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May an insurance carrier's expert offer an opinion beyond the confines of his peer or IME report? July 1, 2009

In affirming the denial of plaintiff’s summary judgment motion, the Appellate Term, First Department in Krishna v Liberty Mut. Ins. Co. 2009 NY Slip Op 51312(U)(App. Term 1st Dept. 2009) reiterated its position (Response Medical Equipment v. General Assur. Co.13 Misc.3d 129[A][App. Term 1st Dept. 2006]; Mollins v. Allstate Ins. Co.20 Misc.3d 141[A][App. Term 1st Dept. 2008]) that an insurance carrier’s expert may comment on medical evidence not contained in a peer report or IME report in support of its lack of medical necessity defense.

The pertinent portion of the Krishna opinion states the following: “The initial peer review report relied upon by defendant, as amplified upon defendant’s receipt of additional documentation from plaintiff regarding his claim, set forth sufficient facts to raise a triable issue as to the medical necessity of the health services and diagnostic tests performed by plaintiff. “

Priority of payment disputes must be adjudicated through Ins. Law 5105 intercompany arbitration July 1, 2009

The law is simple: Disputes involving whether an insurance carrier in a no-fault coverage dispute is primary, secondary, or tertiary must be resolved through intercompany arbitration. This fact pattern was presented four years ago in SZ Medical, P.C. v. Lancer Ins. Co., 7 Misc.3d 86 (App. Term 2d Dept. 2005) and was again presented in M.N. Dental Diagnostics, P.C. v Government Employees Ins. Co., 2009 NY Slip Op 29266(App. Term 1st Dept. 2009).

Workers Compensation defense June 30, 2009

I would be remiss if I did not thank Dave Barshay for the citation to this blog in his article. I also must thank David Gottlieb for posting Mr. Barshay’s citation to this article on his blog. While I am not sure it is really critical that you read this blog, despite what Mr. Gottlieb says to the contrary, I thank him for the compliment nonetheless. Now that the peremptory “thank yous” are out of the way, now onto the cases.

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 29271 (App. Term 2d Dept. 2009)

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 51262(U)(App. Term 2d Dept. 2009)

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 51263(U)(App. Term 2d Dept. 2009)

Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. 2009 NY Slip Op 51264(U)(App. Term 2d Dept. 2009)

The day after the no-fault wrap up, the Appellate Term, Second Department issued a slue of opinions regarding the Workers Compensation defense, which was consistent with what Mr. Barshay’s article stated. Again, I discussed this issue on a previous blog post.

However, when the issue is phrased in light of the “exceptional” circumstance of non-coverage, as recently opined upon by the Court of Appeals in Fair Price, the Workers Compensation defense is waivbale.

However, when this issue is evaluated through the prism of “standing”, the Appellate Division’s conclusion may not be correct. As the law stands right now, a service rendered by an independent contractor or an improperly formed medical corporation is not subject to the “preclusion” sanction, through the failure to timely or properly deny a claim. This is because an independent contractor and an improperly formed corporation lacks standing to prosecute a no-fault claim. It thus follows that based upon 65-3.19, the Workers Compensation defense, in relation to a claim for medical benefits, should not be subject to the 30-day pay or deny rule. This follows from the simple conclusion that an injured person and his or her assignee lack standing to prosecute such a first-party no-fault claim for medical benefits.

The above standing analysis in no way applies to wage benefits, since the regulations explicitly state that no-fault wage coverage is secondary to Workers Compensation wage coverage.

Conclusory affidavits will not defeat an insurance carrier’s summary judgment motion June 18, 2009

Bronze Acupuncture, P.C. v Mercury Ins. Co.
2009 NY Slip Op 51219(U)(App. Term 2d Dept. 2009)

This case hints at what a medical provider must proffer in its answering papers to stave off an insurance carrier’s summary judgment motion, based upon the lack of medical necessity of a rendered service.

In this case, a conclusory or boilerplate affidavit attesting to a service’s lack of medical necessity is insufficient to raise an issue of fact.

Here is the holding:

“The papers submitted by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff’s treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity.”

This should be compared to the operative language inPark Slope Medical and Surgical Supply Inc. v. New York Central Mut. Fire Ins. 22 Misc.3d 141(A)(App. Term 2d Dept. 2009) , where the court held the following: “[p]laintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity.”

The next question will be what facts are sufficient to support the conclusion that a service is medically necessary. I guarantee it is not going to be the regurgitation of the documents a peer review doctor examined. I also guarantee it is not going to be the boilerplate one size fits all affidavit we saw in Park Slope, which we can probably now say is bad law.

I know there will be many more of these types of appeals, and this issue will be answered at some time in the future.

Conclusory affidavits will not defeat an insurance carrier's summary judgment motion June 18, 2009

Bronze Acupuncture, P.C. v Mercury Ins. Co.
2009 NY Slip Op 51219(U)(App. Term 2d Dept. 2009)

This case hints at what a medical provider must proffer in its answering papers to stave off an insurance carrier’s summary judgment motion, based upon the lack of medical necessity of a rendered service.

In this case, a conclusory or boilerplate affidavit attesting to a service’s lack of medical necessity is insufficient to raise an issue of fact.

Here is the holding:

“The papers submitted by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff’s treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity.”

This should be compared to the operative language inPark Slope Medical and Surgical Supply Inc. v. New York Central Mut. Fire Ins. 22 Misc.3d 141(A)(App. Term 2d Dept. 2009) , where the court held the following: “[p]laintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity.”

The next question will be what facts are sufficient to support the conclusion that a service is medically necessary. I guarantee it is not going to be the regurgitation of the documents a peer review doctor examined. I also guarantee it is not going to be the boilerplate one size fits all affidavit we saw in Park Slope, which we can probably now say is bad law.

I know there will be many more of these types of appeals, and this issue will be answered at some time in the future.