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Suboptimal effort? November 25, 2019

Morales v Cabral, 2019 NY Slip Op 08516 (1st Dept. 2019)

” Defendant Morales established prima facie that plaintiff did not sustain a serious injury to her cervical spine, lumbar spine or left shoulder in the June 2014 automobile accident through the reports of physicians who examined plaintiff and found no indications of limitations in use of the subject body parts. Although one examiner measured limitations in motion, she opined that these were subjective and unrelated to any objective evidence of injury (see Macdelinne F. v Jimenez, 126 AD3d 549, 551 [1st Dept 2015]). Morales also submitted radiologists’ reports finding either no injury or preexisting conditions and an emergency room medical expert’s finding that plaintiff’s post-accident complaints and treatment were inconsistent with her claims (see De La Rosa v Okwan, 146 AD3d 644 [1st Dept 2017], lv denied 29 NY3d 908 [2017]). Morales further relied on records of plaintiff’s primary care physician, which reflect no contemporaneous complaints by plaintiff and show that plaintiff had a normal range of motion a year after the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]). The physician’s records also show that plaintiff ceased treating at that time (see Pommells v Perez, 4 NY3d 566, 574 [2005]).”

Wrong expert November 24, 2019

Perez v Riverdale Family Med. Practice, P.C., 2019 NY Slip Op 08514 (!st Dept. 2019)

” Plaintiffs’ expert failed to profess personal knowledge of the standard of care in the field of emergency medicine, whether acquired through practice, studies or in some other manner (see Nguyen v Dorce, 125 AD3d 571, 572 [1st Dept 2015]). In any event, the expert offered only conclusory assertions and mere speculation that decedent’s aortic dissection would have been successfully diagnosed and treated had NYPH referred her for a pulmonary or cardiac consult”

Fee schedule is not precluded/ New Jersey FS discussion November 24, 2019

Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 2019 NY Slip Op 51843(U)(App. Term 2d Dept. 2019)

Well, this one has been written before, not in this manner.

” While plaintiff argues that defendant failed to establish that it had timely mailed its denial of claim form, 11 NYCRR 65-3.8 (g) (1) (ii), effective April 1, 2013 (see 11 NYCRR 65-3.8 [g] [2]), provides that “no payment shall be due for . . . claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (see also Oleg’s Acupuncture, P.C. v Hereford Ins. [*2]Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). As the services at issue were provided on February 9, 2015, defendant was not required to establish that it had timely denied the claim in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; Precious Acupuncture Care, P.C. v Hereford Ins. Co., 58 Misc 3d 147[A], 2018 NY Slip Op 50042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018])

(2) ”  Upon a review of the record, we find that the coder’s affidavit was sufficient to establish, prima facie, that defendant had fully paid the claim submitted by the New Jersey provider in accordance with the New Jersey medical fee schedule (see 11 NYCRR 68.6 [b], [c]) “

The 120-day rule November 24, 2019

Chapa Prods. Corp. v MVAIC, 2019 NY Slip Op 29341 (App. Term 2d Dept. 2019)

It can be called the 150-day rule. In essence the carrier has 150 days from the first verification demand to the date of denial. What i found interesting is that a late denial does not void the defense under a Domotor theory. Rather, a late disclaimer only makes the dismissal without prejudice. I agree with the central holding since it makes sense. New York has a 30-day pay or deny/die rule. So, you cannot argue with this new rule of no-fault law.

I am grateful that the Court appears not to be accepting a nondescript affidavit that certain items were mailed: “However, we agree with the Civil Court’s determination that the documentation plaintiff provided in response to defendant’s verification requests is “not in compliance with the request” (see New Way Med. Supply Corp. v State Farm Mut. Auto Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017])”.

As you know, the famous non descrip affidavit has caused many carrier motions to be denied. I disagreed with those holdings.

The Court went on and held as follows:

“Historically, an insurer has not been required to pay or deny claims upon receipt of a “partial response” to a verification request (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002] [“(a)n insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested”]; see also Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co.,24 AD3d 492, 493 [2005]; Compas Med., P.C. v Travelers Ins. Co., 53 Misc 3d 136[A], 2016 NY Slip Op 51441[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). The current version of 11 NYCRR 65-3.8 (b) (3) also does not obligate an insurer to pay or deny a claim prior to its receipt of all requested verification—it merely provides that an insurer “may” issue a denial. Previously, when a request for verification had not been fully complied with prior to the commencement of a no-fault action, the action was dismissed as premature (see Proscan Imaging, P.C. v Travelers Indem. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51176[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), and we see no reason to deviate from that rule now.”

“In light of the foregoing, we hold that a denial of claim form issued following the expiration of the 150-day period after the issuance of the initial request for verification is a nullity with respect to that defense. Therefore, we find that the untimely denials issued in this case offer no basis to dismiss the complaint with prejudice. Rather, upon searching the record, we conclude that the action should be dismissed as premature, i.e., without prejudice, which is the same position the parties would have been in before 11 NYCRR 65-3.8 (b) (3) was amended to permit a denial on the ground that verification was not provided.”

Certified Professional Coder November 24, 2019

“Contrary to plaintiff’s contention, the affidavit executed by defendant’s certified medical coder, submitted in support of defendant’s motion, established that, to the extent that plaintiff sought to recover fees in excess of $425.88 for each bill, the amount sought exceeded the amount permitted by the workers’ compensation fee schedule (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). “

I think we can say “enough said”