Comp defense succeeds but medical necessity defense faltersMarch 25, 2014

Martin Plutno v Travelers Ins. Co., 2014 NY Slip Op 50412(U)(App. Term 2d Dept. 2014)

(1) Simple fee schedule arithmetic may be performed by “defendant’s employee”: “The affidavit submitted by defendant’s employee established that, as to plaintiff’s claim for dates of service August 3, 2007 through August 25, 2007 seeking the sum of $235.90, defendant had paid $134.80 thereof and had denied the remaining $101.10 on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers’ compensation fee schedule.”

(2) “defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for further treatment”

(3) “However, plaintiff did submit, among other things, a letter of medical necessity sworn to by plaintiff’s treating chiropractor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered”

My own thought process is now there is another split in the departments.  The First Department has a more stringent post-IME “here at issue test”.  This Court solely requires a letter of medical necessity to defeat a summary judgment motion.

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