Lost wages not proven within a reasonable degree of certainty. July 31, 2017

Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911 (3d Dept. 2017)

Admittedly, I like the issue of lost wages.  I am convinced few practitioners understand all the nuances involved – I will not say more.  It is clearly an undeveloped area of no-fault law and seemingly all over the place.  Perhaps that is why I  bring these actions or arbitration – they are intellectually entertaining at times.

A firm upstate I tried a case involving medical bills (one week jury trial in Kingston) leads the charge on these cases.  Their results are quite good.   This one ended in a 3-2 decision ending in dismissal.  I hope Derek takes it up to the Court of Appeals, because it looks like a fascinating case.

The cliff-notes version of this case is that the EIP was unemployed when the accident occurred.  Prior to the accident, he was offered a job to run a parts plant.  He was unable to do so because of his accident.  The EIP projected a certain income on his claim forms.

The defense and the basis for summary judgment was that the job opportunity was a farse.  Various pieces of evidence, including documentary, deposition and FOIL responses proved (in the eyes of the Court) that the sought after job opportunity was unreasonable as a matter of law and Plaintiff’s claim of income at this job lacked legal merit.  The Court reversed Supreme Court and dismissed the complaint.

The dissent stated viewing the evidence in the light most favorable to the non-moving party, a rational fact finder could find the job opportunity legitimate and would have affirmed.

If this goes to the Court of Appeal, it is hard to figure out where they will go with this one.

Discovery granted/ Owner hailed into an EBT July 31, 2017

Dana Chiropractic, P.C. v USAA Cas. Ins. Co., 2017 NY Slip Op 50944(U)(App. Term 2d Dept. 2017)

(1) “In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial, and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery (see CPLR 3212 [f]).”

(2) “Contrary to plaintiff’s contention, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). ”

A sufficient showing was made warranting the owner to come in for an EBT


Sloppy EUO practice comes back to haunt Allstate July 31, 2017

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co., 2017 NY Slip Op 50939(U)(App. Term 2d Dept. 2017)

“In the papers submitted in support of its motion, defendant admitted receiving plaintiff’s claim form. In an affirmation, defendant’s counsel established that an initial EUO scheduling letter had been timely mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.5 [b]), but further demonstrated that the follow-up EUO scheduling letter had not been timely mailed (see 11 NYCRR 65-3.6 [b]). Contrary to defendant’s contention, 11 NYCRR 65-3.8 [l] specifically states that it does not apply to follow-up requests for verification. As a result, because defendant’s follow-up EUO scheduling letter was untimely, the NF-10 denial of claim form which defendant eventually sent was untimely. ”

When you are an “EUO firm” and you bill hourly, these are mistakes that make people cringe.

Mutual rescheduling issues July 31, 2017

Apple Massage Therapy, P.C. v Adirondack Ins. Exch., 2017 NY Slip Op 50935(U)(App. Term 2d Dept. 2017)

According to the affidavit submitted by defendant in support of its motion, the initial EUO had been rescheduled two times by mutual agreement, each time prior to the scheduled date. We do not consider a mutual rescheduling, which occurs prior to the date of a scheduled [*2]EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Consequently, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not establish as a matter of law that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As a result, the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at two duly scheduled EUOs should have been denied.”

Mutual rescheduling issues apparent from the fact of the documents.

Functional ATIC/ medial necessity and fee schedule defense susbstantiated July 31, 2017

Jaga Med. Servs., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50954(U)(App. Term 2d Dept. 2017)

(1) “In opposition to those branches of defendant’s cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”

(2) “Contrary to plaintiff’s contention, the affidavit executed by defendant’s expert professional coder, submitted in support of the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fifth causes of action, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in these causes of action (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]).”

Interesting observation from the motion papers.

(1) Peer review involved EMG/NCV: The opposition affidavit did not seem bad.   While it said a lot, however, it was totally not responsive to the peer report.

(2) Expert analysis involved ROM and MMT: Payable  per extremity and trunk.   The review again recommended less than what was actually paid.  There was no fee schedule opposition.