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Ground rule 11 and the IME cut offJune 9, 2014

Triumph Assoc. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 50875(U)(App. Term 2d Dept. 2014)

(1) This either explicitly or implicitly overrules Doctor in the House (District Court, Suffolk County).  I am assuming the Ground Rule 11 issue involved multiple providers fighting for the coveted 8, 11 or 13.5 per diem units.  Also, note the absence of the the necessity to introduce expert evidence to substantiate the fee schedule reduction.

“The affidavit of defendant’s litigation examiner established that defendant had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also demonstrated that its denial of $583.56 of plaintiff’s $1,291.96 claim was based on the workers’ compensation fee schedule, pursuant to which plaintiff was entitled to only $708.40, which sum defendant had paid. Defendant further showed that it had properly denied plaintiff’s $305.36 claim in accordance with the workers’ compensation fee schedule because plaintiff’s claim was contrary to Physical Medicine Ground Rule 11. As plaintiff failed to raise a triable issue of fact with respect to defendant’s application of the workers’ compensation fee schedule, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.”

(2) Some standard was enuniciated with respect to defeating an medical necessity motion predicated upon an IME cut off

“To the extent that defendant timely denied the remaining claims on the ground of lack of medical necessity, the affirmation from the doctor who performed an independent medical examination (IME) on defendant’s behalf was sufficient to establish defendant’s prima facie entitlement to summary judgment dismissing these claims. However, in opposition to defendant’s cross motion, plaintiff submitted an affirmation from plaintiff’s assignor’s treating doctor who stated that he had examined the assignor six days after the IME. His findings contradicted the findings of defendant’s IME doctor and was sufficient to raise a triable issue of fact as to the medical necessity of the remaining claims”

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