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Another arbitration only rule bites the dust March 23, 2019

Matter of Global Liberty Ins. Co. v Medco Tech, Inc., 2019 NY Slip Op 02167 (1st Dept 2019)

” Respondent seeks from petitioner no-fault insurance benefits for medical equipment that respondent provided to its assignor, who was involved in a motor vehicle accident. In denying respondent’s claim, petitioner relied on a peer review report that concluded, based on a review of the medical records, that the assignor’s condition was degenerative in nature and not post-traumatic and therefore that the surgery undergone by the assignor was “not medically necessary in relation to the accident” (emphasis supplied). The arbitral award must be vacated and a de novo hearing held, because, on the record before us, as argued, it would be irrational to conclude that the need for the subject medical equipment was causally related to the accident (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [2d Dept 1999]; Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50589[U] [App Term, 1st Dept 2013]). “

I always ask myself what is it that causes me to appeal certain cases. Sometimes, it is pure curiosity, sometimes it is because the lower arbitrator did such a horrible job that I cannot see record support for the award and other times it is because the lower fact finder created a legal precedent that is completely without legal support. You can figure that my level of success in categories number one and two are minimal. Category two represents the cases that are most personal to me (e.g., Miller v Elrac) and are heart-breakers because AAA just got the cases wrong. As to category three, I have gotten some bites, as can be seen here.

The issue in this case represented the perfect storm. Arbitrator Resko was not able to make a factual determination based upon the master arbitrator rule stating that post-surgical DME peer reviews and IMEs must make reference to the DME in order to be valid. That was not done here. An award was entered in favor of the Applicant. The master arbitrator gave it the Petrofsky “seal of approval” and I bounced into Supreme Court. FYI – the master arbitration program is a disgrace, but I can discuss that off-line.

My issue had nothing to do with this applicant, law firm or my dislike towards CPM and some of the abuses I see with extremity surgery billing. Some people think these appeals are personal, but this was not. It was based upon a rule of law that I found not well reasoned and I will say was “stupid”. I was hesitant about appealing this, but I went to an arbitration, saw a certain law firm with many surgery cases “cite” to voluminous master awards involving this issue and I said to myself that I should pull the trigger. The beneficiary of this rule will probably be Geico and Allstate given their presence in the market. But, I never want to see this rule applied in any of my cases. I got my wish.

If you look at the oral arguments, my main point is that that the medical necessity or causal relationship should not be barred due to a made up rule that runs counter to established precedent. I told one of the judges I do not even care if I win or lose at the end, just apply a rational precedent. The Court agreed. My bill for this case? Satisfaction that reason prevailed.

Verification March 20, 2019

New Horizon Surgical Ctr., L.L.C. v Travelers Ins., 2019 NY Slip Op 50281(U)(App. Term 2d Dept. 2019)

“In opposition to the motion, plaintiff submitted an affidavit which stated that all of the verification requested by defendant was provided to defendant and that a copy of the verification provided was annexed. Among the documents annexed was a medical report in which the treating provider stated that plaintiff’s assignor had signed a “separate, comprehensive Informed Consent Form which has been made a portion of the patient’s chart.” Defendant’s verification request included a request for a signed informed consent form executed by plaintiff’s assignor. However, no such document was annexed to plaintiff’s papers as having been provided to defendant. Thus, plaintiff failed to raise an issue of fact as to whether it had provided all of the requested verification.”

When an affidavit with no exhibits stating that Plaintiff complied with the verification, a triable issue of fact is raised. Here, the Plaintiff presented supporting documentation but failed to annex one item. The affidavit stated all verification was sent to Defendant. The result is that the complaint is dismissed.

Now, I agree with the result in this case. How do you reconcile this matter with the consistent denial of summary judgment motions when nothing is submitted with the affidavit?

Discovery March 20, 2019

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co., 2019 NY Slip Op 50273(U)(App. Term 2d Dept. 2019)

“Defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, the notice of trial and certificate of readiness should be vacated (see Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).”

Discovery, especially depositions, is potent because it can really increase the transactional costs of litigating all types of matters. The current fee structure of handling litigation on all sides makes discovery the exception and not the rule. An in house firm gets a flat rate to handle a file. If more cases go the deposition route, then more labor will be spent on motion practice and conducting depositions. An hourly firm would obviously salivate at this type of strategy but no insurance carrier really wants to pay $7,000-$10,000 in litigation expenses on a PIP case. So, from the defense side, this strategy just cannot work.

The Plaintiffs only lose money since they receive a stat attorney and usually some amount of principle and interest regardless of the amount of work put into a file. Assuming full discovery, their margins are hammered. Point is full court discovery cannot make sense in the current environment.

Use of Social Security Findings to establish a threshold injury March 20, 2019

Savilo v Denner, 2019 NY Slip Op 01972 (4th Dept. 2019)

Plaintiff lost his threshold motion, which are common in the Fourth Department based upon their rules of establishing liability. But this was an interesting tidbit. ” Although plaintiff submitted a decision of the Social Security Administration in which an administrative law judge (ALJ) concluded that, since the date of the accident, plaintiff has a disability within the meaning of the Social Security [*2]Act, that conclusion was based on the ALJ’s finding that plaintiff has a degenerative disc disease. We therefore conclude that plaintiff was not entitled to judgment as a matter of law with respect to the permanent consequential limitation of use and significant limitation of use categories.”

The what-if’s are mind boggling.

Pre-existing injuries insufficient March 20, 2019

Dixon v Kone, 2019 NY Slip Op 02041 (1st Dept, 2019)

” Defendants submitted, among other things, plaintiff’s deposition testimony, acknowledging that he previously had fusion surgery in his cervical spine, and reports of their radiologist who, consistent with plaintiff’s own radiologists, found that MRIs and CT scans performed approximately seven years before the accident showed significant degenerative disc disease in his cervical and lumbar spine (see Rivera v Fernandez & Ulloa Auto Group, 123 AD3d 509 [1st Dept 2014], affd 25 NY3d 1222 [2015]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd24 NY3d 1191 [2015]). Defendants’ orthopedist and neurologist found no current symptoms related to the accident, but only symptoms related to the preexisting conditions, and their emergency medicine expert found no indication of traumatic injury in plaintiff’s hospital records from the day of the accident (see Moore-Brown v Sofi Hacking Corp., 151 AD3d 567 [1st Dept 2017]).

In opposition, plaintiff failed to raise a triable issue of fact. He submitted medical records, which also confirmed his preexisting conditions, and the report of a physician who examined him two years after the accident. Although the physician acknowledged plaintiff’s prior surgery, preexisting degenerative conditions, and continuing pre-accident treatment, he failed to explain why plaintiff’s alleged injuries were not caused by the preexisting conditions, or to provide any basis for finding an aggravation of those injuries”

Plaintiff’s expert was required here to look at current MRIs and opine that there was signs of trauma or that that dark spots in the MRI could be aggravated through the motor vehicle accident