8 units per diem – the Workers Compensation Board has spoken February 14, 2018

First, I must give a hat tip to an unnamed source at DFS who (1) Reads my blog; (2) Listens to me lament about certain court decisions; and (3) Has been very helpful about addressing the no-fault issues that I feel are unjust.  Since this person probably does not want his/her name published, I will decline to do same.

This comes from Arbitrator Gewurz in the case of  21st Physical v. Geico (17-16-1037-6496)

To summarize:  the 8 PT units can be split between specialties – but never more than 8 per day.  CMT codes do not count to a non-chiro’s 8 unit allowance.

“Recently, however, the NYS Workers’ Compensation Board clarified the “8 unit rule.” In email correspondence from Heather MacMaster, Deputy General Counsel for the NYS Workers’ Compensation Board, to Chris Maloney at the Department of Financial Services, dated 01/30/18, it was explained that “[t]he 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.”

The WCB guidance is mostly consistent with this Arbitrator’s prior interpretation. Eight units are eight units unless treatment is rendered by a medical doctor/physical therapist/occupational therapist and chiropractor on the same day. In that circumstance, the chiropractor may be reimbursed a maximum of 8 units of spinal manipulation (CPT codes 98940-98943) even when a medical doctor/physical therapist/occupational therapist has already been reimbursed 8 units.  Here, the Respondent received claims from Hills Chiropractic PC for the same dates of service as the Applicant. Hills submitted claims for reimbursement of three CPT codes: 98940, 97112, and 97140. Per date of service, the Respondent reimbursed Hills for 8 units and said units were directed towards CPT codes 98940 and 97140. Code 98940 was reimbursed in full and received 4.57 units while 97140 was partially reimbursed and received 3.43. No reimbursement was provided for CPT code 97112. The balances were denied based on the “8 unit rule.” Thereafter, the Respondent partially reimbursed the Applicant for its billed-for physical medicine modalities rendered on the same dates of service and denied the balances for the same reason as the balance of 8 units was paid to Hills. A total of 4.57 relative value units for self-employed physical therapists were reimbursed per date of service. Under the WCB’s recent guidance, the Respondent engaged in a legally valid distribution of 8 units of physical medicine modalities excluding chiropractic spinal manipulation between the two providers.”

If you have questions, you can write me, retain me or call me 🙂


20-days means just that February 10, 2018

Matter of Ameriprise Ins. Co. v Sandy  2018 NY Slip Op 00828 (2d Dept. 2018)

“Where an insurance policy contains an agreement to arbitrate, CPLR 7503 (c) requires a party, once served with a [notice of intention to arbitrate], to move to stay such arbitration within 20 days of service of such [notice], else he or she is precluded from objecting'” (Matter of Government Empls. Ins. Co. v Castillo-Gomez, 34 AD3d 477, 478, quoting Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082, 1084). Here, the proceeding was not commenced within 20 days of the receipt of the November 2, 2015, notice of intention to arbitrate.

In order for the 20-day limitation period to be enforceable, the notice of intention to arbitrate must comply with the requirements of CPLR 7503(c) (see Government Empls. Ins. Co. v Castillo-Gomez, 34 AD3d at 478; Matter of Nassau Ins. Co. [Clemente], 100 AD2d 969, 970; State Farm Mut. Auto. Ins. Co. v Szwec, 36 AD2d 863, 863). Here, contrary to Ameriprise’s contention, the November 2, 2015, notice complied with all the statutory requirements.

Ameriprise failed to establish that the November 2, 2015, notice of intention to arbitrate was deceptive and intended to prevent it from timely contesting the issue of arbitrability ”

I think Ameriprise wants the legal fees the expended back.

New evidence used in reply – an angry court appears February 10, 2018

Matter of Hereford Ins. Co. v Vazquez,  2018 NY Slip Op 00909 (1st Dept. 2018)

“In reply, Hereford submitted documents demonstrating that the Mercedes had been sold to Lyons three days before the accident, and insured by State Farm under the same policy number previously identified, effective the same date.

Absent any surprise or prejudice to State Farm, which was aware that Hereford alleged that it had insured the Mercedes under a specified policy and which did not seek to submit a surreply, the motion court providently exercised its discretion in considering the documents submitted by Hereford in reply (see Matter of Kennelly v Mobius Realty Holdings, LLC, 33 AD3d 380, 381-382 [1st Dept 2006]; Kelsol Diamond Co. v Stuart Lerner, Inc., 286 AD2d 586, 587 [1st Dept 2001]; Jones v Geoghan, 61 AD3d 638, 640 [2d Dept 2009]). Notably, Hereford could have sought leave to amend the petition based on the same documents, leading to the same outcome (see Matter of Allcity Ins. Co. [Russo], 199 AD2d 88 [1st Dept 1993]; see also Matter of Government Empls. Ins. Co. v Albino, 91 AD3d 870, 871 [2d Dept 2012]).

Since Hereford met its burden of showing “sufficient evidentiary facts” to establish a “genuine preliminary issue” justifying the stay, the motion court properly stayed arbitration [*2]pending a trial of the threshold issue of coverage”

This is the definition of the “I got you appeal” because you missed something in your moving papers that were remedied in your reply papers which the movant knew about.  On a more wholesale level, this type of case bespeaks how uncivilized the practice of law has become.  It has become more about trying to hurt your opponent on procedural niceties (thereby winning) than resolving cases on the merits.  As people, we should evolve.  I was going through an opp that violated 2106 a few months ago.  you know what I did?  Emailed the plaintiff and told him to fix it.

I am sad the carrier is going to pay counsel for this appeal or even allowed this appeal to go forward.  Hereford is not an evil or malicious carrier.  Anyway, this type of win at all costs brought us Unitrin v. NY Medical.  Same firm on both cases – anomaly?  Karma has a way of catching up with us.



Interest was not tolled February 8, 2018

Eagle Surgical Supply, Inc. v Country-Wide Ins. Co., 2018 NY Slip Op 50157(U)(App. Term 2d Dept, 2018)

“The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $1,131.68 and, among other things, no-fault statutory prejudgment interest from January 8, 2007. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

No-fault statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accrue when the action is commenced (see 11 NYCRR 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [d]). While a significant amount of time elapsed between the commencement of this action and the trial, defendant did not adequately demonstrate to the Civil Court, and there was nothing in the record to indicate, the reason for the protracted delay or that it was plaintiff which had “unreasonably delay[ed]” the action”

An appeal that really went nowhere February 8, 2018

Pro-Med Med., P.C. v MVAIC, 2018 NY Slip Op 50152(U)(App. Term 2d Dept, 2018)

I remember a certain attorney who worked at the within Plaintiff firm ([s]he will be nameless for purpose for anonymity) once told me a story about some MVAIC disaster case with an old default, tons of compounded interest and an exasperated defense attorney.  Prior counsel for MVAIC I think made an OSC that did not go anywhere.   Apparently, the new MVAIC defense firm believed that they could vacate this default.  Do pigs fly?  I would say MVAIC would want their money back, but the legal fees at whatever the hourly rate new counsel charged is nothing compared to the judgment amount.  Compound interest folks.

By the way, did anyone talk to the third named partner at 11 Grace Avenue in the Village of Great Neck to see if he would shave some money of the judgment before engaging in what I can tell was an insane OSC and  appeal?  And I mean insane: Crazy Eddy Style…  We all know what happened to Eddy Antar?

“Defendant’s motion was based upon allegations that it had first learned of the action in 2014 and first learned of the judgment in 2015, but those allegations were based neither on personal knowledge nor, apparently, on defendant’s records. Defendant’s claims manager alleged that defendant’s files had been scanned into a computer system in 2006 and implied that the documentation relevant to this claim had not been scanned. He specifically alleged that defendant “has no documentation whatsoever with which to evaluate this claim.” Thus, defendant has not demonstrated that it has a reasonable excuse for its default or a meritorious defense to the action.”

I guess now we seek leave to go the Appellate Division?  Why not… the clock is ticking