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The injuries are “not-related” peer review in a 5102(d) case November 11, 2017

Eason v Blacker, 2017 NY Slip Op 07674 (3d Dept. 2017)

This is an important case because it really gives the defendant who obtains the correct records ammunition to attack causal relationship claims.

(1) The notion of the peer review as fully and wholeheartedly now been accepted in 5102(d) practice.  Amazing.

“Defendants met their initial burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting a transcript of plaintiff’s deposition, his medical records and the affirmation of Robert Hendler, an orthopedic surgeon who rendered his opinion based on a review of plaintiff’s medical records without conducting a physical examination of plaintiff (see D’Auria v Kent, 80 AD3d 956, 957-958 [2011]; see also Franchini v Palmieri, 1 NY3d 536, 537 [2003]).”

(2) The ACL injury could not be related to the accident ** Powerful medical rationals**

“Hendler noted that, although an August 14, 2013 MRI depicted a possible partial ACL tear, subsequent arthroscopic surgery established that there was no ligament injury and that the knee was completely stable (see Scott v Aponte, 49 AD3d 1131, 1133 [2008]). Moreover, Hendler opined that, had plaintiff sustained an ACL injury on the date of the accident, he would have immediately experienced significant pain, and the fact that he did not seek treatment for several months after the accident is inconsistent with his claim of having sustained a knee injury

(3) Cannot even win on the spine – pre-existing verses current  condition

Although Episalla also concluded that plaintiff had a preexisting history of cervical and thoracic spine pain and degenerative disc disease, he failed to set forth any “objective medical evidence distinguishing [plaintiff’s] preexisting condition from the injuries claimed to have been caused by this accident”

(4) Diminished range of motion has no objective basis

“Furthermore, although records submitted by defendants document diminished ranges of motion in plaintiff’s cervical and thoracic spine and right knee, plaintiff submitted no objective medical evidence linking such limitations to the accident

Defaults… November 4, 2017

Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 51449(U)

“In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Carolyn E. Wade, J.), by order entered May 2, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, declining to consider plaintiff’s late opposition to the motion. Plaintiff subsequently moved, pursuant to CPLR 5015 (a) (1), to vacate the order entered May 2, 2011. Plaintiff appeals from an order of the Civil Court (Wavny Toussaint, J.), entered March 6, 2012, which denied that motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, as the excuse offered by plaintiff’s attorney was, in effect, that her late submission “was the result of her heavy workload,” which “amount[s] to nothing more than mere neglect, which is not accepted as an excusable default” (A.B. Med., PLLC v CNA Ins. Co., 46 Misc 3d 144[A], 2015 NY Slip Op 50199[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).”

It is one thing to give somebody enough rope to hang themselves.  It is another thing to be the hangman. Invariably, in 10 situations where a case is problematic, the former will occur a few times.   If I like the person or the firm, I will throw out a life raft and let them know what they did wrong so they can fix it before judgment day comes.  Otherwise, I will just be there for the ride and snicker to myself.  True story, really.

Here, the plaintiff’s papers were late and I am sure counsel for Defendant was not prejudiced.  I also know this particular counsel for Plaintiff will not go out his way to hurt people, so this type of behavior is troubling  Yet, counsel for Defendant affirmatively screamed out that the ridiculous briefing stipulation was breached and, therefore, Defendant would object to the answering papers.  Congratulations, you got a default and won on appeal.  Wait until the shoe is on the other foot young man.  The hangmen are waiting for you.

Court approves the chiro rate for Evaluation codes and consultation codes November 4, 2017

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 51460(U)(App. Term 2d Dept. 2017)

“By order entered September 3, 2014, the Civil Court granted plaintiff’s motion to the extent of awarding it $54.74 on its $80 claim for a service billed under CPT code 99203, based upon a workers’ compensation fee schedule reduction, denied the remainder of plaintiff’s motion, and granted the branches of defendant’s cross motion seeking to dismiss the remainder of the complaint, which sought to recover for services billed under CPT codes 97810 and 97811, and so much of the complaint as sought to recover the additional $25.26 on the claim for a service billed under CPT code 99203. Plaintiff appeals, arguing that its motion should have been granted in its entirety and that defendant’s cross motion should have been denied in its entirety.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its cross [*2]motion was sufficient to give rise to a presumption that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97810 and 97811 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”

In this case, State Farm did not pay the consultation or evaluation codes.  They were denied as out of scope.  The motion for summary judgment conceded the chiropractor rates.  Civil Court granted judgment as to those rates.  The Appellate Term found this type of after the fact determination was proper.

By-Report November 4, 2017

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2017 NY Slip Op 51452(U)(App. Term 2d Dept. 2017)

“It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not [*2]provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The record demonstrates that defendant received the claim form and that, with respect to the services at issue, its denial of the claim was based upon a failure to provide documentation. Plaintiff correctly argues that, because defendant never requested such documentation, defendant’s denial of claim form is without merit as a matter of law. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 should have been denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint should have been granted (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

It is hard not to have seen this result coming.  But it should be made clear that the failure to seek verification does not end the inquiry.  Assuming, as is usually the case, that verification is not sought, an expert review is necessary to determine the compensability, if any, of the service.  Similar to the failure to seek verification when the defense is lack of medical necessity, the provider can argue that the review is based upon an inadequate factual basis.

EUO no-show sustained November 4, 2017

Sharp View Diagnostic Imaging, P.C. v Esurance, 2017 NY Slip Op 51466(U)(App. Term 2d Dept. 2017)

The letter “delaying the bill” as opposed to the “letter seeking verification”

“Plaintiff argues on appeal that defendant improperly relied on letters that “did not seek any documents or information” from plaintiff in order to toll defendant’s time to pay or deny the claims at issue. However, defendant alleged that it had sent letters scheduling examinations under oath (EUOs) (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which letters were attached to defendant’s cross motion, and plaintiff has raised no issue with respect to the sufficiency of those letters (see Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).”

The Appellate Term in prior cases is to blame for allowing this argument to remain as that Court never delineated the former from the latter.  From what i have seen, a delay letter stating the bill is delayed for an EUO coupled with proof of the EUO letter addresses the issue. On a “no-show” case, the issue should not come up as the carrier needs to present all of this evidence to meet its case.

But when a bill is delayed for an EUO, the Assignor attends and the bill is denied on medical necessity grounds, this issue is more acute.  This is because the document prepared for the carrier – whether it be arbitration or litigation – will often rely on the bill delay, an assertion that the EIP attended the EUO, a denial and the peer-IME report.  Missing is the scheduling letter, proof of its mailing and the EUO transcript.