Objective reasons? February 20, 2017

Parisien v Metlife Auto & Home, 2017 NY Slip Op 50208(U)(App. Term 2d Dept, 2017)

“Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claims” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Barakat Med. Care, P.C. v Nationwide Ins. Co., 49 Misc 3d 147[A], 2015 NY Slip Op 51677[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

Compare this to the more common scenario where the plaintiff objects or requests a reason for the EUO.  c.f American Transit Ins. Co. v. Jaga Med. Servics, P.C.

Judicial Notice has it outter limits February 20, 2017

Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207(U)(App. Term 2d Dept. 2017)

I am unsure what was supposed to be accomplished with this appeal.  I hope the carrier demands a refund of their legal bill on this case.

“[t]he parties stipulated that plaintiff had established its prima facie case and that defendant had timely denied the claims at issue.”

“After the trial court marked as exhibits documents which included two pages of a workers’ compensation medical fee schedule, the claim forms and the denial of claim forms, the trial began and plaintiff immediately rested. Defendant then stated that it did not have a witness to testify regarding the fee schedule. Defendant asked the court to take judicial notice of the workers’ compensation fee schedule and rested. The Civil Court granted judgment to plaintiff, stating only that defendant had failed to proffer a witness. It is unclear whether the court took judicial notice of the workers’ compensation fee schedule.”

Now we all know this was affirmed, right?  Now you do.

“While a court is permitted to take judicial notice of, among other things, the workers’ compensation fee schedule (see CPLR 4511 [b]; LVOV Acupuncture, P.C. v GEICO Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), the party seeking to have the court take judicial notice should provide the court with sufficient information to comply with the request (see CPLR 4511 [b]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]) and demonstrate that it “has given each adverse party notice of [its] intention to request it” (CPLR 4511 [b]). Even if the Civil Court had taken judicial notice of the workers’ compensation fee schedule, the fee schedule does not, in and of itself, establish that [*2]defendant properly utilized the codes set forth within the workers’ compensation fee schedule to calculate the amount which plaintiff was entitled to recover for each service rendered (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; cf. Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]). In addition, defendant also proffered no evidence to prove that the claim at issue in the fifth cause of action had been properly reduced by virtue of a $200 deductible.”

The Court cited Natural Acupuncture Health with a “c.f.”  A review of the record shows that the carrier presented the affidavit of a claims representative demonstrating why certain codes were paid at a certain amount.  With a prima facie stip, all the carrier had to do was either (1) Bring down a claim rep; or (2) Hire an expert coder to explain why the reduction was correct.  In scenario two, you would lose the $200 deductible argument, but that was clearly now the crux of this case.  Just a silly appeal.


Innocent third-party under PA law February 20, 2017

Island Life Chiropractic, P.C. v Infinity Group, 2017 NY Slip Op 27040 (App. Term 2d Dept. 2017)

I do not normally post about PA-NY choice of law issues on here, but I have seen a trend of appeals where Infinity has gotten a little too “trigger happy” in disclaiming coverage.  This is the second or third case I have recently seen on this issue.  Parenthetically, PA has hourly attorneys fees when a claim is “wrongfully” disclaimed.  I am trusting my memory on that one – not taking the time to research- but this case should spawn a $10,000 attorney fee for Island Life, provided they make a prima facie case in accordance with PA law.

“Under Pennsylvania law, an insurer has a common-law right to rescind a policy of automobile insurance (see 40 P.S. §§ 991.2002, 991.2004; Erie Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]; Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 [1991]). The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a material misrepresentation, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (see Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687). In the case at bar, the papers defendant submitted in support of its motion set forth no facts tending to demonstrate that the assignor was anything other than an innocent third party. Consequently, defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint as a matter of law.”


Unwelcome visitors at an IME February 16, 2017

Henderson v Ross, 2017 NY Slip Op 01186 (2d Dept. 2016)

For some reason, American Transit (AT) has this inchoate fear of visitors at IMEs that their doctors perform.  This fear has materialized into rampant litigation on the issue of whether a Plaintiff’s attorney or paralegal/support staff that is affiliated with a Plaintiff’s attorney is allowed to to attend an IME.  I would say that in light of the Dr. Katz and Dr. Israel events of 3-4 years ago (and there is a myriad of interpretations of what really happened that I am not going to opine upon on this blog), one would think that more transparency is better than less.

How many times has a Claimant stated the “IME was 3 minutes”?   Do I believe that Claimant?  Without proof, who is to say.  I know many really awesome IME practitioners who I have referred friends to treat with because their integrity and acumen is second to none.  I also know a few IME practitioners that downright scare me and I cringe when I see them in Court (on a PIP or a BI case).

AT disagrees in transparency and the First Department in a prior post on here agreed with AT.  The Second Department has now said otherwise, and I think the Second Department got it right.

“A plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” (Ponce v Health Ins. Plan of Greater N.Y., 100 AD2d 963, 964; see Guerra v McBean, 127 AD3d 462, 462; A.W. v County of Oneida, 34 AD3d 1236, 1237-1238; see also Bermejo v New York City Health & Hosps. Corp., 135 AD3d 116, 143). Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination (see Guerra v McBean, 127 AD3d [*2]at 462; Flores v Vescera, 105 AD3d 1340, 1340-1341; A.W. v County of Oneida, 34 AD3d at 1238; see also Lamendola v Slocum, 148 AD2d 781, 781-782; cf. Kattaria v Rosado, _____ AD3d _____, 2017 NY Slip Op 00091 [1st Dept 2017]). Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination.”

Expect this to go to the Court of Appeals.

A DJ to nowhere February 15, 2017

Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 2017 NY Slip Op 00916 (1st Dept. 2016)

“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5(b) and 11 NYCRR 65-3.6(b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms.

The Court has delimited the proof necessary to demonstrate that a no show is timely, relative to the receipt of billing.  Manoo involved verification of treatment forms that were dated after the EUO letters, showing timeliness on its fact.  An affidavit from a claims representative expressing when billing per provider or per claim was received would be the “other evidence reflective of the dates on which plaintiff had received any such verification forms”.  The Court held in this manner in AT v. Vance and AT v. Longevity.

In light of the caselaw that has been established since 2015, this perfection of this appeal seemed strange as the result was preordained, and there does not appear anything in the face of this opinion that would cause a shift in the law.  Plus with Manoo at the Court of Appeals, the vitality of Unitrin may or may not be dead by years end.