn, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**27 Misc 3d at 699} OPINION OF THE COURT

Katherine A. Levine, J.

The novel issue presented is what type of proof a defendant insurance company must present at trial in order to prevail on its defense that the injury billed for by a plaintiff medical service provider was not medically ascertainable within a year. Both parties concede that in order for this defense to be even raised, the insurance company must issue a timely denial.

This action was commenced by plaintiff AP Orthopedics & Rehabilitation, P.C. (AP Orthopedics) to obtain payment from defendant Allstate Ins. Co. (defendant or Allstate) for medical services it provided to its assignor Nelson Hernandez (assignor) in the form of arthroscopic surgery of the shoulder on October 11, 2006. Allstate received the bill on June 14, 2007 and timely denied it within 30 days on the grounds that the injury to the assignor’s shoulder was not ascertainable within one year of the accident.

Defendant presented the testimony of its claims examiner Nicholas D’Ermilo (claims examiner or D’Ermilo) to prove its defense. D’Ermilo testified that he had been employed by [*2]Allstate for over 27 years in its no-fault department and was a unit supervisor in no-fault in 1999 when Allstate first received claims from the assignor. He testified, that within one year of the accident, which occurred on February 14, 1999, Allstate received a number of bills from various medical providers other than plaintiff regarding the assignor and denied many bills (defendant’s exhibits A, D). He testified that defendant also received claims in 1999 from Flatbush Diagnostic for physical therapy on, and treatment of the assignor’s ankle, which it timely paid. Defendant also paid claims in 1999 from Alpha Chiro for chiropractic treatment it provided to the assignor’s cervical and lumbar spine.

On June 14, 2007, defendant received a bill for arthroscopic surgery of the assignor’s shoulder which was performed on October 11, 2006. D’Ermilo’s review of the file revealed that, between 2000 through June 2007, Allstate did not receive any further bills from physicians or providers pertaining to the assignor.{**27 Misc 3d at 700} His review of the file also revealed that the assignor’s shoulder had never been treated within one year of the accident, that no X rays or MRIs or CAT scans were taken of the shoulder, and there had been no chiropractic care of the shoulder. Nor was there any indication that the assignor would require future treatment of the shoulder.

On cross-examination, the claims examiner admitted that his testimony was based upon his review of the electronic files and that Allstate had closed the physical file on the assignor back in December 1999. His testimony was based solely upon the denials that Allstate had issued and which had been stored in Allstate’s computer system; Allstate no longer had access to the assignor’s application for benefits (NF-2) back in 1999. He did not know whether any chiropractic or physical therapy notes had been submitted to Allstate back in 1999 or what the chiropractor’s diagnosis had been.

At the close of the defendant’s case, plaintiff argued that defendant had the burden of proving, by the preponderance of the evidence, that the 2007 claim for arthroscopic surgery was not related to the accident. Plaintiff contended that it was impossible for defendant to meet this burden as the claims examiner was not a doctor, and that pursuant to Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [2d Dept 1999]), the issue of lack of causation could only be established through the testimony of an expert witness. Defendant countered that since there was no dispute that between 2000 and 2007 the assignor had not presented any bills for treatment, and that the 1999 to 2000 bills were solely for the cervical/lumbar spine and the ankle, defendant had met the burden of proving that the injury to the assignor’s shoulder was not ascertainable within one year of the accident.

Insurance Law § 5102 (a) (1) provides, in pertinent part, that an insurer must pay all necessary medical expenses of its insured without limitation as to time “provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.” (Emphasis added.) The implementing regulations (11 NYCRR 65-1.1 [d] [Sec I, Medical Expense]) further provide that “medical expenses will not be subject to a time limitation, provided that, within one year after the date of the accident, it is ascertainable that further medical expenses may be [*3]sustained as a result of the injury.”

The scant case law interpreting this provision has held that “an injury is not ascertainable if no evidence of it is submitted{**27 Misc 3d at 701} to the insurer within a year of the accident.” (Stanavich v General Acc. Ins. Co. of Am., 229 AD2d 872, 873 [3d Dept 1996].) For example, if an insured submitted expenses for a cervical injury and then three years later submitted expenses for a knee injury, the latter would not be ascertainable within the meaning of section 5102. On the other hand, if the subsequent treatment was for cervical injury, “that injury would be ascertainable since expenses for treatment for that injury had been submitted to the insurer within the one-year period.” (229 AD3d at 873.)

In Hospital for Joint Diseases v Allstate Ins. Co. (21 AD3d 348 [2d Dept 2005]), the Appellate Division, Second Department, further spelled out how this defense could be raised, albeit through a motion for summary judgment. After a plaintiff made out a prima facie case, the defendant had to raise a triable issue of fact as to whether the medical expenses submitted beyond a year after the accident “were for injuries for which expenses for treatment had not been submitted to it within one year of [his] accident.” (Id. at 349, quoting Stanavich at 873; see 11 NYCRR former 65.15 [new regulation § 65-1.1].) The court also held that the defendant’s failure to assert this statutory-exclusion defense within 30 days of the receipt of the no-fault claim constituted a waiver. (Id., citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; see also Matter of Fields [Allstate], AAA case No. 4120070557, Mar. 20, 2008 [failure to submit any evidence which indicated that the applicant would in fact require further treatment after a gap of almost five years]; Ops Gen Counsel NY Ins Dept No. 08-04-16 [Apr. 2008]; see also Barki v Employers Mut. Liab. Ins. Co. of Wis., 87 Misc 2d 912, 913 [Kingston City Ct 1976] [burden is upon plaintiff to prove the fact of “ascertainability” within one year of the accident].)

Thus, according to Stanavich and its progeny, it would appear that as long as the insurance company can prove that it received no claims for a shoulder injury within one year of the accident, it would prevail on its defense that a claim submitted for a shoulder injury some seven years after the accident was not ascertainable within one year of the accident. However, plaintiff contends that only a medical expert can establish that a claim for a new type of injury was not ascertainable, from the medical claims previously supplied, within a year of the date of the injury. Plaintiff is, in essence, contending that it is entitled to a presumption of medical necessity, regardless of the time frame in which it submits a claim, and that defendant can only rebut{**27 Misc 3d at 702} this presumption by establishing a lack of medical necessity through an expert.^[FN*] [*4]

Under the No-Fault Law, individuals are entitled to be compensated for “basic economic loss” resulting from injuries caused by the operation of a motor vehicle. (Insurance Law § 5101 et seq.) “Basic economic loss” is defined to include “[a]ll necessary expenses” incurred for medical services “all without limitation as to time, provided that within one year after the date of the accident . . . it is ascertainable that further expenses may be incurred as a result of the injury.” (Insurance Law § 5102 [a] [1]; 11 NYCRR 65-1.1; see Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435, 438 [Civ Ct, NY County 2005].)

A presumption of medical necessity attaches to a timely submitted no-fault claim. (All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 9th & 10th Jud Dists 2006].) The burden then shifts to the defendant to rebut the presumption of medical necessity. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept 2004]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]; A Plus Med., P.C. v Government Empls. Ins. Co., 21 Misc 3d 799 [Civ Ct, Kings County 2008].)

However, the term “provided that” constitutes a proviso to this section of the No-Fault Law. According to the general rules for statutory construction, the words “provided, however,” are deemed to denote the expression of a limitation or exception. (Matter of Livingston, 14 AD2d 264, 265 [1st Dept 1961].) “It is the province of a proviso to restrain the enacting clause, to take something back from the power first declared, to except something which would otherwise have been within it, or in some measure to modify the enacting clause.” (Id., quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 212.) Thus, a proviso is ” ‘a condition, qualification, or limitation,’ a clause ‘to modify the operation of that part of the statute.’ ” (Ferrer v{**27 Misc 3d at 703} State of New York, 136 Misc 2d 218, 221 [Ct Cl 1987], quoting Webster’s Third New International Dictionary 1827 [unabridged 1993 ed]; Statutes § 212; see County of Erie v City of Buffalo, 4 NY2d 96, 103-104 [1958].)

The term “provided that within one year after the date of the accident . . . it is ascertainable that further expenses may be incurred as a result of the injury” thus serves as an exception or limitation to the presumption of medical necessity that generally attaches to claims that are submitted within one year of the accident. In other words, as long as the insurer can establish that it timely denied the claim and that no claims were presented to it within one year of the accident that were for injuries that were subsequently submitted outside of the one-year period, the insurer will prevail.

This construction comports both with explicit language of the proviso and with the legislative purpose behind the enactment of the No-Fault Law. The governing rule of statutory construction is that when the statutory “language is clear and unambiguous, it should be [*5]construed so as to give effect to the plain meaning of [the] words” used. (People ex rel. Harris v Sullivan, 74 NY2d 305, 309 [1989], citing Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675 [1988].) Furthermore, it is a general rule of construction that “omissions in a statute, where the act is clear and explicit in its language, cannot be supplied by construction.” (Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, 517 [1st Dept 1980]; Statutes §§ 75, 363.) Thus, a court cannot insert words into a statute that are not there and cannot read into a statute a provision which the Legislature did not see fit to enact. (People v Harris Corp., 123 Misc 2d 989, 995 [Clinton County Ct 1984].)

The proviso requires that within one year of the accident, it is ascertainable that further expenses may be incurred. Ascertainable has a clear and unambiguous meaning: “to find out or learn with certainty,” to discover. (Webster’s New Collegiate Dictionary.) The clause does not require that it be medically ascertainable that further expenses be incurred. Thus, if within a year it is not clear with certainty or discoverable that further expenses may be incurred, the insurer is under no obligation to pay for services rendered way after a year has expired. This determination can be made by a claims examiner who reviews records submitted or denials made on claims within the first year of the accident.

Moreover, this interpretation comports with the goal behind the No-Fault Law—to promote the “prompt payment of legitimate{**27 Misc 3d at 704} claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]), and the prompt resolution of injury claims. (Pommells v Perez, 4 NY3d 566 [2005]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997] [“(t)he tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices”]; All Health Med. Care v Government Empls. Ins. Co., 2 Misc 3d 907, 910 [Civ Ct, Queens County 2004].) The regulations require insurers to act quickly in evaluating insureds’ claims and to avoid prejudicial delays. (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]; Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723, 725 [Civ Ct, Queens County 2004].) Accordingly, it is the court’s duty to interpret and apply the no-fault regulations in a consistent manner leading to the prompt payment of valid, documented claims. (Marigliano v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 766, 774 [Civ Ct, NY County 2007].)

To hold otherwise, and require an insurance company to present a medical expert to validate a claims examiner’s testimony that the assignor failed to file any claims relating to the shoulder within a year of the accident, would run contra to the intent of the legislation and stymie the insurer’s expeditious processing of claims. It would force insurers to dwell on every claim they received to ascertain what claims for possible new injuries might be sent by the assignor more than a year after the assignor submitted his initial claims. The insurers would be foreclosed from closing any cases for fear that they might need a medical expert, some seven years after the accident, to pour over notes from doctors that were submitted within the initial year of the accident to opine as to whether the claim for new injuries was ascertainable within one year of the accident. [*6]

In light of the above, defendant has proved its defense. Since plaintiff offered no evidence to rebut defendant’s proof that the injury for the shoulder was not readily ascertainable within one year of the accident, judgment is rendered for defendant and the case is dismissed.

Footnotes

Footnote *: Plaintiff’s reliance on Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]) is misplaced since Mount Sinai did not involve a determination as to whether a claim for a new injury, presented more than a year after the accident, was ascertainable, from the records presented, within a year. Rather, it involved the purely medical determination as to whether an injury was entirely preexisting (i.e., not covered under the insurance agreement) or was in whole or part caused by an insured accident, which would require a review of medical facts. (263 AD2d at 18.)

Civil Court of the City of New York, Richmond County

19752/07

Defendant:

Law Offices of Teresa M. Spina

GEICO Insurance Co.

170 Froehlich Farm Blvd

Woodbury NY 11797

(516) 496-5822

Plaintiff:

Joseph Sporacio, P.C., Attorney for Plaintiff

2555 Richmond Avenue

Staten Island, NY 10314

(718) 966-0055

Katherine A. Levine, J.

The primary issue presented at trial was whether plaintiff Healthcare Associates in Medicine (“plaintiff” or “Health Care”) violated the revised Mandatory Personal Injury Protection Endorsement (“Endorsement”or “PIP”) contained in the revised No-Fault Regulations – 11 NYCRR 65 – 1.1 – by failing to submit its proof of claim for services to defendant Geico Insurance (“defendant” or “Geico”) within 45 days from the date services were rendered. Since the two aforementioned cases presented the same issue, they were consolidated for trial. [*2]

Defendant moved for a directed verdict after plaintiff presented the testimony of Ms. Sparta, its collection account representative. Defendant contended that Sparta failed to establish that either of the assignor’s bills were sent within 45 days since she admitted on cross that she did not know whether or when the bills were actually sent out. She did not generate the bill and did not see the representative responsible for billing GEICO either generate the bills or mail them or give them to the postal clerk. Rather, it is her responsibility to supervise the assigned representatives, including “Mary Ann” who was responsible for GEICO billing. Mary Ann was supposed to take the information from the patient and generate a bill after the patient was seen and send out the bill was supposed to generate a visit for the day, attach it to the bill and send it out. She “hopes and assumes” that Maryann took the bill and put it into the mail room.

Due to the computer program utilized by plaintiff, she cannot print out a hard copy of the bill for the first date of service of a particular assignor since each time a new bill is generated the computer overrides the original bill that was created. Therefore the dates on the claim forms submitted by plaintiff (plaintiff’s “1” and “3”) are not the dates for the first bills that were generated for the assignors but rather the dates for the last bills that were generated. There is no proof of mailing for the bills containing the original dates of service and nothing on the bills that would show that they were mailed. However, the computer also prints out a claims history report ( plaintiff’s “2” and “4”) which chronologically lists from the bottom upwards the dates that the bills were generated. Sparta claims that based upon the claims history forms, the bill for the first date of service on Varallo- April 7, 2006 – was generated on April 12, 2006 and that the girls should have mailed the bill out that day. With respect to assignor Galanti, the bill for the first date of service on May 16, 2006 was generated was May 17, 2006.

Due to the alleged deficiency in Sparta’s testimony as well as deficiencies in the documentary evidence, GEICO contends that it is not necessary for it to present its own witness to establish its receipt of the bills or its generation of timely denials. Despite this contention, Geico asserts in its brief that it received the bill for the date of service of April 7, 2006 (Varallo) on June 26, 2006 and timely denied the bill on June June 29, 2006. Geico also asserts that it received the bill for the date of service of May 16, 2006 (Galanti) on July 7, 2006 and timely denied it on July 20, 2006. However, these are merely assertions; Geico did not place its denials in evidence.

Curiously, Geico does not dispute that plaintiff’s witness “adequately testified that she had personal knowledge of the mailing procedures sufficient to raise a presumption that the bill(s) were mailed to Defendant.” Therefore defendant does not dispute that but for the 45 day issue, plaintiff would have proven its prima facie case. Rather defendant challenges plaintiff’s ability, on its prima facie case, to submit both testimony and evidentiary documentation to establish that the bills were mailed within the mandatory statutory time period of 45 days. In essence Geico contends that it would be redundant and a waste of time for it to have to place its claims examiner on the stand to establish that the bill was mailed and received beyond the 45 [*3]days since plaintiff would not be able, based upon Sparta’s testimony in plaintiff’s case, to rebut its testimony and documentary evidence.

Pursuant to the revised insurance regulation, all automobile insurance policies issued or renewed after April 5, 2002, are required to include a revised Mandatory Personal Injury Protection Endorsement (“Endorsement”) which reduces the time within which claims are to be submitted from 180 days (11 N.Y.C.R.R. 65.12 [e] (“old regulations)) to 45 days (11 N.Y.C.R.R. § 65-1.1 [b] (“new regulations.”)). See, Mtr. Of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C., v. Chubb Indemnity Ins. Co., 19 Misc 3d 129A, 859 NYS2d 902 (App. Term, 2d Dept. 2008); S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130(A), 791 NYS2d 873 (App Term, 9th & 10th Jud Dists 2004). Where one proof of claim is submitted for several medical treatments, the 45 day period commences the day after the first treatment is rendered. SZ Medical P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52, 55 (App. Term., 2nd & 11th Jud. Dists. 2006), citing Informal Opinion, New York State Insurance Department, June 30, 2003.

Insurance Law § 3425 (a) (8) sets forth that the policy period for newly issued and renewed automobile insurance policies is one year. See also Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475 (2001). The latest date of expiration for an automobile insurance policy which contained the prior version of the Endorsement would be April 2003. S & M Supply v State Farm Mut. Auto. Ins. Co., supra . When an automobile policy is issued after that date, the defendant insurer need not prove that the policy at issued contained such an endorsement, “(s)ince an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [a][8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 N.Y.C.R.R.] § 65-1.1 [b]”. Eagle Chiropractic, supra . See also, Lenox Hill Radiology and MIA, P.C. v. Regina Alsis, 2009 NY Slip Op. 51966U, 2009 NY Misc. LEXIS 2471 (Civil Ct., Bronx Co. 2009).

Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered, an insurer is precluded from asserting the defense of a provider’s untimely submission of claim if it does not issue a timely denial of claim. Rockman v. Clarendon Nat. Ins. Co., supra , citing Mid Atlantic Medical P.C. v. Travelers Indemnity Co., 12 Misc 3d 147(A), 824 NYS2d 769 (App. Term, 1st Dept. 2006). Pursuant to both the Insurance

Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. Presbyterian Hosp. v. Md. Cas. Co., 90 NY2d 274, 278 (1997), citing Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). See, Bayside Rehab & Physical Therapy P.C. v. GEICO, 24 Misc 3d 542 (Civil Ct., Richmond CO. 2009). [*4]

Thus, in Montefiore Med. Ctr. v. NY Cent. Mut. Fire Ins. Co., 9 AD3d 354 ( 2d Dept. 2004), the court found that despite the fact that the medical service provider had submitted a proof of claim that was incomplete and untimely, the plaintiffs demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period NYCRR 651.1(d) ( new regulation). St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 718 (2d Dept. 1994).However, since the defendant offered sufficient evidence to raise a triable issue of fact whether as to whether the plaintiff’s claim was denied as untimely, summary judgment should not have been granted to the plaintiff. See also, Delta Diagnostic Radiology, P.C. v. MVAIC, 2007 NY Slip Op 52143U, 17 Misc 3d 1125A (Civil Ct., Kings Co. 2007) (parties stipulated at outset of trial that plaintiff’s bills were submitted beyond 45 days after services were rendered, the defendant submitted a timely denial, and the plaintiff’s prima facie case was established).

GEICO submits that it need not present a witness to establish that it timely denied the bills because plaintiff failed, in its prima facie case, to establish that it mailed the bills within the statutory 45 day period and failed to present any testimony as whether it had a reasonable justification for the delay in mailing the bills. However, since GEICO concedes that plaintiff made out its prima facie case of generating and then mailing a bill, GEICO cannot then attack the validity of the very bills it concedes were properly mailed and generated by arguing that they do not contain proof that they were mailed within 45 days. The fact that a plaintiff’s bill may ultimately be deemed to be untimely does not create an obligation upon the plaintiff, in the first instance, to prove timeliness as part of its prima facie. Rather, precedent requires that an insurance company establish the untimeliness of the bills by putting in its timely denials which contain the dates that the bills were received. GEICO may be able to prevail if the documents it puts into evidence substantiate its assertions, in its brief, that it received both claims beyond the 45 day manage.

As such, defendant’s motion for judgment as a matter of law and for the dismissal of the case is denied. The parties shall contact the court within 20 days of receipt of this decision to set a trial date if they cannot resolve these two cases based upon the afore stated decision. A trial shall be held to give GEICO an opportunity to present its defense.

The foregoing constitutes the Decision and Order of the Court.

Dated: January 6, 2010______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________ [*5]

A P P E A R A N C E S

Civil Court of the City of New York, Richmond County

13134/07

Counsel for Plaintiff:

Joseph Sparacio

2555 Richmond Avenue

Staten Island, New York 10314

(718) 966-0055

Counsel for Defendant:

Diamond, Rutman, Costello & Si

291 Broadway, Suite 1100

New York, New York 10007

(212) 267-4731

Katherine A. Levine, J.

This case calls upon the court to again examine whether an expert witness called by a defendant insurance company may rely upon medical records, prepared by an entity other than the plaintiff medical service provider, to formulate an opinion as to the medical necessity of services provided by the plaintiff.

Plaintiff Popular Imaging, P.C., (“plaintiff” or “Popular Imaging”), a medical service provider, seeks to recover r payments from defendant State Farm Insurance Co. (“defendant” or “State Farm”) for an MRI of the lumbar spine that it provided to the assignor Belquis Perez (“assignor” or “Perez”) as a result of the injuries that she sustained in an automobile accident. Defendant claims that the services were medically unnecessary. At the trial, the parties stipulated to plaintiff’s prima facie case and to defendant’s timely denial of the claim. Therefore, the only issue before the court was whether the medical services provided was medically necessary. [*2]

Dr .James B. Sarno (“Dr. Sarno”), who is a board certified neurosurgeon, prepared a peer review report and testified that the MRI performed on the assignor’s lumbar spine was medically unnecessary. At the outset of Dr. Sarno’s testimony, plaintiff refused to stipulate into evidence the peer review report prepared by and medical records reviewed by Dr. Sarno, contending that this court should not consider Dr. Sarno’s opinion since it was based upon medical records and reports that were not in evidence and for which no evidence was submitted as to their reliability. pursuant to the leading case of Wagman v. Bradshaw, 292 AD2d 84 ( 2d Dpt 2002). The court reserved decision on this objection to Dr. Sarno’s testimony.

Dr. Sarno’s testimony referred, for the most part, to the records and reports of Dr. Noel Fleisher, a board certified neurologist, who was the assignor’s treating physician and who referred the assignor to the plaintiff for an MRI. On August 23, 2002, Dr. Fleisher issued a report as to the results of his neurological consultation with the assignor some two weeks after the accident. He set forth as his impressions post concussion syndrome, traumatic cervical radiculopathy, traumatic lumbar radiculopathy, and myofacial pain syndrome. He indicated that he would consider a MRI scan and/or EMG studies. He listed the prognosis as guarded. Dr. Sarno also listed on his peer review the March 7, 2003 letter from plaintiff to Dr. Fleisher explaining the results of the MRI of the lumbar spine.The peer review report also lists a number of other reports, letters or diagnosis from other entities that were independent of both Dr. Fleisher and plaintiff (“independent reports’) such as New York Neurology, P.C.; Central Park Physical Medicine and Rehabilitation, etc.

It is well settled that when records are prepared by a plaintiff medical service provider’s own principal, who treated the claimant and conducted the tests in questions, a plaintiff cannot viably argue that a defendant’s expert opinion “was not derived from a professional reliable source or to otherwise challenge the reliability of its own medical records and reports which were used as proof of its claim”. Andrew Carothers, M.D. (Martinez) v. GEICO, 2008 NY Slip Op 50456U, 18 Misc 3d 1147A (Civil Ct., Kings Co. 2008);. See, Cross Continental Medical v. Allstate, 13 Misc 3d 10 (App. Term 1st Dept. 2006).

In Velen Medical Supply Inc. V. Travelers Ins. Co., 20 Misc 3d 781 (Civil Ct., Queens Co. 2008), the court extended this ruling to permit testimony by a defendant’s expert based upon medical records and reports prepared by entities other than the plaintiff. The court first found that the records at issue fell within the fourth category of admissible opinion evidence set forth in the leading case of Wagman v. Bradshaw. 292 AD2d 84, 86-87 ( 2d Dept. 2002) : “material not in evidence provided the out- of-court material is accompanied by evidence establishing its reliability.” The court then cited to Hambsch v. N.Y.C. Transit Auth., 63 NY2d 723, 726 (1884) where the Court of Appeals held that an expert “may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion’ or if it comes from a witness subject to full cross examination.'”.

As to the Wagman issue, the Velen court found that in the context of no-fault, a plaintiff could not challenge the reliability of the assignors’ medical records and reports, even if those [*3]reports were not prepared by the plaintiff, if they were provided by plaintiff in response to defendant’s verification requests and were affirmatively relied upon by plaintiff as proof of claim. 20 Misc 3d at 784.See, Home Care Ortho. Med. Supply Inc., v. American MFRS. Mut. Ins. Co., 2007 NY Slip Op 50302[U] , 14 Misc 3d 139A (App. Term,1st Dept. 2007). Subsequently, Judge Sweeney extended this reasoning to the situation where the plaintiff’s assignor, rather than the plaintiff, provided the medical records to the defendant in response to a verification request. See, Primary Psychiatric Health, P.C., v. State Farm Mutual, 2007 NY Slip Op 50583U, 15 Misc 3d 1111A (Civil Ct., Kings Co. 2007). In fact, the Appellate Term has recently ruled that a defendant’s expert may not be precluded from testifying even though his opinion was based upon medical records prepared by physicians other than the plaintiff relating to treatment provided to the assignor. Bronx Expert Radiology v. NY Central Mutual, 2009 NY Slip Op 514575U, 2009 NY Misc. LEXIS 1796 ( App. Term, 1st Dept. 2009).

Here, the assignor’s physician, Dr. Fleisher , recommended that a MRI be performed; this is confirmed by Dr. Fleisher’s records. Dr. Sarno testified that in formulating an opinion he relied primarily upon Dr. Fleisher’s August 23, 2002 report of his neurological consultation with the assignor^[FN1] and Dr. Fleisher’s EMG/NCV testing of September 13, 2002. Since plaintiff performed the MRI based upon the records and referral from the assignor’s treating physician, who apparently deemed the test to be medically necessary, and since plaintiff sent the results and explanation of the MRI back to Fleisher, plaintiff cannot now be heard to challenge the reliability and authenticity of Dr. Fleisher’s records.

As to the requirement that the material be generally accepted in the profession as reliable and there be evidence establishing its reliability, Dr. Sarno testified that these are the types of reports that a doctor would review to offer an opinion on the necessity of a lumbar MRI. Dr. Sarno uses other doctors’ reports in formulating a medical opinion about his own patients and that it is a generally accepted standard in the medical profession to form an opinion based in part on other doctors reports. He testified that he takes these reports at face value. Dr. Sarno’s testimony is consistent with set precedent that a physician’s office records are admissible as evidence at trial to the extent they are germane to diagnosis and treatment. Hazel Bruce Bishop v. Jafar, 302 AD2d 345 (2d Dept. 2003). Furthermore, an expert is entitled to rely upon facts set forth in medical records so long as he did not base his opinions upon the conclusions contained in the records. Meagan Murray v. Weisenfeld 37 AD3d 432, 434 (2d Dept. 2007); Bruce Bishop v. Jafar, supra. [*4]

Dr. Sarno then testified that it is generally accepted medical procedure to send a patient for a lumbar MRI where there is actual evidence of radiculopathy, irregularities in the neurological exam or failure to respond to conservative treatment. None of these factors were present in the documents reviewed by Dr. Sarno so as to justify the medical necessity of the lumbar MRI. On cross examination. Dr. Sarno reiterated that there were no actual neurological findings in the lower extremities to support a finding of radiculopathy He also testified that no EMG/NCV studies were even performed in the lumbar area of the body. Plaintiff presented no evidence or testimony in this matter, choosing instead to rely upon the aforementioned argument concerning the ability of Dr. Sarno to render an opinion and its cross examination of Dr. Sarno. Plaintiff has failed to refute the expert testimony and opinion and failed to produce evidence to rebut the lack of medical necessity for the lumbar MRI. As such, judgment is rendered in favor of defendant

.

Dated: November 5, 2009

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

Footnotes

Footnote 1:(Since Dr. Sarno relied for the most part upon Dr. Fleisher’s records, it is not necessary for this court to render an opinion about the admissibility of the panoply of reports from other doctors that were reviewed by Dr. Sarno and which accompanied his peer review report. However, it appears that these reports were provided to Sarno by DND – a third party- who apparently received all the records from plaintiff as a result of defendant’s verification request (defendant’s 2). As such, in accordance with the aforementioned precedent, Dr. Sarno could also properly rely upon these records in formulating an opinion.