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Occupation of a vehicle implicated through rearranging items inside vehicle while standing outside of it March 18, 2010

Rosado v Hartford Fire Ins. Co., 2010 NY Slip Op 02119 (2d Dept. 2010)

“[An injured person was] standing with his feet on the pavement, reaching with his hands into a side bay of the delivery truck to rearrange empty cases of beer. When the box truck hit the plaintiff, it pushed him approximately 10 to 12 feet, pinning him between his delivery truck and the box truck, until he came to a stop against the first side bay of the truck on the driver’s side.”

“In accordance with the liberal interpretation afforded the term “occupying” (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639), we find, as a matter of law, that the injured plaintiff was “in” or “upon” the delivery truck at the time of the accident such that he was “occupying” the delivery truck within the meaning of the SUM endorsement”

Since the PIP case law seems to track the SUM case law as to use, occupation and operation, do we have an expansion of these terms of art?

Default vacated on CPLR 317 grounds March 18, 2010

Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50450(U)(App. Term 2d Dept. 2010)

“In support of defendant’s motion to vacate the default judgment, there was more than a “mere denial” of [*2]receipt of the summons and complaint (see Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). Defendant submitted an affidavit from one of its no-fault litigation examiners, who had personal knowledge regarding defendant’s practices and procedures in retrieving, opening and filing its mail and in maintaining its files on existing claims. In said affidavit, the no-fault litigation examiner stated that defendant had never received the summons, the complaint or the motion for a default judgment (cf. Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]). Accordingly, pursuant to CPLR 317, defendant met its burden of showing that it did not receive actual notice of the summons in time to defend the action.
Furthermore, defendant established the existence of a meritorious defense to the action. Defendant submitted an affidavit from its litigation examiner in which he stated that the assignor had cancelled her insurance policy with defendant prior to the date of the accident and had not subsequently taken out another insurance policy with defendant.”

As many people know, vacating a default in the Second Department based upon the allegation of the “non-receipt” of a summons and complaint is a daunting task.  The resolution is either a traverse hearing or an ordering denying the opening of the default.

NYCM used CPLR 317, together with a well written affidavit of non receipt, to allow the court to exercise its discretion to open the default.  As us New York procedural nerds know, this is not an easy task.  So, I tip my hat to the attorney who represented NYCM on this case.

The provider is under an extremely tight leash to explain why a bill was untimely submitted March 18, 2010

Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 2010 NY Slip Op 50449(U)(App. Term 2d Dept. 2010)

“The denial of claim form adequately advised plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that late submission of the claim would be excused if plaintiff provided a reasonable justification for the failure to timely submit the claim. Although the record reveals that plaintiff promptly submitted its claim to defendant after its initial claim [*2]was denied by another insurance carrier, plaintiff failed to proffer any explanation as to why it first submitted the claim to the other insurance carrier. As a result, plaintiff failed to provide defendant with a reasonable justification for plaintiff’s untimely submission of the claim to defendant (see St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748 [2005]; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). Accordingly, the order, insofar as appealed from, is affirmed.”

The 30-day and 45-day rules are potential death traps for the providers.

EUO scheduling letters must be sent within the same time frame that exists for verifying bills March 18, 2010

St. Vincent Med. Care, P.C. v Travelers Ins. Co., 2010 NY Slip Op 50446(U)(App. Term 2d Dept. 2010)

“While defendant properly argues that an EUO need not be scheduled to be held within 30 days of the receipt of the claim form (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [App Term, 2d & 11th Jud Dists 2008]), defendant nevertheless failed to demonstrate that the EUO scheduling letters were timely mailed. Defendant admits that it received the three subject bills on October 27, 2006. As the EUO scheduling letters were mailed on December 18, 2006, 52 days after receipt of the bills, they were untimely and did not toll defendant’s time to pay or deny those bills (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]; § 65-3.8 [j]; see also Eagle Surgical Supply, Inc., 21 Misc 3d at 51).”

Keep in mind the following.  When you delay a bill for an EUO, the provider must receive a delay letter specifying that the claim is being delayed pending the EUO of the EIP or assignee.  A follow-up delay with respect to that bill must be sent within 31-40 days after that first delay letter is sent.  This must be done for each bill!

Now, the EUO scheduling letters that the carrier’s attorney sends or the carrier itself  sends must also be sent within 15-30 days of receipt of the first bill.  After the first no-show, a follow-up EUO scheduling letter must be sent within 10 days of the said no-show.

In putting the above two rules together, it should be observed that if a bill is timely delayed for an EUO, yet the EUO scheduling letter is not sent within 15-30 days after receipt of the bill, then the EUO delay will be invalid.  This is very confusing, and I think the proposed new regulations actually clarify this very discreet issue, and perhaps this issue only as it relates to EUOs.

Inconsistent opinions regarding range of motion fee-schedule denials March 18, 2010

St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 2010 NY Slip Op 50444(U)(App. Term 2d Dept. 2010)

“Defendant also established that it had timely denied the two $365.68 claims (plaintiff’s fourth and seventh causes of action) on the ground that the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Consequently, defendant raised a triable issue of fact with respect to the fourth and seventh causes of action (see St. Vincent’s Med. Care, P.C. v Country-Wide Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op 29508 [App Term, 2d, 11th & 13th Jud Dists 2009]).”

Compare, First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 2010 NY Slip Op 50149(U)(App. Term 2d Dept. 2010), which I discussed here.

Same facts, yet different result than that found in First Aid Occupational Therapy, PLLC.

Range of Motion (ROM) and Manual muscle (MM) testing are compensable services, and the argument raised in the above cases lacks merit.  What you must understand, however, is that MM is limited to being billed as one unit at either CPT Code 95833 or CPT Code 95844.  It cannot be billed at 95831 * each body part.  ROM is per body section, and can be billed numerous times, subject to other collateral issues that are out there.  You can contact me if you want my other thoughts.