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A conflict at the worst possible time for interest February 20, 2009

I will save the commentary for another time, or another blog. My thoughts of the self-destructive behavior of attorneys probably belongs in an article I should write for the “journal of sociology”, which academics publish from time to time. I almost remember a theory in one of my criminology classes that was called “labeling theory”. In short, people live up to their labels. This is no exception.

On the law, the Appellate Division has now held that interest commences from the filing of a lawsuit if a bill is denied. Thus, all one needs to do is demonstrate that a denial was mailed before a lawsuit is commenced and pre-suit interest has just disappeared. This is completely in variance with the regulations which state that interest will toll upon issuance of a denial and re-commence after a suit or arbitration is commenced.

Thus assume a 2003 date of service that was submitted at that time. The bill is denied in 2007 and suit is commenced in 2009. The regulations, as I always understood them, stated that Applicant would be entitled to 4 years interest. The clock would then stop until 2009. In 2009, the clock would re-commence.

The Appellate Division has now held, in the above hypothetical, that the 2007 denial now wipes out all pre-suit interest. It is an interesting interpretation. From a policy standpoint, it makes sense since quick resolutions of disputed bills are the purported hallmark of no-fault. We all know that is false, in practice. But taken to its logical apex, the decision remains faithful to that intent.

The problem is that text which is clear on its face needs to be interpreeted as written, even in the face of a legislative intent that says otherwise. Be it as it may, this was a gift nobody probably saw coming.

Now to the central holding of East Acupuncture:

East Acupuncture, P.C. v Allstate Ins. Co.
2009 NY Slip Op 01191 (2d Dept. 2009)

“Accordingly, the Appellate Term properly determined that interest pursuant to Insurance Law § 5106(a) did not begin to accrue on the claims that were untimely denied by Allstate until East Acupuncture filed its complaint. Thus, the Appellate Term properly reversed the order of the Civil Court and remitted the matter for the new interest calculation. “

A radiologist’s detailed analysis of an MRI film is sufficient to show lack of causal relation February 15, 2009

Valentin v Pomilla
2009 NY Slip Op 00981 (1st Dept. 2009)

“Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting a radiologist’s affirmed report that plaintiff’s MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures (see Perez v Hilarion, 36 AD3d 536, 537 [2007]). In opposition, plaintiff failed to raise an inference that his injury was caused by the accident (see Diaz v Anasco, 38 AD3d 295 [2007]) by not refuting defendants’ evidence of a preexisting degenerative condition of the spine. Missing from all of plaintiff’s submissions is any mention of the congenital defect at the S1 vertebral level and degenerative condition of plaintiff’s lumbar spine reported by Dr. Eisenstadt or the preexisting degenerative changes in his right knee and degenerative meniscal tears in both posterior horns of both menisci reported by plaintiff’s own experts, Drs. Lubin and Rose, in their initial evaluation of plaintiff’s right knee shortly after the accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]).

A radiologist's detailed analysis of an MRI film is sufficient to show lack of causal relation February 15, 2009

Valentin v Pomilla
2009 NY Slip Op 00981 (1st Dept. 2009)

“Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting a radiologist’s affirmed report that plaintiff’s MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures (see Perez v Hilarion, 36 AD3d 536, 537 [2007]). In opposition, plaintiff failed to raise an inference that his injury was caused by the accident (see Diaz v Anasco, 38 AD3d 295 [2007]) by not refuting defendants’ evidence of a preexisting degenerative condition of the spine. Missing from all of plaintiff’s submissions is any mention of the congenital defect at the S1 vertebral level and degenerative condition of plaintiff’s lumbar spine reported by Dr. Eisenstadt or the preexisting degenerative changes in his right knee and degenerative meniscal tears in both posterior horns of both menisci reported by plaintiff’s own experts, Drs. Lubin and Rose, in their initial evaluation of plaintiff’s right knee shortly after the accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]).

The causal relation defense – yay and nay January 25, 2009

First as to yay – an “APPEAL AND OPINION” from the First Department
Delfino v Luzon
2009 NY Slip Op 00317 (1st Dept. 2009)

The defense radiologist’s review of an MRI film of plaintiff’s left shoulder, taken 17 days after the accident, showed normal osseous structures, labrum, deltoid muscle, and biceps tendon, and no rotator cuff [*2]injury, tendinitis, osteochondral defect or fracture. There was some fluid in the acromioclavicular joint, which the radiologist believed would “resolve without intervention due to the absence of any ligamentous, osseous, or tendinous etiology.” An MRI film of plaintiff’s lumbar spine, taken six weeks after the accident, was normal, other than dessication and bulging at the L5 transitional S1 vertebral level, which resulted from a condition with which plaintiff was born. The radiologist stated that the dessication could not have occurred during the interval between the accident and the examination, but rather was “indicative of pre-existing, degenerative change likely associated with the congenital variant.” Similarly, the bulging was “related to ligamentous laxity” and was “degenerative in nature.” Notably, there were no osseous, ligamentous, or intervertebral disc changes of recent or post-traumatic origin.

(Plaintiff expert does not address degenration – only 5102[d] factors – i.e., normal ROM, etc.)

Now this is where Plaintiff went wrong:

“More importantly, plaintiff’s expert did not even address, let alone rebut, the objectively substantiated findings of defendant’s experts that plaintiff’s conditions are congenital and degenerative, and therefore did not raise a triable issue of fact as to causation (see Mullings v Huntwork, 26 AD3d 214, 216 [2006]). In addition, plaintiff’s expert did not attempt to reconcile his conclusory assertion that the shoulder surgery was necessitated by accident-related injuries with the MRI report describing the shoulder as “unremarkable” other than “fluid and/or soft tissue inflammation surrounding the acromioclavicular joint.””

Now as to Nay – an “APPEAL AND OPINION” from the Second Department

Allstate’s counsel argued, without a supporting affidavit from a medical expert, that these code-defined conditions could not have been related to the automobile accident or, at least, raised an issue of fact as to whether the conditions arose from the accident.

This Court determined that in applying Central General Hospital, “the question of whether an injury was entirely preexisting (i.e., not covered) or was in whole or in part the result of an insured accident (i.e., covered) is hybrid in nature, and cannot be resolved without recourse to the medical facts” (id. at 19 [emphasis added]).

While the existence of the diagnostic codes and the clinical definitions of Hafford’s treated medical conditions may not be in dispute, the question of whether such conditions were wholly unrelated to his automobile accident or not exacerbated by the accident “cannot be resolved without recourse to medical facts” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Here, Allstate’s counsel, in his affirmation, failed to set forth any basis on which to conclude that he was a medical expert qualified to render an opinion on causality (see Contacare, Inc. v CIBA-Geigy Corp., 49 AD3d 1215; Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). No physician or other medical expert affidavit was included in Allstate’s submissions to explain the codes, the diagnoses and, most importantly, the causation or exacerbation, or lack of causation or exacerbation of conditions, in relation to the subject automobile accident. The mere deciphered codes, in and of themselves, are insufficient.

The remaining coded conditions, which on their face might appear unrelated to an automobile accident, could conceivably represent exacerbations of pre-existing conditions in the absence of expert medical opinion attesting otherwise. Exacerbations of pre-existing conditions are covered by the No-Fault Law (see Wolf v Holyoke Mut. Ins. Co., 3 AD3d 660, 660-661; Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 18).

Allstate’s submissions therefore suffer from an inescapable paradox. If the diagnostic codes pertain to conditions unrelated to Hafford’s accident, Allstate was required to submit an affidavit from a medical expert (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). If, on the other hand, the diagnostic codes represent conditions related to the accident, then Allstate was required to either pay the no-fault claim, or deny payment on other grounds, within 30 days of receiving the demand.

So here you go: You need an affidavit based upon the medical facts to prima facie demonstrate lack of causation. In opposition to a properly supported motion, you need an equally specific affidavit.

Estoppel through Box #16 January 25, 2009

Some practioners called Box #16 the trap box. Hit independent contractor and you are dead. I always said wait a second. Just resubmit the bill, give a justification and you should get around the 45-day rule. However, do not make the mistake too often or the 45-day rule may become absolute. I also have said that on certain fee code issues, i.e., the “BR” codes, the same rule applies. Resubmit with the pertinent documentation and you should be alright.

Yet, there was always a displeasure I has towards Box #16 issues when the Claimant decided to fight the independent contractor issue through affidavit. The reason, as the Appellate Term said, was that all other defenses would be waived.

A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co.
2008 NYSlipOp 28528 (App. Term 2d Dept. 2008)

“In the case at bar, the claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant. Plaintiff did not submit bills that entitled it to payment, and correction of the defect involved herein should not be permitted once litigation has been commenced”

The Court then said something which I found fasciniating and I think can be used in a litany of situations:

“An insurer should be able to rely on the assertions in the claim form, and, in keeping with the aim of “provid[ing] substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), should be able to handle a claim for services rendered by an independent contractor accordingly without engaging in further consideration of the claim. An insurer is not obliged to issue a denial in order to assert the non-precludable, independent contractor defense. Consequently, if a provider were to be permitted to demonstrate during litigation that the claim form was incorrect and services were, in fact, rendered by an employee, not only would the insurer, which exercised its option not to expend further efforts to defend a facially meritless claim, have lost its opportunity to conduct meaningful claims verification, but also its decision not to issue a denial would result in its preclusion from introducing most defenses”