The First Department dismisses a medical necessity caseSeptember 29, 2018

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51358(U)(App. Term 1st Dept. 2018)

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).”

The test is whether there was an examination of the Assignor that did not have normal findings.  The open question here is the time period of when this examination must take place.  In this case, there was an examination that pre-dated the IME by 2-3 months.  This was not sufficient.  There was also scribbled treatment notes, but that will not carry the day.  Also, do not mistake this case for the “contemporaneous” fallacy that has plagued AAA arbitrators when sizing up medical evidence.

My sense is when all the leaves on this issue are shaken out (there is more shaking going on than you are probably aware of), arbitrators may be stuck engaging in the painful task of looking at blocks of post IME treatment and determining whether they are appropriate once the presumption of medical necessity in the first instance is rebutted.   That is, the Charles Sloan and Burt Feilich rule may very well be the correct statements of law.