8 units may apply to various specialties April 23, 2018

This is from the Vice President of James Skelton, Esq., from AAA today (4-23-18) – It is for everybody’s edification:

Dear Jason – The Workers’ Compensation Board has recently advised the Department that the following email regarding PT rules is not the Board’s official position. If you have any questions, please contact Chris Maloney at or (212) 480-5586.

Christopher Maloney
Supervising Insurance Examiner
Property Bureau – Claims Administration Unit

New York State Department of Financial Services
One State Street Plaza, 6th floor, New York, NY 10004+1511

Ph: (212) 480-5586 | Fax: (212) 709-1570 |

From: MacMaster, Heather (WCB)
Sent: Tuesday, January 30, 2018 3:59 PM
To: Maloney, Chris (DFS) <>
Cc: Woods, MaryBeth (WCB) <>; Smith, Steven (WCB) <>
Subject: Fee Schedule: PT rules


Here is the PT information from our MDO.
The 8 RVU limitation is per patient per day regardless of how many body parts are treated or how many practitioners treat. The only exception is with chiro and PT. If a chiro renders manipulation only (98940-98943) and does not bill any of the other physical medicine codes, the injured worker could receive chiro and PT on the same day. This scenario is usually performed by a chiro who is affiliated with the Chiropractic Council. They only perform manipulation.
The physical medicine codes that are impacted by the 8 RVU limitation are in the chiro physical medicine fee schedule but the codes for spinal manipulation are not in the general physical medicine fee schedule.


Heather MacMaster
Deputy General Counsel

NYS Workers’ Compensation Board
328 State Street, Schenectady, NY 12305
(518) 486-9564 |

Confidentiality Notice: All contents of this message, including any attachments, may be confidential and/or legally privileged. Contents are intended for the recipient only. Any other use, dissemination or disclosure is unauthorized. If you are not the intended recipient, please notify the sender and delete the message and any attachments immediately.

James Skelton
Vice President
American Arbitration Association
32 Old Slip, 33rd Floor, New York, NY 10005
T: 917 438 1562

Our office has moved. The new address is 32 Old Slip, 33rd fl, New York, NY 10005

The information in this transmittal (including attachments, if any) is privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this transmittal is prohibited except by or on behalf of the intended recipient. If you have received this transmittal in error, please notify me immediately by reply email and destroy all copies of the transmittal. Thank you.


Triable issue of fact on EIP issue April 22, 2018

TAM Med. Supply Corp. v Country Wide Ins. Co., 2018 NY Slip Op 50578(U)(App. Term 2d Dept. 2018)

“Although the accident occurred in Pennsylvania, the NF-2 form annexed to defendant’s cross motion states that plaintiff’s assignor resides in Bronx County. As a result, defendant’s cross motion for summary judgment should have been denied, because defendant failed to establish, as a matter of law, that plaintiff’s assignor is not an eligible injured person (see 11 NYCRR § 65-1.1 [d]).”

What probably happened here is that the Assignor was a stranger to the policy and Defendant tried to articulate that since the MVA occurred in PA and (arguably?) the EIP lived outside NY, there would be no coverage.  This would be a valid coverage defense if the facts played as out as above.  But… they did not.

An order granting a declaratory judgment suffices for affirmation in opposition April 22, 2018


Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 2018 NY Slip Op 50583(U)(App. Term 2d Dept. 2018)

(1) “The Supreme Court order granting defendant’s motion for summary judgment held that defendant had established its founded belief that there was no coverage for no-fault benefits arising out of the accident at issue because the collision had been a staged incident.”

(2) “Thereafter, based upon the orders in the Supreme Court declaratory judgment action, the Civil Court, by order entered October 16, 2015, denied plaintiff’s motion for summary judgment, finding that defendant has no duty to provide coverage for the accident at issue. Plaintiff appeals from the October 16, 2015 order of the Civil Court.”

(3) “While defendant did not proffer in the Civil Court an affirmation of its counsel or an affidavit in opposition to plaintiff’s motion, and defendant did not annex the Supreme Court orders as exhibits to any opposition papers, a court “may in general take judicial notice of matters [*2]of public record”

(4) “Consequently, in light of the Supreme Court’s orders and declaratory judgment, of which we take judicial notice, we find that the Civil Court properly denied plaintiff’s motion for summary judgment under the doctrines of res judicata and collateral estoppel”

(5) “[a]nd, upon a search of the record, we find that defendant established its entitlement to judgment as a matter of law. In view of the foregoing, we reach no other issue.”

This says it all I think.

Guideposts to vacate a trial default April 14, 2018

SZ Med., P.C. v Allstate Ins. Co., 2018 NY Slip Op 50497(U)(App. Term 2d Dept. 2018)

“Plaintiff has not demonstrated that the Civil Court’s denial of plaintiff’s request for an adjournment was an abuse of discretion (see Nieves v Tomonska, 306 AD2d 332 [2003]). Plaintiff did not show why it could not have been prepared to proceed on the day set for the trial of the then 11-year-old case, or why it had not attempted to obtain an adjournment in advance, or any other extenuating circumstances. Plaintiff also did not explain why it had waited seven months to move to vacate its default. ”

This in line with the defense cases where a carrier needs to present an excuse why their doctor cannot appear for trial and they cannot be ready.

DJ not collateral estoppel April 14, 2018

Active Care Med. Supply Corp. v Amica Mut. Ins. Co., 2018 NY Slip Op 50500(U)(App. Term 2d Dept. 2018)

The man who wrote the book glossed over the discussion of Magic Recovery in seeking to backdoor summary judgment win.  Sneaky.

“However, plaintiff herein was neither named nor served in the Supreme Court declaratory judgment action. Moreover, plaintiff was not in privity with the injured party, as the assignment of benefits had been executed before defendant commenced the declaratory judgment action. Thus, plaintiff had no full and fair opportunity to defend its interests in that action”