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April 2019 (add 18 months for no-fault): a new fee schedule January 15, 2019

The text of the amendments.

Some good things have come from the new Workers Compensation Fee Schedule Changes.

First, chiropractors cannot leave their fee schedule. Perhaps nothing was more cumbersome than seeing creative chiropractic billing.

Second, ROM/MTT/PFT are dead. I guess the computerized ROM was part of the initial comprehensive visit after all. Bad joke.

Third, Manipulation Under Anesthesia is gone. I wish this billing machine went away sooner and would be exempt from the 18 month regulator holiday.

Fourth, the pricing of EMG/NCVs are about 50% of what they are currently. More importantly, the surface EMGs and every type of name for them (CPT/neurometer/PFNCS) are gone. Good to see these billing magnets de-polarized.

Fifth, various physical medicine modality providers are getting pay raises. While this will adversely effect paid premium dollar, it makes sense if only because major medical compensates at or near $100 per diem for physical therapy. A good physical therapy facility is worth every dollar of this pay raise. What is problematic here is that no-fault does not contain any co-pays or “real” deductibles, which causes product over-utilization. This in turn causes the proliferation of “heat and stim” clinics. The deletion of the 180-day/12 session rule from proposed Ground Rule 2 will only exacerbate the over utilization of resources that are endemic in the no-fault system.

Sixth, the 8 unit rule (and associated per diem unit rules) is distinct for each provider from what I read. Assuming each unit represents 15 minutes of care, I seriously challenge someone to tell me that an EIP really received 16 units of treatment per diem. The winners here will be the providers, the lawyers representing the providers, the defense counsel who will perform the time-based treatment EUO per patient, the IME doctors who will be needed to cut off treatment earlier and the RICO firms who will use mail fraud and health care fraud as the predicate acts in support of the substantive and inchoate racketeering allegations.

Seventh, I believe there are myriad other fee-coding changes, which I have not studied nor held side-by-side to the current fee schedule.

My biggest concern here is that allowing a pay raise without resource allotment (i.e treatment guidelines) will probably cause average claim pay outs to exceed $20k assuming current treatment trends continue. The comments from WCB place this potential inferno into DFS’ lap.

The 18 month holiday regulation: “any such increases shall not be effective for no-fault until eighteen months after the effective date of the increases established by the chair.” 11 NYCRR § 68.1

Please note that 68.1(b) expired, and DFS may be working on new implementing regulations. Sta tuned.

Junk science? December 27, 2018

Imran v R. Barany Monuments, Inc., 2018 NY Slip Op 08921 (2d Dept. 2018)

(1) “On June 5, 2015, the matter proceeded to a jury trial on the issue of damages against the defendants. During that trial, the defendants presented the testimony of a biomechanical engineering expert, Joseph McGowan. McGowan testified regarding delta-v, which is the change in velocity of a vehicle during a collision. Relying on certain photographs of the vehicle occupied by the plaintiff, a Honda CR-V, and the second front-most vehicle, a Ford Focus, which struck the Honda CR-V, damage repair estimates for both vehicles, and a crash test involving a Honda CR-V, McGowan concluded that the delta-v for the collision between the two vehicles was 5.7 miles per hour. He then utilized different crash tests to determine what happens to occupants in crashes with a similar delta-v. He concluded that the impact from the second front-most vehicle to the vehicle occupied by the plaintiff would not have caused the plaintiff’s alleged injuries to the lumbar region of her spine or her knees.

(2) Thereafter, the jury returned a verdict in favor of the defendants on the issue of damages, finding that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) [*2]as a result of the accident. Subsequently, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial, arguing, inter alia, that McGowan’s testimony on causation should have been precluded. The Supreme Court granted the motion, and the defendants appeal.

(3) Under the circumstances of this case, we agree with the Supreme Court’s determination to grant the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages (see Dovberg v Lauback, 154 AD3d 810). “An expert’s opinion must be based on facts in the record or personally known to the witness'” (Pascocello v Jibone, 161 AD3d 516, 516, quoting Hambsch v New York City Tr. Auth., 63 NY2d 723, 725). Here, a proper foundation was lacking for the admission of McGowan’s opinion (see Parker v Mobil Oil Corp., 7 NY3d 434, 447). Among other things, McGowan failed to calculate the force exerted by all four vehicles, the crash test he utilized to determine the delta-v differed in several significant respects from the instant accident, and he reviewed simulations in which the weight of the dummies was not similar to that of the plaintiff.

Biomechanical engineers are dangerous because, as seen above, they can use alternative facts to come to conclusions that spell disaster on causation claims. I have to give the trial judge credit for reflecting after the proverbial “**** storm” hit and setting aside the verdict. It was a brave move on his part. Not a good case to appeal for the carrier, and definitely the first real push back we have seem from the Appellate Division in a long time on this issue.

Exhaustion: To be decided another day December 26, 2018

Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 2018 NY Slip Op 08641 (2d Dept. 2018)

” Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650, quoting Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017; see Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047; Matter of Chin v State Farm Ins. Co., 73 AD3d 918, 919). Here, the petitioner failed to demonstrate any ground for vacating the master arbitration award. The determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis (see 11 NYCRR 65-4.10[a][2]; Matter of Brijmohan v State [*2]Farm Ins. Co., 92 NY2d 821, 823; Countrywide Ins. Co. v Sawh,272 AD2d 245, 245). ” It is not for [the court] to decide whether the [master] arbitrator erred [in applying the applicable law]'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d at 650, quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535). “

Priority of payment analysis will await.

Threshold not required December 22, 2018

Gore v Cardany, 2018 NY Slip Op 08632 (2d Dept. 2018)

“The plaintiff has the burden of establishing damages for past and future lost earnings with reasonable certainty (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris v City of New York, 2 AD3d 782, 784). A plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law § 5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a]; Thomas v Cefola, 99 AD3d 986, 987).”

Here is a case that addresses the issue better –

“While plaintiffs correctly contend that they need not await the full $50,000 payout for basic economic losses from their   first-party no-fault policy before making a claim under Insurance Law § 5102 (a) for those additional economic losses that exceed the basic economic loss threshold, they still failed to establish that plaintiff’s total economic losses here did actually “exceed basic economic loss””  Wilson v Colosimo, 101 A.D.3d 1765, 1767 (4th Dept. 2012)

Use and Operation December 22, 2018

Matter of GEICO Ins. Co. v Rice, 2018 NY Slip Op 08651 (2d Dept. 2018)


“Upon approaching the vehicle, Rice placed his hand into a partially opened window to unlock the door, at which point the vehicle moved forward and dragged Rice along the roadway.”

“The term “occupying” was defined in the policy as “in, upon, entering into, or exiting from a motor vehicle.” This policy language was not ambiguous, and GEICO was entitled to enforce the provision to disclaim coverage (see Matter of Government Empls. Ins. Co. v Avelar, 108 AD3d 672Matter of USAA Cas. Ins. Co. v Cook, 84 AD3d 825, 826; Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d 486, 487-488; see generally Baughman v Merchants Mut. Ins. Co., 87 NY2d 589, 592; Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864-865). Here, GEICO made a prima facie showing that Rice was “occupying” his own vehicle and not the vehicle insured by GEICO under his mother’s policy”

Use, operation and occupation.  Always poses interesting questions.